Opinion
B314006
10-25-2022
In re A.H., a Person Coming Under the Juvenile Court Law. v. SHAMIKA H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Jane E. Kwon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 19CCJP05773, Marguerite D. Downing and Debra L. Losnick, Judges. Condtionally affirmed and remanded with directions.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Jane E. Kwon, Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Shamika H. (Mother) appeals from the juvenile court's order terminating her parental rights over three-year-old A.H. under Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred in finding the beneficial parental relationship exception to termination of parental rights did not apply. Mother also argues the Los Angeles County Department of Children and Family Services (Department) and the juvenile court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and related California law. In addition, Mother appeals from the court's orders granting a restraining order against Mother protecting A.H. and her caregiver (that limited Mother to monitored virtual visits), denying Mother's request for a bonding study, and denying Mother's section 388 petitions without a hearing.
Further undesignated statutory references are to the Welfare and Institutions Code.
We agree the Department and the juvenile court erred in failing to comply with ICWA's inquiry and notice provisions, and the error was prejudicial. Mother's other contentions lack merit. We conditionally affirm and remand for the juvenile court and the Department to comply with the inquiry and notice provisions of ICWA and California law.
FACTUAL AND PROCEDURAL BACKGROUND
Our discussion of Mother's prior appeals is taken from In re A.H. (June 16, 2022, B313270) (nonpub. opn.).
On August 9, 2019 the Department received a referral alleging that the prior day Mother drove with then-10-month-old A.H. while under the influence of methamphetamine and marijuana, and she was involved in a car accident in which the other driver was at fault. On September 5 the Department filed a dependency petition on behalf of A.H. pursuant to section 300, subdivision (b)(1).
On January 9, 2020 the juvenile court sustained the allegations Mother had a history of substance abuse including cocaine and marijuana and was a current abuser of methamphetamine and marijuana. Mother tested positive for methamphetamine and marijuana on August 8, 2019, and she tested positive for marijuana on August 13 and 27, 2019. The court also sustained the allegations that Mother placed A.H. in a detrimental and endangering situation by driving with her while under the influence of methamphetamine and marijuana, and getting into a car accident with A.H. in the car.
At the disposition hearing, the juvenile court declared A.H. a dependent of the court and removed her from Mother's physical custody. The court granted Mother three monitored visits a week for three hours each visit. The court ordered Mother to participate in a full drug program with aftercare, weekly random or on-demand drug testing, a 12-step program with a court card and sponsor, parenting classes, and individual counseling to address case issues, including substance abuse.
Mother appealed the jurisdiction findings and disposition order, and we affirmed. (In re A.H. (Dec. 11, 2020, B304199) [nonpub. opn.].)
B. Mother's Second Appeal
At the December 14, 2020 12-month review hearing (§ 366.21, sub. (f)), the juvenile court found Mother was not in substantial compliance with her case plan. The court terminated Mother's family reunification services and set a selection and implementation hearing (§ 366.26) for April 13, 2021, which was later continued to June 14. The court also denied Mother's request for a bonding study.
On April 12, 2021 Mother filed her first section 388 petition requesting a home-of-parent order, or alternatively, reinstatement of family reunification services, placement with Mother's maternal cousin, and unmonitored visitation. Mother stated in the petition she had completed an inpatient substance abuse program with individual counseling, therapy, and drug testing. In support of her petition, Mother attached a certificate of completion from the Clare/Matrix Women's Treatment Program, indicating she completed 28 days of the program.
In its April 28, 2021 section 388 report, the Department recommended the juvenile court deny Mother's petition. Since A.H.'s detention in September 2019, Mother had enrolled in 10 drug treatment programs but did not complete any until April 2021. From January 2020 to January 2021, the Department directed Mother to submit to drug testing on 53 occasions. Mother missed 50 drug tests and tested positive for drugs on three occasions on April 22 and 28 and June 25, 2020. Further, Mother tested positive for drugs on September 29 and October 7, 2020 at the Tarzana Treatment Center, and she did not complete the program. Another drug treatment program reported Mother tested positive for methamphetamine and marijuana when she entered the program in January 2021. Mother left that program after 20 days because she missed A.H.
At the Clare/Matrix Women's Treatment Program Mother selected the 30-day treatment program (instead of the 60-day or 90-day program), and she completed the program in 28 days by taking three to four classes per day. Mother did not enroll in aftercare services.
The Department did not believe it was in A.H.'s best interest for Mother to have unmonitored visits. Although Mother loved A.H. and at times engaged well with her during monitored visits, Mother continued to have "aggressive outbursts" during visits, fed A.H. excessive amounts of junk food, and made repeated unfounded complaints that A.H. was being abused by her caregiver.
The juvenile court denied the section 388 petition without a hearing. Mother appealed the order denying her section 388 petition, and we affirmed. (In re A.H. (June 16, 2022, B313270) [nonpub. opn.].)
C. The Temporary Restraining Order
In May 2021 Mother reported A.H. was an affectionate, happy, and energetic toddler in good health. A.H.'s caregiver, Shawn M., wanted to adopt A.H. and provide her a permanent home. The Department had "no concerns regarding the quality of care that [A.H.] has been receiving or the caregiver's parenting style."
During this period, Mother reported she was participating in Alcoholics Anonymous meetings and was willing to submit to drug testing. However, Mother failed to respond to the Department's attempts to select a drug testing site. Mother continued to have visits with A.H., but "due to limited staff," monitors were available only for visits on Thursdays. During visits, Mother "complain[ed] about [A.H.'s] behavior not being normal around her. Mother state[d] that [A.H.] is cranky and will not follow her directions.... [M]other attempt[ed] to change [A.H.'s] diaper and [A.H.] [did] not [allow] her to change it." Social worker Marsha Morton observed, "[M]other does not listen to her child or respect that she does not need a diaper change."
In its June 14, 2021 last minute information for the court, the Department reported that on June 5 Shawn's adult daughter saw Mother and an older man sitting in a car together outside Shawn's house. The daughter approached the car and asked Mother who she was. Mother responded she was "there to pick up" A.H., but she would not identify herself. The daughter responded that A.H. did not live there and asked Mother to leave. Mother and her companion drove up the street and stopped briefly, then drove away. Morton showed a photo of Mother to Shawn's daughter, who confirmed Mother was the woman in the car.
