Filed 6/30/26 In re L.R. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re L.R., A Person Coming Under
the Juvenile Court Law.
NAPA COUNTY HEALTH AND
HUMAN SERVICES
DEPARTMENT, A175558
Plaintiff and Respondent, (Napa County Super. Ct. No.
v. 24JD000016)
K.H.,
Defendant and Appellant.
In June 2024, appellant K.H. (mother)’s then two-year-old daughter,
L.R., was removed from her care due to her issues with substance abuse.
Mother subsequently entered a residential treatment program, and the Napa
County Health and Human Services Department (department) recommended
that mother’s reunification services be continued to the 12-month review.
Shortly after leaving her treatment program, mother relapsed, was taken
into custody on criminal charges, and her reunification services were
terminated. Mother again entered the same treatment program, and then
filed a petition alleging a change in circumstances. After a hearing, the
juvenile court denied the petition, and shortly thereafter terminated mother’s
parental rights and selected adoption as L.R.’s permanent plan. Mother
1
argues that denial of her petition was error, that the juvenile court erred in
finding that the beneficial relationship exception to adoption did not apply,
and that the department’s inquiry into L.R.’s possible Native American
ancestry was inadequate. We affirm.
BACKGROUND
The Initial Petition
On June 10, 2024, the department filed a petition under Welfare and
Institutions Code1 section 300, subdivision (b)(1) with respect to then two-
year-old L.R. The petition alleged that mother “has untreated mental illness,
demonstrating disorganized, paranoid, and illogical thought processes and
violent fits of rage within her home which impairs her ability” to care for
L.R.; that she had a “documented history of untreated substance abuse
issues, including the abuse of heroin and methamphetamine during her
pregnancy and after she delivered [L.R.]”; that she “leaves [L.R.] alone inside
the home while [she] goes outside to smoke marijuana”; and that “the father,
[J.R.], knew or reasonably should have known that the mother has untreated
mental illness and or substance abuse, as he stated on 6/07/2024 that he has
been concerned about the mother’s mental stability and suspected the mother
of abusing substances for at least two months, based on her paranoia,
accusing him of putting cameras in the home, hearing strange men in the
home, and overall secretiveness.”
The petition was prompted by a referral made on May 16. And
according to the detention report filed June 11, law enforcement received a
call on May 16 “reporting that the mother was in the apartment yelling,
1 Further undesignated statutory references are to the Welfare and
Institutions Code.
2
breaking the blinds, with [L.R.] in the apartment,” and the caller believed
“mother was under the influence and . . . on drugs.” When law enforcement
arrived, mother “stated that she knew somebody would call, and that she was
trying to kill a bunch of flies that had gotten into her apartment.”
On May 19, law enforcement received another call “reporting that the
mother was throwing things off her patio in a ‘fit,’ that she had erratic
behavior, and that the caller believed the mother was in a ‘drug induced
psychosis.’ The caller stated that the mother was banging on the wall and
yelling, opening the door and yelling outside as well. When law enforcement
arrived, the mother reported being upset over a relationship issue she refused
to disclose. [L.R.] was sleeping at this time. The mother was assisted with
finding her vehicle which had been towed and she was upset about it.”
According to the June 11 detention report, a social worker met with
mother on May 29, and “[d]uring this interaction, [she] appeared to have
disorganized and paranoid thoughts and delusions, and made contradictory
statements.” When asked whether she used substances, mother answered
“ ‘not often,’ ” and when asked whether she used “ ‘meth, heroin, and
cocaine,’ ” she responded, “ ‘only recreationally,’ when she was out with
friends,” and stated “she does not have any drugs in the home.” When “asked
again, at a later time,” if she “used anything such as cocaine, or meth,
[mother] stated ‘not in a long time,’ and [that] she tries not to use anything.
[She] . . . later stated she only uses marijuana, including edibles, smoking
outside while [L.R.] is inside, and putting CBD lotion on. The mother denied
using any other substances.”
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L.R.’s Removal
On June 6, the juvenile court issued a protective custody warrant
pursuant to section 340, and that same day L.R. was placed in a resource
home.
Mother was not present at the detention hearing held on June 11. At
that hearing, the juvenile court appointed counsel for mother, ordered L.R.
detained, and set a jurisdiction and disposition hearing for July 2.
