California Court of Appeal Jul 24, 2025 No. E085564MUnpublished
Filed 7/23/25 In re J.G. CA4/2 (unmodified opinion attached) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.G., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E085564
Plaintiff and Respondent, (Super.Ct.No. J296919)
v. ORDER MODIFYING OPINION T. G., [NO CHANGE IN JUDGMENT] Defendant and Appellant.
THE COURT
The opinion filed in this matter on July 11, 2025, is modified as follows:
On page 15, following the last paragraph of the disposition, a new paragraph will
read:
Upon remand, Father will be notified and reappointed counsel. The court’s
ultimate decision regarding ICWA and California implementing provisions must be
1
entered at a noticed hearing where the parents and their counsel are permitted to
Filed 7/11/25 In re J.G. CA4/2 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.G., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E085564
Plaintiff and Respondent, (Super.Ct.No. J296919)
v. OPINION
T. G.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed in part; conditionally reversed in part.
Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant
and Appellant.
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for
Plaintiff and Respondent.
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I. INTRODUCTION
T.G. (Father) is the biological father of J.G. Father appeals from an order
terminating his parental rights pursuant to Welfare and Institutions Code1 section 366.26,
as well as an order denying a petition for reinstatement of reunification services pursuant
to section 388. He asserts two claims of error on appeal: (1) the juvenile court erred
when it summarily denied his section 388 petition without an evidentiary hearing; and
(2) the order terminating parental rights must be reversed because the San Bernardino
County Children and Family Services (CFS) failed to fulfill its inquiry duties under the
Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) as defined in section 224.2,
subdivision (b).
We conclude that the juvenile court did not abuse its discretion in denying
Father’s section 388 petition without an evidentiary hearing and affirm that order.
However, we conclude that the record is insufficient to show that an adequate ICWA
inquiry was conducted in support of the juvenile court’s finding that ICWA does not
apply. Thus, we conditionally reverse the order terminating Father’s parental rights and
remand the matter for further proceedings.
II. BACKGROUND
Father and C.Z. (Mother) are the biological parents of J.G. In 2023, J.G. was
detained after reports he had been physically abused by Mother and his stepfather, as well
as reports of domestic violence and substance abuse in the home. Father was
1 Undesignated statutory references are to the Welfare and Institutions Code.
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incarcerated at the time. CFS filed a petition on J.G.’s behalf pursuant to section 300,
alleging that J.G. was at serious risk of physical harm and emotional damage as the result
of Mother’s direct physical abuse of J.G., substance abuse, untreated mental health
issues, domestic violence in the home, and failure to protect J.G. from physical abuse
committed by his stepfather. With respect to Father, the petition alleged his inability or
failure to protect J.G. despite the fact that he knew or should have known J.G. was at
substantial risk of harm.
In January 2024, the juvenile court held a jurisdictional and dispositional hearing;
sustained the allegations of the petition;2 removed J.G. from Mother’s and Father’s
custody; and granted both parents reunification services. With respect to Father, the
anticipated reunification services included completion of a domestic violence program,
parenting education program, individual therapy, and substance abuse services. Father
was also granted visitation with J.G. upon his release from incarceration.
In June 2024, the juvenile court held a review hearing pursuant to section 366.21,
subdivisions (e) and (f).3 According to the status review report, social workers had
prepared to refer Father to the reunification services set forth in his case plan upon his
release from custody. However, Father was reincarcerated within 48 hours of his release
as the result of a probation violation, and remained in custody at the time of the review
2 At CFS’s request, the juvenile court dismissed allegations related to the infliction of emotional abuse on J.G. but sustained the remainder of the allegations.
3 The review hearings were combined as a result of the delay between the time of detention and the dispositional hearing.
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hearing. CFS reported that Father had initially participated in phone visits with J.G. but
had not participated in such visits for several months as of the time of the hearing. As a
result, the juvenile court terminated reunification services and scheduled a hearing
pursuant to section 366.26.
In October 2024, CFS filed a section 366.26 report. With respect to Father, CFS
reported that he had been released from custody sometime between June 26, 2024 and
August 2024. Since his release from custody, Father had participated in two in-person
visits with J.G. However, the social worker observed that the contact appeared no more
than a friendly visit, since Father had not seen J.G. since J.G. was a baby. As a result, the
social worker opined that J.G. did not appear to have a psychological or emotional
attachment to Father.