Shawn's daughter also reported that law enforcement personnel arrived at Shawn's home and requested to see A.H. after receiving a call from Mother alleging she observed marks and bruises on A.H. during Mother's last visit. Morton confirmed with the responding police officer that no marks, bruises, or other signs of abuse or neglect were found on A.H.
On June 8 Mother arrived a half hour late to the Department's office in Torrance for a scheduled visit with A.H. Mother drove a gray van with dark, tinted windows and no license plates, and she parked close to the office in a space reserved for disabled persons. She wore black clothing and a long black wig. When a staff member told Mother she could not park in the space, Mother stated she had parked there before. However, Mother typically parked farther away. Mother agreed to move the van but then claimed she needed to return the van to a friend, and she left. Mother called to say she would return in a half hour, but the Department cancelled the visit.
Later that afternoon Morton attempted to inform Mother the Department intended to request suspension of visitation, but Mother "would not allow [Morton] to finish." Morton sent Mother a text message saying her visit was cancelled and she should contact her attorney if she had any questions. Mother responded by leaving a voicemail message for Morton stating, "'I'm at the police station now. I'm going in and [I am going to] show them this text message and I'm [going to] let them know this is the reason why I'm at the lady's house persistently because you want to play games with me and my daughter.'" The Department believed Mother was a flight risk and requested suspension of all visitation and appointment of Shawn as sole holder of educational and developmental rights.
On June 14, 2021 minor's counsel filed a request for a restraining order protecting A.H. and Shawn from Mother, based on the June 4 and 8 incidents and Mother's false report of child abuse. The juvenile court granted the request and issued a temporary restraining order requiring Mother to stay at least 100 yards away from Shawn and A.H. and prohibiting Mother from contacting them, except for Mother's monitored virtual visits with A.H. The court found "in person visitation is detrimental, given the concerns about possible flight." The court declared Shawn the holder of A.H.'s educational and developmental rights.
On June 30, 2021 Mother filed a notification of mailing address form, identifying an address in Compton. The next day Morton visited the address, where a man told her Mother had moved out two weeks before. The man said Mother moved to Long Beach.
On July 9, 2021 Mother appealed from the June 14 order limiting her visitation rights.
D. Mother's Additional Section 388 Petitions
On August 9, 2021 Mother filed a second petition under section 388. Mother sought to set aside the temporary restraining order and requested overnight and unmonitored visits. Mother asserted A.H.'s medical needs were not being met in foster care. On August 12 the juvenile court summarily denied Mother's petition.
The Department's August 31, 2021 last minute information for the court reported that in August 2021 Mother was often late for her twice weekly virtual visits with A.H., informing the monitor she slept past the 10:00 a.m. meeting time. Mother complained that A.H. wore a mask during the meetings. Mother refused to provide her address to the social worker. As of August 23 Mother had been enrolled in drug treatment for "a week or so" at the Twin Town Treatment Center. Mother's caseworker reported Mother stated during a group session held a week earlier that "she lived not too far from her child and she could just go and pick her up." The group counselor "was concerned and was thinking about calling it in to the hotline."
On August 31 Shawn reported the police came to her home to investigate complaints on August 1, 12, and 30. During the most recent incident, Inglewood and Los Angeles police officers arrived at Shawn's home accompanied by three ambulances in response to a report A.H. was suffering from "brain trauma."
On September 1, 2021 Mother filed a third section 388 petition. She requested reinstatement of reunification services, unmonitored visitation, and placement of A.H. with Mother, or alternatively, with maternal great-grandmother Lasita L. Mother attached the certificate of completion from the Clare/Matrix Women's Treatment Program that she had attached to her first section 388 petition. She also attached an August 18, 2021 letter from her caseworker stating Mother had completed four sessions at the Twin Town Treatment Center in Torrance and had provided two urine samples. However, the letter did not state whether the urine samples were tested, and Mother did not submit any test results. On September 10 the juvenile court summarily denied Mother's third section 388 petition because "the request does not state new evidence or a change [in] circumstances" and "the proposed change of order . . . does not promote the best interest of the child."
As of October 27 Mother's virtual visitation with A.H. was "somewhat inconsistent," with Mother participating in 14 of 21 scheduled visits during the period. According to the Department, Mother became irritable when A.H. failed to interact with her. A.H. threw the phone down and did not want to talk with Mother. The monitor had difficulty transporting A.H. to the monitored virtual visit locations because A.H. refused to get into the car. Mother requested phone call visits because A.H. had trouble focusing during video chats.
On October 29, 2021 Mother made a "walk on" request for a bonding study, which the juvenile court denied on November 9, reasoning that "the issue has already been addressed, with Judge Downing."
Judge Debra Losnick ruled on Mother's October 29, 2021 request for a bonding study.
The Department's November 18, 2021 report stated A.H.'s mental and emotional needs were being met and A.H. was bonded with Shawn and her adult daughter. The Department had no concerns about the quality of care A.H. was receiving in foster care. A.H. continued to refuse to get into the car for visits with Mother. A.H. was happy to see the monitors, but she did not want to be transported to the visit with Mother. Mother attended 14 visits but missed nine visits without explanation.
During a November 23, 2021 virtual visit, Mother asked A.H. and the monitor about a mark on A.H.'s face. The monitor did not know what had happened. After the visit, Mother called the Department and reported A.H. was being abused in the foster home. Shawn took A.H. for evaluation at a clinic where it was determined A.H. had insect bites on her cheek and hand. The next day the social worker informed Mother of the examination results. Mother sent the social worker a text message stating, "'So from the looks of it my child has been around mosquitoes for a long time being at this lady house [just] what I've been experiencing with my child as injuries are abrasions now we're getting somewhere.'" Mother added, "'It's also the reason . . . why my child['s] . . . diaper rash turn[ed] into an infection because her house is not probably clean,'" asserting the presence of fleas, mosquitoes, or bedbugs was "'dangerous.'" Later that afternoon Shawn reported police and fire department personnel came to her house to investigate alleged child abuse. Morton spoke to Los Angeles County Fire Captain Randall, who stated Mother had called 911 to report the left side of A.H.'s face was swollen. Captain Randall concluded there was no evidence of abuse or neglect of A.H.