The jurisdictional and dispositional hearing was ultimately held on
July 25, with mother again absent. The juvenile court found the allegations
of the petition true, ordered L.R. removed from mother’s care, and ordered
reunification services for both parents. The court authorized supervised
visitation at a “minimum of three hours per week.” That same day, mother
was by arrested by the Napa Police Department on various charges, including
burglary and taking a vehicle without the owner’s consent, and subsequently
spent 19 days in jail.
On September 20, mother was arrested by Napa police on various
charges. And on December 17, she pleaded no contest to receiving stolen
property (Pen. Code, § 496d, subd. (a)), resisting a peace officer (Pen. Code,
§ 148, subd. (a)(1)), and burglary (Pen. Code, § 459).
The Six-Month Review Hearing
Mother remained in custody until January 23, 2025, the date set for the
six-month review hearing, which hearing she attended via Zoom. Mother’s
counsel indicated that mother had been released from custody and would be
entering the Archway inpatient residential substance abuse treatment
program in Napa County. The department had recommended that
reunification services be terminated and that a section 366.26 hearing be set.
Mother’s counsel indicated that she wanted a contested hearing, which the
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juvenile court set for February 27. That same day, mother entered the
Archway program, with an expected graduation date by “mid-March 2025.”2
On February 26, the department filed an addendum report, indicating
that since being at Archway, mother “has engaged in NA/AA meetings and
has engaged with her counselor to set goals towards her recovery and
sobriety,” “attended visits with [L.R.] and has demonstrated the ability to be
attentive to [L.R.]’s needs,” and “demonstrates eagerness and commitment
towards achieving her case plan goals and reunifying with [L.R.].”
Accordingly, the department recommended that mother receive family
reunification services for another six months. At the hearing on February 27,
the juvenile court followed the department’s recommendation, continued
reunification services, and set a 12-month review hearing for August 12. The
court also advised mother that if L.R. was not returned to her care at the 12-
month hearing, a section 366.26 hearing and loss of her parental rights might
result, so “this next phase that you’re in right now is, as you know, hugely
important. So just keep it up, keep working your case plan, and we’ll see you
back here at the next hearing date.”
On March 24, mother graduated from the Archway program, and was
referred to Alcohol and Drug Services (ADS) in Napa County. She completed
an assessment on April 3 and a treatment planning session on April 9, but
did not attend her scheduled individual or group therapy sessions on April
15. On April 8, mother admitted to using methamphetamine, and a random
2 On February 5, mother was assessed by a licensed clinical social
worker Gwendolyn Dean, who found that mother did “not qualify for specialty
mental health services and does not need medication,” and that mother’s
“behaviors and symptoms that she presented at the beginning of the
reporting period may have been a result of meth intoxication and short-term
meth psychosis.”
5
urinalysis test was administered which subsequently came back positive. On
May 2, mother was “discharged from ADS outpatient treatment due to
violating her contract, admitting to ‘a couple of relapses’ and no show on any
of her scheduled UA tests and sessions.” She “was referred to residential
treatment,” but refused to attend.
During the period between March 26 and May 22, mother attended 8 of
17 scheduled visits with L.R.
The Department’s Section 388 Petition
On May 23, the department filed a section 388 petition, requesting that
the court terminate mother’s reunification services and set a section 366.26
hearing, arguing in the accompanying report that mother’s “history of
substance abuse, her approximate three months of sobriety while
incarcerated and two months in Archway highlights her struggles to
maintain sobriety outside of a controlled setting,” and that L.R.’s
“requirements for permanency, stability, and safety must be prioritized.” The
juvenile court ordered a hearing on whether to grant or deny an evidentiary
hearing on the petition for May 27.
On May 24, mother was charged with first degree burglary (Pen. Code,
§§ 459, 460, subd. (a)), grand theft (Pen. Code, § 487, subd. (a)), and second
degree burglary (Pen. Code, § 459, 460, subd. (b)), and incarcerated in Napa
County at some point in June.
On July 15, a hearing was held on the department’s section 388
petition. After mother’s counsel indicated she wished to object and submit on
the petition, the juvenile court granted it, terminated mother’s reunification
services, and set a section 366.26 hearing for November 6.
