Filed 8/17/22 In re J.H. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.

Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the County Counsel, Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.

In August 2020, more than 18 months after minors J.H. (then ten years old) and J.B. (then two years old) were removed from appellant mother D.B., the juvenile court terminated family reunification services for Mother and set a hearing under Welfare and Institutions Code section 366.26 to select and implement a permanent plan for the children.[1] In February 2021, Mother filed a petition under section 388 requesting, among other things, that the court reinstate family reunification services and/or grant her unmonitored visits. Three days later, the court summarily denied the portion of the petition requesting reinstatement of family reunification services but set a hearing to consider whether Mother was entitled to an evidentiary hearing regarding her request for unmonitored visits. After deciding she was, and after holding that evidentiary hearing, the court ultimately denied her request for unmonitored visits and proceeded directly to the section 366.26 hearing. At the conclusion of the section 366.26 hearing, the court terminated Mother’s parental rights, rejecting her contention that the parental-benefit exception applied.

On appeal, Mother contends the court erred in: (a) denying her request to reinstate family reunification services; (b) finding inapplicable the parental-benefit exception to terminating parental rights; and (c) finding the Indian Child Welfare Act (ICWA) inapplicable when the Los Angeles County Department of Children and Family Services (DCFS) failed to make the necessary inquiries regarding the children’s potential Indian heritage. We conclude: (a) we lack jurisdiction to consider Mother’s argument regarding the reinstatement of family reunification services, but were we to do so, we would find the court did not err; (b) the court did not err in finding inapplicable the parental-benefit exception; and (c) any ICWA error was harmless. We affirm.

3911719343734. OF RELEVANT FACTS
               1. Background and Prior Referrals

D.B. is the mother of J.H. (born October 2009) and J.B. (born February 2018). Between April 2012 and June 2018, Mother had been the subject of referrals to child protective agencies in New Jersey, North Carolina, Pennsylvania, and Georgia, mostly relating to Mother’s substance abuse and mental health problems.

1. 2. DCFS Investigates a Referral

In October 2018, DCFS received a referral alleging Mother was physically and verbally abusing her autistic son. After an investigation, Mother agreed to receive services through a Voluntary Family Maintenance Case. During this conversation, Mother reported no Indian heritage.

Between November and December 2018, Mother lied to a children’s social worker (CSW) about her whereabouts, behaved hostilely toward the CSW, appeared to be under the influence and admitted to using marijuana, expressed paranoid thoughts about people following her, and was expelled from more than one shelter for irrational and aggressive behavior, refusing to follow the rules, and drug use. On December 20, 2018, Mother reported that she had moved to Las Vegas but refused to provide her address because she did not want her children removed. Mother denied having any mental health issues and refused to drug test because she believed DCFS was “‘trying to build a case’” against her.

1. 3. DCFS Files and Amends a Petition

On December 24, 2018, DCFS filed a petition on behalf of J.H. and J.B. under section 300, subdivision (b)(1) (section 300(b)(1)), alleging that Mother had a history of substance abuse and was a current abuser of marijuana, rendering her incapable of providing the children with regular care and supervision. The petition stated that an “Indian child inquiry” had been made and the children had “no known Indian ancestry.” On the day of the detention hearing, Mother informed the CSW she had no means to get to court. The court ordered the children detained and issued a protective custody warrant.

On January 25, 2019, DCFS filed an amended petition under section 300(b)(1). Count b-1 realleged Mother’s history of substance abuse and additionally alleged that Mother failed to comply with the Voluntary Family Maintenance contract. The amended petition added count b-2, alleging Mother’s mental and emotional problems placed the children at risk, and count b-3, alleging that Mother neglected nine-year-old J.H., who was autistic, by failing to obtain appropriate services for him. Two days later, Mother appeared at a social services office in Nevada to apply for benefits. After Nevada’s Child Protective Services was alerted and attempted to detain the children, Mother stated she would kill herself and anyone who tried to take the children, then ran to a waiting vehicle and fled with the children. On January 28, the court received the first amended petition, dismissed the original petition, and found it had no reason to know J.H. or J.B. were Indian children.