After a virtual visit on December 2, 2021, Mother complained A.H.'s face was swollen and reported that A.H. said a man had hit her. Morton contacted the monitor who denied there was an incident of a man hitting A.H. or A.H.'s face being swollen. The Department was skeptical of Mother's allegation that A.H. "articulated a man or a woman hit[] her" given that A.H. "has a speech delay and does not know how to articulate sentences." The monitor also reported that during the visit Mother had asked to see A.H.'s shoes, and in response A.H. grabbed and squeezed her left shoe while laughing with Mother. When Mother asked A.H. if her foot was okay, A.H. "out of the blue" made a face like her foot was hurting. The monitor believed A.H. was seeking attention "as she knows how [M]other responds to her reactions." Mother claimed she asked to see A.H.'s foot because the foster home had fleas, but the monitor told A.H. not to take her sock off for Mother. Mother said she was going to call the social worker "to find out what was going on," and she ended the visit 10 minutes early.
Morton noted the monitors consistently reported Mother "immediately starts to ask [A.H.] if anything is wrong and if [A.H.] points to any part of her body, [A.H.] receives a reaction from her mother. Mother then states that her child is being abused." Further, "[M]other tells [A.H.] that she is coming home soon, which is in violation of monitor agreement." During visits, Mother often instructed the monitors to remove articles of A.H.'s clothing so Mother could examine her. Morton added, "Mother lacks insight into her child's developmental behavior" and did not understand how her actions affected A.H. In addition, Mother's allegations of abuse in the foster home caused "the constant invasion of county officials, police, ambulance[,] and the fire department[]" and "subjects [A.H.] to more emotional distress." Mother spent her visits with A.H. "looking for signs of abuse instead of engaging in simple age appropriate activities," such as singing, identifying colors, or reading to A.H. During this period, Mother attended five visits and missed four.
On December 13, 2021 (the date set for the continued selection and implementation hearing), Mother filed a fourth section 388 petition. Mother again requested reinstatement of reunification services with unmonitored visitation or placement of A.H. in Mother's home or with maternal great-grandmother. Mother attached the same documents she submitted with her third section 388 petition. Mother also claimed she had been "receiving services from 'A New Way of Life' program, providing her with a support network. Further, Mother participated "in NA/AA meetings regularly." Mother added she had "concerns [A.H.] is abused [and] neglected in her placement. [A.H.] was observed with bug bites, and also stated that a 'man hit her.'" In addition, "Mother is ready to provide the child with a safe and nurturing home. [M]other had regular visits with the child and maintained a parental role in the child's life. The child would benefit from being raised by her biological mother and having access to her biological family." Mother attached a December 12, 2021 letter from A New Way of Life social worker Kieyonna Roberts indicating Mother enrolled in services from the program in March 2020. Roberts opined Mother "has become increasingly accountable for and remorseful regarding her actions leading" to A.H.'s removal. The trial court summarily denied Mother's petition on December 13.
E. The Selection and Implementation and Permanent Restraining Order Hearings
The combined selection and implementation hearing (§ 366.26) and permanent restraining order hearing took place from December 13 through 20, 2021. The parties stipulated that in June 2021 Mother borrowed a gray van with tinted windows and no license plates from Theron Martin who was in the process of repairing Mother's regular vehicle. The court heard testimony from Mother and social worker Morton.
The juvenile court continued the selection and implementation hearing and permanent restraining order hearing multiple times.
1. Mother's testimony
Mother testified A.H. was excited and "thrilled" to see her during in-person visits. At the end of the visits, A.H. held onto Mother's neck and did not want the visits to end. Likewise, when it was time for Mother's virtual visits to end, A.H. was sad and depressed and did not want to put down the phone. The Department would not allow Mother to participate in A.H.'s medical appointments. Mother did not recall missing any virtual visits with A.H., and she denied ever failing to show up for an inperson visit.
On cross-examination, Mother attributed her virtual visitation with A.H. to the COVID-19 pandemic and asserted she did not otherwise know the reason for the limitation. Mother denied ever going to Shawn's house. Mother did not know Shawn's address was confidential, although Mother acknowledged she read the reports that designated the address as confidential. Mother admitted calling the police to perform a welfare check at Shawn's house. Mother called 911 after observing A.H. had bruises and abrasions and her face, arms, and hands were swollen. She also called 911 to report A.H. had a diaper rash. Mother could not remember how recently she called the police or how many times, but she called "[o]ccasionally," estimating she called "[m]aybe, like, four [times]." Mother did not recall whether she directed A.H. to undress during virtual visits, other than asking to see A.H.'s toes to "kiss" her feet through the video chat. Mother had "no clue" whether her complaints of abuse or neglect against Shawn required A.H. to undergo examination by multiple people. Mother was also not aware her allegations of abuse and neglect were not confirmed by the responding authorities. Mother denied leaving a voicemail message for the social worker stating she was "persistently" at Shawn's house.
Mother recalled attending a doctor's visit with A.H. during which Mother was told A.H.'s bruises were normal for a child of her age. Mother did not remember what kind of snacks she brought for A.H. during in-person visits and denied the Department counseled her to offer healthy snack options.
On redirect, asked how often Mother observed bruising on A.H., Mother responded, "Every time I have see[n] her it's something." Mother denied ever attempting to kidnap A.H. from the Department's custody. Mother wore a wig to the June 8 visit because it was one of her different hairstyles, not to abduct A.H. Mother did not have a disability placard, but she "always" parked in a disabled parking spot at the Department office.
2. Morton's testimony
Morton testified she had been assigned to A.H.'s case since July 2019. Mother's virtual visitation with A.H. had been inconsistent, with Mother generally missing one of the two scheduled weekly visits. The Department denied Mother's requests for increased visitation because she was not consistent in attending the scheduled visits.
Morton monitored some of Mother's in-person visits with A.H., and each time Mother removed A.H.'s clothes. Mother was informed by the Department her complaints of abuse and neglect of A.H. were not substantiated. Morton had no concerns regarding Shawn's care for A.H. Morton recognized Mother's voice and phone number when Mother left a voicemail message on Morton's phone in which Mother stated she was at Shawn's house "persistently." As to the June 8, 2021 visit at the Department's office, Mother did not normally park in the disabled parking spot; Morton was not sure whether Mother wore a wig to visits with A.H. on other occasions, but Morton was certain Mother wore a wig to the visit on June 8.