Mother was in custody in Napa County until September, when she was
briefly granted mental health diversion, found out of compliance with it, and
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then remanded back into custody. And on October 31, mother was again
admitted to the Archway program, with an expected graduation date of
January 30, 2026.
Mother’s Section 388 Petition
On December 5, mother filed a section 388 petition, requesting that the
juvenile court reinstate reunification services, “pause or cancel” the section
366.26 hearing, and order a bonding study. In support, the petition stated
that mother had been released from jail, was in compliance with court-
supervised mental health diversion, was taking parenting classes, was
“scheduled for an assessment to determine further aftercare for her recovery
from alcohol,” and was “in the process of obtaining stable employment and
housing.” She added that she had “maintained visitation with the child,”
“includ[ing] having a picnic with her recently in which the child still
recognizes the mother and child relationship, calling her mommy and
hugging her.” Her petition attached a short declaration, including photos
that “reflect our family life, our bond, and the loving environment I strive to
maintain.”
At a brief hearing on December 9, the juvenile court found that mother
had established a prima facie case and set an evidentiary hearing on the
petition for January 8, 2026.
The Hearing on Mother’s Petition
The hearing on mother’s section 388 petition took place as scheduled on
January 8, 2026. Mother was the only witness in support of her petition, and
the department’s only witness was Madison Abrojena, the social worker who
wrote the department’s section 366.26 report.
Mother testified that she had enrolled in the Archway program on
October 31, 2025, and would graduate on January 30. At the time, she had
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been sober from all substances for 110 days. She had recently become
engaged, and after her graduation, she planned to move in with her fiancé
and his parents, where she and her children had lived before. No one in the
house used illegal substances, but her “boyfriend’s father . . . has a beer or
two after work,” which she did not think would affect her ability to maintain
her sobriety because she had not had a drink in “many, many years” and
alcohol was not her “drug of choice.” She had shared custody of her 11-year
old son and so “he’ll be coming home, and I’m hoping my daughter gets to
come home as well.”
While at Archway, mother had been attending outside meetings with
Alcoholics and Narcotics Anonymous, therapy, and been “been attending
medicine management, and working on coping skills, emotional regulation,
and healthier patterns.” She planned to continue these programs after
graduation. She was not yet “working the steps in AA,” but planned to and
was looking for a sponsor.
Mother also testified to the relationship between her children, that her
son was “really happy” and “ec[s]tatic to have a little sister,” and that they
“got along very well.”
During the “11 months . . . 14 months if you include Archway” that she
had been incarcerated, mother would visit with L.R. twice a week on a
“consistent basis,” although “due to the court proceedings” she had only been
able to visit with her “once a month for the past three months.”
As to the circumstances that led to L.R.’s removal, mother testified that
she “lived in a low income apartment complex, and . . . befriended the
neighbors, which they were, I guess, not the best people to befriend. And I
would have a lot of traffic in and out of my house.” When asked why her
daughter was removed from her custody on cross-examination, she elaborated
8
that “I was cleaning the house one day, and the baby was sleeping, and I
didn’t want to go all the way to the garbage can, and so I had a bottle, like of
recycling of water bottles, and I guess there was one glass in there. And I
threw it over the balcony and it broke . . . [s]o I guess that was considered
erratic behavior.”
When asked what had changed since her daughter had been removed,
mother answered that she was “no longer incarcerated”; her “mental health is
much better than it was before”; she was “no longer using” and “in recovery”;
and had learned coping skills, in order to “work through my recovery, and
work through those unhealthy traumas to make me a better person, and
ultimately be a better parent to my kids.”
Madison Abrojena, a child protective services worker assigned to the
case in October 2025, and the author of the section 366.26 report, testified
that although she had not personally observed mother’s visits with L.R., from
the reports she had read and conversations she had had about them, “[i]n
general the visits are overall positive,” but “it seems . . . [L.R.] is . . . enjoying
the time with a friend, or an aunt. It’s not a caregiver relationship.”
Abrojena did “monthly visits at the [resource] family home. And within
these visits [L.R.] is actively trying to, engaging with the resource parent,
calling her mommy, asking for attention, showing her artwork, showing her
toys, asking permission to do things within [the] house. And she feels . . .
very comfortable there.”
