Filed 4/19/22 In re R.V. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed.

Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant.

Gregory P. Priamos, County Counsel, Teresa K.B. Beecham and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.

Defendant and appellant R.V. (Father) and E.V. (Mother) are the parents of C.V. (female, born 2014), R.V. (male, born 2018), Ru.V. (female, born 2021), and Re.V. (female, born 2019; Minor.)[1] Father appeals from the juvenile court’s orders denying his petition under Welfare and Institutions Code[2] section 388 and termination of his parental rights under section 366.26. For the reasons set forth below, we affirm the juvenile court’s findings and orders.

FACTUAL AND PROCEDURAL HISTORY[3]

“A. THE FIRST DEPENDENCY PROCEEDINGS INVOLVING C.

“1. DETENTION

“In April 2014, [plaintiff and respondent Riverside County Department Of Public Social Services (DPSS)] filed a dependency petition under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support) on behalf of C., a newborn child, alleging mother’s incarceration and ongoing mental health issues, and father’s ongoing mental health, anger, and substance abuse issues, impaired their ability to care for the child. On April 14, 2014, the juvenile court found prima facie evidence to remove C. from her parents’ care.

“2. JURISDICTION AND DISPOSITION REPORT AND HEARING

“According to the jurisdiction/disposition report filed May 9, 2014, mother was adopted by the maternal grandfather and his first wife, who passed away when mother was nine years old. The maternal step-grandmother [MSG] informed the social worker that mother ‘got bad into drugs’ in 2008 (using methamphetamine, cocaine, PCP, and uppers), refused to remain in each rehabilitation center she was enrolled in, became physically abusive, and was diagnosed with schizophrenia and bipolar disorder. Mother’s incarceration was for a domestic violence incident involving a knife and the paternal grandfather.

“At the May 14, 2014 jurisdiction/disposition hearing, the court sustained the allegations in the first amended petition, declared C. a dependent, removed her from parents’ custody, and ordered reunification services and visitation. Both parents filed Judicial Council form ICWA-020 (parental notification of Indian status) indicating they had no Indian ancestry as far as they knew.

“3. SIX-MONTH STATUS REVIEW REPORT AND ADDENDUM

“In the six-month status review report filed October 31, 2014, the social worker reported father was unemployed but living with his parents. He was compliant with his case plan and consistent with visitation. According to the addendum report filed December 16, 2014, mother was compliant with her case plan while incarcerated and after her release on October 31, 2014. Although she was eager ‘to get to know and care’ for her daughter, she refused to acknowledge ‘any history of substance use, misuse or abuse.’ On December 19, 2014, the court continued parents’ reunification services and ordered mother to submit to a psychological evaluation if recommended by her therapist.

“4. TWELVE-MONTH STATUS REVIEW REPORT AND HEARING

“In the 12-month status review report filed May 28, 2015, the social worker stated that both parents remained compliant with their case plans, they continued to make efforts to improve their lives free from drugs and alcohol, and there were no safety concerns. On June 10, 2015, based on DPSS’s recommendation, the juvenile court placed C. with her parents on a family maintenance plan and on the condition the paternal grandparents provide support.

“5. SECTION 387 PETITION

“Less than four months later, DPSS initiated supplemental proceedings (§ 387) to remove C. from mother’s care based on her continued ‘abuse [of] controlled substances and [her] noncomplian[ce with] her Court ordered case plan.’ According to the section 387 detention report filed September 24, 2015, as of August 3, 2015, she was using methamphetamine and living on the streets. On September 22, 2015, C. was removed from mother’s care but remained in father’s custody.

“In the jurisdiction/disposition report filed October 27, 2015, the social worker stated mother was located at the maternal grandparents’ home, however, she was ‘deteriorating behaviorally and cognitively.’ A psychological evaluation revealed she was ‘ “suffering from a severe neuro-cognitive disorder due to her extensive methamphetamine abuse.” Mother was described as being grossly impaired and unable to take care of herself. On November 2, 2015, the court sustained the allegations in the second amended section 387 petition and terminated mother’s reunification services. On December 10, 2015, family maintenance services were continued as to father.