3. Closing arguments and the juvenile court's ruling
Minor's counsel argued a permanent restraining order should be issued because Mother "is using the system to intentionally harass and annoy" Shawn and A.H. by repeatedly calling the police to falsely report abuse and neglect. Mother's conduct was detrimental to A.H. because it subjected her to "endure countless inspections and examinations as a result of [Mother's] actions" by "doctors, social workers, even police, firemen, and paramedics." As to termination of parental rights, minor's counsel argued the beneficial parental relationship exception did not apply because Mother's behavior "negatively affected the quality of visits" with A.H. Mother was "not using visits to bond with [A.H.] She's using visits as an opportunity to find something wrong so that she can make an allegation of abuse against [Shawn] ...." Mother lacked insight "into [A.H.'s] developmental behavior," and her actions subjected A.H. to emotional distress. Further, A.H. did not wish to engage in virtual visits with Mother, contrary to Mother's testimony.
The Department's counsel joined in the arguments of minor's counsel. The Department's counsel also argued the Department's suspicion of kidnapping was reasonable based on the circumstances of Mother arriving in an unusual vehicle with tinted windows and no license plates and parking in the disabled parking spot, none of which was normal behavior for Mother.
Mother's counsel argued the evidence was not sufficient to support issuance of a permanent restraining order. Mother was being protective when she called the police alleging abuse and neglect by Shawn. And there was no evidence Mother tried to kidnap A.H. Mother's counsel urged the court to find the beneficial parental relationship exception applied, arguing Mother had a bond with A.H., A.H. reacted positively toward Mother during visits, and Mother attended every visit she could, but the Department failed to accommodate Mother's schedule.
The juvenile court found by clear and convincing evidence A.H. was adoptable and no exception to termination of parental rights applied. The court found "[Mother] lacks credibility for a number of reasons, most of which are by her own statement[s]," and visitation with Mother was detrimental to A.H. due to Mother's behavior of "constantly taking off the child's clothes and various other things . . . to the point that sometimes [A.H.] refuses to get on the phone." The court terminated Mother's parental rights and designated Shawn as the prospective adoptive parent. In its minute order, the court found "any benefit accruing to the child from his/her relationship with the parent(s) is outweighed by the physical and emotional benefit the child will receive through the permanency and stability of adoption, and that adoption is in the best interests of the child."
The juvenile court also terminated the parental rights of Yves O. (the alleged father of A.H.) and "anyone else that claims to be a parent of this child."
The court issued a three-year permanent restraining order against Mother, finding Mother's conduct in "sending law enforcement is harassment," and Mother was "going to [Shawn's] house [and] standing out there" despite being told she was not to go to the address. While the court was "not sure about the Department's concern about kidnapping," it found it "strange" Mother parked in "a new place" and "changed her looks substantially so that it's noticed."
Mother timely appealed. On May 12, 2022 we granted Mother's motion to consolidate her appeals under case number B314006.
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion in Granting the Temporary Restraining Order and Limiting Mother's Visitation to Virtual Visits
Section 213.5, subdivision (a), authorizes the juvenile court to issue an order after a dependency petition has been filed "enjoining a person from molesting, attacking, striking, stalking, threatening, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the child or any other child in the household." The court may also issue orders protecting the "current caretaker of the child." (§ 213.5, subd. (a).) "In determining whether or not to issue the temporary restraining order," the juvenile court must "consider all documents submitted with the application" and may "review the contents of the juvenile court file regarding the child." (Cal. Rules of Court, rule 5.630(d)(1).)
"'[A]ppellate courts apply the substantial evidence standard to determine whether sufficient facts supported the factual findings in support of a [section 213.5] restraining order and the abuse of discretion standard to determine whether the court properly issued the order.'" (In re S.G. (2021) 71 Cal.App.5th 654, 670; accord, In re L.W. (2020) 44 Cal.App.5th 44, 51.) "'"'To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.' . . . [W]e will not lightly substitute our decision for that rendered by the juvenile court. Rather, we must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings where there is substantial evidence to support them."'" (In re L.W., at p. 51.)
Mother's sole contention in challenging the temporary restraining order is that the juvenile court abused its discretion in limiting Mother's visitation to virtual visits, impeding her ability to bond with A.H. The court did not abuse its discretion.
Although the temporary restraining order terminated when the juvenile court issued the three-year permanent restraining order, rendering Mother's appeal from the order "technically moot" (In re L.W., supra, 44 Cal.App.5th at p. 47, fn. 2), we reach Mother's contention because she argues the limitation on her visitation affected her ability at the selection and implementation hearing to demonstrate the beneficial parental exception applied.
Substantial evidence supports the juvenile court's finding that allowing Mother to visit A.H. in person posed a risk that Mother would abscond with her. In the June 14, 2021 last minute information for the court, the Department reported Mother was seen waiting outside Shawn's house, she refused to identify herself to Shawn's adult daughter, and she told the daughter she was "there to pick up" A.H. Three days later Mother arrived to a visit at the Department's office wearing black clothing and a black wig, and driving a gray van with dark, tinted windows and no license plates, which Mother parked near the building in a disabled parking spot. When Mother was confronted about parking in the space, she agreed to move the van but then explained she needed to return the van to a friend and left without visiting A.H. Further, Mother left a voicemail with Morton on the same day acknowledging Mother was "persistently" at "the lady's house," but blaming it on the Department's conduct, including cancelling Mother's visit. Mother's suspicious conduct caused the Department to believe Mother was a flight risk. Mother's argument that monitored inperson visitation would have adequately protected against any flight risk ignores the fact that Mother's conduct on June 8, 2021 took place during a monitored in-person visit.
