Filed 7/2/26 In re Wy.J. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re WY. J. et al., Persons Coming B346088, B348244, B349742
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 23CCJP01385
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
D.J. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Linda L. Sun, Judge. Conditionally reversed and
remanded for further proceedings.
Lelah S. Forrey-Baker, under appointment by the Court of
Appeal, for Defendant and Appellant D.J.
Carolyn S. Hurley, under appointment by the Court of
Appeal, for Defendant and Appellant T.B.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Navid Nakhjavani, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Father D.J. and mother T.B. appeal from several orders of
the juvenile court. Mother challenges an order limiting her to
virtual visits with the children, Wy. J., Willow,1 and Wry. J., after
she kidnapped Wy. and Willow. She also challenges the denial of
her Welfare and Institutions Code section 388 petition, on the eve
of permanency planning, seeking reinstatement of reunification
services because she completed drug treatment programs to
address the issues giving rise to the dependency proceeding.
(Further undesignated statutory references are to the Welfare
and Institutions Code.) Both parents assert the court erred by
finding the children adoptable en route to terminating parental
rights. Finally, both parents argue that, at a minimum,
conditional reversal is required because the Department of
Children and Family Services (DCFS) did not fulfill its inquiry
duties under the Indian Child Welfare Act (25 U.S.C. § 1901 et
seq.) and related California law.
We conditionally reverse because of ICWA deficiencies, but
otherwise affirm.
I.
When mother gave birth to Wry., her youngest child, in
April 2023, both she and the newborn tested positive for
1 Although her birth certificate identifies her by a different
name, the parties refer to this child, the parents’ second, as
“Willow.” For purposes of this opinion, we do the same.
2
amphetamines and fentanyl. At the time, Wy. was three years
old and Willow was nearly 19 months old.
In light of mother’s drug use, DCFS initiated dependency
proceedings. In October 2023, the juvenile court sustained the
operative first amended section 300 petition, finding true the
allegations that the children were at risk of harm due to (1)
mother’s use of illicit substances while pregnant with Wry.; (2)
both parents’ abuse of illicit substances and father’s failure to
protect the children from mother’s substance abuse; and (3) the
parents’ creation of a dangerous condition in the home by keeping
marijuana within the children’s access. The court removed the
children from their parents, granted the parents monitored
visitation, and required the parents to participate in reunification
services consisting of a full drug and alcohol treatment program
with after care, random and on-demand drug and alcohol testing,
a 12-step program with a court card and sponsor, a parenting
program, and individual counseling. Further, the court directed
the parents to each undergo a psychological assessment and to
take all prescribed psychotropic medications.
Throughout the first six-month review period, the parents
refused to participate in reunification services, believing they had
done nothing wrong, that compliance with their case plans
constituted admission of guilt on their part, and that DCFS had
kidnapped their children. In addition, and as will be described in
greater detail below, the parents attempted to kidnap Willow and
Wy. from their caregivers at the outset of a monitored visit at a
DCFS facility in January 2024.
Nonetheless, the parents had frequent, consistent, and
high-quality in-person visits with the children. Given the
strength of their visits, and despite the parents’ failure to engage
3
with reunification services and their kidnapping attempt, DCFS
recommended that the juvenile court grant the parents three
additional months of reunification services. At the six-month
review hearing held in April 2024, the court adopted DCFS’s
recommendation.
In the following months, the parents remained steadfast in
their refusal to participate in court-ordered services, maintaining
their innocence and their belief that compliance with their case
plan constituted admission of their wrongdoing. Still, they
continued to have regular, consistent, and high-quality visits
with the children. In June 2024, however, the parents refused to
end a visit, reporting to the monitor that Wy. had told them the
caregivers “ ‘whoop[ed]’ ” him. DCFS promptly investigated and
determined the allegation was unfounded.
Then, on August 14, 2024, the parents successfully
abducted Willow and Wy. toward the end of a monitored visit
taking place at a DCFS office, leaving Wry., their youngest,
behind.
Wry.’s 12-month review hearing took place six days later.
There, the court terminated the parents’ reunification services
with respect to Wry. and suspended their visits with him until
they contacted DCFS.
Two weeks after the abduction of the older children, law
enforcement located Wy. and Willow in a remote area of Oregon,
where they had been living out of a tent with their parents.
DCFS returned Wy. and Willow to their caregivers. The parents
were arrested and charged with kidnapping and child abduction
in violation of Penal Code sections 207 and 278, respectively. A
criminal protective order, filed on September 20, 2024, prohibited
the parents from having contact with Willow and Wy.
4
Subsequently, on October 30, 2024, the juvenile court held
another 12-month review hearing, where it terminated the
parents’ reunification services for Wy. and Willow.
On February 18, 2025, the parents accepted a plea deal and
each pled no contest to two counts of child abduction. Then, on
March 3, 2025, the criminal court sentenced the parents to four
years of probation and ordered, among other things, that they
each complete a three-month residential drug treatment
program.
Two weeks later, on March 19, 2025, the criminal court
filed a new protective order applying to all three children. The
order permitted the parents to have contact with the children
pursuant to subsequent visitation orders issued by the juvenile
court. The next week, on March 26, 2025, the parents were
released into separate 90-day residential drug treatment
programs.
On April 29, 2025, father’s counsel filed copies of the March
2025 protective orders with the juvenile court. The next day, the
court granted the parents virtual visitation, denied their request
for in-person visits, and directed DCFS to draw up a written
visitation schedule no later than May 9, 2025. DCFS complied
with the court’s order, and virtual visits began on May 9, 2025.