At a February 2019 adjudication and disposition hearing, neither Mother nor the children were present, but a judge from Nevada state court called in to inform the juvenile court that Mother had been arrested and charged in Nevada for “child abuse or neglect, resisting a public officer, and providing a false statement to obstruct a public officer.” The Nevada judge also informed the court that the children had been “recovered”; the court ordered DCFS to coordinate with its Nevada counterpart to secure the return of the children to Los Angeles. Mother later appeared personally in the Nevada court and simultaneously appeared telephonically in the California juvenile court, denying the allegations of the amended petition. Responding to a direct question from the court, Mother confirmed she had no Indian ancestry. The court continued the hearing until April 2019. The children were placed in a foster home. J.H. was moved to a second foster home two weeks later after the first one was unable to “provide for the child’s Autistic needs.”

At Mother’s request, DCFS provided transportation assistance so she could visit the children. However, Mother missed the first arranged visits in March 2019, stating she could not get to where the visits were to be held. DCFS also referred Mother to drug testing, but Mother did not go. Nothing in the record indicates DCFS ever asked any extended family members whether J.H. or J.B. might be Indian children.

1. 4. Adjudication and Disposition

Mother did not appear at the April 2019 adjudication and disposition hearings. The court sustained the operative petition, declared the children dependents, removed them from Mother, and ordered that they remain suitably placed. DCFS was ordered to provide reunification services. Mother was granted monitored visits of at least one hour, twice a week. Her case plan included weekly drug testing, parenting classes, mental health screening, and individual counseling to address mental health, domestic violence, childhood trauma, and coping skills. The plan provided that in the event of a missed or positive drug test, Mother was to enroll in a drug rehabilitation program. A six-month review hearing was set for October 2019.

1. 5. Six-Month Review Hearing

A CLETS search revealed that in September 2019, Mother had been in possession of a controlled substance and was carrying a concealed knife, but that she destroyed or concealed the evidence.[2] DCFS’s report for the six-month review hearing noted both children were doing well in their respective foster homes. In particular, the report stated that J.H. had made great strides in maintaining his personal hygiene and was “really enjoy[ing] going to school.” J.H. was “very comfortable” with his foster parent and was receiving Regional Center services. However, DCFS deemed that J.H.’s “severe autism” prevented him from being able to “express his needs.” DCFS reported that between March 2019 and mid-September 2019, Mother visited the children nine times. The visits generally went well, with both children being glad to see Mother, and Mother behaving appropriately and parentally. However, there were no notes that the children had any difficulties when the visits ended. On one visit, the monitor noted that J.B. “appeared to be more bonded with the foster parent than the mother.”

In October 2019, eight days before the six-month review hearing, DCFS asked the court to terminate reunification services for Mother, citing Mother’s failure to participate regularly or make substantive progress. Specifically, DCFS alleged that Mother had not participated in random drug testing, nor had she enrolled in a substance abuse program. She had not provided proof that she received a mental health screening, that she had enrolled in parenting classes, or that she was receiving individual counseling.[3] DCFS noted Mother did not consistently visit the children and had expressed several times her refusal to “do what the Court wants.” Mother also informed DCFS that she continued to use marijuana. A day before the hearing, DCFS withdrew the request, stating it had received information from Mother that a maternal aunt in Georgia was willing to adopt the children, and requesting initiation of a procedure under the Interstate Compact on the Placement of Children (ICPC) to explore placing the children with the aunt.

At the review hearing, the court found that Mother’s progress toward alleviating the causes necessitating jurisdiction “ha[d] not been substantial,” and that continued jurisdiction was necessary. The court ordered DCFS to initiate an ICPC for the children’s placement with the aunt and reiterated that a 12-month review hearing would be held in March 2020. The court later advanced the hearing to February 2020.

1. 6. Twelve-Month Review Hearing
      1. Initial Hearing

DCFS’s report for the initial 12-month review hearing in February 2020 reiterated that the children were doing well with their respective caregivers, and that Mother was only “partially in compliance.” DCFS reported that while Mother now expressed a “desire to participate in Court orders,” her mental health conditions hindered her in doing so, noting that Mother had been “in and out of several shelter homes” and “was constantly asked to leave due to noncompliance with the rules,” including several times for marijuana usage. The report also stated that Mother had still failed to drug test or arrange for DCFS to receive her mental health assessment. Though Mother had been “more consistent with visiting the children,” with only a few cancellations due to illness, DCFS nevertheless recommended that family reunification services be terminated. A last minute information for the court reported that Mother did not believe she had a mental health issue, and also that Mother had attended three therapy sessions to address domestic violence. The filing expressed DCFS’s belief that while Mother loved her children and her visits were consistent, “the children are strongly bonded to their caregivers.”