Mother cites no authority for her contention a juvenile court abuses its discretion by issuing a restraining order that limits a parent's visitation to virtual visits. In each of the cases relied on by Mother, the Court of Appeal considered the juvenile court's issuance of a restraining order where the court continued to allow in-person monitored visitation. (See In re C.Q. (2013) 219 Cal.App.4th 355, 366 [reversing restraining order that protected three children but allowed monitored visitation, where there was insufficient evidence to support inclusion of children in order]; In re B.S. (2009) 172 Cal.App.4th 183, 188 [affirming order prohibiting father from contacting his son "'except for brief and peaceful contact as required for court-ordered visitation'"]; In re Cassandra B. (2004) 125 Cal.App.4th 199, 205 [affirming restraining order against mother but allowing brief and peaceful contact during visitation].) None of these cases considered whether a juvenile court has discretion to limit a parent to virtual visitation where the parent poses a risk of the parent absconding with the child. Although we recognize it is unusual to prohibit even monitored in-person visits, on the unique facts here showing a flight risk, the court's order was consistent with section 362.1, subdivision (a), which clarifies in subdivision (1)(A) that visitation should be "as frequent as possible, consistent with the well-being of the child." Here, the court acted within its discretion in limiting Mother to virtual visitation to ensure the well-being of A.H. by allowing contact with Mother while preventing Mother from absconding with her.
B. The Juvenile Court Did Not Abuse Its Discretion in Denying Mother's Request for a Bonding Study
"Evidence Code section 730 allows the juvenile court to appoint an expert to study the bond between a parent and child." (In re M.M. (2022) 81 Cal.App.5th 61, 68, review granted Oct. 12, 2022, S276099; accord, In re S.R. (2009) 173 Cal.App.4th 864, 869.) "A bonding study can be relevant at a hearing under section 366.26 to the question of whether the beneficial parent-child relationship exception should prevent the termination of parental rights." (In re M.M., at p. 68; accord, In re S.R., at p. 869 ["In attempting to establish or eliminate this exception to the preference for adoption, the parties or the court may require a bonding study to illuminate the intricacies of the parent-child bond so that the question of detriment to the child may be fully explored."].) Juvenile "courts should seriously consider, where requested and appropriate, allowing for a bonding study or other relevant expert testimony." (In re Caden C. (2021) 11 Cal.5th 614, 633, fn. 4 (Caden C.).)
"However, '[t]here is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to' terminating parental rights." (In re M.M., supra, 81 Cal.App.5th at pp. 68-69, review granted; accord, In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) We review a juvenile court's denial of a request for a bonding study for an abuse of discretion. (In re M.M., at p. 69; In re Lorenzo C., at p. 1341 ["The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study."].)
The juvenile court denied Mother's first request for a bonding study on December 14, 2020. Mother did not appeal from the court's order denying her request. (See § 395, subd. (a)(1) ["A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.], italics added.) Nor did Mother challenge the court's denial of her first request for a bonding study in her prior appeal from the denial of her April 12, 2021 section 388 petition. (See In re Isaiah W. (2016) 1 Cal.5th 1, 10 ["'An appeal from the most recent order in a dependency matter may not challenge earlier orders for which the time for filing an appeal has passed.'"].) Thus, the denial of Mother's first request for a bonding study is final.
As to Mother's second request for a bonding study (which she timely appealed), on November 9, 2021 Judge Losnick denied Mother's request on the basis the first request had already been denied by Judge Downing. The court did not abuse its discretion in denying the second request given that Mother did not provide any substantiation for the request; instead, her attorney stated at the November 9 hearing only that Mother was "renewing" her request. Further, Mother fails to explain why a bonding study was required given the evidence in the record as to A.H.'s bond with Mother (or lack thereof). A.H. was three years old at the time of the selection and implementation hearing and had been living with Shawn since October 3, 2019. Mother used her visits with A.H. to search for evidence of abuse and neglect, instead of engaging in age-appropriate activities with her daughter. Given the numerous observations of the monitors for Mother's visits with A.H. during the prior two years of visitation, the court did not abuse its discretion in denying Mother's second request for a bonding study.
In re M.G. (2022) 80 Cal.App.5th 836, 850-851, relied on by Mother in her reply brief, is distinguishable. There, Division Eight of this district reversed an order terminating parental rights because the juvenile court relied on a bonding study that "offered minimal if any information about the nature of the child's relationship with his parents in the context of their developmental disabilities" and improperly compared "the parents' ability to manage [the child's] medical and developmental needs" to the caregiver's ability to meet the child's needs. In M.G., a bonding study was performed because the three-year-old child was non-verbal and developmentally disabled, and the study was intended to assess the child's bond with his developmentally disabled parents. (Id. at p. 850.) The question before the court was not whether a bonding study should have been performed, but whether the study that was performed was adequate to evaluate the emotional attachment the child had with his parents where the bonding study, which considered improper factors, was the principal evidence. (Ibid.) Here, we have a record reflecting the caregivers' and social workers' observations during two years of visitation between A.H. and Mother.
C. The Juvenile Court Did Not Abuse Its Discretion in Denying Mother's Section 388 Petitions
1. Applicable law and standard of review
Section 388, subdivision (a)(1), provides, "Any parent or other person having an interest in a child who is a dependent of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." "Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the child's best interest." (In re Malick T. (2022) 73 Cal.App.5th 1109, 1122; accord, In re Jasmon O. (1994) 8 Cal.4th 398, 414-415 ; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
"[Section 388] petitions are to be liberally construed in favor of granting a hearing to consider the parent's request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; accord, In re R.A. (2021) 61 Cal.App.5th 826, 836; see Cal. Rules of Court, rule 5.570(a) ["A petition for modification must be liberally construed in favor of its sufficiency."].) "'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' [Citation.] 'Whether [the petitioner] made a prima facie showing entitling [the petitioner] to a hearing depends on the facts alleged in [the] petition, as well as the facts established as without dispute'" by the court's records. (In re B.C. (2011) 192 Cal.App.4th 129, 141; see In re Justice P. (2004) 123 Cal.App.4th 181, 189 ["In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case."].) "[T]he court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child." (In re Justice P., at pp. 188-189; accord, In re R.A, supra, 61 Cal.App.5th at p. 836.) Further, "'[n]ot every change in circumstance can justify modification of a prior order'" under section 388. (In re N.F. (2021) 68 Cal.App.5th 112, 1202.) Rather, "'"the change in circumstances must be substantial."'" (In re Malick T., supra, 73 Cal.App.5th at p. 1122; accord, In re J.M. (2020) 50 Cal.App.5th 833, 846.)
When a section 388 petition is filed after reunification services have been terminated the focus is on the child's best interest. (Stephanie M., supra, 7 Cal.4th at p. 317 ["After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child."]; In re I.B. (2020) 53 Cal.App.5th 133, 159.)
