Filed 10/20/26 In re E.D. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.D., a Person Coming Under the
Juvenile Court Law.
E088663
SAN BERNARDINO COUNTY CHILDREN
AND FAMILY SERVICES, (Super.Ct.No. J304724)
Plaintiff and Respondent, OPINION
v.
T.D.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D.
Hutson, Judge. Affirmed.
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Tracy M. De Soto, under appointment by the Court of Appeal, for
Defendant and Appellant.
Laura Feingold, County Counsel, and Joseph R. Barrell, Deputy County
Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
E.D. was detained from defendant and appellant T.D.’s (Mother)’s custody
shortly after birth. After a contested jurisdictional and dispositional hearing held
on July 9, 2025, the juvenile court formally removed E.D. from Mother’s custody
and denied reunification services pursuant to the bypass provisions of Welfare and
Institutions Code section 361.5, subdivision (b)(10), (b)(11), and (b)(13). Mother
subsequently filed a petition pursuant to section 388 seeking to reinstate
reunification services for a period of six months, and the juvenile court denied the
petition without an evidentiary hearing. Mother appealed from the order denying
her section 388 petition. However, while that appeal was pending, the juvenile
court conducted a section 366.26 hearing; Mother’s parental rights were
terminated; and Mother filed a second notice of appeal from the order terminating
her parental rights.
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In her opening brief, Mother asserts that (1) the trial court abused its
discretion in denying her section 388 petition without conducting an evidentiary
hearing; and (2) the order terminating her parental rights must be conditionally
reversed because the juvenile court’s finding that the Indian Child Welfare Act of
1978 (ICWA; 25 U.S.C. § 1901 et seq.) does not apply is not supported by
substantial evidence. We find no error on the record before us and affirm the
orders.
II. BACKGROUND
Mother is the biological mother of E.D. E.D. was detained shortly after
birth. The juvenile court had previously terminated Mother’s parental rights as to
a different child, and Mother had tested positive for methamphetamine while
pregnant with E.D. Due to these facts, San Bernardino County Children and
Family Services (CFS) filed a petition pursuant to section 300 et seq. alleging
general neglect as a result of ongoing substance abuse; the alleged father’s failure
to protect E.D. from Mother’s substance abuse; and the termination of Mother’s
parental rights as to a sibling of E.D.
In July 2025, the juvenile court held a contested jurisdictional and
dispositional hearing. The juvenile court found true the allegations of the petition,
formally removed E.D. from Mother’s custody, and denied Mother reunification
services pursuant to section 361.5, subdivision (b)(10), (b)(11), and (b)(13).
Mother was granted visitation only once per month.
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In October 2025, CFS filed a section 366.26 report. CFS reported that E.D.
had been diagnosed with Down Syndrome, was being monitored for additional
health complications, and was developmentally delayed. E.D. had also been
admitted to the hospital on multiple occasions due to medical complications. E.D.
had remained in a single placement since being discharged from the hospital after
birth; social workers reported that E.D. appeared bonded to the family she had
been placed with; and E.D.’s caregivers expressed a desire to adopt E.D. A
section 366.26 hearing was initially set for November 2025, but was continued to
February 2026 in order to allow CFS time to provide notice to a belatedly
identified potential father of E.D.
In January 2026, Mother filed a petition pursuant to section 388 requesting
the juvenile court grant her reunification services and reinstate weekly visitation
with E.D. Mother alleged that changed circumstances supported the request
because she had completed outpatient treatment for her substance abuse issues,
had consistently tested negative for alcohol and controlled substances over an
extensive period of time, and had made progress in working toward being able to
provide for E.D. Mother attached numerous negative drug screens and documents
to support these allegations.
With respect to E.D.’s best interests, Mother alleged that an “additional
period of services and increased visitation will provide the mother and child a
chance to further strengthen their bond.” In support of this allegation, Mother
submitted her declaration summarizing her own progress with substance abuse and
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stating: “It is important to recognize the beginning of a child’s life is at utmost
importance for spending quality time with the mother to form a bond; therefore
reunification services would be in the best interest of the child.”
The juvenile court denied Mother’s section 388 petition without conducting
an evidentiary hearing. Mother appealed from the denial of her petition.
However, while her appeal was pending, the juvenile court held a contested
section 366.26 hearing. The juvenile court found by clear and convincing
evidence that it was likely E.D. would be adopted; made a finding that CFS
fulfilled its duty of inquiry under the ICWA and there was no reason to believe or
know that E.D. is or may be an Indian child; and terminated Mother’s parental
rights. Mother also appealed from the order terminating her parental rights.
III. DISCUSSION
A. The Juvenile Court Did Not Err in Denying Mother’s Section 388 Petition
On appeal, Mother contends the juvenile court abused its discretion by
denying her section 388 petition without an evidentiary hearing. We find no abuse
of discretion on the record before us.
