Filed 7/9/26 In re M.E. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re M.E. et al., Persons Coming 2d Juv. No. B350239
Under the Juvenile Court Law. (Super. Ct. No. 24JD-
00286)
(San Luis Obispo County)
SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL
SERVICES,

Plaintiff and Respondent,

v.

C.M. et al.,

Defendants and Appellants.

C.M. (Mother) and J.E. (Father) appeal from the juvenile
court’s order terminating their parental rights to their daughter
M.E. and son K.E. and selecting adoption as the permanent plan.
(Welf. & Inst. Code,1 § 366.26.) They contend remand is
necessary for further inquiry pursuant to the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and a
determination on its applicability here. They also contend the
court misapplied the law when it found the beneficial parental
relationship exception inapplicable. (§ 366.26, subd. (c)(1)(B)(i).)
We agree and reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
In December 2024, the San Luis Obispo County
Department of Social Services (the Department) was contacted
after six-week-old K.E. was admitted to the intensive care unit
with head injuries including two skull fractures, multiple brain
bleeds, and bleeding in the spinal column. He was experiencing
seizures and difficulty breathing. He also had rib fractures and a
wrist fracture that were older injuries and healing. His injuries
were consistent with abuse. K.E. and M.E., age three at the time,
were taken into protective custody.
The Department filed an amended dependency petition
alleging that based on K.E.’s injuries, Mother and Father failed
to protect or supervise both K.E. and M.E. (§ 300, subd. (b)),
inflicted severe physical abuse of K.E. (id., subd. (e)), and placed
M.E. at substantial risk of abuse or neglect due to the abuse of
her sibling (id., subd. (j)). Following a contested
jurisdiction/disposition hearing, the juvenile court sustained the
allegations, denied reunification services to Mother and Father
pursuant to section 361.5, subdivision (b)(5) and (6), and set a
section 366.26 hearing. Mother and Father filed writ petitions
challenging the denial of reunification services and the setting of

1 Further unspecified statutory references are to the
Welfare and Institutions Code.

2
the section 366.26 hearing. We denied the petitions. (C.M. v.
Superior Court (Aug. 20, 2025, B345915) [nonpub. opn.].)
ICWA
The Department filed an ICWA compliance/due diligence
report in March 2025. The report documented the Department’s
ICWA inquiry efforts. The social worker interviewed maternal
grandfather, who reported that his fifth great-grandmother was
Cherokee Indian and that he took a DNA test showing he was
one percent Native American Indian. He was unsure of his
eligibility for membership with a Native American tribe. The
report stated that based on initial and further inquiry, there was
“reason to believe” the children are Indian children. It further
stated that the Department “will continue to make affirmative
and ongoing inquiries” and “will send Informal Inquiry Letters to
all three Cherokee tribes for claim made by the maternal
grandfather.”
The section 366.26 report dated August 2025 and the status
report dated October 2025 restated the same information and
said there was a “reason to believe” the children are Indian
children. The Department again said that it would “continue to
make affirmative and ongoing inquiries” and would send informal
letters to the three Cherokee tribes. No letters were sent to these
tribes.
Section 366.26 hearing
The section 366.26 report recommended Mother and
Father’s parental rights be terminated and that M.E. and K.E. be
found adoptable. The children had been placed with their

3
paternal grandparents since May 2025. The paternal
grandparents expressed their commitment to adopt the children.
The juvenile court held the contested section 366.26
hearing in October 2025. Following argument, the juvenile court
terminated Mother and Father’s parental rights over M.E. and
K.E. It found the beneficial parental relationship exception did
not apply. The court reasoned: “I find that the risk to the
children exceeds the parental-child relationship. I have
considered the factors in Caden C. The unexplained significant
injuries and the chance of that happening again far outweigh the
relationship that exists and the potential detriment to [M.E.] I
do not find that there is a detriment to [K.E.], but I do find that
there is a detriment as to [M.E.] Again, it is outweighed. The
best interests of the child are to move forward towards adoption.”
DISCUSSION
1. ICWA
Father and Mother contend, and the Department concedes,
that remand is necessary to allow further ICWA inquiry and a
ruling on the applicability of ICWA to this case.
For purposes of ICWA, an “ ‘Indian child’ ” is a child who
either is a “member of an Indian tribe” or “is eligible for
membership in an Indian tribe” because they are the biological
child of a tribe member. (25 U.S.C § 1903(4); see also § 224.1,
subd. (a).) The juvenile court and the county child welfare
department have an affirmative and continuing duty to inquire
whether a child subject to dependency proceedings is or may be
an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rules
5.481(a) & 5.668(c).) “ ‘The continuing duty to inquire whether a
child is or may be an Indian child “can be divided into three
phases: the initial duty to inquire, the duty of further inquiry,