Mother timely appealed from the juvenile court’s April 30,
2025, visitation order.
On June 2, 2025, mother filed a section 388 petition
seeking reinstatement of her reunification services. Among other
supporting documents, mother submitted a declaration attesting
to her completion of a parenting class, a domestic violence class,
and a two-part course on substance abuse while incarcerated; her
current progress in and forthcoming completion of residential
5
substance abuse treatment; and her commitment to her sobriety.
Mother also apologized for her prior actions, including her refusal
to comply with DCFS and her case plan, as well as her abduction
of Willow and Wy. Further, she explained that based on her
strong bond with her children, cultivated through consistent
visitation, she should be afforded the opportunity to reunify with
them.
The next day, the juvenile court set mother’s section 388
petition for an evidentiary hearing. It also, meanwhile, denied
mother’s request for in-person visits at a police station, and
reiterated her visits must take place virtually.
On August 13, 2025, following a multi-day evidentiary
hearing, the juvenile court denied mother’s section 388 petition.
In so doing, it found mother demonstrated changing, rather than
changed, circumstances, and that mother failed to demonstrate
reinstatement of her reunification services would be in the
children’s best interests.
At the contemporaneous permanency planning hearing, the
juvenile court found by clear and convincing evidence that the
children were adoptable, and no legal impediments to adoption
existed. The court, therefore, terminated mother’s and father’s
parental rights.
The parents both appealed from the order terminating their
parental rights. Mother additionally appealed from the order
denying her section 388 petition. On mother’s motion, we
consolidated case numbers B346088, B349742, and B348244 for
purposes of briefing, oral argument, and decision.
6
II.
A.
The juvenile court did not abuse its discretion by restricting
mother to virtual visitation in April 2025 after her history of
kidnapping and noncompliance and after termination of her
reunification services.
The juvenile court “has the power and responsibility to
regulate visitation between dependent children and their
parents. [Citations.] To satisfy this responsibility, a court must
‘define the rights of the parties to visitation.’ ” (In re Donnovan
J. (1997) 58 Cal.App.4th 1474, 1476.) In so doing, the court must
“balanc[e] . . . the interests of the parent in visitation with the
best interests of the child” to “determine whether there should be
any right to visitation and, if so, the frequency and length of
visitation.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
The juvenile court may also “impose any other conditions or
requirements to further define the right to visitation in light of
the particular circumstances of the case before it.” (Ibid.)
“We review an order setting visitation terms for abuse of
discretion.” (In re Brittany C. (2011) 191 Cal.App.4th 1343,
1356.) Per this standard, we will not reverse unless the trial
court exceeded the bounds of reason by making an arbitrary,
capricious, or patently absurd determination. (In re Stephanie M.
(1994) 7 Cal.4th 295, 318–319.) And “ ‘ “[w]hen two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.” ’ ” (Id. at p. 319.)
In challenging the juvenile court’s order restricting her to
virtual visitation, mother appears to raise two arguments.
7
First, mother contends the juvenile court abused its
discretion by limiting her to virtual visitation because in-person
visits could have safely taken place at a police station. Mother
notes that since she entered residential drug treatment, she
expressed remorse for kidnapping Wy. and Willow and promised
not to take the children without authorization again. But the
record reflects the parents’ history of disregarding court orders
and attempting to flee with Wy. and Willow to avoid DCFS
involvement.
The parents’ flight risk became apparent just days after
Wry.’s birth, well before the attempted and successful abductions.
Mother abruptly left the hospital against medical advice, leaving
newborn Wry. behind without alerting any hospital personnel.
Two days later, the parents fled the home where they were
renting a room at the time, taking Willow and Wy. with them.
They then refused to answer DCFS’s phone calls.
DCFS did not recover Wy. and Willow until June 20, 2023.
On that date, a deputy from the Orange County Sheriff’s
Department informed DCFS that he had located the children on a
road leading into a ranch in San Juan Capistrano. The parents
ultimately contacted DCFS after the children were declared
dependents of the court in October 2023.
During the reunification period, as noted, the parents
attempted on two occasions to abduct Wy. and Willow during
monitored visits located at a DCFS office.
The first incident occurred in January 2024. The children’s
caregivers had parked in the DCFS office’s lot and were
unloading the children from their car when they saw the parents
walking toward them. Father then removed Wy. from caregiver
Mr. D.’s arms and placed the child into the parents’ vehicle.
8
Mother tried to do the same with Willow, but caregiver Mr. C.
intervened and retrieved the children from the parents’ car. The
caregivers immediately placed the children back into their car
and sought help from a nearby DCFS employee. The parents
drove off. Wy. and the DCFS employee corroborated the
caregivers’ account of the incident.
On August 14, 2024, the parents successfully abducted Wy.
and Willow from a visit supervised by two monitors. As the visit
was ending, father informed the monitors that he and mother
were taking their children. The parents each left the visitation
room with a child in hand and exited the building through an
emergency exit. One of the monitors notified the security officers
and sheriffs stationed in the lobby. The other monitor followed
the parents out the door and warned them that “they were not
helping their situation.” Ignoring the comment, the parents
walked to their vehicle and placed the children inside. Two
weeks later, after an Amber alert was issued, law enforcement
recovered the children in a remote area in Oregon, where they
were living with their parents in a tent lacking adequate
resources.