On January 6, 2025, one day before the scheduled section 366.26 hearing,4 Father
filed a petition pursuant to section 388. Father requested that J.G. be transitioned to his
custody with increased visitation or, alternatively, that the juvenile court reinstate
reunification services. With respect to changed circumstances, Father alleged that:
(1) he was no longer incarcerated; (2) he had completed one parenting class while
incarcerated; (3) he was “working on getting enrolled in a substance abuse class”; (4) he
“plan[ned] on enrolling in college or a trade program soon”; and (5) he has had one good
visit with J.G. Father also expressed changes in his general philosophy with respect to
4 Father’s counsel declared a conflict shortly after CFS filed its section 366.26 report. As a result, the juvenile court was required to appoint new counsel, and the section 366.26 hearing was continued to January 2025.
4
parenting and life. Additionally, he attached a computer printout showing he had also
completed an anger management class while incarcerated. With respect to J.G.’s best
interests, Father alleged that (1) “[i]t would be better because my son needs to be with his
biological parents”; (2) he had always maintained a positive and supportive relationship
with J.G.; (3) he had maintained regular phone contact with J.G.; and (4) J.G. would
benefit from maintaining relationships with his extended paternal family members. The
juvenile court summarily denied the petition without a hearing.
On January 7, 2025, the juvenile court held a contested section 366.26 hearing. At
the hearing, Father requested the juvenile court reconsider his section 388 petition, and
the juvenile court permitted the parties to argue the matter. Father’s counsel conceded
that, as of the time of the hearing, Father had yet to complete all of the services originally
set forth in his case plan but argued that Father had not had sufficient time to do so as a
result of his incarceration. In response to an inquiry by the juvenile court, counsel for
CFS opined that it was unlikely J.G. would be reunified with Father even if Father were
granted additional reunification services. The juvenile court denied the petition and, after
receiving evidence and argument in a contested section 366.26 hearing, terminated
parental rights.
Father appeals from the order denying his section 388 petition and from the order
terminating his parental rights.
III. DISCUSSION
In this appeal, Father asserts two claims of error: (1) the juvenile court abused its
discretion when it denied his section 388 petition without an evidentiary hearing; and (2)
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the juvenile court’s finding that ICWA does not apply is not supported by substantial
evidence. For the reasons set forth below, we affirm the order denying Father’s section
388 petition but conditionally reverse the order terminating Father’s parental rights to
permit CFS and the juvenile court to conduct further inquiry related to J.G.’s potential
status as an Indian child.
A. Section 388 Petition
1. General Legal Principles and Standard of Review
“Section 388 allows a parent to petition to change, modify, or set aside any
previous juvenile court order. [Citation.] ‘The petitioner has the burden of showing by a
preponderance of the evidence (1) that there is new evidence or a change of
circumstances and (2) that the proposed modification would be in the best interests of the
child.’ ” (In re J.M. (2020) 50 Cal.App.5th 833, 845; § 388, subd. (a).) “The juvenile
court has discretion whether to provide a hearing on a petition alleging changed
circumstances.” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) However, a
“ ‘ “parent need only make a prima facie showing to trigger the right to proceed by way
of a full hearing.” ’ ” (Id. at p. 432.) “If the liberally construed allegations of the petition
do not show changed circumstances such that the child’s best interests will be promoted
by the proposed change of order, the dependency court need not order a hearing.” (In re
Anthony W. (2001) 87 Cal.App.4th 246, 250; Cal. Rules of Court, rule 5.570(d)(1).)
“We normally review the grant or denial of a section 388 petition for an abuse of
discretion.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) This includes the juvenile
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court’s summary denial of a section 388 petition without a hearing. (In re C.J.W. (2007)
157 Cal.App.4th 1075, 1079.)
2. Application
Here, Father’s petition alleged that circumstances had changed warranting
reinstatement of reunification services because he had been released from custody, had
completed some classes while incarcerated, was in the process of attempting to enroll in
additional programs to help address issues identified in his initial reunification case plan,
and had generally changed his philosophy on parenting and life. However, Father’s
initial reunification case plan contemplated completion of a domestic violence program,
parenting education program, individual therapy, and substance abuse services. And
even at the time Father brought his petition, Father’s counsel conceded that Father had
yet to complete significant portions of his case plan.5 Under these circumstances, the
juvenile court could reasonably conclude that the petition did not show a sufficient
change in circumstances warranting modification of the prior order terminating
reunification services.