“On May 6, 2016, father filed an ex parte request to terminate dependency proceedings. The request was granted; father was given primary legal and physical custody of C., and supervised visitation was authorized for mother.

“B. THE SECOND DEPENDENCY PROCEEDINGS INVOLVING C. AND R.

“1. DETENTION

“On September 21, 2018, DPSS received a referral alleging general neglect. Mother, who was nine months pregnant, claimed father had punched her in the face. Two prior referrals were received in 2017 concerning mother and father engaging in domestic violence. A police officer informed the social worker that the ‘family is well known to law enforcement and they have each been arrested multiple times for being the aggressor in a domestic violence assault.’ In October 2018, mother gave birth to a baby boy, R. Mother told the social worker she and father had gotten back together a few months after the prior dependency had closed. Mother disclosed she began using methamphetamine at the age of 19 but became sober in 2016, when she was 28 years old. She stated she was diagnosed with anxiety and depression but had not taken any psychotropic medications in 11 months. Mother admitted to slapping father in the face but denied that he had assaulted her. The social worker interviewed C., who stated she had witnessed physical fights between her parents. When confronted with C.’s statements, mother called C. a ‘compulsive liar.’ The social worker also spoke with father; however, he ‘presented with disjointed thoughts, delusional thinking, and some dichotomous reasoning.’

“On November 2, 2018, DPSS filed a dependency petition under section 300, subdivision (b)(1) (failure to protect) on behalf of C. and R., alleging both parents have criminal histories and expose the children to ongoing acts of domestic violence, and father has unresolved mental health and anger issues. Each parent filed parental notification of Indian status forms indicating no Indian ancestry; however, upon hearing that mother was adopted, the juvenile court asked the maternal grandfather if he had any information ‘related to the mother having Indian ancestry.’ He replied, ‘No.’ On November 5, 2018, the children were removed from their parents’ custody.

“2. JURISDICTION AND DISPOSITION REPORT AND HEARING

“According to the jurisdiction/disposition report filed November 26, 2018, the children were placed with the maternal grandparents. The social worker opined that ‘[d]espite the parents participating in Court ordered services, they failed to benefit from the services.’ She identified the ‘substantial history of domestic disputes’ as the primary problem necessitating intervention. Other concerns included their ‘undiagnosed and/or untreated mental health issues,’ the ‘ongoing history of drug use, not limited to marijuana and cocaine,’ and mother’s ‘previous diagnosis of schizoaffective disorder due to her history of drug use.’ Mother informed the social worker that she was adopted by a ‘social worker at McClaren Hall in El Monte’ when she was two or three years old.

“On November 29, 2018, the court sustained most of the allegations in the first amended supplemental petition, declared the children dependents of the court, ordered reunification services for both parents, and ordered father to participate in a medication assessment and psychological evaluation.

“3. SUBSEQUENT REPORTS CONCERNING DOMESTIC VIOLENCE AND VISITATION

“In the social worker’s report filed March 11, 2019, it was noted that father’s anger management issues appeared to be escalating. On January 23, 2019, mother went to the police station asking to obtain a temporary restraining order against father, but she left without following through. On February 14, 2019, two calls were made to law enforcement regarding domestic violence. The next day, father reportedly ‘punched his pregnant wife in the stomach, slapped her, and threw her to the ground several times.’ Mother was hospitalized. The court issued an emergency protective order, but mother returned home soon after the incident and recanted the allegations. Father was diagnosed with ‘Bipolar and Related Disorder, Hypomanic Episode W/O Prior Major Depressive Episode, Delusional Disorder Grandiose Type, and Narcissistic Personality Disorder.’ His therapist opined that father might require a higher level of care or medication management.

“On April 18, 2019, DPSS filed an addendum report to address liberalizing mother’s visitation. The social worker recommended ‘no change in visitation orders.’ While mother had completed a parenting class and an outpatient substance abuse program, and had been consistently testing negative for controlled substances, the social worker expressed concerns about the continued domestic violence. In addition to the previously reported domestic violence calls to law enforcement, calls were made on March 7, March 20, and April 5, 2019. Father admitted he smoked marijuana on a daily basis and prior to his visits with the children. The social worker ‘advised that he should not be under the influence while visiting or caring for the children.’ When mother visited the children, she spent ‘much of the visit with [R.]’ because ‘the baby requires more attention’ and C. ‘did not play’ with mother.