When asked, “If you wanted to provide more reunification services,
would you do that?,” Abrojena answered that the department was, by statute,
“not able to provide more reunification services” because mother “has
received 12 months of reunification services, and [L.R.] was two years old
when she was removed.”
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In Abrojena’s opinion, mother was not in a position to receive family
maintenance services because although she “has been able to demonstrate
sobriety within the construct of structured systems . . . like incarceration[] or
residential treatment, her patterns of behavior show that when she is outside
those systems she is not able to maintain sobriety and stability for herself or
her child.” She also opined that it would be detrimental to remove L.R. from
her resource parents because she was “very attached” to them, and “without
the mom showing the real ability to keep her safe, we would be worried that
she would, not only on be harmed or something would happen to her in her
mother’s care, but there would be an attachment disruption due to removing
her from her current caregivers.”
The Juvenile Court’s Ruling
After the department’s counsel argued in favor of denying the petition
and L.R.’s counsel agreed with that recommendation, and after a brief recess,
the juvenile court denied the petition:
“The evidence establishes that [L.R.] was removed from Mother’s care
in June of 2024, and has remained continuously placed with the current
resource parents since that time. The Court notes that these caregivers were
designated de facto parents as of September 19, 2025, and that the Child has
a substantial and secure bond with them. Refers to . . . them as mommy and
daddy. And is comfortable and stable in their home.
“Social worker credibly testified that removal from this placement
would constitute a substantial attachment disruption for the child. The
Court acknowledges and commends the Mother for her significant strides
that she has made in her recovery; however, the evidence reflects that the
Mother was offered and received the maximum 12 months of family
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reunification services, which were terminated back in July of 2025 after her
relapse and new criminal conduct.
“The Mother’s sobriety and engagement in treatment are recent and
have occurred in highly structured setting following prolonged incarceration.
And therefore the Court finds that the Mother’s circumstances, while
commendable, and I continue to encourage the Mother to continue in her
recovery efforts. They are changing, but not changed. And even assuming a
change in circumstances, the Court finds that the Mother has not met her
burden to show that granting additional services, or notably delaying
permanency would be in the best interest of the Child. The Child’s need for
stability and permanency at this stage outweighs the speculative benefit for
further reunification at this point. [¶] Accordingly, the Section 388 Petition
is denied.”
The Section 366.26 Hearing
On January 13, the contested section 366.26 hearing was held, at which
mother’s counsel argued in favor of guardianship as a permanent plan “based
on the evidence that was presented at the hearing last week,” and that
mother “has maintained visitation with [L.R.], she has a beneficial
relationship with that child, the child has siblings that it has a connection
with and a heritage that . . . the mother can provide that the foster family
cannot.” Counsel for the department and L.R.’s counsel both opposed the
request, arguing that the law favors adoption because it is more permanent.
At the conclusion of the hearing, the juvenile court found by clear and
convincing evidence that L.R. was likely to be adopted, and: “The Court has
considered whether any exception applies under Section 366.26, and the
Court finds that no exception has been established.” The court then
terminated mother’s parental rights with respect to L.R.
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Mother filed a notice of appeal.
DISCUSSION
The Juvenile Court Did Not Abuse Its Discretion In Denying
Mother’s Section 388 Petition
Applicable Law and Standard of Review
Section 388 authorizes the parent of a child who is a dependent of the
juvenile court to petition the court to change, modify, or set aside a previous
order. (§ 388, subd. (a)(1).) The petitioning party has the burden to show, by
a preponderance of the evidence, that there is a change of circumstances or
new evidence, and that the proposed modification is in the child’s best
interests. (§ 388; In re N.F. (2021) 68 Cal.App.5th 112, 120 (N.F.); In re
Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.).) A petitioner under
section 388 “must show changed, not changing, circumstances.” (Mickel O.,
supra, p. 615.)
In determining whether a parent has made the necessary showing
under section 388, “the juvenile court may consider the entire factual and
procedural history of the case,” including “factors such as the seriousness of
the reason leading to the child’s removal, the reason the problem was not
resolved, the passage of time since the child’s removal, the relative strength
of the bonds with the child, the nature of the change of circumstance, and the
reason the change was not made sooner.” (Mickel O., supra, 197 Cal.App.4th
at p. 616; In re Kimberly F. (1997) 56 Cal.App.4th 519, 530.) “In assessing
the best interests of the child, ‘a primary consideration . . . is the goal of
assuring stability and continuity.’ ” (Mickel O., supra, 197 Cal.App.4th at p.
