Filed 8/19/26
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
In re W.A., a Person Coming Under the Juvenile Court C104510
Law.
(Super. Ct. No. 22JD6472)
CALAVERAS COUNTY HEALTH AND HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
S.A.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Calaveras County, David
Sanders, Judge. Affirmed in part and reversed in part.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and
Appellant.
Julie Spoljaric, Deputy County Counsel, for Plaintiff and Respondent.
Appellant S.A. (mother), adoptive mother of the minor W., appeals from the
juvenile court’s order summarily denying her Welfare and Institutions Code section 388
petition for modification without a hearing. (Welf. & Inst. Code, §§ 300, 388, 395.)1
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of part I of the Discussion.
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
Mother also claims the juvenile court and the Calaveras Health and Human Services
Agency (Agency) failed to comply with the inquiry and notice requirements of the Indian
Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) We will affirm the
juvenile court’s orders but order further ICWA compliance and that a new ICWA finding
be entered.
BACKGROUND
Mother and father J.A. (father) legally adopted the minor W. and her sibling R. In
September 2022, W. (then age 13), R. (then age 15), and another sibling D. (then age 14)
were removed from the parents’ custody following reports of serious physical abuse
inflicted by father, who struggled with alcohol abuse, and mother’s failure to intervene or
protect the minors.2 The court ordered reunification services for both parents. Mother’s
services included parenting education and family and individual counseling.
At the combined six-month and 12-month review hearing held January 24, 2024,
the juvenile court found mother and father made minimal progress in their respective case
plans. The court terminated the parents’ reunification services and set the matter for a
section 366.26 hearing.
According to the May 2024 section 366.26 report, the minor was having once-
monthly visits with mother and objected to termination of parental rights. The Agency
recommended the minor remain in foster care with a goal of legal guardianship. A July
2024 addendum to the report stated the minor had been placed with a new caregiver and
was doing well. It was also reported that, while mother was supportive of father
returning to the home following his criminal trial, the minor was hopeful father would go
to prison so she could return home.
2 Siblings R. and D. are not parties to this appeal and will be mentioned only when
relevant to the issues raised by mother.
2
At the readiness conference on July 23, 2024, the juvenile court noted that, while a
section 366.26 hearing was set, the minor was approaching the age of majority and the
Agency was recommending she remain a dependent of the juvenile court in a planned
permanent living arrangement with the goal of legal guardianship. The parties agreed to
vacate the contested section 366.26 hearing and instead implement the Agency’s
recommended permanent plans via a section 366.3 postpermanency review hearing. The
court vacated the section 366.26 hearing, ordered legal guardianship as the minor’s
permanent plan, and further ordered that all prior nonconflicting orders remain in full
force and effect. On January 14, 2025, the court ordered legal guardianship remain the
minor’s permanent plan.
By January 2025, the minor was no longer participating in visits with mother. The
option of adoption as a permanent plan was discussed at a child and family team meeting
in June 2025. As of July 2025, the minor was still not visiting with mother and
reportedly wanted to be adopted by her current caregivers, who were having ongoing
discussions with her about guardianship and adoption. The minor had regular contact
with her sibling R. but had no contact with D. as they were not getting along. She was
also having contact with her biological mother and sister.
On July 8, 2025, at a postpermanency status review hearing, the juvenile court
noted the minor’s current caregivers were interested in adoption. The matter was
continued for a section 366.26 hearing.
On August 11, 2025, mother filed a section 388 petition requesting the juvenile
court reinstate her reunification services, vacate the section 366.26 hearing, and order a
bonding study between the minor and mother and the minor and her siblings. Mother’s
petition argued the anticipated change in the recommended permanent plan from legal
guardianship to adoption resulted in changed circumstances. The petition further argued
the request was in the minor’s best interest because termination of parental rights would
have long-term emotional and psychological impacts on the minor and would destroy the
3
family unit. Mother’s petition included her declaration and other documentation
purporting to support her arguments.
On August 12, 2025, the juvenile court summarily denied mother’s section 388
petition for failure to state new evidence or changed circumstances. The following week,
the Agency filed a notice of hearing on selection of a permanent plan indicating its
recommendation of adoption as the minor’s permanent plan.
Mother filed a timely notice of appeal of the juvenile court’s August 12, 2025,
denial of her section 388 petition.