4
and the duty to provide formal ICWA notice.” ’ ” (In re Antonio R.
(2022) 76 Cal.App.5th 421, 429.)
The duty to inquire begins with the initial contact and
obligates the child services agency and the juvenile court to ask
the child, parents, extended family members, and others who
have an interest in the child, whether the child is, or may be, an
Indian child. (§ 224.2, subds. (a)–(c).) Extended family members
include the child’s grandparents, aunts and uncles, siblings,
brothers and sisters-in-law, first and second cousins, nieces and
nephews, and stepparents. (25 U.S.C. § 1903(2); § 224.1, subd.
(c)(1).)
The duty of further inquiry is triggered if the child services
agency or the juvenile court has “reason to believe that an Indian
child is involved in a proceeding, but does not have sufficient
information to determine there is a reason to know that the child
is an Indian child.” (§ 224.2, subd. (e).) Further inquiry shall be
made “as soon as practicable.” (Ibid.) The Legislature defines
“reason to believe” as having “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.”
(§ 224.2, subd. (e)(1).)
When the “reason to believe” threshold is reached, the
required further inquiry includes, among other things:
interviewing the parents and extended family members,
contacting the Bureau of Indian Affairs (BIA) and State
Department of Social Services for assistance in identifying the
tribes in which the child may be a member or eligible for
membership, and contacting the tribes and any other person that
may reasonably be expected to have information regarding the

5
child’s membership status or eligibility. (§ 224.2, subd. (e)(2)(A)–
(C).)
Here, based on maternal grandfather’s possible Cherokee
Indian lineage, the Department reported to the juvenile court
that it had “reason to believe” M.E. and K.E. were Indian
children. “Because it had reason to believe an Indian child may
be involved, the Department was obligated . . . to ‘make further
inquiry regarding the possible Indian status of the child’ and to
‘make that inquiry as soon as practicable.’ ” (In re Rylei S. (2022)
81 Cal.App.5th 309, 319.) The Department did not satisfy its
duty. Although the Department stated it would continue to make
ongoing and affirmative inquiries and send informal inquiry
letters to three Cherokee tribes, nothing in the record suggests
the Department has done so. The record does not reflect that the
BIA or any of these tribes have been contacted. Remand is
therefore required for the Department to make such further
inquiry.
The record also reflects that the Department was still in
the process of conducting its ICWA inquiry of extended family
members. The social worker interviewed Mother and Father,
maternal grandparents, maternal step-grandfather, paternal
aunt, and paternal grandmother. In the first addendum ICWA
compliance/due diligence report dated August 2025, under the
heading “Person of Interest/Follow Up Items,” the Department
identified the paternal grandfather as a person of interest for the
purposes of ICWA inquiry. The addendum notes that the social
worker attempted to contact paternal grandfather in January
and again in August 2025, but the record contains no information
regarding further attempts thereafter. Because the paternal
grandfather is the children’s caregiver, he is a known relative

6
who may be of assistance to the Department in investigating
whether the children are Indian children. (In re Dezi C. (2024) 16
Cal.5th 1112, 1140 (Dezi C.).) The Department also reported that
it would “[i]dentify and [c]onfirm [a]dditional [m]aternal and
[p]aternal [r]elatives.” But the record does not reflect that
further efforts were made. Thus, it appears that Department’s
inquiry efforts are still underway. On remand, the Department
should ensure adequate and proper inquiry, including inquiry of
extended family members, in compliance with section 224.2.
The Department also concedes the matter must be
remanded because the juvenile court did not make a finding on
the record regarding the applicability of ICWA. We accept this
concession. There is no indication in the record that the court
considered whether the Department’s inquiry was proper,
adequate, or duly diligent; nor is there any indication it
considered whether ICWA applied. (§ 224.2, subd. (i)(2).)
On remand, the Department shall make any additional
inquiry and documents its efforts, and the juvenile court shall
determine whether the inquiry was proper, adequate, and duly
diligent, and whether ICWA applies. (Dezi C., supra, 16 Cal.5th
at p. 1137.)
2. Beneficial parental relationship exception
Mother and Father contend the juvenile court also erred in
finding the beneficial parental relationship exception inapplicable
as to M.E. because the court misapplied the law as to the third
prong of the exception. We agree.
“At the section 366.26 hearing, the question before the
court is decidedly not whether the parent may resume custody of
the child. [Citations.] . . . Indeed, when the court orders the
section 366.26 hearing, reunification services have been

7
terminated, and the assumption is that the problems that led to
the court taking jurisdiction have not been resolved.” (In re
Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).)
The juvenile court’s goal at the section 366.26 hearing is to
select and implement the permanent plan for the dependent
child. (Caden C., supra, 11 Cal.5th at p. 630.) Adoption is the
“ ‘permanent plan preferred by the Legislature.’ ” (In re D.O.
(2016) 247 Cal.App.4th 166, 173; Caden C., at p. 630.) The court
must first determine by clear and convincing evidence “that it is
likely the child will be adopted.” (§ 366.26, subd. (c)(1).) “If so,
and if the court finds that there has been a previous
determination that reunification services be terminated, then the
court shall terminate parental rights to allow for adoption” unless
a statutory exception applies. (Caden C., at pp. 630–631;
§ 366.26, subd. (c)(1).)
One such exception, the beneficial parental relationship
exception, applies when a parent shows: “(1) regular visitation
and contact, and (2) a relationship, the continuation of which
would benefit the child such that (3) the termination of parental
rights would be detrimental to the child.” (Caden C., supra, 11
Cal.5th at p. 631, italics omitted; § 366.26, subd. (c)(1)(B).) The
parent must prove these three elements by a preponderance of
the evidence. (Caden C., at p. 636.) “[T]he exception applies in
situations where a child cannot be in a parent’s custody but
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adoptive home,
would be harmful for the child.” (Id. at p. 630.)
The first element of regular visitation and contact is
“straightforward” as the court assesses whether the parents
visited consistently to the extent permitted by court orders.