Prior to their August 2024 arrest for this incident, the
parents flatly refused to participate in reunification services as
ordered by the juvenile court. And a few days after their
February 2025 conviction, the parents violated the original
criminal protective order preventing them from contacting Willow
and Wy. by sending them a Valentine’s Day card.
Accordingly, the record shows the parents fled with Wy.
and Willow at the outset of the case to avoid DCFS, flouted
juvenile and criminal court orders, tried to kidnap Wy. and
Willow from their caregivers at a DCFS parking lot, and
9
abducted the children from a visit supervised by two monitors at
a DCFS office where sheriffs and security guards were on site.
On these facts, the juvenile court could reasonably view mother’s
expressions of remorse with skepticism and conclude the parents
would pose a flight risk even if visits were held at a police station.
The court, therefore, did not abuse its discretion when it denied
mother’s post-incarceration, post-reunification period requests for
in-person visits and restricted her to virtual visitation.
Next, mother appears to argue that due primarily to their
virtual nature, her visits in 2025 “were so poor quality” that she
was effectively denied visitation outright in violation of her right
to due process. Mother faults the small size of the screen on
which the parents appeared to the children, poor camera
placement affecting mother’s view of the children, and the
monitors’ failure to ensure the children were meaningfully
engaged during visits.
Between May 9 and August 4, 2025, the parents had more
than 15 virtual visits with the children. The visits generally
lasted one to two hours. The parents tried to engage the children
in various ways, asking them questions, encouraging the children
to sing and dance with them, reading books to the children, and
showing the children flash cards. Despite the parents’ efforts,
however, the children preferred to play with one another and the
toys or activities available in the room, showing little interest in
their parents. Wry. did not respond to the parents or
acknowledge their presence. More than once, Wy. stated he did
not want to speak with his parents.
The monitors encouraged the children to interact with their
parents and attempted to redirect them when they engaged in
overly hyperactive or aggressive behavior. They tried to keep the
10
children in the parents’ view by repositioning the camera and
following the children with the camera as they played around the
room. During several visits, the monitors brought Wry. closer to
the camera so the parents could see him; Wry., however, would
quickly grow restless and walk away. The monitors also
encouraged Willow and Wy. to show the parents the toys they
were playing with or the drawings they made. The two older
children responded to the monitors’ prompts inconsistently.
Sometimes, they briefly showed the parents their toy or drawing,
then resumed playing amongst themselves. Other times, they
refused to interact.
The evidence credited by the juvenile court shows the
children exhibited no distress or frustration when visits were
interrupted or otherwise affected by technical difficulties. Nor
did the children appear sad when visits ended. Instead, they
joyfully returned to their caregivers without issue.
Despite occasional scheduling and technical challenges, the
parents participated in numerous virtual visits, during which
they made efforts to engage the children with limited success.
The visits suffered in quality due to their virtual setting. The
children’s disengagement, however, ultimately stemmed from
their weakened bond with their parents following seven months
without contact for which the parents themselves were
responsible. Moreover, the virtual nature of the visits was due to
the parents’ behavior. And at the end of the day, the juvenile
court had to ensure that frequency of visitation was “consistent
with the well-being of the child” (§ 362.1, subd. (a)(1)(A)) and that
“[n]o visitation order . . . jeopardize the safety of the child” (Id.,
subd. (a)(1)(B)). We reject mother’s contention that she was
11
constructively and improperly denied visitation due to issues
largely attributable to the virtual medium.
In sum, the juvenile court did not abuse its discretion by
restricting mother to virtual visits. And its order did not result
in the constructive and improper denial of her right to visitation.
B.
The juvenile court did not abuse its discretion by denying
mother’s section 388 petition to reinstate reunification services
on the eve of permanency planning.
“Section 388 accords a parent the right to petition the
juvenile court for modification of any of its orders based upon
changed circumstances or new evidence.” (In re Alayah J. (2017)
9 Cal.App.5th 469, 478, fn. omitted.) “The [parent] 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 Mickel O. (2011) 197 Cal.App.4th 586, 615.) “In
considering whether the [parent] has made the requisite showing,
the juvenile court may consider the entire factual and procedural
history of the case.” (Id. at p. 616.) “We review the juvenile
court’s denial of a section 388 petition for an abuse of discretion.”
(Ibid.)
Despite mother’s contrary contentions, the juvenile court
reasonably declined to reinstate reunification services. We
evaluated each of the two section 388 prongs.
1.
With respect to the first prong, “the [parent] must show
changed, not changing, circumstances. [Citation.] The change of
circumstances or new evidence ‘must be of such significant nature
12
that it requires a setting aside or modification of the challenged
prior order.’ ” (In re Mickel O., supra, 197 Cal.App.4th at p. 615.)
In arguing she established changed circumstances, mother
notes that while incarcerated, she completed a parenting course,
a domestic violence course, and a substance abuse treatment
course. Upon her release, she then completed a 90-day
residential drug treatment program, in which she attended all
required classes, actively participated in group discussions,
completed all assignments, received counseling, and submitted to
drug testing. Mother also asserts she has learned a lot from her
classes, gaining insight into the importance of maintaining her
sobriety and how her past actions impacted her family.
Mother’s recent participation in services and her progress
are commendable. Having reviewed the record, however, we
conclude the juvenile court did not exceed the bounds of reason by
finding she established changing, rather than changed,
circumstances.