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,
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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 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
Initially, we acknowledge that the parties dispute whether Mother’s
showing was sufficient to constitute a prima facie showing of changed
circumstances. However, we need not address these arguments in detail. As we
explain, even assuming Mother’s allegations were sufficient to constitute a prima
facie showing of changed circumstances, the allegations of her petition did not
show how reinstating reunification services or increasing visitation at this stage in
the dependency proceeding would be in E.D.’s best interests.
The record here shows that Mother has never received reunification
services because the juvenile court bypassed reunification services at the time of
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disposition.1 “Once reunification services are terminated (or, as in this case, never
ordered in the first place), the focus of the proceedings changes from family
reunification to the child’s interest in permanence and stability.” (In re G.B.
(2014) 227 Cal.App.4th 1147, 1163; In re Stephanie M. (1994) 7 Cal.4th 295, 317)
As a result, at this stage in the proceedings, “a parent’s petition for either an order
returning custody or reopening reunification efforts must establish how such a
change will advance the child’s need for permanency and stability.” (In re J.C.
(2014) 226 Cal.App.4th 503, 527; In re G.B., at p. 1163.) Thus, in order to make a
prima facie showing that her requests were in E.D.’s best interest, Mother was
required to allege facts that could suggest that granting Mother reunification
services or increasing Mother’s visitation would promote E.D.’s interest in
permanency and stability.
Here, Mother asserted only in a conclusory manner that reinstatement of
reunification services “will provide the mother and child a chance to further
strengthen their bond.” Such a general allegation is simply not enough to meet
Mother’s prima facie burden to show how her requests would promote E.D.’s
permanency and stability. (In re G.B., supra, 227 Cal.App.4th at p. 1157 [“While
the petition must be liberally construed in favor of its sufficiency [citations], the
1 “[S]ection 361.5, subdivision (b), identifies 17 circumstances (commonly
referred to as the ‘bypass provisions’) in which the court ‘need not’ order
reunification services. [Citations.] At the disposition hearing, the juvenile court
may deny or ‘bypass’ family reunification services if any one of the 17 bypass
provisions listed in section 361.5, subdivision (b), is established by clear and
convincing evidence.” (In re Baby Girl R. (2024) 106 Cal.App.5th 706, 712.)
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allegations must nonetheless describe specifically how the petition will advance
the child’s best interests.”]; see In re R.M. (2025) 111 Cal.App.5th 119, 138
[alleging only “in very general terms” the benefits to maintaining a familial
relationship is insufficient to show best interests under section 388].) Because the
focus of the dependency proceedings was no longer on family reunification with
Mother, the allegation that her requests would promote a familial bond with E.D.
did not address E.D.’s interest in permanency and stability.
This is especially true where, as here, the record shows that Mother never
had custody of E.D., and E.D.’s caregivers provided the only home E.D. had ever
known. (See In re Jasmon O. (1994) 8 Cal.4th 398, 421 [The potential severance
of a bond with foster parent after an extended period of time in care is a relevant
factor when assessing a child’s best interests in the context of a section 388
petition.]; In re Angel B. (2002) 97 Cal.App.4th 454, 464 [“When custody
continues over a significant period, the child’s need for continuity and stability
assumes an increasingly important role. [Citation.] That need often will dictate
the conclusion that maintenance of the current arrangement would be in the best
interests of that child.”].) Mother’s petition never alleged how promoting her
familial bond outweighed any potential disruption to E.D.’s placement or
outweighed any potential delay in providing E.D. with a permanent adoptive
home. Thus, even if fully credited, Mother’s allegations failed to show how her
request for reunification services or increased visitation would be in E.D.’s best
interest.
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The juvenile court does not abuse its discretion by denying a section 388
petition without an evidentiary hearing where the allegations of the petition, even
if accepted as true, do not explain how the proposed modification might advance
the best interests of the dependent child. Particularly where, as here, reunification
services have never been provided to Mother, Mother’s general allegation that
reunification services and increased visitation would promote her parental bond
failed to appreciate that E.D.’s interest at this stage in the proceeding was no
longer to maintain a familial bond but to obtain permanency and stability. Thus,
the juvenile court did not err in denying Mother’s petition without an evidentiary
hearing.
B. The Juvenile Court’s ICWA Finding Is Supported by Substantial Evidence
Mother also contends that the order terminating her parental rights should
be reversed because the juvenile court’s finding that ICWA did not apply is not
supported by substantial evidence. Specifically, Mother argues that CFS failed to
fulfill its duty of inquiry as required under section 224.2. We conclude substantial
evidence supports the juvenile court’s ICWA finding.
