Filed 10/30/26 In re B.W. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.W., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E088398
Plaintiff and Respondent, (Super.Ct.No. J300258)
v. OPINION
ROBERT W.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed.
Cindy Lane, under appointment by the Court of Appeal, for Defendant and
Appellant.
Laura Feingold, County Counsel, and Svetlana Kauper, Deputy County Counsel,
for Plaintiff and Respondent.
1
Robert W. (Father) appeals from the juvenile court’s denial of his petition under
section 388 of the Welfare and Institutions Code. (Unlabeled statutory references are to
this code.) He contends that the juvenile court and San Bernardino County Children and
Family Services (CFS) failed to discharge their duties of inquiry under the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related state law. We affirm.
BACKGROUND
In March 2024, CFS received a referral alleging neglect of 13-year-old Brody W.
Brody’s mother, Autumn F. (Mother), told the investigating social worker that Brody had
assaulted her. She said that she had “‘never been beat this bad before,’” and she
“‘[couldn’t] even raise [her] arms.’” Brody “also took a hammer to all the windows in
the house and poured gasoline in the home.” Law enforcement officers took Brody to the
hospital, where he was placed on a mental health hold. Mother told CFS that she did not
feel safe with Brody in her home.
CFS asked Mother and Brody’s stepfather whether they had Indian ancestry, and
they responded that they did not.1 CFS reported that Father’s location was unknown and
that ICWA did not apply.
CFS filed a petition under section 300 alleging that Mother was unable or
unwilling to provide adequate care for Brody and that Father’s whereabouts were
unknown.
1 Because ICWA uses the term “Indian,” we use it as well “to reflect the statutory
language.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1125, fn. 1 (Dezi C.).) No disrespect
is intended.
2
At the detention hearing, the court asked Mother, Brody’s stepmother, and the
paternal grandfather whether they had any Indian ancestry, and they each responded that
they did not. Mother subsequently told the court that Brody, the stepmother, and the
paternal half-brother had a restraining order against Father and that Father had been
convicted of child abuse. The court detained Brody in a short-term residential therapeutic
program (STRTP), ordered that Mother have supervised visitation once per week for two
hours, and found that Father’s visitation would be detrimental to Brody.
Mother completed CFS’s Family Find and ICWA Inquiry form, and she indicated
that she did not have Indian ancestry. She included the phone numbers for the maternal
grandmother and the stepmother, and she provided the paternal grandfather’s name. The
paternal grandfather completed a similar inquiry form, and he checked boxes indicating
that he did not have Indian ancestry and that Brody had no relatives with Indian ancestry.
The paternal grandfather included phone numbers for paternal aunt Diane W. and the
stepmother.
CFS filed a jurisdiction and disposition report in March 2024 and reported that
Mother, Father, and the paternal grandfather denied having Indian ancestry. CFS reported
that ICWA did not apply. CFS subsequently filed an amended petition under section 300
adding allegations that Father had sexually abused Brody and had a history of domestic
violence and substance abuse.
At the jurisdiction and disposition hearings, the court asked the stepmother
whether she had any reason to know that Brody had Indian ancestry, and she responded
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that she did not. The court then asked the paternal grandfather whether anyone in his
family had Indian ancestry, and he said that he was not aware of anyone. Father appeared
at the hearings, and he said that he did not know whether he had Indian ancestry. The
court continued the matter for a contested hearing.
A child and family team meeting took place in March 2024, and the meeting
summary stated that ICWA did not apply. In April 2024, Father completed CFS’s Family
Find and ICWA Inquiry form, and he stated that he did not have Indian ancestry. Father
included the paternal grandparents’ names and their phone numbers. Father also
completed a parental notification of Indian status form, and he checked the box indicating
that neither he nor Brody was a member or eligible for membership in an Indian tribe.
CFS filed another jurisdiction and disposition report and again reported that
Mother, Father, and the paternal grandfather did not have Indian ancestry and that ICWA
did not apply.
The paternal grandparents appeared at the contested jurisdiction and disposition
hearings, and the court asked them whether they or anyone in their family had Indian
ancestry. The paternal grandfather said that he was not aware of any. The paternal
grandmother said that the late paternal great-grandfather had Indian ancestry, but she did
not know which tribe.
The court found true the allegations that Mother was unable or unwilling to
provide adequate care for Brody, that Father had a history of domestic violence and
substance abuse, and that Father had sexually abused Brody. The court dismissed the
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remaining allegations, declared Brody a dependent of the court, removed him from the
parents, ordered reunification services for Mother, and bypassed Father for reunification
services pursuant to subdivision (b)(6) of section 361.5. The court found Father’s
visitation with Brody detrimental and ordered that Mother have supervised visits once per
week for two hours. The court found that ICWA may apply.
CFS filed a six-month status review report in November 2024. CFS again
reported that in March 2024 the parents and the paternal grandfather denied Indian
ancestry. The social worker also reported asking the maternal grandmother and the
stepmother whether they had Indian ancestry, and they responded that they did not. The
report asserted that ICWA did not apply.
The six-month review hearing occurred in December 2024. The court continued
Mother’s reunification services, and it set the matter for a 12-month review hearing.