“4. SIX-MONTH STATUS REVIEW REPORT, ADDENDUM, AND CONTESTED HEARING

“According to the six-month status review report filed May 10, 2019, DPSS recommended terminating reunification services as to both parents and setting a section 366.26 hearing with a permanency goal of adoption. The social worker noted both parents’ prior denial of any Native American ancestry but related that mother, on May 7, 2019, stated a DNA ancestry test showed she was 58 percent Native American. Mother had no information as to her ancestral tribe because her ‘ “bio mother is deceased and bio father unknown.” While both parents had made progress on their case plans, they did not appear to be ‘benefitting from their participation in Domestic Violence services.’ Dr. Robert Suiter conducted a psychological assessment of father and opined there were no ‘ “reassurance[s] at all that [father] would benefit from services.” Both parents regularly visited the children. On May 30, 2019, the court set a contested six-month status review hearing.

“In its addendum report filed June 18, 2019, DPSS continued to recommend terminating services and setting a section 366.26 hearing. The social worker reported another domestic violence incident in May 2019, when father yanked the ignition out of their car, leaving mother stranded in the middle of the street outside DPSS’s office. Father was angry and stated the social worker had a ‘personal vendetta against him and [was] racist against Mexicans.’ Based on father’s demeanor and erratic behavior, DPSS determined it would not be safe for the children to visit with him that day. Father continued to test positive for marijuana. Mother was diagnosed with ‘P-Intermittent Explosive Disorder, Unspecified Depressive Disorder, and Schizophrenia.’ She had not reached her goal of ‘increasing insight and identifying effective coping and parenting skills’ as she exhibited ‘aggressive behavior, verbal and physical, three times per week.’ Her therapist expressed many concerns, including mother’s minimization of her domestic violence and blaming others for her behavior, and recommended continuing therapy. According to mother’s psychological evaluation, her prognosis was favorable only to the degree she could remain separated from father and take her prescribed medications.

“On June 27, 2019, the court noted there was reason to believe the children may be of Indian ancestry and that ICWA may apply. Nonetheless, the court terminated reunification services and set a section 366.26 hearing with a permanent plan of adoption. Both parents filed notices of intent to file a writ petition; however, the petitions were dismissed.

“5. ICWA NOTICES

“On August 13, 2019, DPSS served and filed ICWA notices for each child. Notice was provided to the Bureau of Indian Affairs (BIA) and the U.S. Department of the Interior. The notices identified mother’s married and maiden names (not her birth name), her date and place of birth, and the biological maternal grandmother’s name. Regarding additional information, the notices provided: ‘Mother was interviewed on 5/15/19 by Social Services Practioner [sic], Stacy Vasquez, and a CSD 4597 was emailed to ICWA noticing on 5/15/2019. Mother indicated per her DNA test she discovered she was 58% Native American. Tribe is unknown at this time. Mother was adopted around 2 to 3 years old and was unable to provide any identifying information on her biological parents other than a first and last name of her biological mother. A search of C-IV and Accurint was conducted on 7/22/2019 and a print out of all known family members and associates was forwarded to the Social Services Practioner [sic] on 7/23/2019. On 6/27/2019, step maternal grandmother, [MSG], was interviewed by Noticing Office Assistant, Christy Alcocer. She provided family information for the adoptive family.’ The U.S. Department of the Interior was unable to determine tribal affiliation because the notice contained insufficient information.