DISCUSSION
I
Section 388 Petition for Modification
Mother contends the juvenile court abused its discretion when it summarily denied
her section 388 petition without a hearing. She claims she made a prima facie showing of
new evidence and changed circumstances and that the requested modification was in the
minor’s best interest. Mother’s claim lacks merit.
To petition to modify a juvenile court order under section 388, a party must
factually allege changed circumstances or new evidence to justify the requested order,
and that the requested order would serve the minor’s best interests. (In re Daijah T.
(2000) 83 Cal.App.4th 666, 672.) The petitioner has the burden of proof on both points
by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).)
In deciding whether a parent has met his or her burden under section 388, the
juvenile court must consider such factors as the seriousness of the problem that led to the
dependency and the reasons for the continuation of the problem; the degree to which the
problem may be and has been removed or ameliorated; and the strength of the relative
bonds between the dependent child and the child’s parents or caretakers. (In re B.D.
(2008) 159 Cal.App.4th 1218, 1229.) However, this list is not exhaustive. (Ibid.)
4
The child’s best interests “are not to further delay permanency and stability in
favor of rewarding” the parent for his or her “hard work and efforts to reunify.” (In re
J.C. (2014) 226 Cal.App.4th 503, 527.) “A petition which alleges merely changing
circumstances and would mean delaying the selection of a permanent home for a child to
see if a parent, who has repeatedly failed to reunify with the child, might be able to
reunify at some future point, does not promote stability for the child or the child’s best
interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47, disapproved on other grounds
in In re Caden C. (2021) 11 Cal.5th 614, 636, fn. 5.)
The juvenile court must liberally construe the petition in favor of its sufficiency.
(Cal. Rules of Court, rule 5.570(a).) Nonetheless, if the juvenile court finds that even so
construed the petition fails to make a prima facie case as to either or both tests under
section 388, the court may deny the petition without an evidentiary hearing. (In re
Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Jeremy W. (1992) 3 Cal.App.4th
1407, 1413; In re Zachary G. (1999) 77 Cal.App.4th 799, 806; see Cal. Rules of Court,
rule 5.570(d).) We review the summary denial of a section 388 petition for abuse of
discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 870; In re J.T. (2014)
228 Cal.App.4th 953, 965.) As we explain, the juvenile court properly exercised its
discretion.
A. New Evidence or Changed Circumstances
Here, regarding the first prong — new evidence or changed circumstances —
mother’s petition argued the plan for the minor “has changed from legal guardianship to
adoption.” We are not persuaded that this is the type of “change” contemplated by
section 388, nor has mother provided any authority suggesting otherwise. Here, mother’s
section 388 petition sought reinstatement of reunification services. But the Agency’s
change in the recommended permanent plan was not evidence that mother’s
circumstances had changed; that is, that she made such significant progress in her case
plan that additional services were warranted. However, even assuming a change in the
5
recommended permanent plan sufficed for purposes of section 388, it did not provide the
required prima facie evidence of changed circumstances. The minor was removed due to
father’s severe physical and emotional abuse and mother’s failure to intervene or protect
her. Mother’s petition argued she actively sought to reunify with the minor and that she
strived to address each of the Agency’s concerns, as evidenced by her successful
reunification with her son D. and her participation in parenting classes, individual and
family therapy, support groups, and educational seminars. However, unlike the cases
upon which mother relies — In re Aljamie D. (2000) 84 Cal.App.4th 424, 428, 431-432
and In re J.M. (2020) 50 Cal.App.5th 833, 844-846 (denial of § 388 petition after a
contested hearing) wherein proof of the respective parent’s significant progress in
services was set forth in the section 388 petition — here, mother provided no evidence of
services she participated in or completed since termination of her services in January
2024. To the extent mother argues she was not provided with reasonable services, she
has forfeited that claim due to her failure to timely challenge the juvenile court’s
reasonable services findings. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222
[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 juvenile court]; Kevin R. v. Superior Court (2010)
191 Cal.App.4th 676, 686.)
Mother’s petition also argued, as she does here on appeal, that the minor was
texting and posting on social media that she wanted to return home, requesting more
visits with mother, and requesting that the court reinstate mother’s reunification services,
all of which established a prima facie showing of new evidence or changed
circumstances. But the supporting documentation mother submitted with her petition was
either undated or contained general and unverified information, which does not provide
support for mother’s assertions. Further, the record demonstrates that throughout the
proceedings the minor vacillated between desiring to be with mother and not wanting to
see her or participate in visits with her. The court considered the Agency’s reports along
6
with mother’s petition and supporting documents. Based on the evidence and
information before it, the court found mother failed to make a prima facie case that her
circumstances were changed. The court properly exercised its discretion.