At the initial 12-month review hearing, Mother submitted a letter from Valley Oasis, attesting that she had participated in its domestic violence program which offered “Domestic Violence Groups, Parenting groups, Career Development and Living Skills.” The letter stated that if the reader had any questions, they could contact the staff at a certain telephone number or could “write to us at” an address provided on a lower line. After “write to us at” there appeared the handwritten phrase “And Drug Screens.” The court found that notice of the hearing was improper and continued it to March 2020.

1. 1. 2. Second Hearing

Prior to the second scheduled hearing, DCFS submitted a last minute information to inform the court that Mother was no longer enrolled at Valley Oasis. Staff at Valley Oasis reported that the first time Mother had arrived at the center, she was asked to leave because she smelled strongly of marijuana. When Mother refused to leave, the Sheriff’s Department was called; the deputy who arrived stated that Mother was not a domestic violence victim but, in fact, was a prostitute who had stolen someone’s Social Security number. The second time Mother arrived at the facility, staff members had been informed that she had been assaulted; they permitted her to enter temporarily “as a ‘safety move.’” However, Mother behaved aggressively and rudely toward the staff and did not follow the rules. Staff confirmed that they had provided Mother with the letter she submitted to the court, but denied writing “And Drug Screens” on it. DCFS also informed the court that Georgia had denied its request for a home study of the maternal aunt.

No one appeared at the March 2020 12-month review hearing due to COVID-19, and the court ultimately continued it to August 2020, to be held concurrently with an 18-month review hearing.

1. 7. Eighteen-Month Review Hearing

The updated status review report for the 18-month hearing reported that the children continued to do well with their caregivers. J.B. now referred to his caregivers as “‘mommy and daddy.’” As to Mother, the report stated that she was homeless, and that she remained in only partial compliance with her case plan. Mother had been asked repeatedly to leave shelter homes due to her failure to follow shelter rules, her aggression toward staff, and her consistent odor of marijuana. The report also stated Mother had enrolled in a treatment program in mid-August 2020 (15 days before her hearing date). The program included drug testing, and each of Mother’s seven drug screenings had been positive for marijuana.

Mother’s visits to the children in February and March 2020 appeared consistent, positive, and appropriate, though the report noted that when Mother attended J.B.’s second birthday party, J.B. refused to go to Mother, instead opting to be held by his foster parent. Beginning in mid-March, visits shifted from in-person to video calls due to the pandemic. Mother’s calls with J.B. were mostly short (a few minutes), though several were over 10 minutes. In an August 2020 call, it was noted that Mother “seemed distracted, perturbed, ranting about guys as she walks across a street, saying inappropriate comments.” J.B. also often had to be prompted to speak with Mother. As for J.H., the report noted that while Mother had some difficulty being consistent with her video chat times and days, she generally spoke with him twice a week; they sang songs and counted.

At the combined review hearings in August 2020, Mother’s counsel requested the court return the children to her. Counsel argued that Mother was now receiving services to address the issues raised by the court, and that she had acted parentally during her visits with the children. The children’s counsel disagreed, noting that Mother had been in and out of programs, unable to maintain her participation for any appreciable period of time or make any consistent progress. Additionally, Mother had continued to test positive for marijuana. Counsel also noted there was no likelihood the children would be returned to Mother within six months and no circumstances permitting more family reunification services, which counsel asked the court to terminate. DCFS’s counsel also opposed Mother’s request, joining in the arguments made by the children’s counsel, and noting that although DCFS had provided Mother with ongoing referrals and services, she had failed to take advantage of those services, failed to follow through with mental health treatment, and failed to participate meaningfully in her programs.

The court found that jurisdiction had been proper, that returning the children to Mother would pose a substantial risk of detriment, that reasonable services had been provided to Mother, and that Mother had only partially complied with the case plan. The court therefore terminated family reunification services and set a hearing under section 366.26 to select and implement a permanent plan. Both children’s hearings were ultimately continued to April 2021.

1. 8. Permanency Planning Review Hearing and Mother’s Request Under Section 388

DCFS’s permanency planning review report noted that both caregivers wanted to adopt the children, who were doing well in their care. J.B. was still too young to express his feelings, and J.H.’s autism prevented him from doing so. However, when the CSW interviewing J.H. stood up (he was significantly taller than J.H.) and asked J.H. “‘When you get to be as big as me, do you still want to live in this house?’” (referring to his foster parent’s house), J.H. “smiled widely and nodded his head ‘yes’.”