Mother has a long history of abusing illicit substances with
father. Maternal grandmother reported mother’s drug abuse
during adulthood strained mother’s familial relationships. She
personally witnessed the parents under the influence of drugs
when they visited her home for a few days. Mother’s cousin,
Lauren F., similarly reported that the parents used drugs
together. When Wry. was born, hospital staff observed mother
exhibited physical signs of long-term, ongoing methamphetamine
use, including an aged appearance, scabs and marks from picking
her skin, and missing teeth.
By the time of the hearing on her section 388 petition,
mother had only been out of residential substance treatment for
about two months. She had yet to enroll in outpatient services
13
despite expressing in the declaration supporting her petition an
intention to do so.
While testifying at the August 2025 hearing, mother denied
doing drugs with father and continued to minimize her own drug
use. On the latter point, though she admitted to a history of
substance abuse, she characterized her use shortly before Wry.’s
birth in 2023 as a one-time lapse in judgment amidst a period of
sobriety dating back to 2019. Contrary to her testimony,
however, Wy. and mother tested positive for amphetamines and
THC upon Wy.’s birth in 2020. Further, in June 2023, DCFS
reported mother may have been under the influence of drugs
during a 14-minute tirade over the phone, during which mother
spoke rapidly, irrationally, and erratically. Two months later,
police searched the car in which the parents appeared to be living
and recovered a baggie containing a white, crystal-like substance
resembling methamphetamine, along with a hypodermic syringe.
And the caregivers reported the parents may have been under
the influence of drugs during the January 2024 kidnapping
attempt, when they exhibited “very threatening” behavior, telling
the caregivers “they had put a nanny cam in [the caregivers’]
home” and accusing the caregivers of child abuse.
Accordingly, the juvenile court reasonably found that,
although mother completed several programs, including
residential drug treatment, she had yet to demonstrate sufficient
resolution of her substance abuse issues. For this reason,
mother’s reliance on In re J.M. (2020) 50 Cal.App.5th 833, is
misplaced. There, the Court of Appeal held the mother had
established changed circumstances to allow reinstatement of
reunification services, as she “had resolved the domestic violence
underlying the initial dependency petition: She had not been in
14
contact with [the] [f]ather for over a year, had completed all
required domestic violence training, and nothing suggested [the]
[m]other was or had been in another potentially violent or
abusive relationship.” (Id. at p. 846.) The same is not true here.
Instead, on the record before us, the juvenile court did not abuse
its discretion by finding mother had not established sufficiently
changed circumstances.
2.
As to the best interests of the children, the second section
388 prong, the court may consider factors such as “the
seriousness of the reason for the dependency and the reason the
problem was not overcome; the relative strength of the parent-
child and child-caretaker bonds and the length of time the child
has been in the system; and the nature of the change in
circumstances, the ease by which the change could be achieved,
and the reason the change was not made sooner.” (In re Aaliyah
R. (2006) 136 Cal.App.4th 437, 446–447.) And where, as here,
“reunification services have been terminated, the parents’
interest in the care, custody and companionship of the child are
no longer of overriding concern. [Citation.] The focus then shifts
to the child’s need for permanency and stability, and there is a
rebuttable presumption that continued foster care is in the child’s
best interests.” (Id. at p. 448.)
Mother asserts reinstatement of her reunification services
would serve the children’s best interests because the children are
closely bonded to her and “deserved to learn about their heritage”
from her. Applying the factors above, we conclude the juvenile
court did not abuse its discretion by finding the requested order
was not in the children’s best interests.
15
First, as discussed already, mother had not resolved the
extensive and significant substance abuse issues giving rise to
this case.
Second, Wry. had lived with the caregivers since he was
discharged from the hospital as an infant. By the time of the
hearing on mother’s section 388 petition, Wy. and Willow were
five and three years old, respectively, and had been with the
caregivers for over two years. Thus, Willow had lived with the
caregivers for a majority of her life, and Wy. had spent a
significant portion of his life in their home.
Third, the record reflects the children shared a strong bond
with their caregivers, Mr. D. and Mr. C. The children were
relaxed in their presence and sought their attention and comfort
when in need or in distress. They also followed the caregivers’
instructions and responded appropriately when the caregivers
disciplined or redirected them.
Willow had referred to Mr. D. as “Daddy” and Wy.
sometimes called Mr. C. “Dad.” While Wy. recognized mother
and father, he viewed the caregivers as his parents. For example,
during a virtual visit held in July 2025, Wy. refused to show
mother and father, when prompted the monitor, a picture he had
drawn. Instead, he brought the picture to his caregivers, whom
he referred to as “ ‘[m]y parents.’ ” In a subsequent visit, mother
asked Wy. to draw his parents. He responded by drawing a
picture of himself, his siblings, his caregivers, and one of the
caregiver’s mothers. More than once, Wy. has — without being
prompted to do so — told DCFS that he loves his caregivers. And
Wy.’s therapist opined he “ha[d] a great bond with [his] foster
parents in wanting to share everything he does in session[s] and
processing confusing feelings” with them.
16
Mother correctly observes that before the parents’
abduction of Willow and Wy. in August 2024, they shared a
strong bond with their older children and were developing a bond
with Wry. After that incident, and the ensuing seven months of
no contact due to the criminal court’s protective order, however,
the bond weakened substantially. As discussed previously, the
evidence of the virtual visits between May and early August 2025
reflects Willow and Wy. had little interest in interacting with
their parents, sometimes refusing to engage with them even
when prompted by the monitors. Wry. did not recognize or
respond to his parents at all. The children exhibited no distress
or sadness when visits ended or were interrupted by technical
difficulties.