8
(Caden C., supra, 11 Cal.5th at p. 632.) In assessing the second
element of whether the child would benefit from continuing the
parental relationship, the focus is on the child. The court
considers factors such as “ ‘[t]he age of the child, the portion of
the child’s life spent in the parent’s custody, the “positive” or
“negative” effect of interaction between parent and child, and the
child’s particular needs.’ ” (Ibid.) Courts often consider how
children feel about, interact with, look to, or talk about their
parents. (Ibid.)
In assessing the third element of whether termination of
the parental relationship would be detrimental to the child, “the
court must decide whether it would be harmful to the child to
sever the relationship and choose adoption. [Citations.] Because
terminating parental rights eliminates any legal basis for the
parent or child to maintain the relationship, courts must assume
that terminating parental rights terminates the relationship.
[Citations.] What courts need to determine, therefore, is how the
child would be affected by losing the parental relationship—in
effect, what life would be like for the child in an adoptive home
without the parent in the child’s life.” (Caden C., supra, 11
Cal.5th at p. 633.) “In each case, then, the court acts in the
child’s best interest in a specific way: it decides whether the harm
of severing the relationship outweighs ‘the security and the sense
of belonging a new family would confer.’ ” (Ibid.)
“When [the juvenile court] weighs whether termination
would be detrimental, the court is not comparing the parent’s
attributes as custodial caregiver relative to those of any potential
adoptive parent(s). Nothing that happens at the section 366.26
hearing allows the child to return to live with the parent.
[Citation.] Accordingly, courts should not look to whether the

9
parent can provide a home for the child.” (Caden C., supra, 11
Cal.5th at p. 634.)
A hybrid standard of review applies to the juvenile court’s
findings regarding the beneficial parental relationship exception.
We review factual determinations for substantial evidence
(Caden C., supra, 11 Cal.5th at pp. 639–640) and the court’s
weighing of the relative harms and benefits of terminating
parental rights for abuse of discretion. (Id. at p. 640.) “When a
juvenile court bases its decision to terminate parental rights on
improper factors, the trial court abuses its discretion.” (In re
M.G. (2022) 80 Cal.App.5th 836, 852.)
Mother and Father contend the juvenile court considered
improper factors in analyzing the third element. We agree. In
analyzing the third factor, the court found “detriment as to
[M.E.]” if it terminated parental rights. The court focused on “the
risk [of harm] to the children,” and “unexplained significant
injuries,” concluding that “the chance” of reinjury “far
outweigh[ed] the relationship that exists.” In contravention of
Caden C., the court erred by not basing its determination on how
M.E. would be affected by losing the parental relationship or
considering whether terminating that relationship would
outweigh the security of an adoptive home. (Caden C., supra, 11
Cal.5th at p. 633.) By omitting this analysis, the juvenile court
relied on improper factors to conclude that the third prong
weighed against application of the beneficial parental
relationship exception. “Nothing that happens at the section
366.26 hearing allows the child to return to live with the parent.”
(Id. at p. 634.)
And because the juvenile court found there would be
detriment to M.E. if it terminated parental rights, we cannot

10
conclude the error is harmless. We therefore reverse the juvenile
court’s order and direct the court to conduct a proper analysis
under the Caden C. framework. (See In re M.V. (2023) 87
Cal.App.5th 1155, 1186; Caden C., supra, 11 Cal.5th at pp. 633–
639.)
DISPOSITION
The order terminating parental rights to K.E. and M.E. is
reversed. On remand, the juvenile court shall conduct further
proceedings to ensure full compliance with ICWA and make
appropriate findings as to ICWA’s application. The juvenile court
shall also conduct a new section 366.26 hearing in conformance
with the principles articulated in Caden C., supra, 11 Cal.5th
614.
NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

YEGAN, Acting P. J.

CODY, J.

11
 Matthew G. Guerrero, Judge

Superior Court County of San Luis Obispo

______________________________

Amy Z. Tobin, under appointment by the Court of Appeal,
for Defendant and Appellant C.M. (Mother).
Christopher Blake, under appointment by the Court of
Appeal, for Defendant and Appellant J.E. (Father).
Jon Ansolabehere, County Counsel, Chelsea K. Kuhns,
Deputy County Counsel, for Plaintiff and Respondent.