1. General Legal Principles and Standard of Review
“Congress enacted ICWA in 1978 to address concerns regarding the
separation of Indian children from their tribes through adoption or foster care
placement, usually in non-Indian homes. [Citation.] ICWA established minimum
standards for state courts to follow before removing Indian children from their
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families and placing them in foster care or adoptive homes.” (In re D.S. (2020)
46 Cal.App.5th 1041, 1048.)
Section 224.2 of the Welfare and Institutions Code “creates three distinct
duties regarding ICWA in dependency proceedings. First, from the
[Department’s] initial contact with a minor and his family, the statute imposes a
duty of inquiry to ask all involved persons whether the child may be an Indian
child. [Citation.] Second, if that initial inquiry creates a ‘reason to believe’ the
child is an Indian child, then the [Department] ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry as
soon as practicable.’ [Citation.] Third, if that further inquiry results in a reason to
know the child is an Indian child, then the formal notice requirements of section
224.3 apply.” (In re D.S., supra, 46 Cal.App.5th 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.) “The finding
implies that notice to a tribe was not required because social workers and the court
did not know or have a reason to know the [dependent] children were Indian
children and that social workers had fulfilled their duty of inquiry.” (In re Austin
J. (2020) 47 Cal.App.5th 870, 885, disapproved on other grounds by In re Dezi C.
(2024) 16 Cal.5th 1112, 1152, fn. 18 (Dezi C.).) “ ‘ “On a well-developed record,
the [juvenile] court has relatively broad discretion to determine whether the
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agency’s inquiry was proper, adequate, and duly diligent on the specific facts of
the case.” ’ ” (Dezi C., at p. 1141.)
Generally, an ICWA finding by the juvenile court will turn on (1) whether
social workers conducted an inquiry of extended family members whom they were
already investigating as part of their usual course of work (In re S.S. (2023)
90 Cal.App.5th 694, 704-705; In re H.B. (2023) 92 Cal.App.5th 711, 720); and
(2) whether the record was sufficient to support a reasonable conclusion that the
inquiry “ ‘has reliably answered the question at the heart of the ICWA inquiry:
Whether a child involved in a proceeding “is or may be an Indian child” ’ ” (In re
H.B., at p. 720). As our Supreme Court has explained: “[i]f, upon review, a
juvenile court’s findings that an inquiry was adequate and proper and ICWA does
not apply are found to be supported by sufficient evidence and record
documentation as required by California law (citation), there is no error and
conditional reversal would not be warranted even if the agency did not inquire of
everyone who has an interest in the child.” (Dezi C., supra, 16 Cal.5th at p. 1141.)
“[W]e review the juvenile court’s ICWA findings under the substantial
evidence test, which requires us to determine if reasonable, credible evidence of
solid value supports the court’s order.” (In re A.M. (2020) 47 Cal.App.5th 303,
314, disapproved on other grounds in Dezi C., supra, 16 Cal.5th at p. 1152, fn. 18;
In re Austin J., supra, 47 Cal.App.5th at p.885 [implicit finding that social workers
fulfilled their duty of inquiry and is reviewed for substantial evidence].) However,
the ultimate question we answer is whether the juvenile court abused its discretion
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in determining that the agency’s inquiry was “adequate, proper, and duly diligent.”
(Dezi C., at p. 1141.)
2. Application
In this case, the record shows that CFS made an ICWA inquiry of Mother,
maternal grandmother, the alleged father, and the alleged paternal grandmother.
CFS also inquired of a nonrelated extended family member identified by Mother
as a person who may have knowledge of E.D.’s potential status as an Indian child.
Finally, when Mother later claimed that a maternal great-grandmother was
Cherokee Apache, CFS sent formal written correspondence to the Bureau of
Indian Affairs, as well as 11 different tribal entities.2 The correspondence
indicated that CFS was inquiring regarding possible Native American heritage and
provided E.D.’s full name and date of birth, Mother’s full name and date of birth,
and maternal great-grandmother’s full name and date of birth. However, the
correspondence misidentified maternal great-grandmother as E.D.’s “paternal
grandmother.” CFS did not receive any responses that would give a reason to
believe or a reason to know E.D. was an Indian child.
In our view, this record is sufficient to permit the juvenile court to
reasonably conclude that CFS’s inquiry was sufficient to reliably answer the
question of whether E.D. was an Indian child. The record does not show that
2 The record on appeal contains a copy of only six of the letters involved.
However, the record does include a declaration from a social worker that the
additional letters were sent.