"We review the juvenile court's decision to grant or deny a section 388 petition for abuse of discretion." (In re I.B., supra, 53 Cal.App.5th at p. 152; accord, Stephanie M., supra, 7 Cal.4th at p. 318.) We likewise review a summary denial of a section 388 petition for abuse of discretion. (In re R.A., supra, 61 Cal.App.5th at p. 837; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
2. Mother's appeal is untimely as to the orders denying her second and third section 388 petitions
The Department contends this court lacks jurisdiction to consider Mother's arguments on appeal regarding the denial of her second, third, and fourth section 388 petitions because Mother's notice of appeal identifies only the juvenile court's December 20, 2021 orders terminating Mother's parental rights and issuing a three-year permanent restraining order. Mother argues her notice of appeal must be construed liberally to encompass the court's orders denying the section 388 petitions. We construe Mother's notice of appeal liberally, but her appeal of the denials of her second and third section 388 petitions is untimely.
The juvenile court denied Mother's second, third, and fourth section 388 petitions on August 12, September 10, and December 13, 2021. We liberally construe a notice of appeal "from an order terminating parental rights to encompass the denial of the parent's section 388 petition ...." (In re Madison W. (2006) 141 Cal.App.4th 1447, 1451; accord, In re Angelina E. (2015) 233 Cal.App.4th 583, 585, fn. 2; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413, fn. 9.) However, an appeal of an order made more than 60 days before the filing of the notice of appeal is untimely. (See In re A.R. (2021) 11 Cal.5th 234, 246; Madison W., at p. 1450; see Cal. Rules of Court, rule 8.406(a)(1).) Thus, the juvenile court's December 13, 2021 order denying Mother's fourth section 388 petition was issued during the 60-day period prior to the filing of Mother's December 20 notice of appeal, and we have jurisdiction to review the order. However, Mother filed her notice of appeal 131 days and 102 days after the court's orders denying Mother's second and third section 388 petitions, respectively. Thus, those orders fall outside of the 60-day period prior to Mother filing her notice of appeal, and Mother's appeal from those orders is untimely.
3. Mother failed to make a sufficient showing that modification of the orders removing A.H. from Mother's custody, terminating family reunification services, and limiting visitation was in A.H.'s best interest
Mother contends the juvenile court abused its discretion in denying her fourth section 388 petition (requesting reinstatement of reunification services, return of A.H. to Mother or placement with maternal great-grandmother Lasita, and unmonitored visitation) without a hearing despite Mother's successful completion of a 28-day substance abuse program, completion of four additional substance abuse sessions at the Twin Town Treatment Center, receipt of services from the A New Way of Life program, and her participation in a narcotics or alcoholics anonymous program. The Department argues Mother failed to show the requested change would promote the best interest of A.H. We agree.
Mother failed to make a prima facie showing it was in A.H.'s best interest to return her to Mother's physical custody or to reinstate family reunification services. As we observed in Mother's second appeal (from denial of her first section 388 petition), "Mother's showing of completion of a 28-day drug treatment program was insufficient to make a prima facie showing that granting the petition was in A.H.'s best interest in the absence of evidence Mother had submitted to Department-approved drug testing and enrolled in aftercare." (In re A.H., supra, B313270.) At the time Mother filed her fourth section 388 petition, Mother still had not submitted to Department-approved drug testing. And although Mother attached an August 18, 2021 letter from Mother's caseworker at the Twin Town Treatment Center stating Mother had provided two urine samples, the letter did not disclose whether the urine samples were tested, and Mother did not submit any test results.
Moreover, A.H. was only one year old when she was detained from Mother, and she was only 15 months old when she was subsequently removed from Mother's physical custody in January 2020. By the time of the fourth section 388 petition, A.H. was three years old and had been a dependent of the court for longer than she had lived with Mother. A.H. had been placed with Shawn since October 3, 2019, and A.H. had a close relationship with Shawn's three children. Shawn was very patient and affectionate with A.H., and she had a good understanding of A.H.'s needs and development. A.H.'s strong bond with Shawn would be disrupted by returning A.H. to Mother. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531 ["the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion"].) Further, reinstating Mother's family reunification services would have prolonged the uncertainty of A.H.'s placement and denied her stability and permanency. (See In re Josiah Z. (2005) 36 Cal.4th 664, 674 ["'There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current "home," under the care of his parents or foster parents, especially when such uncertainty is prolonged.'"].) Mother did not make a sufficient showing to the contrary, especially given her failure to show she was now sober. In addition, the Department was unable to assess Mother's home because she refused to inform the Department of her current address.
Mother also failed to make a prima facie showing it would be in A.H.'s best interest to place her with Lasita. Mother's petition cursorily stated only that A.H. "would benefit from maintaining ties with [the] maternal family, and being raised by maternal family as opposed to fostercare." In addition, Mother provided no contact information for Lasita to enable the Department to assess whether placement with Lasita was in A.H.'s best interest.
With respect to Mother's request for unmonitored visits, Mother continued to make unfounded complaints to the social workers and law enforcement agencies about neglect and abuse of A.H. by her caregivers, which subjected A.H. to multiple unnecessary medical exams. Mother lacked insight into how her actions affected A.H. Instead of engaging in age-appropriate behavior with A.H., Mother spent her visits with A.H. looking for signs of abuse, typically beginning each visit by asking A.H. if anything was wrong, then stating A.H. was being abused if A.H. pointed to any part of her body. Further, Mother requested during visits that the monitors undress A.H. so Mother could inspect her for abuse. Under these circumstances, Mother did not make a prima facie showing that allowing her to have unmonitored visits with A.H., in which Mother would have unfettered access to A.H. to inspect her for abuse by her caregivers, would be in A.H.'s best interest.
D. The Juvenile Court Did Not Abuse Its Discretion in Finding the Beneficial Parental Relationship Exception Did Not Apply
1. Applicable law and standard of review
"At the section 366.26 hearing, the focus shifts away from family reunification and toward the selection and implementation of a permanent plan for the child." (In re S.B. (2009) 46 Cal.4th 529, 532; accord, Caden C., supra, 11 Cal.5th 614, 630.) "'Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1).'" (In re B.D. (2021) 66 Cal.App.5th 1218, 1224-1225 (B.D.); accord, In re Celine R. (2003) 31 Cal.4th 45, 53 ["the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child"].)