“6. SECTIONS 366.26 AND 366.3 STATUS REVIEW REPORT AND ADDENDUM

“According to the sections 366.26 and 366.3 status review report filed October 11, 2019, parents’ visitation with the children became ‘sporadic’ because mother was again pregnant, and she asked to suspend visitation until after the baby was born, and father had canceled several visits. In September 2019, mother gave birth to a baby girl, [Minor].^[[4]^]

“In its addendum report filed December 24, 2019, DPSS continued to recommend termination of parental rights as to C. and R. and adoption by the maternal grandparents with whom the children had been residing since November 5, 2018. According to the maternal grandparents, the children saw ‘them as their parents’ and ‘look to them when they want to be “cuddled,” play, or have their needs met.’ The maternal grandparents fully understood that adoption was a lifelong commitment, wanted to always be there for the children, and believed they could provide the children with stability, love, and attention. C. wanted the maternal grandparents’ home to be her ‘ “forever home.” ’

“7. SECTION 388 PETITIONS

“Father filed a section 388 petition as to each child on December 31, 2019, and mother filed the same on January 2, 2020. Both parents sought to reinstate family reunification services. As for changed circumstances, father asserted he ‘is currently on Family Maintenance as to [Minor] and is progressing well in his services,’ ‘has been attending individual therapy, a substance abuse program through MFI Recovery Center and has been testing clean,’ ‘is completing a parenting program through Safe Care, and he is also enrolled in a Domestic Violence program and group therapy through Cox Romain.’ As for mother’s changed circumstances, she asserted she ‘is on Family Maintenance as to her youngest daughter [Minor] and is doing well in her services,’ and ‘is currently enrolled in domestic violence classes, has been attending individual therapy, and parenting at home care.’ Both parents claimed to have benefited from the services received; father added that he has cooperated with DPSS and has participated in ‘appropriate and positive’ visits, while mother stated that she “loves her children very much and believes that it is in their best interest for the Court to order Family Reunification Services’ so they can ‘reunify with their youngest sister who is on FM with the parents.’ A hearing on the section 388 petitions was set.

“On January 17, 2020, the maternal grandparents requested de facto parent status.

“DPSS opposed the section 388 petitions on the grounds (1) ‘the parents’ circumstances may be changing, [but] they have not changed,’ and (2) ‘re-establishing reunification services to them would be detrimental and not in the best interest of these children.’ Although both parents visited the children, R. did not ‘remember’ them and seemed ‘traumatized and crie[d] often during the visits,’ and C. appeared ‘to play on her own a lot.’ The social worker opined the children did not ‘appear to see [mother and father] as their parents. They do not look forward to the visits and [C.] often seems indifferent, except when it comes to comforting her brother.’ Even though they were participating in therapy and domestic violence programs, their circumstances had not changed.

“8. SECTIONS 388 AND 366.26 HEARING

“A contested section 366.26 hearing in combination with a hearing on the section 388 petitions was held on January 27, 2020. The court also heard the maternal grandparents’ request for de facto parent status. Father provided stipulated testimony that (1) he had benefited from services, (2) he had completed a substance abuse program, (3) he was not using marijuana, (4) he had attended five Narcotics Anonymous (NA) meetings (but had forgotten to bring his signed cards to the hearing), (5) he had participated in eight sessions of a domestic violence program, four to five sessions of individual counseling, and some marriage counseling, and (6) [Minor] was safe in his care. Mother also provided stipulated testimony that (1) she had attended four to five individual counseling sessions, eight domestic violence classes, and some marital counseling courses, (2) she had benefitted from the courses, (3) there was no additional domestic violence in her relationship with father, and (4) her home was suitable for the children. In response, the children’s counsel acknowledged both parents’ participation in various programs; however, counsel argued there was no change in their circumstances, and it was not in the best interest of the children to provide further reunification services to mother and father. DPSS concurred.

“The court denied the section 388 petitions. The court noted the history of the case was replete with domestic violence, dating back to 2014, and that both parents had poor mental health. The court opined that ‘as to the historical issues related to this couple, the severity of those issues, how they relate to both of your mental health issues, and a chronic history of substance abuse, a few months of either sobriety or not hurting each other and not calling the police on each other does not mean that the underlying issues in this case are resolved.’ The court expressed concern that both parents were ‘basically white-knuckling it.’ Thus, the court stated, ‘the entire history of this particular case is so extreme that the efforts made by the parents most recently are de minimis and result, at most, in what the Court would view as changing circumstances.’ Regarding the best interests of the children, the court observed the children to be ‘very bonded to their current caretakers. [R.] really knows no other parents. [C.] has very negative memories of her parents and a very positive outlook on her current environment.’