B. Best Interest of the Minor
Given mother’s failure to demonstrate a prima facie case of new evidence or
changed circumstances, we need not reach the issue of whether mother made a prima
facie showing of how reinstating her reunification services nearly three years after the
minor was removed from parental custody would be in the minor’s best interest. (In re
Casey D., supra, 70 Cal.App.4th at p. 48; In re Justice P., supra, 123 Cal.App.4th at
p. 189.) In any event, mother’s unsupported and conclusory allegations that termination
of parental rights would have long-term emotional and psychological impacts on the
minor simply because she was almost an adult, or that severance of the minor’s parental
and sibling relationships would destroy the family unit, fail to make the necessary prima
facie showing. Not only did mother fail to identify any evidence supporting her
conclusions, the evidence before the court contradicted them — the minor was
comfortable with her adoptive family and wanted to be with them; she had no trouble
articulating how she felt about her parents, siblings, and foster caretakers; she had no
desire to visit father or be with him and she hoped he would go to prison; there were no
reports she suffered any negative psychological effects from being away from her parents
or her siblings; she had a relationship with her sibling R. but there was no evidence she
was distressed when not with her; and she had little or no relationship with her sibling
D.3
3 Finally, mother argues she made a prima facie showing of best interest via the
minor’s desire to reunify with her and the minor’s request that the court reinstate her
services. But we have already rejected those claims due to the lack of evidence
supporting them.
7
Mother failed to make a prima facie showing of new evidence or changed
circumstances, or that her request was in the minor’s best interest. Thus, the allegations
in her petition did not meet either prong of section 388, and the juvenile court acted well
within its discretion in summarily denying mother’s section 388 petition.
II
ICWA
Mother contends the juvenile court erred in finding the Agency undertook a proper
ICWA inquiry of mother’s and father’s biological extended family members as well as
the minor’s adoptive extended family members. The Agency argues the ICWA is not at
issue here because mother appealed from the court’s denial of her section 388 petition, at
which hearing the court made no ICWA findings. Nonetheless, the Agency concedes its
failure to inquire of the minor’s biological extended relatives but argues it was not
required to inquire of the adoptive parents’ extended relatives. As we explain, the ICWA
is applicable under these circumstances, and the Agency’s duty of inquiry applied as to
the minor’s biological extended relatives and her adoptive extended relatives.
A. ICWA Background
At the inception of the dependency proceedings, mother and father signed parental
notifications of Indian status forms stating they had no known Indian ancestry. They
confirmed as much at the September 2022 detention hearing and further informed the
juvenile court that, as the minor’s adoptive parents, they had no knowledge regarding the
biological parents’ Indian ancestry. At that time, the court found there was no reason to
believe the minor was an Indian child and the ICWA did not apply. The court adopted
those findings at the subsequent jurisdiction hearing later that month.
The parents were asked about, and they repeatedly denied having, any new
information regarding possible Indian ancestry. At hearings in February 2023 and
thereafter throughout the entirety of the proceedings, the juvenile court confirmed its
8
previous finding that there was no reason to believe the minor was an Indian child and the
ICWA did not apply.
Evidence that the Agency asked any extended relatives, whether biological or
adoptive, about possible Indian ancestry is scarce. The social worker reported
questioning adoptive paternal grandmother W.P., who indicated all of the adoptive
maternal relatives (with whom she no longer had contact) lived in California and all of
the adoptive paternal relatives lived in Texas and, according to a DNA ancestry search,
none of the adoptive paternal relatives had any Native American ancestry. While the
record reveals that the Agency was aware of or had contact with other adoptive relatives
including maternal aunts K.K. and K.C., the paternal great-grandmother (the maternal
grandparents were already deceased), and father’s half-siblings, there is nothing in the
record demonstrating the Agency discussed potential Indian ancestry with any of those
known individuals.
Similarly, although the Agency was aware that the minor was communicating with
her biological mother and her biological sister M., the record is devoid of any evidence
the Agency attempted to identify and contact the minor’s biological relatives or, at the
very least, contact the minor’s biological mother and sister to make ICWA inquiry.