Under section 366.26, subdivision (c)(1)(B)(i), "the parent may avoid termination of parental rights" if the parent establishes by a preponderance of the evidence "that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child. [Citations.] The language of this exception, along with its history and place in the larger dependency scheme, show that the 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." (Caden C., supra, 11 Cal.5th at pp. 629-630; accord, B.D., supra, 66 Cal.App.5th at p. 1225.)
A parent has regular visitation and contact when the parent "'visit[s] consistently,' taking into account 'the extent permitted by court orders.'" (Caden C., supra, 11 Cal.5th at p. 632; accord, In re I.R. (2014) 226 Cal.App.4th 201, 212.) Whether "'the child would benefit from continuing the relationship'" with his or her parent is shaped by 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.'" (Caden C., at p. 632; accord, In re Katherine J. (2022) 75 Cal.App.5th 303, 317.) "'If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,' even considering the benefits of a new adoptive home, termination would 'harm[]' the child, the court should not terminate parental rights." (Caden C., at p. 633; accord, Katherine J., at p. 317.) "While application of the beneficial parental relationship exception rests on a variety of factual determinations properly reviewed for substantial evidence, the ultimate decision that termination would be harmful is subject to review for abuse of discretion." (Caden C., at p. 630; accord, B.D., supra, 66 Cal.App.5th at p. 1225.)
2. The juvenile court did not abuse its discretion
Mother contends the juvenile court erred in terminating her parental rights over A.H. because it focused on factors the Caden C. court found inappropriate, and it erred in determining as part of the second step of the analysis that there was no substantial, positive emotional attachment between Mother and A.H. such that A.H. would benefit from continuing the relationship. The court did not abuse its discretion.
Mother also argues the juvenile court "frustrated" Mother's ability to obtain and present evidence of her bond with A.H. by denying her section 388 petitions and requests for a bonding study and limiting her visitation to virtual visits. However, as discussed, Mother has not shown the court abused its discretion in making these orders.
The juvenile court failed to make a finding at the hearing as to the first step of the Caden C. analysis, whether Mother had regular visitation with A.H. Mother's visitation was somewhat regular, but she did not visit to the extent she was allowed under the court's visitation order. Mother often missed one of the two scheduled weekly visits, although she generally visited A.H. at least once a week during the period immediately preceding the selection and implementation hearing. For purposes of our analysis, we assume this was minimally sufficient to show Mother's regular visitation and contact with A.H taking into account the visitation she was allowed under the court's orders. (See Caden C., supra, 11 Cal.5th at p. 632; cf. In re J.C. (2014) 226 Cal.App.4th 503, 531 [visitation not regular where the mother missed five visits in the six weeks preceding the selection and implementation hearing and there was a "troubling manner of [m]other's cancellations and pattern of changing her plans last minute"].)
The juvenile court combined its analysis of the second and third steps of the Caden C. analysis, finding any benefit to A.H. was outweighed by the physical and emotional benefit A.H. would receive through adoption. With respect to the second step, Mother failed to establish A.H. had a substantial, positive emotional attachment with her, as a result of which A.H. would benefit from continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 636.) There is no evidence in the record showing that A.H., who had been detained from Mother since she was 10 months old, had a strong emotional attachment to Mother. Rather, A.H. threw the phone down and did not want to talk with Mother when it was time for her visit. A.H. refused to get into the car to travel to the monitored virtual visit locations. And Mother became irritable during visits when A.H. failed to interact with her.
Although Mother testified A.H. was excited to see Mother during visits and sad that they ended, the juvenile court found Mother's testimony was not credible. We do not revisit the court's credibility determinations on appeal. (In re N.S. (2020) 55 Cal.App.5th 816, 847 ["Under the substantial evidence standard, we do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence."]; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 ["We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts."]; see In re Juan G. (2003) 112 Cal.App.4th 1, 6 ["The function of an appellate court is not to reweigh the evidence and substitute its judgment for that of the juvenile court."].)
Moreover, as discussed, Mother did not use her visits to bond with A.H., instead spending the time to search for signs of abuse or neglect by A.H.'s caregivers, often requesting the monitors undress A.H. for Mother's inspection. And Mother's repeated unfounded reports to law enforcement authorities that A.H.'s caregivers were abusing and neglecting her caused A.H. to be subjected to multiple needless examinations. Accordingly, substantial evidence supports the juvenile court's findings that A.H. would not benefit from continuing her relationship with Mother, and that the relationship was detrimental to A.H.
Because Mother failed to show A.H. would benefit from continuing her relationship with Mother, Mother necessarily failed to show as to the third step that A.H.'s loss of her relationship with Mother would be detrimental to A.H. "to an extent not outweighed, on balance, by the security of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 634.) Further, as discussed, A.H. spent the majority of her life with Shawn, and there is no evidence A.H. would suffer harm from losing her relationship with Mother. Conversely, there was evidence A.H. would benefit from placement in an adoptive home with Shawn. Shawn was able to meet A.H.'s mental and emotional needs, and A.H. had bonded with Shawn and her adult daughter. In short, Mother has not shown "'exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.'" (Caden C., supra, 11 Cal.5th at p. 631.)
E. The Juvenile Court and the Department Failed To Comply with ICWA and Related California Law
1. ICWA inquiry and findings
During the social worker's August 9, 2019 interview, Mother denied having Indian ancestry. On the same day, a social worker interviewed the maternal grandmother (Sharvon M.) and a maternal great-uncle (Tyrone F.), but the social worker made no inquiry about whether the family had Indian ancestry.
On September 6, 2019 Mother filed a parental notification of Indian status form (Judicial Council form ICWA-020), on which she checked the box stating, "I have no Indian ancestry as far as I know." At the September 6 detention hearing, the juvenile court stated, "At this stage, the court will find the court has no reason to know that [ICWA] applies."
On March 10, 2020 a social worker interviewed a maternal aunt (Betty W.) but again failed to inquire as to the family's Indian ancestry. Maternal great-grandmother Lasita was present for a hearing on September 1, 2020, but the juvenile court did not make any inquiry of her regarding the family's Indian ancestry. Later in September, another social worker spoke with maternal cousin Mellisha L., who desired to have custody of A.H., but the social worker failed to inquire whether the family had Indian ancestry. And on December 14, 2021, during the selection and implementation hearing, Mother's attorney referenced a maternal aunt (Loverette M.).