616.)
We review the denial of a section 388 petition for abuse of discretion.
(In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We will not disturb the
juvenile court’s ruling unless it is “clearly established” that “ ‘ “the trial court
12
has exceeded the limits of legal discretion by making an arbitrary, capricious,
or patently absurd determination.” ’ ” (Ibid.; see In re R.F. (2023) 94
Cal.App.5th 718, 728 [A juvenile court “ ‘abuses its discretion when it applies
the wrong legal standard or its factual findings are not supported by
substantial evidence’ ”].)
Mother Failed to Demonstrate Changed Circumstances
With respect to the first showing required by section 388—changed, not
changing circumstances—mother’s brief acknowledges that the problem that
led to the instant dependency was her substance abuse. She then relies
almost entirely on positive statements in the department’s February 27,
2025, addendum report recommending that reunification services be
continued to the 12-month review, including for example that she “has been
actively engaging with NA/AA meetings and has not missed a meeting since
attending Archway,” that her counselor at Archway had “seen progress in
[mother’s] commitment to her sobriety,” and that “she [was] determined and
committed to reunify with [L.R.]”
All of this evidence, however, describes the state of affairs in February
of 2025, not the situation in January of 2026, when the hearing on mother’s
section 388 petition took place. By that time, the court had before it evidence
that mother had relapsed in early April 2025, shortly after graduating from
Archway; had been inconsistent in her visitation with L.R. over the following
months; and had committed new criminal offenses and been returned to
custody in June, and then again to the Archway program at the end of
October. As the social worker testified—and as the juvenile court found—
over the course of the approximately 19 months that the dependency had
then been ongoing, mother failed to demonstrate consistent sobriety outside
the “construct of structured systems . . . like incarceration[] or residential
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treatment.” Except for an oblique reference to her “short relapse in April of
2025,” mother’s brief does not grapple with this subsequent history, which
provides substantial evidence in support of the juvenile court’s conclusion
that mother’s circumstances were “changing,” not “changed.” (Mickel O.,
supra, p. 615.)
Furthermore, “[i]n the context of a substance abuse problem that has
repeatedly resisted treatment in the past, a showing of materially changed
circumstances requires more than a relatively brief period of sobriety or
participation in yet another program.” (N.F., supra, 68 Cal.App.5th at pp.
120–121.) Given mother’s history of relapse, her 110 days of sobriety was
“relatively brief” enough to support a finding that her circumstances had not
yet changed. (See, e.g., N.F., supra, 68 Cal.App.5th at pp. 121–122 [mother’s
90-day period of sobriety while in treatment program not changed
circumstances given her history of relapse]; In re C.J.W. (2007) 157
Cal.App.4th 1075, 1081 [“recent efforts at rehabilitation [that] were only
three months old” did not demonstrate changed circumstances]; In re Cliffton
B. (2000) 81 Cal.App.4th 415, 423–424 [where father’s “periods of sobriety
alternated with recurring drug use . . . 200 days was not enough to reassure
the juvenile court that the most recent relapse would be his last”]; In re
Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [“It is the nature of
addiction that one must be ‘clean’ for a much longer period than 120 days to
show real reform”].) Mother has failed to demonstrate error in the juvenile
court’s denial of her section 388 petition.
The Juvenile Court Did Not Err in Declining to Apply the
Beneficial Relationship Exception
“The beneficial relationship test is an exception to the presumptive rule
of terminating parental rights after reunification efforts have failed, in order
to free a child for adoption.” (In re Eli B. (2022) 73 Cal.App.5th 1061, 1067.)
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To establish that the exception applies, a parent must demonstrate three
elements by a preponderance of the evidence: (1) “regular visitation and
contact with the child, taking into account the extent of visitation permitted”;
(2) “that the child has a substantial, positive, emotional attachment to the
parent”; and (3) “that terminating that attachment would be detrimental to
the child even when balanced against the countervailing benefit of a new,
adoptive home.” (In re Caden C. (2021) 11 Cal.5th 614, 636 (Caden C.).) If
the juvenile court concludes that the beneficial relationship exception does
not apply, it is not required to recite specific findings as to “any or all of the
three elements of the exception.” (In re A.L. (2022) 73 Cal.App.5th 1131,
1156.)