“The juvenile court granted the maternal grandparents’ request for de facto parent status, found the beneficial exception to adoption did not apply, terminated parental rights, and ordered adoption as the permanent placement plan. The court also found ICWA did not apply. Both parents filed timely notices of appeal.

“After the parents appealed, on August 14, 2020, we affirmed the juvenile court’s orders denying the section 388 petitions, terminating parental rights, and placing the children for adoption.

C. THE CURRENT DEPENDENCY CASE

“On October 16, 2019, DPSS filed an out-of-custody petition as to Minor; she was only one-month old. DPSS stated that Minor came under section 300, subdivisions (b)(1) and (j), as a result (1) of the failure or inability of the parents to supervise or protect her adequately; and (2) by the inability of the parents to provide Minor with regular care due to the parents’ mental illness, developmental disability, or substance abuse.

“DPSS alleged that both parents had a history with [DPSS] due to substantiated allegations of general neglect and exposing C. and R. to acts of domestic violence. DPSS also alleged that Father failed to reunify with his children, continues to deny perpetrating acts of domestic violence against Mother, and has not completed his court-ordered case plan. DPSS alleged that Minor will be subject to similar harm as with her siblings.

“The next day, October 17, 2019, the juvenile court ordered Minor to remain with her parents.

“At the jurisdiction/disposition hearing on November 7, 2019, the juvenile court found all of the allegations true, adjudged Minor a dependent of the court, and ordered family maintenance services to the parents. The case plans for the parents included counseling, domestic violence programs, parenting classes, and substance abuse services. Father’s case plan consisted of individual counseling, domestic violence programs, parenting classes, substance abuse programs, and drug testing. Both Mother and Father continued to deny domestic violence.

“Mother participated in therapy. Her therapist believed that ‘there is ongoing minimization.’ In March of 2020, Mother completed a domestic violence program.

“Father attended therapy but did not address his domestic violence issues. He completed a domestic violence program in March of 2020. The parents completed in-home parenting and kept in contact with their parent partners.

“On June 19, 2020, the juvenile court continued family maintenance services to both parents.

“The parents continued to live together. Father stated that he and Mother learned not to ‘tattle-tell’ on each other. Mother stated that they never call the police to report domestic violence. Both Mother and Father continued to participate in general counseling to alleviate issues that led to domestic violence. They completed family therapy in October 2020. They also had negative drug tests.

“On October 13, 2020, a neighbor called the police to report a domestic dispute between Mother and Father. The neighbor reported that a female was banging on the door of the apartment and a male came out. The neighbor then heard the female saying, ‘Oh you were going to hit me.’ The neighbor heard the female falling and she said ‘Ow.’ Another neighbor informed the parents that he was calling the cops and the male cursed at the neighbor.

“On November 17, 2020, Father denied knowledge about the domestic dispute. Both parents denied any domestic violence.

“On December 21, 2020, the social worker noted concerns during a home visit. Mother appeared sad and emotional. Several times, she stated that Father would not hurt her and that everything was fine. Mother declined an offer for conjoint and individual therapy. The social worker reported that the parents were compliant with [DPSS] and court, but expressed concern for Mother’s safety and the family’s well being.

“On January 25, 2021, the juvenile court continued family maintenance services to the parents.

“In February of 2021, Mother underwent a medication evaluation. The doctor indicated that Mother appeared ‘altered’ and minimized her symptoms. Mother appeared ‘unfocused, dazed and unengaged’ and made ‘bizarre statements.’ Mother did not know the month or the year, and was talking about having an abortion even though she was not pregnant. The doctor diagnosed Mother with major depressive disorder and other psychoactive substance abuse.

“On February 26, 2021, Father told the social worker that he did not feel Mother’s mental health issues were ‘severe’ and felt that she should be able to care for Minor. Father left the child alone with Mother for hours when he worked from 5 a.m. to 11 p.m. He did not want strangers to care for Minor and declined options involving day care. There was no family support available to support Father. Nonetheless, Father felt uncomfortable with anyone other than Mother caring for Minor.

“On March 11, 2021, the social worker observed the family home as being very cluttered. As the social worker and Father talked, Mother would ‘interject continuously with bizarre statements.’ Mother made comments that people are ‘touching and poking at my baby,’ and denied any domestic violence even when the social worker did not ask about domestic violence. Mother stated that she would ‘rather not get spanked.’ She also declined child care and medication assistance.