2. ICWA inquiry and notice requirements
ICWA provides as to dependency proceedings, "where the court knows or has reason to know that an Indian child is involved, the party seeking . . . termination of parental rights to . . . an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 5 ; In re Antonio R. (2022) 76 Cal.App.5th 421, 428 (Antonio R.); In re T.G. (2020) 58 Cal.App.5th 275, 288.) California law also requires notice to the Indian tribe and the parent, legal guardian, or Indian custodian if the court or the Department "knows or has reason to know" the proceeding concerns an Indian child. (§ 224.3, subd. (a); see Antonio R., at p. 429; In re T.G., at p. 288; Cal. Rules of Court, rule 5.481(c)(1) [notice is required "[i]f it is known or there is reason to know an Indian child is involved in a proceeding listed in rule 5.480," which includes dependency cases filed under section 300].) The notice requirement is at the heart of ICWA because it "enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (In re Isaiah W., at p. 5; accord, Antonio R., at p. 428; In re T.G., at p. 288; see 25 U.S.C. § 1912(a); Welf. &Inst. Code, § 224.3, subd. (d).)
The juvenile court and the Department "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; In re H.V. (2022) 75 Cal.App.5th 433, 437.) "The duty to inquire begins with initial contact (§ 224.2, subd. (a)) and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child. (§ 224.2, subds. (a)-(c))." (In re T.G., supra, 58 Cal.App.5th at p. 290; accord, In re J.C. (2022) 77 Cal.App.5th 70, 77; In re H.V., at p. 437.) Section 224.2, subdivision (b), effective January 1, 2019, imposes on the Department a duty to inquire whether a child in the Department's temporary custody is an Indian child, which "[i]nquiry 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 ...." (See Cal. Rules of Court, rule 5.481(a)(1) [the Department "must ask . . . extended family members . . . whether the child is or may be an Indian child"]; In re D.F. (2020) 55 Cal.App.5th 558, 566; In re Y.W. (2021) 70 Cal.App.5th 542, 551-552.) "The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families." (Antonio R., supra, 76 Cal.App.5th at p. 430.)
3. The juvenile court failed to ensure the Department satisfied its duty of inquiry
Mother contends the Department should have inquired of the maternal extended relatives, including Sharvon and Tyrone, regarding A.H.'s possible Indian ancestry. The Department concedes remand is necessary for additional ICWA inquiry because the Department failed to inquire of maternal extended family members whether A.H. is an Indian child, as required by section 224.2, subdivision (b).
In her opening brief, Mother also argued the Department should have inquired of Mother and Father as to reasonably available extended paternal family members with respect to A.H.'s possible Indian ancestry. We agree with the Department that Mother has failed to demonstrate reversible error as to the juvenile court's and the Department's duty of inquiry with respect to the paternal relatives, given that A.H.'s paternity was not acknowledged or established in the proceedings. (See 25 U.S.C. § 1903(9) [excluding from ICWA's definition of "'parent'" the "unwed father where paternity has not been acknowledged or established"]; In re Daniel M. (2003) 110 Cal.App.4th 703, 708 ["to be considered a 'parent' under the ICWA, an unwed father's paternity must be 'acknowledged or established'"].) Because ICWA provides no standard for the acknowledgment or establishment of paternity, "courts have resolved the issue under state law," requiring that the "unwed father must take some official action, such as filing a voluntary declaration of paternity, establishing paternity in legal proceedings, or petitioning to have his name placed on the child's birth certificate," before finding ICWA applicable as to the unwed father. (Daniel M., at p. 708.) On October 24, 2019 Yves filed a statement regarding parentage (form JV-505), on which he checked the box stating, "I do not know if I am the parent of the child" and requesting blood or DNA testing to determine whether he is A.H.'s biological father. Yves also checked the box stating, "I believe I am the parent of the child and request that the court find that I am the presumed parent of the child," indicating he told "friends and family" A.H. was his child. Yves did not request the court enter a judgment of parentage. Yves's submission of this form was preliminary to the determination of A.H.'s paternity, and there is no evidence Yves at any time acknowledged paternity by an official action. (See Daniel M., at pp. 708-709 ["[I]n California an alleged father may acknowledge or establish paternity by voluntarily signing a declaration of paternity at the time of the child's birth, for filing with the birth certificate (Fam. Code, § 7571, subd. (a)), or through blood testing (Fam. Code, § 7551)."].) Mother does not contend otherwise in her reply brief.
We agree the Department failed to satisfy its duty of inquiry under section 224.2, subdivision (b). Notwithstanding Mother's denial of Indian ancestry, section 224.2, subdivision (b), obligated the Department to inquire of extended family members as to A.H.'s possible Indian ancestry. (See In re J.C., supra, 77 Cal.App.5th at p. 77; Antonio R., supra, 76 Cal.App.5th at p. 431.) Information relevant to A.H.'s possible Indian ancestry was readily obtainable from maternal grandmother Sharvon and maternal relatives Lasita, Tyrone, Betty, and Mellisha. Further, Mother's attorney made reference to maternal relative Loverette, but the Department made no effort to obtain her contact information. The juvenile court therefore erred in finding ICWA did not apply to the proceedings and in failing to ensure the Department complied with its duty of inquiry. (In re J.C., at p. 74; Antonio R., at p. 432.)
DISPOSITION
We dismiss Mother's appeal from the juvenile court's August 12 and September 10, 2021 orders denying Mother's section 388 petitions. The juvenile court's November 9, 2021 order denying Mother's request for a bonding studying, the December 13, 2021 order denying Mother's section 388 petition, and the December 20, 2021 three-year restraining order are affirmed.
The order terminating Mother's parental rights is conditionally affirmed. We remand to the juvenile court for the Department and the court to comply with the inquiry and notice provisions of ICWA and related California law, including inquiry of maternal relatives Sharvon, Tyrone, Betty, Mellisha, Loverette, and any other reasonably available extended maternal family members. If the court finds A.H. is an Indian child, it shall conduct a new section 366.26 hearing, as well as all further proceedings, in compliance with ICWA and related California law. If not, the court's original section 366.26 order will remain in effect.
We concur: PERLUSS, P. J., SEGAL, J.