It is true, as Father argues in reply, that the statute does not require a parent to
show a complete resolution of all issues in order show the threshold changed
circumstances necessary to trigger an evidentiary hearing on a section 388 petition.
5 Even without this concession, some of the changed circumstances alleged in the petition constituted only expressions of Father’s intent to address certain issues in the future, stating only that Father was “working on getting enrolled” in a substance abuse program; he had only just started his first therapy session; and that Father “plan[ned] to” take courses to address his employment prospects.
7
However, as this court has explained, “ ‘[n]ot every change in circumstance can justify
modification of a prior order,’ ” and “[t]he change in circumstances supporting a section
388 petition must be material.” (In re N.F. (2021) 68 Cal.App.5th 112, 120-121; see In
re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [“To support a section 388 petition, the
change in circumstances must be substantial.”].) Where facts that show merely “
‘changing,’ ” but not yet “ ‘changed,’ ” circumstances, they may not be sufficiently
material to support a modification order under section 388. (In re N.F., at p. 121, fn. 3;
In re Carl R. (2005) 128 Cal.App.4th 1051, 1072 [showing only that “the circumstances
were changing” is “insufficient to warrant a hearing on a section 388 modification
petition”].)
Here, Father’s completion of parenting and anger management courses during his
incarceration as well as release from custody certainly suggests that circumstances might
be changing. However, the record also shows that Father had been released from custody
for nearly six months before bringing his section 388 petition seeking reinstatement of
reunification services on the eve of the section 366.26 hearing. And Father’s petition
alleged very few concrete steps that had been taken during that time. The juvenile court
could reasonably conclude that the steps taken during and up to the time of Father’s
release from custody were not sufficiently significant or material to constitute changed
circumstances in light of this intervening period. On this record, we find no abuse of
discretion in the juvenile court’s decision to deny Father’s section 388 petition without an
evidentiary hearing on the ground that the allegations of the petition, even if accepted as
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true, did not show sufficiently changed circumstances warranting modification of the
prior order terminating reunification services.
While the juvenile court never reached the issue,6 we also briefly observe that,
even if Father had shown changed circumstances warranting modification of the juvenile
court’s visitation order, the allegations of his petition, even if accepted as true, did not
sufficiently address how reinstatement of reunification services at this point in the
dependency proceedings would be in J.G.’s best interest. (In re G.B., supra,
227 Cal.App.4th at p. 1157 [“[T]he parent must sufficiently allege both a change in
circumstances or new evidence and the promotion of the child’s best interests,” and “[a]
prima facie case is made if the allegations demonstrate that these two elements are
supported by probable cause.”]; In re Justice P. (2004) 123 Cal.App.4th 181, 191
[“[S]ection 388 contemplates that a petitioner make a prima facie showing of both
elements to trigger an evidentiary hearing on the petition.”]; Cal. Rules of Court, rule
5.570(d)(1) [A juvenile court may deny a petition under section 388, subdivision (a) ex
6 Because the juvenile court denied the petition without making any findings related to the best interests of J.G., we need not address Father’s argument that the juvenile court abused its discretion by purportedly relying on an opinion expressed by CFS’s counsel during argument regarding the likelihood of reunification in the future. Even assuming reliance on county counsel’s argument would have been error, the likelihood of reunification is relevant to the issue of whether a modification would be in J.G.’s best interest. (See In re Jayden M. (2023) 93 Cal.App.5th 1261, 1273 [Generally, if reunification is not possible, then “offering reunification services that are destined to fail is not in the child’s best interest.”].) And, because the juvenile court ultimately denied the petition solely based upon the failure to establish a material change in circumstances, Father could not have been prejudiced by any alleged error such that reversal would be required. (See In re J.P. (2017) 15 Cal.App.5th 789, 799-800 [Error related to consideration of a § 388 petition is subject to harmless error analysis.].)
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parte if the petition “fails to state a change of circumstance or new evidence that may
require a change of order . . . or fails to show that the requested modification would
promote the best interest of the child . . . .”].)