B. Applicable Law
“The ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for removal of Indian
children from their families, and by permitting tribal participation in dependency
proceedings. [Citations.] A major purpose of the ICWA is to protect ‘Indian children
who are members of or are eligible for membership in an Indian tribe.’ ” (In re A.W.
(2019) 38 Cal.App.5th 655, 662.) The ICWA defines an “ ‘Indian child’ ” as a child who
“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).)
9
“Under ICWA’s state analogue statutes [the California Indian Child Welfare Act]
(Cal-ICWA; [citation]), courts and child welfare agencies are charged with ‘an
affirmative and continuing duty to inquiry whether a child … is or may be an Indian
child’ in dependency cases.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1125; see § 224.2,
subd. (a); Cal. Rules of Court, rule 5.481(a).) “Inquiry includes, but is not limited to,
asking the child, parents, legal guardian, Indian custodian, extended family members,
others who have an interest in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child.” (§ 224.2, subd. (b)(2).)
“[S]ection 224.2 creates three distinct duties regarding ICWA in dependency
proceedings. First, from the Agency’s initial contact with a minor and his [or her] family,
the statute imposes a duty of inquiry to ask all involved persons whether the child may be
an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason
to believe’ the child is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e), italics added.) 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. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance
whether anyone ‘knows or has reason to know that the child is an Indian child’]; id.,
subd. (d) [defining circumstances that establish a ‘reason to know’ a child is an Indian
child]; § 224.3 [ICWA notice is required if there is a ‘reason to know’ a child is an Indian
child as defined under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.)
On appeal, we review ICWA findings and orders for substantial evidence. (See In
re D.S., supra, 46 Cal.App.5th at p. 1051.) A finding that the ICWA does not apply is
“subject to reversal based on sufficiency of the evidence.” (§ 224.2, subd. (i)(2).) The
juvenile court’s “fact-specific determination that an inquiry is adequate, proper, and duly
10
diligent is ‘a quintessentially discretionary function’ [citation] subject to a deferential
standard of review.” (In re Dezi C., supra, 16 Cal.5th at p. 1141.)
C. Analysis
The Agency first argues that, because no ICWA findings were made at the section
388 hearing from which mother appeals, the ICWA is not properly before us. We
disagree. In support of its argument, the Agency cites In re N.F. (2023) 95 Cal.App.5th
170, 179 (N.F.). There, the juvenile court made a finding in 2018 that the ICWA did not
apply. At the 2021 section 366.26 hearing, the court selected legal guardianship as the
minor’s permanent plan and terminated dependency jurisdiction. (N.F., at pp. 174-175.)
One year later, the mother filed a postpermanency section 388 petition in part challenging
the legal guardianship order. (N.F., at p. 175.) The court denied the section 388 petition.
(N.F., at pp. 175-176.)
On appeal from the section 388 order, the mother asked the appellate court to
reverse the legal guardianship order on the grounds that the juvenile court and the agency
failed to comply with their ICWA duties. (N.F., supra, 95 Cal.App.5th at p. 178.) The
appellate court agreed with the agency’s assertion that the mother forfeited her challenge
to the order for legal guardianship by not appealing from it, and that the agency no longer
had a duty of inquiry under the ICWA at the postpermanency proceedings. (N.F., at
p. 178.) In that regard, the court held that “[b]y failing to file a timely appeal from the
court’s legal guardianship order — entered at the time the court terminated its
dependency jurisdiction — mother has forfeited her right to challenge the court’s implied
ICWA finding made as part of that order.” (Id. at p. 179.) The court reasoned that
because the juvenile court terminated dependency jurisdiction when it instituted the legal
guardianship and did not vacate that order at the hearing on the mother’s section 388
petition, the “continuing duty of inquiry under section 224.2 was not implicated.” (N.F.,
at p. 179.)
11
N.F. is distinguishable from the case before us. Here, the juvenile court found, at
the September 2022 detention hearing, that the ICWA did not apply. Thereafter,
throughout the entirety of the proceedings, the juvenile court confirmed its previous
ICWA findings. On July 23, 2024, pursuant to the parties’ agreement, the court vacated
the section 366.26 hearing and ordered a permanent plan of legal guardianship for the
minor, confirming all prior nonconflicting orders but, unlike N.F., maintaining its
dependency jurisdiction over the minor. In January 2025, a permanent plan of adoption
was discussed by the parties and brought to the court’s attention. At the July 8, 2025,
postpermanency review hearing, the court set the matter for a section 366.26 hearing,
again confirming all prior nonconflicting orders. Mother filed her section 388 petition on
August 11, 2025, and the court summarily denied it the following day.