On February 16, 2021, Mother filed a petition under section 388, asking to court to cancel the section 366.26 hearing and return the children to Mother or, alternatively, reinstate family reunification services and/or permit unmonitored visits. Mother claimed that after the court terminated family reunification services, she had enrolled in a substance use treatment program and participated in several sessions. She argued her request was in the best interest of the children because she had maintained visits with them, was involved in their regional center services, and continued to be a part of their lives. Attached to the request was a “Progress Report Form” from Ventura County Behavioral Health; the form reported that Mother had attended, via “Telehealth,” 18 individual sessions and 10 group sessions, and that Mother “reports maintaining abstinence [f]rom alcohol and drugs, has been working full time and attending school via internet, and progressing well despite [h]er difficult circumstances.” The form also noted that “this site is closed to the public due to COVID-19 so no drug testing is available.”

On February 19, 2021, the court summarily denied the portions of the petition requesting cancellation of the section 366.26 hearing, return of the children, or reinstatement of family reunification services, finding that Mother’s request did not state “sufficient new evidence or a change of circumstances” (and that there were “changing (not changed) circumstances”), that the request did “not promote the best interest of the child[ren],” that it was “premature to go from monitored” visits to returning the children to Mother’s care, and that there was “no legal basis” for reinstating family reunification services beyond the 18-month date with a permanency planning review pending. However, the court set a hearing for March 11, 2021, to decide whether an evidentiary hearing was warranted “as to the sole issue of unmonitored visits.” (Boldface in original.) DCFS submitted a last minute information emphasizing that the program Mother was attending virtually could not drug test her, and that Mother still had untreated mental health issues. DCFS also argued that while Mother had been “consistent with . . . her monitored visits as of January 2021,” since the visits became virtual, Mother was often distracted, and had been “heard saying things such as, ‘I am at the corner wearing a dress,’” and then seen “getting into cars with men, and putting the children on pause to speak to the men while she [was] in the car with them during her FaceTime calls.”

At the March 2021 hearing, Mother submitted a letter from a therapist attesting to her active participation in counseling; the court determined she had made a prima facie showing and set an evidentiary hearing for April 27, 2021. DCFS spoke with the supervisor of Mother’s therapist; she stated Mother “seemed open to interventions, but explained that the sessions were focused on the mother’s basic needs, currently housing.” The supervisor further reported that Mother “had not been able to get into the therapeutic/hard work aspect of therapy; to dig deeper into the mother’s mental health, because the mother is very focused on being homeless.” The supervisor remained concerned about Mother’s stability, commenting that Mother had refused recommended medication. It was further noted that Mother was now seven months pregnant and could no longer take any psychotropic medication. The supervisor “could not give input regarding unmonitored visits.” Mother’s therapist reported that Mother’s goals were both housing and “decreasing aggressive behavior.” The therapist noted that Mother had made progress with decreasing aggressive behavior, but that Mother “sometimes goes through episodes in which she seems, ‘all over the place mentally.’” The therapist concurred that Mother needed a medication regimen, without which she would continue to have ongoing issues. The agency had referred Mother to a psychiatrist but she refused to go. The therapist agreed that Mother could not address her mental health until she obtained stable housing.

Further, Mother ceased her therapy with this provider because she had enrolled in a new in-patient treatment program on March 30, 2021. However, thirteen days later, she was “‘escorted out of the program’” due to struggles adjusting to its structure, “‘several episodes of anger and destroying property,’” and “‘aggressive and disrespectful’” behavior.

At the April 27 hearing on Mother’s petition, she testified her sobriety date was “going to be November 21st, [20]21” and admitted to relapsing on marijuana. She additionally admitted to being dismissed from the program in which she had recently enrolled, but claimed it was because they could not help her with issues relating to her pregnancy such as nausea, medication, and doctor’s appointments. She claimed she had found yet another program to enroll in. She also testified regarding her recent virtual and in-person visits with the children, the activities she did with them, and their love for her and excitement at seeing her. No other witnesses testified, and the hearing trailed to the next day.