Beyond asserting the strength of her bond with the
children, mother contends she rebutted the presumption that
continued placement with the caregivers is in the children’s best
interests by showing Mr. C. had previously been convicted of
threatening with intent to terrorize under Penal Code section
422; Willow shares a bedroom with her brothers in the caregivers’
home in violation of California Code of Regulations, title 22,
section 89387; and the caregivers have anger issues.
But these alleged deficiencies with the caregivers do not
alter our conclusions regarding mother’s section 388 petition.
Mother’s petition did not seek the children’s placement in her
care or elsewhere based on her asserted concerns with the
caregivers. She only requested reinstatement of reunification
services. The issue, then, is whether an order granting the
specific relief sought is in the children’s best interests. (See In re
Edward H. (1996) 43 Cal.App.4th 584, 594.) In addressing this
question, mother must rebut the presumption that the children’s
17
continued placement with their caregivers, who are also their
prospective adoptive parents, is in their best interests because it
advances their paramount need for permanency and stability.
(See In re Angel B. (2002) 97 Cal.App.4th 454, 464–465.)
Mother’s conclusory argument based on her qualms with the
caregivers fails to elucidate how an order granting her six
additional months of reunification services would promote
stability for the children or advance a need more important than
their need for permanency. (See In re Edward H., at p. 594
[mother’s section 388 petition seeking reinstatement of
reunification services “would not have promoted stability for the
children and thus would not have promoted their best
interests”].) At bottom, whether or not mother’s petition was
granted, the caregivers were going to keep control of the children
pending further orders of the court.
In sum, the juvenile court did not exceed the bounds of
reason by finding reinstatement of mother’s reunification
services, especially in light of the insufficiently changed
circumstances, was not in the children’s best interests.
III.
The juvenile court’s adoptability finding was proper.
A.
To start, DCFS’s adoptability assessment report was
adequate.
Ahead of a section 366.26 permanency planning hearing,
DCFS prepares an assessment containing the information set
forth in section 366.21, subdivision (i). Among other things, the
report must evaluate “the child’s medical, developmental,
scholastic, mental, and emotional status.” (§ 366.21, subd.
(i)(1)(C)(i).) The report must also assess “the eligibility and
18
commitment of any identified prospective adoptive parent . . . ,
particularly the caretaker,” by discussing their “social history
including screening for criminal records and prior referrals for
child abuse or neglect, the[ir] capability to meet the child’s needs,
and the[ir] understanding of the legal and financial rights and
responsibilities of adoption . . . .” (Id., subd. (i)(1)(D).)
In challenging the juvenile court’s adoptability finding, the
parents first argue that DCFS’s permanency planning
assessment failed to comply with section 366.21, subdivision (i).
Specifically, they assert the report is “missing current
information about the children’s medical, developmental, mental
and emotional status,” and omitted from its analysis of the
caregivers’ criminal histories Mr. C.’s Penal Code section 422
conviction. The “most concerning omission,” they contend, was of
details relating to Wry.’s heart murmur. Although not entirely
clear, the parents appear to assert the shortcomings in DCFS’s
report undermine the adoptability finding by calling into question
the validity of the information on which it was based.
We reject the parents’ argument for three reasons. First,
they forfeited their challenges to the report by failing to bring the
deficiencies asserted on appeal to the juvenile court’s attention.
(See In re A.A. (2008) 167 Cal.App.4th 1292, 1317 [parents
forfeited objections to the permanency planning assessment
report because “no one challenged the adequacy of the agency’s
assessment on any grounds, let alone on the grounds” raised on
appeal]; see also In re Urayna L. (1999) 75 Cal.App.4th 883, 886
[mother forfeited objection to permanency planning assessment’s
adequacy by failing in the juvenile court to “assert her right to
have [the omitted] information included in the report”].)
19
Second, even if imperfect, DCFS’s adoptability assessment
substantially complied with section 366.21, subdivision (i). (See
In re John F. (1994) 27 Cal.App.4th 1365, 1378 [“Substantial
compliance with the assessment provisions has been deemed
enough”].) Here, the report discusses in detail the caregivers’
social histories, along with the results of DCFS’s investigation
into their criminal history, their motivation for seeking adoption,
and their relationship with the children. The report also
addresses their ability to meet the children’s needs. In so doing,
the report discusses, in detail and to the extent applicable, each
child’s medical, developmental, academic and speech-related
issues.
Third, an adoptability finding need not be reversed based
on an incomplete permanency planning assessment. Where, as
here, “the assessment is incomplete in some respects, the
[juvenile] court will look to the totality of the evidence;
deficiencies will go to the weight of the evidence and may
ultimately prove insignificant.” (In re John F., supra,
27 Cal.App.4th at p. 1378.)
B.
The report’s adequacy aside, substantial evidence supports
adoptability.
“The court may terminate parental rights only if it
determines by clear and convincing evidence the minor is likely
to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear
and convincing evidence of the likelihood adoption will be
realized within a reasonable time.” (In re R.C. (2008)
169 Cal.App.4th 486, 491.) “The ‘likely to be adopted’ standard is
a low threshold.” (In re J.W. (2018) 26 Cal.App.5th 263, 267.)