In April 2025, CFS filed a 12-month status review report. CFS did not report on
any new ICWA inquiries, and it concluded that ICWA did not apply.
At the 12-month review hearing, the court continued Mother’s reunification
services, and it granted Mother unsupervised visitation once per week for six hours.
In September 2025, CFS filed an 18-month status review report. CFS reported
that it had asked the parents and the paternal grandfather whether they had Indian
ancestry again in August 2025, and they said that they did not. The report again asserted
that ICWA did not apply.
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At the 18-month status review hearing, the court granted minor’s counsel’s request
for a continuance to allow CFS to assess whether Mother or the stepmother was suitable
for Brody’s placement. Mother’s counsel informed the court that there was a protective
order in place that prevented Brody from “be[ing] around other minors,” and she was
trying to have it amended.
In October 2025, CFS filed an “additional information to the court” containing a
report by the stepmother of a visit with Brody. The stepmother said that she woke up
with “Brody laying in her bed and touching her private area and attempting to put his
hands under her under garments.” She got up, and Brody pretended to be asleep. She
was “in disbelief, hurt, shocked, and disappointed.” She later told CFS that she did “not
want to move forward with legal guardianship or adoption.”
CFS contacted Mother, and Mother said that the stepmother had told her what
happened. Mother said that she would not try to have the protective order amended “as
Brody ha[d] sabotaged any efforts to bring him back home.”
The court conducted the continued 18-month review hearing in November 2025.
The parties submitted on CFS’s recommended findings and orders, and the court ordered
that Brody remain placed in the STRTP with a permanent plan of adoption. The court
terminated reunification services and ordered that Mother continue to have unsupervised
visitation with Brody once per week for six hours.
In January 2026, CFS filed an STRTP review report and indicated that Brody had
no Indian tribal membership.
6
In March 2026, Father filed a section 388 petition asking the court for
reunification services or, alternatively, supervised visitation. Father alleged that he had
completed several programs, including “Individual therapy, Substance abuse testing, 12-
steps meetings, substance abuse outpatient, California prime recovery 120-day treatment
program, Addiction and mental health disorders program, 52 Week Domestic violence
batterer’s program, and 24/7 Dad A.M. program.” He contended that he was a “changed
father” and was capable of taking care of Brody. Father attached several letters in
support of his request, including letters from paternal aunt Wendy W. and a relative
known as Morgan B.
The following month, the court denied Father’s request on the ground that it would
not promote Brody’s best interest.
DISCUSSION
Father argues that the court and CFS failed to discharge their duties of inquiry
under section 224.2. Father contends that the court failed “to ensure that the record
supported the findings required before ICWA could be determined inapplicable.” He
concludes that a “limited remand is required to permit compliance with ICWA.” Because
this is an appeal from the denial of Father’s section 388 petition and Father has not shown
any error with respect to that denial, we affirm.
“Section 388 permits the parent of a dependent child to petition the juvenile court
for a hearing to modify an earlier order on the basis of changed circumstances or new
evidence. (§ 388, subd. (a)(1).) The petitioning party bears the burden of showing that
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there is new evidence or changed circumstances and that the proposed modification
would be in the best interests of the child.” (In re N.F. (2021) 68 Cal.App.5th 112, 120.)
The child welfare department and the juvenile court have an “affirmative and
continuing duty to inquire” whether a child in a dependency proceeding “is or may be an
Indian child.” (§ 224.2, subd. (a).) “The duty to inquire consists of two phases—the duty
of initial inquiry and the duty of further inquiry.” (In re Ricky R. (2022) 82 Cal.App.5th
671, 678, disapproved on another ground by Dezi C., supra, 16 Cal.5th at p. 1152, fn.
18.) We need not describe those duties in detail for purposes of this appeal.
Father identifies four relatives (the paternal grandmother, paternal aunts Diane W.
and Wendy W., and Morgan B.) whom he claims CFS failed to ask about Indian ancestry.
He argues that the juvenile court erred by failing to ensure that CFS complied with its
duty of inquiry with respect to those individuals.
The argument fails because it does not identify any error in the court’s denial of
Father’s section 388 petition, and this is an appeal from that denial. The court denied the
petition on the ground that the requested relief was not in Brody’s best interest. The court
did not at that time make any express findings with respect to ICWA. Nor did the court
implicitly find that ICWA does not apply; no such finding was necessary. Rather, the
finding that the requested relief was not in Brody’s best interest was sufficient to support
denial of the petition, regardless of the applicability of ICWA. Because Father has not
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shown any error in the court’s denial of his section 388 petition, we must affirm. (In re
Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.)2
DISPOSITION
The order denying Father’s section 388 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAPHAEL
Acting P. J.
LEE
J.
2 The record reflects that the juvenile court’s most recent finding with respect to
ICWA is that ICWA may apply. For reasons already explained, that finding is not before
us on this appeal. But both CFS and the juvenile court may wish to consider whether any
additional ICWA investigation is appropriate in light of the issues raised in this appeal,
given the court’s finding and the affirmative and continuing duty to inquire. (§ 224.2,
subd. (a).)
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