“On March 12, 2021, law enforcement received a report that a female in the parents’ apartment was screaming, ‘Get your hands off of me,’ and that the female was screaming a lot.’ At 2:36 a.m., ‘the reporting party could hear loud pounding and the male and female were still yelling. At 2:51 a.m.[,] an officer went to the residence and knocked 6 different times, with no answer.’

“On March 15, 2021, DPSS filed a section 387 petition. The social worker reported in the detention report that Minor was placed in a confidential foster care.

“The next day, on March 16, 2021, the juvenile court granted DPSS’s request to dismiss the section 387 petition and to file a section 342 petition in its place. DPSS filed a section 342 petition that day. DPSS alleged that Minor came within section 300, subdivision (b)(1), as a result of the failure or inability of her parents to supervise or protect Minor adequately, and the inability of the parents to provide Minor with regular care due to the parents’ mental illness, developmental disability, or substance abuse.

“DPSS alleged that the previous disposition had not been effective in the protection of Minor because Mother’s mental health had deteriorated and Father continued to minimize Mother’s mental health issues, and continued to allow Mother to care for Minor unattended for long hours of the day.

“At the detention hearing on March 16, 2021, the juvenile court detained Minor from both parents. The court ordered twice-weekly supervised visits for the parents.

“In its jurisdictional and disposition report, DPSS requested that the court find the allegations true and deny the parents reunification services under section 361.5, subdivision (b)(10) and (b)(11).

“In the report, the social worker stated that in a psychological evaluation dated March 19, 2021, Dr. Garett reported that Mother suffers from paranoia, extreme emotional instability, and schizophrenia. Dr. Garett stated that in her current condition, ‘she should likely have no contact with any children whatsoever because she is likely to upset them.’ Dr. Garett recommended that Adult Protective Services visit Mother to ascertain if Father was mistreating her. Mother had reported that Father has ‘threatened to kill her with an ax’ and that he ‘verbally abuses her, demands sex, and is emotionally abusive as well. Mother also told Dr. Garett that Father had spit on Mother’s face and calls her fat. She was afraid of him. Mother ‘cried to at least thirty minutes during the interview and disintegrated to a point at which she could not answer even basic questions.’ Dr. Garett said that individuals in her condition are frequently in psychiatric facilities. He believed that Mother lives in an abuse environment. Dr. Garett recommended that Minor not have any visits with Mother.

“Father stated that all of the allegations were false. He denied that Mother struggled with her mental health. He was also resistant to DPSS’s involvement and was not cooperative. Father accused Mother of being ‘lazy.’ He had no wish or plan to care for Minor by himself and was committed to remaining with Mother in a relationship.

“Minor was in good general health. Prior to her removal, she was observed as reserved with a flat effect, and ‘was not engaging, smiling, or talking. She also was not eating or drinking well.’ She then started to eat much better, smiled more, played, and slept well.

“DPSS reported that mental health had been an issue in this case since the first dependency for Minor’s sibling in 2014, and has been an ongoing problem. Domestic violence has also been an ongoing issue for at least seven years.

“DPSS reported that the parents had received numerous services and referrals to assist them with their issues. DPSS provided parenting classes, in-home parenting classes, individual therapy, substance abuse services, psychiatric assessments, medication evaluations, psychological evaluations, marriage therapy, mental health treatment, and domestic violence/anger management programs. Many of these services had been provided to the parents on several occasions. DPSS again provided referrals to the parents. On March 12, 2021, Father stated that he did not want to participate in any more services. He described DPSS’s involvement as ‘B.S.’

“On March 16, 2021, the parents visited with Minor. Mother appeared to be ‘out of it’ and had slow speech. She did not interact with Minor. Father fed and talked to Minor. At the end of the visit, Father told Mother to kiss Minor; she declined.

“On March 23, 2021, Father was more affectionate than Mother at the supervised visit.