20
The juvenile court may find “it is likely the child will be
adopted” within the meaning of section 366.26, subdivision (c)(1),
by determining the child is “generally adoptable” or “specifically
adoptable.” (See Seiser & Kumli, Cal. Juvenile Courts Practice
and Procedure (2026) § 2.171; see also In re B.D. (2019)
35 Cal.App.5th 803, 817.) At the section 366.26 hearing,
however, the juvenile court is not required to specify whether the
child is generally or specifically adoptable. (In re Mary C. (2020)
48 Cal.App.5th 793, 802.) Instead, the court need only “find by
clear and convincing evidence that the [child is] ‘likely’ to be
adopted within a reasonable time.” (Ibid.)
“A child is ‘generally adoptable’ when his or her personal
characteristics such as age, appearance, and behavior are
sufficiently appealing to make it likely that an adoptive family
will be located in a reasonable time, regardless of whether a
prospective adoptive family has been found.” (Seiser & Kumli,
Cal. Juvenile Courts Practice and Procedure, supra, § 2.171.)
Thus, general adoptability “focuses on the minor, e.g., whether
the minor’s age, physical condition, and emotional state make it
difficult to find a person willing to adopt the minor. [Citations.]
Hence, it is not necessary that the minor already be in a potential
adoptive home or that there be a proposed adoptive parent
‘waiting in the wings.’ ” (In re Sarah M. (1994) 22 Cal.App.4th
1642, 1649.) Still, “the existence of a prospective adoptive parent,
who has expressed interest in adopting a dependent child,
constitutes evidence that the child’s age, physical condition,
mental state, and other relevant factors are not likely to dissuade
individuals from adopting the child. In other words, a
prospective adoptive parent’s willingness to adopt generally
indicates the child is likely to be adopted within a reasonable
21
time either by the prospective adoptive parent or by some other
family.” (In re A.A., supra, 167 Cal.App.4th at p. 1312.) “If the
child is considered generally adoptable, we do not [at the time]
examine the suitability of the prospective adoptive home.” (In re
Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
“[I]n some cases[,] a minor who ordinarily might be
considered unadoptable due to age, poor physical health, physical
disability, or emotional instability is nonetheless likely to be
adopted because a prospective adoptive family has been identified
as willing to adopt the child.” (In re Sarah M., supra,
22 Cal.App.4th at p. 1650.) “Where the social worker or adoption
worker opines the child is likely to be adopted based solely on the
existence of a prospective adoptive parent who is willing to adopt
the child, the child is said to be ‘specifically adoptable.’ ” (Seiser
& Kumli, Cal. Juvenile Courts Practice and Procedure, supra,
§ 2.171.) In cases involving specific adoptability, “the analysis
shifts from evaluating the characteristics of the child to whether
there is any legal impediment to the prospective adoptive
parent’s adoption and whether he or she is able to meet the needs
of the child.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80.)
We review the juvenile court’s adoptability finding for
substantial evidence. (In re Josue G. (2003) 106 Cal.App.4th 725,
732.) Where, as here, we must review “a finding that a fact has
been proved by clear and convincing evidence, the question . . . is
whether the record as a whole contains substantial evidence from
which a reasonable fact finder could have found it highly
probable that the fact was true. In conducting [our] review, [we]
must view the record in the light most favorable to the prevailing
party below and give appropriate deference to how the trier of
fact may have evaluated the credibility of witnesses, resolved
22
conflicts in the evidence, and drawn reasonable inferences from
the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
1011–1012 (O.B.).)
According to the parents, substantial evidence does not
support the juvenile court’s adoptability finding. They contend
the children are not generally adoptable because the children
“display rather serious challenges that did not improve
substantially over the course of the case.” In addition, the
parents argue the children are not specifically adoptable, as the
caregivers face several legal impediments to adoption.
We reject the parents’ contentions. Substantial evidence
supports the juvenile court’s implied finding that the children are
generally adoptable. We, therefore, need not address whether
the children are specifically adoptable.
By the time of the section 366.26 hearing held in August
2025, Wy. was five years old, Willow was three years old, and
Wry. was two years old. Their young age is an “attribute[ ]
indicating [their] adoptability.” (See In re Gregory A. (2005) 126
Cal.App.4th 1554, 1562.)
As for their physical health, the record shows that although
Wy. was born drug exposed, neither he nor Willow has any
medical conditions requiring continuing care or treatment. Like
Wy., Wry. was also born drug exposed. He additionally has
eczema and a heart murmur. However, per Wry.’s cardiologist,
the murmur is not life threatening and will only require
monitoring.
With respect to their developmental statuses, all three
children have speech delays but otherwise are meeting age-
appropriate milestones. Willow and Wy. both have
Individualized Education Programs, with the former qualifying
23
for speech therapy and the latter currently receiving services.
Willow has progressed in her speech, and although behind
initially, Wy.’s academics are improving. Wry. is trying to talk;
he knows a handful of single words and he imitates. Although he
originally did not qualify for services, Wry. has been re-referred
to the Regional Center for an assessment because, similar to his
siblings, “he appears to be behind in speech . . . .”
Behaviorally, the children are high-energy and active, often
exhibiting hyperactivity during virtual visits with their parents.
Their hyperactivity, however, appears limited to the visitation
context. When visits ended, the children calmed down
drastically. The parents do not cite, and we could not locate, any
evidence showing the children displayed hyperactive behavior in
other contexts.
Despite having a few special needs, the children exhibit
several positive qualities illustrative of their adoptability. They
are friendly, affectionate, and joyful. For example, the children
regularly greeted the DCFS social worker and the visit monitors
warmly with a hug, even when meeting them for the first time.