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social workers failed to contact any of the individuals they were statutorily
required to contact as part of an initial ICWA inquiry.3 (§§ 224.2, subd. (b)(1),
224.1, subd. (c)(1).) Nor does the record show that social workers failed to
conduct an ICWA inquiry of a family member with whom they were already
contacting as part of their normal work. Nor does the record show that social
workers failed to contact any individual specifically identified during the course of
their ICWA inquiry as having potential knowledge that might bear on the question
of E.D.’s status as an Indian child. Given this record, the juvenile court could
reasonably conclude that CFS’s inquiry efforts were sufficient.
On appeal, Mother contends that CFS’s inquiry was inadequate because it
failed to inquire of a maternal great-grandfather.4 However, under both ICWA
and California law, great-grandparents are not included among the list of extended
3 Section 224.2, subdivision (b)(1), provides that the initial duty of inquiry
involves asking “extended family members as defined in paragraph (1) of
subdivision (c) of Section 224.1” whether the dependent child is or may be an
Indian child. (Ibid.) In turn, section 224.1, subdivision (c)(1) provides that the
phrase “ ‘extended family member’ ” has “the same meaning as defined by the law
or custom of the Indian child’s tribe or … the Indian child’s grandparent, aunt or
uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (Ibid.)
4 We acknowledge that Mother’s briefs refer to this individual as a
maternal “grandfather” who was supposedly living with her at the time. However,
the record does not contain any references to a maternal grandfather and does not
suggest that CFS was ever provided with the identity or contact information for
such an individual. Instead, when referring to this maternal “grandfather,” the
relative actually identified by Mother’s citations to the record is E.D.’s great-
grandfather. Thus, we construe Mother’s argument as directed toward the relative
actually identified in her record citations.
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family members with whom a child welfare agency is required to conduct an
ICWA inquiry. (In re D.S., supra, 46 Cal.App.5th at p. 1053; §§ 224.2,
subd. (b)(1), 224.1, subd. (c)(1).) Thus, any obligation to contact the maternal
great-grandfather would only arise if, during the course of CFS’s inquiry, someone
identified maternal great-grandfather as a person who might have knowledge of
E.D.’s potential status as an Indian child. And the record does not show that
mother, or any person, ever suggested maternal great-grandfather would have any
information relevant to this inquiry. This is particularly notable in this case as
maternal great-grandfather lives with mother. Absent some indication that would
suggest maternal great-grandfather might have relevant knowledge bearing on the
issue, the fact that CFS did not conduct an inquiry of maternal great-grandfather
does not show that the juvenile court’s ICWA finding is unsupported by
substantial evidence. (Dezi C., supra, 16 Cal.5th at p. 1141.)
We also disagree with Mother’s contention that CFS failed to comply with
its duty to give formal notice under ICWA. “ ‘The duty to provide notice arises
only if [the agency] or the court “knows or has reason to know that an Indian child
is involved.” ’ ” (In re K.H. (2022) 84 Cal.App.5th 566, 598; § 224.3, subd. (a).)
And Mother has not identified anything in the record that would suggest a reason
to know E.D. was an Indian Child, attacking only the sufficiency of the inquiry
and purported deficiencies in the correspondence sent to various tribal entities.
With respect to Mother’s attack on the sufficiency of CFS’s ICWA inquiry,
we have already concluded that the juvenile court’s finding that CFS conducted an
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adequate inquiry is supported by substantial evidence. With respect to the
purported errors in CFS’s correspondence to tribal entities, “[t]he sharing of
information with tribes at [the] inquiry stage is distinct from formal ICWA notice”
(In re D.S, supra, 46 Cal.App.5th at p. 1049), and the fact that a child welfare
agency contacts a tribal entity during the inquiry stage does not trigger the duty to
comply with formal notice requirements (In re P.H., Jr. (2024) 98 Cal.App.5th
992, 997-998). Thus, the fact that CFS’s correspondence did not meet the
stringent details required of formal ICWA notice is not grounds for reversal.
Because the duty to provide notice under section 224.3 was never triggered, the
purported failure to comply with the requirements for formal notice set forth in
section 224.3 is not grounds for reversal.5
We conclude that the juvenile court did not abuse its discretion in determining that
the ICWA inquiry in this case was adequate, proper, and duly diligent.
5 While Mother criticizes the fact that CFS’s correspondence with the
tribal entities failed to include detailed information regarding some family
members and misidentified the familial relationship between E.D. and a maternal
great-grandmother, the duty to contact tribes as part of an inquiry effort does not
provide that any specific familial information must be included as part of
correspondence with a tribal entity. (§ 224.2, subd. (e)(2).) Instead, it requires
providing only “information identified by the tribe as necessary for the tribe to
make a membership or citizenship eligibility determination.” (§ 224.2,
subd. (e)(2)(C).) And Mother does not assert that any of the tribal entities at issue
in this case identified the purportedly missing information as necessary for the
tribe to make a membership or citizenship determination.
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IV. DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
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