“On April 1, 2021, Mother’s psychiatrist reported that Mother was not open to taking medication and recommended a higher level of care for her. Mother’s therapist indicated that the parents have a high-conflict relationship and Mother thought that Father was working against her in services. The therapist stated that Father blames Mother for their current situation. Father did not believe that therapy would be beneficial. The therapist noted that Father was agitated and cursed a lot.

“On April 20, 2021, DPSS secured comprehensive mental health services for Mother. Father stated that Mother was not willing to leave the apartment to attend services. On April 23, 2021, DPSS provided a referral to parents for an agency that provided advocacy, education, support, and public awareness for families affected by mental illness. The social worker also provided the parents with an appointment with the agency. Neither Mother nor Father responded.

“On April 23, 2021, Mother’s therapist noted the parents ‘were arguing and that she talked to each of them’ to calm them down during Mother’s zoom therapy session. Father still blames Mother for their current situation. The parents attend supervised visits but neither parent changed Minor’s diaper.

“On April 29, 2021, the parents attended an intake appointment with a psychiatrist who prescribed Mother antipsychotic medication after Mother stated she was not pregnant. Mother did not go anywhere without Father, and she deferred to him to answer questions.

“On May 6, 2021, Father presented as emotional and overwhelmed with Mother’s situation. He stated that even with the medication, Mother was not functioning. Mother refuses to visit Minor.

“On May 10, 2021, Father told the social worker that Mother was pregnant. She became ‘very erratic, yelling and carrying on.’ Father called the police because Mother was trying to leave him. The police came and told him that he could not prevent Mother from leaving. Mother left and Father found her the next day in a parking lot across the street. Mother appeared to be under the influence; she admitted using methamphetamine. Father took her home and she ranted and made bizarre statements. Father called the police and medical personnel came; they took Mother to the hospital. Mother returned home and left again. Father located her ‘at a place where he knew from long ago that they would go get drugs.’ Father took Mother home, he called the police, and the police arrested Mother for being under the influence. On the same day, the police released Mother and she returned to Father. DPSS provided Mother with services for mental health, substance abuse, and therapy.

“On June 2, 2021, at the contested section 342 jurisdictional hearing, counsel for Mother and Father presented stipulated testimony.

“Mother’s stipulated testimony was that she loved Minor very much and was willing to do anything to reunify with her. Mother’s counsel argued that Mother had benefitted from services.

“Father’s stipulated testimony was that he had made significant progress on his case plan, had cared for Minor since birth, and had a close bond with her. Father testified that Minor always ran up to him to be held by him, and at the end of visits, Minor did not want to leave him. Father loved Minor very much.

“Father’s counsel asked the court to find not true the allegations in the petition. Counsel did not dispute the juvenile court’s orders terminating Father’s services and parental rights for Minor’s siblings. However, counsel argued that Father had subsequently made reasonable efforts to treat the problems that led to the removal of the siblings. Counsel argued that Minor was removed for a different problem than her siblings. He argued that Father completed programs and benefitted from those services because Minor was not removed at birth.

“Counsel for DPSS argued that Father was aware that domestic violence and mental health have been longstanding issues in the past and current dependency, and that DPSS had provided services to parents to treat those issues. Counsel argued that Father has failed to benefit from the services. The parents were in the same position as in 2014.

“Minor’s counsel joined with county counsel. She argued that the domestic violence and mental health issues remained.

“The juvenile court took judicial notice of the court’s own case file. The court found that the parents have an unhealthy, codependent relationship where both parties lack any insight. The court noted that both parents have severe mental health issues and could not stay away from each other. This led to the cyclical nature of their returns to court. The parents were expecting another child with the underlying conditions unresolved, which suggested that Father did not benefit from services.

“The juvenile court stated that Father’s counsel took a narrow view of the underlying issue in this case.

“After looking at all of the allegations found true by the juvenile court in this case, the court found that all of the allegations were interrelated with issues of domestic violence, mental health, and substance abuse. The court stated that Father was in a state of denial when Mother started to decompensate, necessitating DPSS to intervene to protect Minor.

“The juvenile court went on to find that Father remained angry, with high conflict in his interactions. Father was resistant and combative to services. He also continued to fail to protect Minor from Mother and continued to invite Mother back into his life. The court found ‘pretty compelling evidence that he [was] still being physically violent with the mother.’