The children can form loving interpersonal relationships, having
done so with their caregivers and with one another. Although
they bicker on occasion, the children enjoy playing together and
express concern for one another. The caregivers’ willingness to
adopt the children notwithstanding their special needs further
illustrates their general adoptability.
In sum, while the children have a few special needs
requiring support, those needs did not remove them from the
realm of general adoptability. (See In re Mary C., supra,
48 Cal.App.5th at pp. 804–805 [affirming finding that two
siblings with significant developmental delays and behavioral
24
issues were generally adoptable because the children had several
“positive qualities,” including the ability to “form loving, trusting
relationships”]; see also In re R.C., supra, 169 Cal.App.4th at p.
492 [11-month-old’s “positive characteristics ma[d]e him
[generally] adoptable despite his in utero exposure to heroin,
[and] slight speech delays”].) The record here “contains
substantial evidence from which [the juvenile court] could have
found it highly probable that” the children will likely be adopted
in a reasonable time by their caregivers or by another family.
(O.B., supra, 9 Cal.5th at p. 1011; In re R.C., at p. 491.)
Having concluded substantial evidence demonstrates the
children are generally adoptable, we need not address whether
they are specifically adoptable. For this reason, we do not
consider the parents’ contentions regarding the adoptive home’s
suitability or the caregivers’ legal impediments to adoption. (See
In re Carl R., supra, 128 Cal.App.4th at p. 1061 [where the record
demonstrates a child is generally adoptable, “the suitability of
the prospective adoptive family does not constitute a legal
impediment to adoption and is irrelevant to the issue of whether
a child is likely to be adopted”].)
Mother argues that even if the children are generally
adoptable, the court should have declined to terminate parental
rights and continued the matter for 180 days pursuant to section
366.26, subdivision (c)(3), because the children “would be
considered ‘difficult to place for adoption.’ ” We reject this
argument as forfeited because mother did not request such a
continuance in the juvenile court. (See In re Dakota H. (2005)
132 Cal.App.4th 212, 221 [“A party forfeits the right to claim
error as grounds for reversal on appeal when he or she fails to
raise the objection in the trial court”].)
25
IV.
Though we have concluded the juvenile court orders
regarding visitation, changed circumstances, and adoptability
were proper, DCFS did not discharge its duty of inquiry as
required under ICWA and related California law. (See In re
Abbigail A. (2016) 1 Cal.5th 83, 91 [the Legislature incorporated
ICWA’s requirements into California law in 2006].)
“ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards a state court must follow before removing an Indian
child from his or her family.” (In re T.G. (2020) 58 Cal.App.5th
275, 287.) In general, both ICWA and the Welfare and
Institutions Code define an “ ‘Indian child’ ” as “any unmarried
person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903(4); § 224.1, subd. (b)(1).)
The juvenile court and DCFS have “an affirmative and
continuing duty to inquire whether a child for whom a
petition under Section 300 . . . may be or has been filed, is or may
be an Indian child.” (§ 224.2, subd. (a).) This continuing duty
can be divided into three phases: the initial duty to inquire, the
duty of further inquiry, and the duty to provide formal ICWA
notice. (See In re J.C. (2022) 77 Cal.App.5th 70, 77–78.) The
phase at issue here is the duty of further inquiry.
Further inquiry arises only when DCFS “has reason to
believe that an Indian child is involved in a proceeding, but does
not have sufficient information to determine that there is reason
to know that the child is an Indian child . . . .” (§ 224.2, subd. (e).)
26
A “reason to believe” exists when DCFS “has information
suggesting that either the parent of the child or the child is a
member or citizen, or may be eligible for membership or
citizenship, in an Indian tribe. Information suggesting
membership or eligibility for membership includes, but is not
limited to, information that indicates, but does not establish, the
existence of one or more of the grounds for reason to know
enumerated in” section 224.2, subdivision (d). (§ 224.2, subd.
(e)(1).) As relevant here, DCFS has “reason to know” an Indian
child is involved in a proceeding when, among other things, “[a]
person having an interest in the child, including . . . a member of
the child’s extended family informs the court that the child is an
Indian.” (Id., subd. (d)(1).)
“The required further inquiry includes (1) interviewing the
parents and extended family members; (2) contacting the Bureau
of Indian Affairs (BIA) and State Department of Social Services;
and (3) contacting tribes the child may be affiliated with and
anyone else that might have information regarding the child’s
membership or eligibility in a tribe.” (In re Dezi C. (2024)
16 Cal.5th 1112, 1132–1133, citing § 224.2, subd. (e)(2)(A)–(C).)
For purposes of further inquiry, “contact with a tribe ‘shall, at a
minimum, include telephone, facsimile, or electronic mail contact
to each tribe’s designated agent for receipt of [ICWA] notices,’
and ‘sharing information identified by the tribe as necessary for
the tribe to make a membership or eligibility determination, as
well as information on the current status of the child and the
case.’ ” (In re Dezi C., at p. 1133, citing § 224.2, subd. (e)(2)(C).)
“ ‘Where, as here, the juvenile court finds ICWA does not
apply to a child, “[t]he finding implies that . . . social workers and
the court did not know or have a reason to know the children
27
were Indian children and that social workers had fulfilled their
duty of inquiry.” [Citations.]’ ‘ “[W]e review the juvenile court’s
ICWA findings under the substantial evidence test . . . .” ’ ” (In re
Josiah T. (2021) 71 Cal.App.5th 388, 401; see In re Dezi C., supra,
16 Cal.5th at p. 1134.)
The parties dispute whether DCFS’s initial inquiry yielded
sufficient information to trigger its duty of further inquiry.