After the hearing resumed, Mother’s counsel argued that unmonitored visits would benefit the children because Mother had been making progress in her programs and visiting the children consistently. The children’s counsel disagreed, arguing that Mother was still exhibiting aggressive behavior, was mentally unstable, and could not comply with her therapist’s medication recommendation because she was pregnant. DCFS’s counsel agreed with the children’s counsel, arguing Mother had failed to show a change of circumstances, and that granting the request was not in the best interest of the children. The court denied Mother’s request, stating she had failed to show a sufficient change in circumstance or sufficient new information, and had failed to demonstrate that the requested change would benefit the children. The court then proceeded to the section 366.26 review hearing, stating it would consider “the entire contents of the court file” for the hearing, including the documents and testimony relating to Mother’s section 388 petition. No parties offered further evidence or witnesses.

Mother asked the court not to terminate her parental rights but to proceed with a plan of legal guardianship because the parental-benefit exception applied. Counsel argued that Mother had visited the children consistently and “stood in the role of a parent,” and that the children were “well bonded” to Mother and would benefit from a continuing relationship. The children’s counsel disagreed, arguing that the duration and quality of Mother’s visits had declined recently, and that nothing Mother provided for the children was something that “a parent can provide that no other person could.” Acknowledging that Mother took interest in the children and changed J.B.’s diapers, counsel contended these acts did not outweigh the benefits of the permanency of adoption and concluded that “Mother simply just has good visits” but “it is not at the level to deny these kids permanency, especially when frankly the mother is in an unstable place herself.” DCFS’s counsel joined in the arguments made by the children’s counsel, disagreeing that Mother had made consistent visits and arguing that she failed to establish that it would be detrimental to the children to pursue adoption.

The court found that Mother “has to some extent at times maintained regular and consistent visitation and contact, and to some extent, it may have conferred a parental role and relationship.” However, the court noted that J.B. had not resided with Mother since he was ten months old, over two years ago, and “to the extent the mother has formed a parental role and relationship, it has not been shown to outweigh the benefits of permanence in adoption,” and, accordingly, Mother had not shown it would be detrimental to the children to terminate parental rights. The court found the children adoptable and terminated Mother’s parental rights. Mother appealed the same day. Her Notice of Appeal stated she was appealing the termination of parental rights as well as the “Denial of Mother’s 388 petition filed 2/16/21, following hearings held on 3/11/21, 4/27/21, and 4/28/21.”

18104564143498. 1. We Lack Jurisdiction to Consider Mother’s Appeal Regarding the Denial of Her Section 388 Petition; the Court Did Not Err

Mother’s section 388 petition requested the court cancel the section 366.26 hearing and return the children to Mother’s care or, in the alternative, reinstate Mother’s family reunification services and/or allow Mother to have unmonitored visits with the children. On February 19, 2021, the court set a March 11, 2021 hearing to determine whether it should hold an evidentiary hearing “as to the sole issue of unmonitored visits” and summarily denied the remainder of the petition. After Mother submitted a letter from a therapist into evidence at the March hearing, the court determined she had made a prima facie showing and set an evidentiary hearing for April 27, 2021. The court ultimately denied the request for unmonitored visits on April 28, 2021.

Mother’s Notice of Appeal stated she was appealing the “Denial of Mother’s 388 petition filed 2/16/21, following hearings held on 3/11/21, 4/27/21, and 4/28/21.” In her brief, she argues only that the court erred in denying her request to reinstate family reunification services. We conclude that we lack jurisdiction to consider this issue, but were we to do so, we would find Mother’s argument lacked merit.

1. 1. 1. Jurisdiction

At a February 19, 2021 hearing, the court expressly stated that it was “denying the 388 . . . as to the request for reinstatement of reunification services”; the written orders issued on the same date reflect the same denial. However, Mother’s Notice of Appeal referenced the denial of her section 388 petition “following hearings held on 3/11/21, 4/27/21, and 4/28/21.” The February 19, 2021 denial self-evidently did not occur “following” the hearings on March 11, April 27, or April 28. “‘“Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.” [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal.’” (In re J.F. (2019) 39 Cal.App.5th 70, 75.) Furthermore, “‘[t]he policy of liberally construing a notice of appeal in favor of its sufficiency [citation] does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all.’” (Id. at 76.) Because the Notice of Appeal made no mention of the February 19 order, we may not liberally construe it as sufficient to appeal from that order.

Moreover, even were we able to liberally construe Mother’s Notice of Appeal to encompass the February 19 denial, any Notice of Appeal relating to that order was required to be filed within 60 days of its issuance (i.e., by April 20, 2021). (Cal. Rules of Court, rule 5.585 [“The rules in title 8, chapter 5 govern appellate review of judgments and orders in cases under Welfare and Institutions Code section 300, 601, or 602”]; rule 8.406(a)(1) [“notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed”].) A timely notice of appeal is “‘“essential to appellate jurisdiction”’” and an untimely notice of appeal is “‘“wholly ineffectual.”’” (In re G.C. (2020) 8 Cal.5th 1119, 1127.) Here, the Notice of Appeal was not filed until April 28.