“We review the juvenile court’s ruling on the first two elements for
substantial evidence. [Citation.] We review its ruling on the third element
under a hybrid standard, reviewing its factual determinations concerning the
detriment analysis for substantial evidence but its ultimate weighing of the
relative harms and benefits of terminating parental rights for an abuse of
discretion.” (In re Eli B., supra, 73 Cal.App.5th at p. 1068.)
Substantial evidence supports the juvenile court’s implied
determination that mother had not established the first Caden C. factor,
“regular visitation and contact with the child, taking into account the extent
of visitation permitted.” (Caden C., supra, 11 Cal.5th at p. 636.) According to
the department’s December 9, 2025 section 366.26 report—and as mother
admits—she “attended a total of 55 visits during the 15 months of the
dependency . . . which is less than 50% of the twice weekly visits offered . . .
during the reunification period.”3 Moreover, as the department observed,
3 The only authority mother cites in support of her argument to the
contrary, David B. v. Superior Court (2004) 123 Cal.App.4th 768, is
inapposite. There, in the context of considering whether the agency had
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mother was consistent with visitation only during periods of incarceration or
residential substance abuse treatment—when outside the structure of these
environments, mother’s visitation was sporadic and inconsistent. And this is
simply not enough to establish Caden C.’s first prong. (See, e.g., In re J.C.
(2014) 226 Cal.App.4th 503, 531 [finding regular visitation requirement not
satisfied where there were “periods of time when [mother] failed to regularly
visit [the minor], particularly during Mother’s relapses”]; In re C.F. (2011)
193 Cal.App.4th 549, 554 [“Sporadic visitation is insufficient to satisfy the
first prong of the parent-child relationship exception to adoption”]; In re I.R.
(2014) 226 Cal.App.4th 201, 212 [“significant lapses” in visitation “fatally
undermine[s] any attempt to finding beneficial relationship exception”].)
Given mother’s failure to establish Caden C.’s first prong, the juvenile
court’s conclusion that the beneficial relationship exception was not in error.
(See In re Katherine J. (2022) 75 Cal.App.5th 303, 322, fn. 10 [“[A] parent
must prove all three components of the beneficial relationship exception. A
failure of proof on any one of them is fatal”].)
carried its burden at an 18-month review hearing to establish that “return of
the child to their parent or legal guardian would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-being of the
child” (§ 366.22, subd. (a)(1)), the Court of Appeal observed, in the language
relied on by mother, that “[w]e are looking for passing grades here, not
straight A’s.” (David B., supra, 123 Cal.App.4th 768 at pp. 789–790.) David
B. was not considering the beneficial relationship exception, and is therefore
inapposite. In any event, mother’s less than 50% attendance rate at the
visits with L.R. offered by the department was hardly a “passing” grade, by
any stretch of the word.
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The Juvenile Court Did Not Abuse Its Discretion in Finding the
Department’s ICWA Inquiry Adequate
ICWA, Cal-ICWA, and the Duty of Inquiry
The Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.)
and the California Indian Child Welfare Act (Cal-ICWA) (§ 224 et seq.) “are
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. (2024) 16 Cal.5th 1112, 1125 (Dezi C.).) Under these laws, “courts
and child welfare agencies are charged with ‘an affirmative and continuing
duty to inquire whether a child . . . is or may be an Indian child’ in
dependency cases.” (Ibid., quoting § 224.2, subd. (a).) “An ‘Indian child’ is
defined 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).)” (Dezi C., at p. 1129.) When ICWA applies, “ ‘the Indian child’s
tribe shall have a right to intervene’ ” in a dependency proceeding “involving
the removal of an Indian child from their family.” (Dezi C., at p. 1129.)
“ICWA established minimum standards for state courts to follow before
removing Indian children from their families and placing them in foster care
or adoptive homes.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).)