By the time Father brought his section 388 petition, reunification services had
already been terminated for approximately six months. And “[o]nce reunification
services are terminated . . . , the focus of the proceedings changes from family
reunification to the child’s interest in permanence and stability,” and this becomes the
focus of any best interest analysis in a section 388 petition. (In re G.B., supra,
227 Cal.App.4th at p. 1163; In re Stephanie M. (1994) 7 Cal.4th 295, 317 [“After the
termination of reunification services,” the “ ‘focus shifts to the needs of the child for
permanency and stability . . . .’ ”].)7
With respect to J.G.’s best interest, Father’s petition alleged that he had an
emotional bond with J.G. and, as a result, J.G. “needs to be with his biological parents”;
7 Father urges that any best interest analysis must be conducted applying the factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519, which include the seriousness of the problem leading to dependency, the reason that problem was not overcome, the strength of relative bonds between the dependent child and both parent and caretaker, the degree to which the problem may be easily removed or ameliorated, and the degree to which the problem has actually been ameliorated. We question the continued vitality of Kimberly F. as the same court that issued that decision has since recognized that its analysis “ ‘fails to give full consideration to [the] shift in focus’ ” mandated by our Supreme Court in Stephanie M. (In re J.C. (2014) 226 Cal.App.4th 503, 527.) Regardless, we observe that Father’s petition never actually addressed the Kimberly F. factors in support of its best interest allegations. Notably, Father did not allege that the problems leading to dependency were minor, did not assert that those problems had been overcome, did not allege that the strength of his bond with J.G. was greater than J.G.’s bond with caretakers, and did not allege that the remaining issues to be addressed in reunification were ones that could easily be remediated. Thus, even under Kimberly F., the petition did not state a sufficient prima facie showing of best interests.
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“would . . . be able to have relationships with our extended family”; and “deserves to
have [Father] and [Father’s] extended family in his life.” In other words, Father’s
allegations related to J.G.’s best interest focused entirely on the benefit of potential
family reunification. In our view, such allegations, even if accepted as true, were simply
not enough to show that J.G.’s best interests would be served by reinstating reunification
services on the eve of a section 366.26 hearing. Our Supreme Court made clear in In re
Stephanie M. that there is a substantive shift in focus away from family reunification and
toward the need for permanency and stability when conducting a best interest analysis
after the termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at
p. 317.) This analysis would have no meaning if merely asserting a potential for family
reunification was itself sufficient to constitute a showing that the child’s permanency and
stability would be promoted by the modification of a prior order, as Father now claims on
appeal.
Here, other than the assertion that J.G. might benefit from a potential future family
reunification, there were no allegations to explain how reinstatement of reunification
would result in greater permanency or stability for J.G. at this late stage of the
proceedings and no allegations that J.G. would suffer any type of detriment if the
dependency proceedings continued in the normal course. Thus, even accepting the
allegations of Father’s petition as true, the petition did not state a prima facie case that
reinstatement of reunification services would be in J.G.’s best interest, and it was not an
abuse of discretion for the juvenile court to deny the petition without conducting an
evidentiary hearing.
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B. ICWA
Father also contends that the order terminating parental rights must be
conditionally reversed because CFS failed to comply with its duties under the ICWA.
For the reasons set forth below, we agree.
1. General Legal Principles and Standard of Review
Generally, “Congress enacted ICWA . . . to address concerns regarding the
separation of Indian children from their tribes through adoption or foster care placement
. . . . ICWA established minimum standards for state courts to follow before removing
Indian children from their families and placing them in foster care or adoptive homes.”
(In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) And section 224.2 creates three distinct
duties regarding ICWA in dependency proceedings: (1) a duty of initial inquiry to ask all
involved persons whether a dependent child may be an Indian child; (2) a duty to make
further inquiries if the initial duty discloses a reason t believe the dependent child may be
an Indian child; and (3) a duty to provide formal notice to tribal entities when any inquiry
results in a reason to know a dependent child is an Indian child. (In re D.S., at p. 1052;
§ 224.2)
Following the inquiry stages, the juvenile court may make a finding that ICWA
does not apply because the department’s inquiry and due diligence was “ ‘proper and
adequate’ but no ‘reason to know’ whether the child is an Indian child was discovered.”