Mother contends her Notice of Appeal was timely because “issues in a 388 petition do not become appealable at different times, rather all the issues raised in a 388 petition become appealable only when every last issue raised is denied.” Mother cites no authority to support this theory, and we disagree. Section 395 provides that “[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.” (§ 395, subd. (a)(1).)[4] The court’s February 19 order was undisputedly an order after judgment that disposed of Mother’s request to reinstate family reunification services -- indeed, the request was not discussed in subsequent hearings. The order was therefore immediately appealable. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450 [denial of section 388 petition “is an appealable order”].)[5] Mother’s failure to timely appeal the denial of her request to reinstate family reunification services deprives us of jurisdiction to consider her challenge to that ruling.[6]

1. 1. 2. Merits

Were we to consider Mother’s argument, we would reject it. She contends the court erred in refusing to reinstate family reunification services because: (a) it erroneously believed it lacked legal authority to do so; and (b) this erroneous belief was prejudicial because Mother had alleged sufficient facts to support her petition, and there is a reasonable probability the court would have ordered an evidentiary hearing had it believed it could grant the requested relief. Mother also argues we should not infer from the court’s denial of her request for unmonitored visits that the court similarly would have denied her request for reinstatement of family reunification services. We review a summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.)

1. 1. 1. 1. Legal Authority

Mother argues the court had legal authority to reinstate family reunification services because after “Mother’s reunification services had been terminated on August 27, 2020 . . . section 366.3 became applicable to Mother’s petition requesting more services based on a change of circumstance.” We disagree. Section 366.3 applies only after a permanent plan is adopted. (§ 366.3, subd. (a)(1) [“If a juvenile court orders a permanent plan of adoption . . . or legal guardianship pursuant to Section 360 or 366.26, the court shall retain jurisdiction over the child . . . until the child . . . is adopted or the legal guardianship is established . . .”]; In re Malick. T. (2022) 73 Cal.App.5th 1109, 1117, fn. 4 [“Section 366.3, subdivisions (a)(1) and (d), require the juvenile court to review the status of a dependent child at least once every six months after a permanent plan has been adopted”].) Here, no permanent plan had been adopted when the court denied Mother’s request to reinstate family reunification services. Section 366.3 was inapplicable.

1. 1. 1. 2. Prejudice

Even if the court had the ability to reinstate family reunification services but erroneously believed it did not, it could not have granted Mother’s request without finding a “change of circumstance or new evidence.” (§ 388, subd. (a)(1).) Further, “[t]he change of circumstances or new evidence ‘must be of such significant nature that it requires a setting aside or modification of the challenged prior order.’” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) “Not every change in circumstance can justify modification of a prior order.” (In re A.A. (2012) 203 Cal.App.4th 597, 612.)

Here, Mother’s change of circumstance consisted of her enrollment in a “substance use” treatment program with Ventura County Behavioral Health, through which she had attended several sessions via “TeleHealth.” However, this program could not drug test and stated only that Mother had self-reported her sobriety. There was no indication Mother had completed this program, and her previous enrollments in programs resulted in dismissals for behavioral problems or failure to follow program rules. Additionally, Mother had not shown that she had addressed any of her behavioral problems. On this record, we conclude the court acted reasonably in summarily denying Mother’s request.

Moreover, even had the court erred in summarily denying the petition, any error would have been harmless. At the April 27 hearing, Mother testified that her sobriety date was in the future, implying she was still using substances at the time of the hearing. The evidence also demonstrated that Mother had attempted to enroll in -- and been dismissed from -- yet another program. The court found she had failed to show a sufficient change in circumstance. We discern no reason the court would have reached a different conclusion had it additionally been considering whether to reinstate family reunification services.[7]

1. 2. The Court Did Not Err in Failing to Apply the Parental-Benefit Exception

“Even when a court proceeds to select a permanent placement for a child who cannot be returned to a parent’s care, the parent may avoid termination of parental rights in certain circumstances defined by statute. One of these is the parental-benefit exception.” (In re Caden C. (2021) 11 Cal.5th 614, 629.)[8] Our Supreme Court has articulated “three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child.” (Id. at 631.) In deciding the third element, the court is to determine “how the child would be affected by losing the parental relationship—in effect, what life would be like for the child in an adoptive home without the parent in the child’s life” or “whether the harm of severing the relationship outweighs ‘the security and the sense of belonging a new family would confer.’” (Id. at 633.) On appeal from an order terminating parental rights, we review factual findings for substantial evidence and the decision whether termination of parental rights would be detrimental for an abuse of discretion. (Id. at 630.) “A court abuses its discretion only when ‘“‘the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’”’ [Citation.] But ‘“‘[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’”’” (Id. at 641.)