Section 224.2 subjects California agencies and courts to an expanded version
of the federal duty of inquiry. (Dezi C., supra, 16 Cal.5th at p. 1131.) In
particular, “section 224.2 creates three distinct duties regarding ICWA in
dependency proceedings.” (D.S., at p. 1052.) After a child welfare agency’s
initial contact with the 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
17
‘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.”
(D.S., at p. 1052.)
The department’s initial ICWA 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 and
where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd.
(b)(2).) For these purposes, Cal-ICWA incorporates ICWA’s definition of an
“extended family member” as a “grandparent, aunt or uncle, brother or sister,
brother-in-law or sister-in-law, niece or nephew, first or second cousin, or
stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c)(1).) The initial inquiry
mandated by section 224.2, subdivision (b) “ ‘does not require the agency to
“find” unknown relatives and others who have an interest in the child, merely
to make reasonable inquiries. The operative concept is those people who are
reasonably available to help the agency with its investigation into whether
the child has any potential Indian ancestry should be asked.’ ” (Dezi C.,
supra, at p. 1140.)
Standard of Review
“We generally review the juvenile court’s factual finding that ICWA
does not apply for substantial evidence.” (In re C.R. (2025) 112 Cal.App.5th
793, 800.) In Dezi C., supra, 16 Cal.5th 1112, our Supreme Court declined to
decide the “standard of review” applicable to a juvenile court’s finding that
“ICWA does not apply,” but explained that “the juvenile court’s fact-specific
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determination that an inquiry is adequate, proper, and duly diligent is ‘a
quintessentially discretionary function’ [citation] subject to a deferential
standard of review.” (Id. at p. 1141; see In re Kenneth D. (2024) 16 Cal.5th
1087, 1101 [“ ‘On a well-developed record, the court has relatively broad
discretion to determine whether the agency’s inquiry was proper, adequate,
and duly diligent on the specific facts of the case’ ”].)
The Department’s ICWA Inquiry
According to the department’s July 25, 2024 jurisdiction and
disposition report, on May 29, a social worker “asked the mother if she had
any Native American Indian ancestry or heritage. The mother said yes, her
paternal grandparents were ‘full-blooded natives.’ When asked what tribe,
the mother stated she does not know, potentially Aztec Tribe.” After giving
the name and approximate dates for the birth and death of the “maternal
grandfather,” mother “stated not knowing if the ancestry was through his
mother . . . or his father . . . [who] both passed away in Lindsay, CA, but their
DOB, location of birth, and DOD is unknown. The mother stated she has all
of this information somewhere in storage.”
On June 7, the social worker “asked the father if he had any Native
American Indian ancestry or heritage,” and he “stated he does not, but his
maternal great-uncle . . . may know” of such ancestry. Father stated that his
maternal great-uncle “is from Mexico, and he does not know if the ancestry
would be from Mexico or from the USA, or what tribe, if any. The father
stated the paternal grandmother . . . may know more information, and
provided her phone number.”
On June 26, the “paternal grandparents . . . denied . . . having any
Native American ancestry,” and the report indicates that the social worker
had “not been able to conduct further ICWA inquiry with the parents” since
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the detention hearing “due to neither of them making themselves available to
meet” with the social worker, going on to conclude that “ICWA does not apply
at this time.”
At the July 25 jurisdiction and disposition hearing, the juvenile court
found that ICWA did not apply.
According to the January 9, 2025 status review report, on June 28,
2024, the social worker spoke with L.R.’s paternal aunt and uncle, who
“denied having Native American ancestry.”
On October 11, the social worker again spoke with mother, who “made
statements about being raised with ‘natives,’ ” but “provided no further
context about her comments.” On October 30, the social worker “followed up
with [mother] about her statements,” and mother “declined to have any
information about Native American ancestry and stated, ‘I don’t know yet, I
would have to look further into it.’ ”
On November 15, the social worker spoke with a paternal aunt, Sonia
R., who “reported that she is not aware of any native or American Indian
ancestry and that there are no known stories of the family being of native
ancestry. The paternal aunt reported not knowing any family that has lived
on a reservation and did not know of any family that had any tribal
memberships.” On November 19, “a Child and Family Team Meeting was
held for [L.R],” at which the paternal grandparents and paternal aunt Sonia
R. were present. When “asked . . . about Native Ancestry . . . all the paternal
relatives stated that they were from Mexico. They reported that they are
unaware of any native ancestry in their family.”