Here, the juvenile court had dependency jurisdiction over the minor when it heard
mother’s section 388 petition. Moreover, the court’s ICWA inapplicability order was
made at the September 2022 detention hearing and thereafter confirmed by the court
either expressly or impliedly throughout the proceedings, including at the July 8, 2025,
hearing when the court set the new section 366.26 hearing. Therefore, the Agency’s and
the court’s continuing duty of inquiry under the ICWA continued and was indeed
implicated. Given the court’s “affirmative and continuing duty to inquire whether a child
… is or may be an Indian child” (§ 224.2, subd. (a)), mother is not foreclosed from
raising the issue in this appeal from the section 388 petition even though she did not
appeal from the initial September 2022 order or any order thereafter expressly or
implicitly confirming the court’s ICWA finding. (See In re Isaiah W. (2016) 1 Cal.5th 1,
10 [parent’s failure to timely appeal from ICWA finding in dispositional order did not
preclude her from raising ICWA claim in appeal from order terminating parental rights].)
Next, the Agency argues it was not required to make ICWA inquiry of the minor’s
adoptive extended family members. We disagree. “[T]he definition of ‘Indian child’
under the ICWA does not by its terms automatically exclude” children who are “not the
12
biological children of a parent with Indian blood” and who are adoptees “of an ancestor
with Indian blood.” (In re B.R. (2009) 176 Cal.App.4th 773, 783.) “Tribal membership
is treated under the ICWA as a matter of political affiliation rather than racial origin:
‘The ICWA recognizes the political affiliation that follows from tribal membership in a
federally recognized tribe, rather than a racial or ancestral Indian origin … .’ [Citation.]
In incorporating the ICWA requirements into state law, the California Legislature
explicitly found and declared that tribal membership is a question of political affiliation
and that a tribe's determination of its membership is binding on the state: ‘A
determination by an Indian tribe that an unmarried person, who is under the age of 18
years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian
tribe and a biological child of a member of an Indian tribe shall constitute a significant
political affiliation with the tribe and shall require the application of the federal Indian
Child Welfare Act to the proceedings.’ (Welf. & Inst. Code, § 224, subd. (c).)” (Ibid.)
That is to say, while the minor’s adoptive parents denied any Indian ancestry, it is
nonetheless possible their extended relatives knew otherwise and could provide
information to the Agency upon proper and diligent inquiry. Assuming an adoptive
extended relative had Indian ancestry, there could then be reason to believe the minor
could be eligible for membership in an Indian tribe. It would then be the respective
tribe’s prerogative whether or not to grant the child membership. (Ibid.; In re Dezi C.,
supra, 16 Cal.5th at p. 1129 [the ICWA gives Indian tribes “ ‘concurrent jurisdiction over
state court child custody proceedings’ ” and, “when ICWA applies, ‘the Indian child’s
tribe shall have a right to intervene at any point’ in a proceeding involving the removal of
an Indian child from their family”].) In short, the ICWA was “intended to protect Native
American heritage, cultural connections between tribes and children of Native American
ancestry, the best interests of Indian children, and the stability and security of Indian
tribes and families.” (In re Dezi C., at pp. 1125; see id. at pp. 1128-1129.) Thus, ICWA
13
inquiry of the adoptive extended relatives here was not only required here but imperative
in order to fulfill the ICWA’s intent.
Finally, the Agency concedes it failed to fulfill its inquiry obligations regarding
the minor’s extended biological relatives. We accept the Agency’s concession and agree
that remand is necessary. The record reveals the minor was communicating with her
biological mother and her biological sister M. The Agency made no attempt to contact
those individuals or to identify or contact any of the other biological extended relatives.
We will direct the juvenile court to conduct further ICWA proceedings consistent with
this opinion.
DISPOSITION
The juvenile court’s order denying mother’s section 388 petition is affirmed.
Consistent with this opinion, the juvenile court’s finding that the ICWA does not apply is
vacated and the matter is remanded for further ICWA compliance proceedings,
whereafter the juvenile court shall enter new ICWA findings. If the minor is found to be
an Indian child, the juvenile court shall proceed in compliance with the ICWA and
California implementing provisions.
/s/
EARL, P. J.
We concur:
/s/
HULL, J.
/s/
KRAUSE, J.
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