Here, the court found that Mother had “to some extent at times maintained regular and consistent visitation and contact, and to some extent, it may have conferred a parental role and relationship.” However, the court found that because Mother had failed to show the benefits of her relationship with the children outweighed the benefits of the permanence of adoption, she failed to show it would be detrimental to terminate parental rights. The court therefore terminated Mother’s parental rights. We find the court acted reasonably. The children were doing well in their respective placements and were bonded to their caregivers, who were providing for the children’s needs; while the children enjoyed visiting with Mother, there was no evidence they missed her when she was gone or were unhappy when the visits ended.

Mother argues we must reverse for six reasons: (1) the court failed to consider how long she and J.H. had lived together before his removal; (2) the court failed to consider that J.B. had spent the first nine months of his life with Mother and that “great[] harm” would result to him from terminating her parental rights; (3) it is unclear whether the court improperly considered Mother’s instability when determining whether terminating the parental relationship would be detrimental; (4) the court improperly required a parental relationship to find the relationship beneficial; (5) the court lacked sufficient evidence to consider detriment because DCFS failed to elicit the children’s feelings toward Mother and failed to detail her most recent visits with the children; and (6) the court ruled without the benefit of our Supreme Court’s opinion in Caden C. We briefly address and reject each contention below.

First, the court expressly stated it had considered the entire contents of the court file; the file included DCFS reports that contained the information regarding how long Mother lived with J.H. Mother points to no evidence to the contrary.

Second, Mother cites to nothing to support her speculation that J.B. would be greatly harmed by the termination of parental rights -- J.B. was three years old when termination occurred and had spent most of his life outside of Mother’s care.

Third, while the children’s counsel argued that Mother’s beneficial visits were insufficient to deny the children the benefits of adoption “especially when . . . the mother is in an unstable place herself,” Mother cites nothing in the record to suggest the court considered Mother’s instability in reaching its decision.[9]

Fourth, while the court stated that Mother’s visits “may have conferred a parental role and relationship” and that “to the extent the mother has formed a parental role and relationship, it has not been shown to outweigh the benefits of permanence in adoption,” these comments do not reflect that the court concluded Mother did not establish a beneficial relationship because she failed to establish a parental role. To the contrary, by stating that Mother’s parental role and relationship did not outweigh the benefits of adoption, the court made clear its determination that whatever benefit Mother’s role and relationship conferred, it did not outweigh the benefits to the children of adoption.

Fifth, while there is no record that DCFS asked the children how they felt about Mother, J.B. was two years old, and J.H.’s severe autism prevented him from expressing his thoughts. Thus, Mother’s citation to In re J.D., in which the child was fully capable of expressing his feelings, is inapposite. (See In re J.D., supra, 70 Cal.App.5th at 847.) Moreover, unlike in J.D., and In re D.M. (2021) 71 Cal.App.5th 261, 270, which Mother also cites, this was not a case in which DCFS provided scant information about the nature of the visits or the interaction of the children with their parent. On the contrary, DCFS provided ample detail about many of Mother’s visits with the children, and she testified about the most recent ones. No further evidence was required.

Finally, Mother requests we remand the case because the court made its decision without the benefit of our Supreme Court’s decision in In re Caden C., supra, 11 Cal.5th 614. Caden C. commands the juvenile court to weigh the benefits of the parental relationship against the benefits of adoption. Because the juvenile court here made that determination, remand is unwarranted.

1. 3. We Need Not Remand for ICWA Error

Despite Mother’s denial of Indian ancestry, DCFS had a duty to ask the children’s extended family about Indian ancestry. (In re Dezi C. (2022) 79 Cal.App.5th 769, 776 [“the initial duty of inquiry mandated by California’s version of ICWA obligates the Department to question ‘extended family members’ about a child’s possible American Indian heritage”].) Though the record contains no indication that DCFS made any such inquiry, the court found ICWA inapplicable. Mother contends DCFS’s failure to make sufficient inquiry requires reversal.