(In re D.S., supra, 46 Cal.App.5th at p. 1050.) Our Supreme Court has recently said that
“a juvenile court’s fact-specific determination that an [ICWA] inquiry is adequate,
proper, and duly diligent is ‘a quintessentially discretionary function’ [citation] subject to
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deferential standard of review.” (In re Dezi C. (2024) 16 Cal. 5th 1112, 1141.)
Therefore, we review the juvenile court’s determination that the ICWA inquiry in this
case was adequate for abuse of discretion.
2. Application
Here, during the inquiry stages, J.G.’s paternal grandparents expressed the belief
they had native American ancestry associated with specific tribal entities, including the
“Blackfoot” and “Cherokee” tribes. The parties agree that these statements triggered a
duty of further inquiry under section 224.2. And, CFS concedes, and we agree, that the
record does not contain sufficient evidence to support the conclusion that its inquiry was
reasonable or adequate—at least with respect to J.G.’s potential affiliation with one of the
tribal entities identified by paternal grandparents.
Error resulting in an inadequate ICWA inquiry “requires conditional reversal with
directions for the child welfare agency to comply with the inquiry requirement of section
224.2, document its inquiry in compliance . . . , and when necessary, comply with the
notice provision of section 224.3.” (In re Dezi C., supra, 16 Cal.5th at p. 1136; In re
Kenneth D. (2024) 16 Cal.5th 1087, 1102 [“[W]here the parties do not dispute that the
ICWA inquiry was inadequate, [a juvenile court’s finding] cannot stand.”].)
Because any error resulting in an inadequate ICWA inquiry requires conditional
reversal, it is unnecessary for us to address CFS’s argument that its inquiry with respect
to at least one of the tribal entities should be considered sufficient with respect to that
entity. With respect to the adequacy of CFS’s inquiry, section 224.2 contemplates only
that the juvenile court make an ultimate finding regarding whether ICWA applies to the
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proceeding—not specific findings related to each tribal entity. (§ 224.2, subd. (i)(2).)
And because the juvenile court’s duty with respect to ensuring ICWA compliance is a
continuing duty (In re Isaiah W. (2016) 1 Cal.5th 1, 10), it is required to reassess the
adequacy of any inquiry efforts whenever it receives new information bearing on the
issue (§ 224.2, subd. (i)(2)).
We do not know what additional information might be disclosed upon reasonable
further inquiry or whether that information might require reasonable steps to further
investigate J.G.’s possible affiliation with both identified tribal entities or even tribal
entities that have yet to be disclosed. Thus, it is unnecessary to opine on the adequacy of
efforts with respect to only one specific tribal entity where reversal for further inquiry is
already required. Regardless of our view on the matter, the juvenile court is required to
hold a new hearing upon remand to consider the ultimate issue of whether ICWA applies
after considering the totality of the circumstances at the time of the hearing and
determining whether any additional inquiry efforts by CFS have resulted in a “proper,
adequate, and duly diligent” inquiry in compliance with section 224.2. (In re Dezi C.,
supra, 16 Cal.5th at p. 1137.)
IV. DISPOSITION
The order denying Father’s section 388 petition is affirmed. The order terminating
parental rights is conditionally reversed and remanded to the juvenile court for
compliance with the inquiry and notice requirements of sections 224.2 and 224.3 and the
documentation provisions of Rules of Court, rule 5.481(a)(5). If the juvenile court
thereafter finds that a proper and adequate further inquiry and due diligence have been
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conducted, and concludes ICWA does not apply, then the juvenile court shall reinstate
the order terminating parental rights. If, instead, the juvenile court concludes ICWA
applies, then it shall proceed in conformity with ICWA and California implementing
Holding. The court affirmed the denial of the father's section 388 petition for failing to show a material change in circumstances, but conditionally reversed the termination of parental rights due to an inadequate ICWA inquiry.
Issues
Did the juvenile court abuse its discretion by denying the section 388 petition without an evidentiary hearing?
Was the ICWA inquiry conducted by the county agency adequate to support the finding that ICWA does not apply?
Disposition. Affirmed in part; conditionally reversed in part.
Quotations verified verbatim against the opinion
“the juvenile court could reasonably conclude that the petition did not show a sufficient change in circumstances warranting modification of the prior order terminating reunification services.”
“the record is insufficient to show that an adequate ICWA inquiry was conducted in support of the juvenile court’s finding that ICWA does not apply.”
“Upon remand, Father will be notified and reappointed counsel.”