On March 16, 2025, a social worker again asked mother “about any
Native Ancestry.” This time, mother “reported that she has no ICWA
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ancestral heritage and does not know any family members who might have
information regarding this. Therefore, ICWA does not apply at this time.”
Mother Has Not Demonstrated Error With Respect to the
Department’s ICWA Inquiry
In arguing that the department’s ICWA inquiry was inadequate,
mother relies entirely on two pages of the July 25, 2024 jurisdiction and
disposition report, where the department listed various relatives considered
for placement, including Blaze R., a maternal cousin; Emee R., a maternal
aunt; Marcos R., a paternal half-sibling; Gabriel R. and Adan J., paternal
great cousins; and Esteban S., a paternal step uncle. She asserts that the
department “had the names and contact information” for these relatives, but
that “in all of its communication [with them], the Department never inquired
about ICWA.”
With respect to Marcos R., Gabriel R., and Esteban S., the
department’s report indicates that “oral notification” was “attempted” on
June 28, 2024, but there was “no response.” With respect to Marcos R. and
Gabriel R., the report indicates there was no “[w]ritten notification” because
the department had “no contact info,” although written notification to
Esteban S. was apparently completed on July 22, 2024. We cannot agree
with mother that there was any error in the juvenile court’s ICWA findings
based on the department’s failure to make inquiry of extended family
members with whom the department tried unsuccessfully to speak, or had no
contact information. (See In re Q.M. (2022) 79 Cal.App.5th 1068, 1082 [“we
cannot ask the agency to . . . to interview individuals for whom no contact
information has been provided”]; In re H.B. (2023) 92 Cal.App.5th 711, 720
[“[r]equiring the Department to track down information about extended
family members beyond that offered by participants in the proceedings would
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impose an undue burden on the Department and necessarily reduce the
resources it has to otherwise protect the welfare of dependent children”].)
The department apparently did speak with Adan J., a paternal great
cousin, as the report indicates that he was “[i]nterested in ongoing contact”
with L.R., but not “in providing placement.” And it likewise was in contact
with Emee R., a maternal aunt4 and Blaze R., a maternal cousin—indeed, the
record indicates that the department considered placing L.R. with Emee R.
and held an in-person meeting with her and her children5 so that she could
meet L.R. And the record does not indicate that the department asked any of
Adan J., Blaze R., or Emee R. about possible Native American ancestry. But
under these circumstances, we cannot agree that the department’s apparent
failure to do so requires reversal and remand. (See In re K.G. (2025) 117
Cal.App.5th 379, 385 [finding ICWA investigation “reasonably thorough”
despite failure to consult with four extended family members]; In re Dezi C.,
supra, 16 Cal.5th at p. 1140 [reversal not required “in all cases in which
every possible extended family member has not been asked about the child’s
Indian ancestry”].)
Mother was repeatedly asked about Native American ancestry, and she
never provided any elaboration or documentation regarding her initial claim
that her paternal grandparents were “ ‘full-blooded natives’ ”—nor has she
done so on appeal. The final and most recent time she was asked, she denied
having any “ICWA ancestral heritage” and stated that she “does not know
any family members who might have information regarding this.” (See In re
4 The record describes Emee R. as both L.R.’s “Maternal Aunt” and
“Maternal sister in law.”
5 We assume Emee R. is Blaze R.’s parent, as they share the same last
name, different from L.R.’s.
22
Q.M., supra, 79 Cal.App.5th at p. 1083, [no abuse of discretion in concluding
ICWA did not apply where father initially stated “that he might have
Cherokee ancestry, [but] later disavowed this statement”].) The department
asked numerous of L.R.’s relatives about ICWA, and mother’s initial claim
was the only evidence the department uncovered suggesting that L.R. had
any Native American ancestry. On this record, we conclude that the juvenile
court’s “broad discretion to determine whether the agency’s inquiry was
proper, adequate, and duly diligent” was not abused. (In re Kenneth D.,
supra, 16 Cal.5th at p. 1101.)
DISPOSITION
The juvenile court’s orders are affirmed.
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RICHMAN, J.
We concur.
STEWART, P. J.
MILLER, J.
(A175558N)
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