According to the parents, DCFS had reason to believe the
children are Indian children through both sides of their family.
Regarding their paternal lineage, father observes his adoptive
sister informed DCFS that his deceased adoptive grandfather had
Cherokee heritage but was not registered with a tribe. As for
their maternal lineage, mother notes she told DCFS that her
family is “related to the Blackfoot tribe based out of Florida.” She
stated “she was [the] third generation removed from the tribe,
and they were not registered or connected to the tribe.”
We agree with the parents that this information required
further inquiry. Where, as here, a parent reports possible Indian
ancestry through a specific or identifiable tribe, DCFS has reason
to believe the children are Indian children and, thus, must
conduct a further inquiry. (See In re D.F. (2020) 55 Cal.App.5th
558, 569 [further inquiry required where mother reported she
may have Indian ancestry through an unnamed tribe in New
Mexico]; In re T.G., supra, 58 Cal.App.5th 275, 292 [further
inquiry required where mother reported potential Cherokee
ancestry through her maternal family and possible Indian
ancestry with an unknown tribe through her paternal
grandfather]; cf. In re J.D. (2010) 189 Cal.App.4th 118, 125
[grandmother’s report that she was told by her grandmother that
she had Indian ancestry through an unknown tribe “[was] too
28
vague, attenuated, and speculative to give the dependency court
any reason to believe the child might be an Indian child”].)
DCFS raises two discernible counterarguments. First, it
seems to argue adoptive great-grandfather’s Cherokee heritage
did not give it a reason to believe the children are Indian children
because he was not registered with a tribe, and was not related to
the children by blood. It is well-settled, however, that under
ICWA, tribal membership is treated “as a matter of political
affiliation rather than racial origin” and “the question of
membership is determined by the tribes, not the courts or child
protective agencies.” (In re B.R. (2009) 176 Cal.App.4th 773, 783;
In re T.G., supra, 58 Cal.App.5th at p. 294.) We, therefore,
decline to assume — as DCFS suggests we should — the children
are ineligible for Cherokee membership because their connection
to the tribe lies with an adoptive relative who reportedly was not
registered with a tribe. (See In re B.R., at pp. 777, 784–785
[recognizing “father is potentially a member of an Apache tribe”
because his adoptive father is one-quarter Apache].)
Next, DCFS contends the information reported by mother
was insufficient to trigger further inquiry because “there is no
Blackfoot tribe from Florida,” and the only federally recognized
Blackfeet tribe is the Blackfeet of the Blackfeet Indian
Reservation of Montana. We disagree.
DCFS’s inquiry duty is “ ‘premised on the commonsense
understanding that, over time, Indian families, particularly those
living in major urban centers like Los Angeles, may well have
lost the ability to convey accurate information regarding their
tribal status.’ ” (In re E.C. (2022) 85 Cal.App.5th 123, 147.) In
discharging its duty, then, DCFS could not discount the
possibility that mother slightly misidentified the tribe to which
29
her family is related. (Cf. In re D.F., supra, 55 Cal.App.5th at p.
569 [further inquiry required where mother identified the
location, but not the name, of a tribe].) Nor could DCFS rule out
the possible inaccuracy of mother’s and her other relatives’ prior
denials of Indian ancestry. (See In re T.G., supra, 58 Cal.App.5th
at p. 289 [“Oral transmission of relevant information from
generation to generation and the vagaries of translating from
Indian languages to English combine to create the very real
possibility that a parent’s or other relative’s identification of the
family’s tribal affiliation is not accurate”]; see also In re Josiah
T., supra, 71 Cal.App.5th at p. 405 [“[A] mere change in [ICWA]
reporting, without more, is not an automatic ICWA free pass;
when there is a conflict in the evidence and no supporting
information, DCFS may not rely on the denial alone without
making some effort to clarify the [reporting] relative’s claim”].)
In sum, for the reasons stated above, we conclude DCFS
had reason to believe the children are Indian children and,
therefore, should have conducted a further inquiry pursuant to
section 224.2, subdivision (e). The record does not contain any
evidence, let alone substantial evidence, demonstrating it took
the statutorily-required actions. (See § 224.2, subd. (e).) DCFS
does not dispute its non-compliance with section 224.2,
subdivision (e)(2). We, therefore, must conditionally reverse the
order terminating parental rights and remand the matter to the
juvenile court for compliance with ICWA’s inquiry requirements.
(See In re Dezi C., supra, 16 Cal.5th at p. 1125.)
30
DISPOSITION
We conditionally reverse the order terminating parental
rights and remand the matter to the juvenile court for compliance
with ICWA’s inquiry requirements consistent with this opinion.
If the juvenile court thereafter finds a proper and adequate
further inquiry has been conducted and concludes ICWA does not
apply (§ 224.2, subd. (i)(2)), then the court shall reinstate the
order terminating parental rights. If the juvenile court concludes
ICWA applies, it shall proceed in conformity with ICWA and
California implementing provisions. (See 25 U.S.C., § 1912, subd.
(a); §§ 224.2, subd. (i)(1), 224.3, 224.4.)
SCHERB, J.
We concur:
STRATTON, P. J.
WILEY, J.
31