“Where, as here, there is no doubt that the Department’s inquiry was erroneous, our examination as to whether substantial evidence supports the juvenile court’s ICWA finding ends up turning on whether that error by the Department was harmless—in other words, we must assess whether it is reasonably probable that the juvenile court would have made the same ICWA finding had the inquiry been done properly. [Citation.] If so, the error is harmless and we should affirm; otherwise, we must send it back for the Department to conduct a more comprehensive inquiry.” (In re Dezi C., supra, 79 Cal.App.5th at 777.) While appellate courts have articulated several different rules for deciding whether DCFS’s failure to conduct a proper initial ICWA inquiry is harmless, we follow the rule recently articulated by our colleagues in Division Two: “an agency’s failure to conduct a proper initial inquiry into a dependent child’s American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court’s ICWA finding.” (Id. at 779.) Mother repeatedly and categorically denied having any Indian heritage, never claiming to lack knowledge or suggesting that other family members might have additional information. Because nothing in the record suggests a reason to believe J.H. or J.B. may be an Indian child, any ICWA error was harmless.

The court’s orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] “CLETS is short for California Law Enforcement Telecommunications System; the CLETS database ‘is a confidential law enforcement database that allows police officers to access [several integrated databases containing] an individual’s criminal history, as well as driver’s license and vehicle registration information.’” (Ellins v. City of Sierra Madre (2016) 244 Cal.App.4th 445, 450.)

[3] DCFS did receive a psychological evaluation of Mother, conducted in Pennsylvania in 2017, listing prescribed psychotropic medications and documenting that the evaluator had diagnosed Mother with “Unspecified Bipolar Disorder.”

[4] “In a case brought under section 300, the juvenile court’s dispositional order is a judgment.” (In re Eli F. (1989) 212 Cal.App.3d 228, 233.)

[5] Citing In re Tracy Z. (1987) 195 Cal.App.3d 107, in which the appellate court noted that a jurisdictional order was a finding and a dispositional order was a judgment, with only the latter being appealable, Mother analogizes: “The court’s order on February 19, 2021, that there was not a sufficient showing of a change of circumstance to support two of Mother’s requests in that petition, and that it could not order more reunification services after a parent had 18 months of services was more akin to a finding, and the judgment on the whole petition was not entered until its denial on April 28, 2021.” We disagree. First, “[t]he right to appeal is conferred, if at all, only by statute.” (In re Eli F., supra, Cal.App.3d at 232.) In dependency law, it is not the distinction between a “finding” and a “judgment” that renders a jurisdictional order not immediately appealable, it is section 395. (See, e.g., In re B.P. (2020) 49 Cal.App.5th 886, 889 [section 395 “governs juvenile dependency appeals . . .”].) In any case, the court’s February 2021 order both found insufficient changed circumstances and ruled that “[t]he request is denied as to . . . reinstatement of F[amily] R[eunification] S[ervices].” This is both a “finding” and a “judgment” on the request to reinstate family reunification services.

[6] Mother further argues that judicial economy is better served by holding that she was not required to appeal until the court had denied every request raised in her section 388 petition because “Mother petitioned for three alternative outcomes. If one of them was granted, it stands to reason that she would be satisfied and not choose to file an appeal at all.” Even were we inclined to ignore section 395 and the rules of court for the sake of judicial economy, we are unconvinced that if the court had granted Mother’s request for unmonitored visits, she would have abandoned her remaining requests.

[7] Mother contends the court’s analysis regarding the children’s best interest might have changed had it also considered whether to reinstate family reunification services, as such services could have helped Mother address her behavioral issues. Whatever the plausibility of this supposition, the court could not have granted Mother’s request without finding changed circumstances, which it did not find.

[8] (Section 366.26, subd. (c)(1) [“If the court determines . . . that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless . . . [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child” because “(i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship”].)

[9] Mother cites In re J.D. (2021) 70 Cal.App.5th 833 for the proposition that if we are unable to discern whether the court considered an improper factor in reaching its decision, we should remand the matter. We reject Mother’s characterization of J.D. There, the appellate court found “the juvenile court was apparently swayed, at least in part,” by the fact that the agency’s counsel and the child’s counsel both “alluded to factors deemed irrelevant in Caden C.” (Id. at 863-864.) Nothing in the record supports such a finding here.