“Father faced the same issues as before—his unwillingness to protect Minor from a very poor relationship Father had with Mother. He failed to earnestly engage in services and he did not learn anything from his past services. The court stated, ‘given the repeated occurrence of the same issues over and over and over again without really any significant break in the occurrence of these behaviors, the spotty involvement of the parents in some services’ did not rise to the level of making reasonable subsequent efforts to treat the problems that led to the removal.

“The juvenile court found true the allegations in the petition, found that Minor came within section 300, subdivision (b)(1), adjudged Minor a dependent, and removed physical custody of Minor from the parents. The court denied reunification services under section 361.5, subdivision (b)(10) and (b)(11), and found that reunification services are not in Minor’s best interest. The court then set a section 366.26 hearing.” (In re R.V., supra, E077193.)

On June 8, 2021, Father filed a timely notice of intent to file writ petition. On September 23, 2021, this court denied Father’s writ.

In the section 366.26 and 366.3 postpermanency status review report filed on September 14, 2021, DPSS recommended that the juvenile court terminate parental rights of Mother and Father. Minor was placed in a fully approved adoptive home one June 23, 2021.

DPSS reported that Minor was in good health and meeting her developmental milestones in a timely manner, with the exception of her speech. Minor’s caregivers reported that Minor says “mom” and “dad,” and some other words. Minor, however, says “ahhh” for many other things. It was reported that Minor is happy and smiles often, sleeps well, is a picky eater, interacts well with other children. Although Minor did not like water, she now liked baths and swimming. DPSS did not raise any concerns about Minor’s mental health or emotional status. DPSS reported that the caregivers were committed to adopting Minor. Minor was bonded with the caregivers and they are able and willing to provide for her.

In the report, the social worker provided that after the contested jurisdictional hearing on June 2, 2021, Father appeared attentive and caring with Minor. Mother was more aloof and did not interact with Minor as much.

On June 10, 2021, Father missed his visit with Minor but DPSS scheduled another visit for him. At the visit, Minor appeared comfortable with Father and played with his father. Father gave Minor toys and she enjoyed playing with them. Father was affectionate with Minor and she reciprocated.

On July 12, 2021, both parents visited with Minor. Minor appeared excited and hugged Father at the beginning of the visit; Father interacted well with Minor. Mother was quiet and did not speak much. Father stated Mother was pregnant. Minor smiled and interacted with her parents. Father acknowledged that the caregivers took good care of Minor.

On July 26, 2021, Father had a visit with Minor. He greeted her with hugs and smiles, and she smiled back. They played games on the floor. When Father attempted to change Minor’s diaper, she refused to comply.

On August 9, 2021, Minor appeared excited to see both Mother and Father during a visit. Minor said “dada” and “mama” on the way to the visiting room. Minor appeared comfortable playing with the parents with her toys. When the visit ended, the parents hugged Minor and said they would see her soon.

On August 17, 2021, Father visited with Minor. She appeared happy to see him. Father gave her new shoes and engaged Minor in games and playing. Minor hugged Father.

DPSS reported that the parents continued to live together in a committed relationship. Mother continued struggling with her mental health and stability over the last few months. In May of 2021, Mother was arrested for being under the influence of controlled substances. In May, Mother called law enforcement about a man who threatened to kill her with a kitchen knife, calling her names and taking away her car keys. Father denied he threatened Mother with a knife.

In the report, DPSS indicated that there has been no new information during the review period that would indicate that ICWA applied.

In June, Mother entered a substance abuse program. She left six days later. Father said that Mother left because she was tired and did not want to make her bed; she moved back in with Father. Father stated that he took Mother to a behavioral health facility for an appointment, and he had completed two sessions of Safe Care. He was going to start individual therapy and was waiting to start parenting education.

In August 2021, Mother left a rambling voicemail with the social worker that she would be willing to do services and go to a new mental health clinic.

In its addendum report filed on September 21, 2021, DPSS recommended that the court terminate parental rights.

In the addendum, DPSS reported that Minor and her prospective parents developed a reciprocal bond and attachment. Minor was thriving in her new home, and she was bonded with her caregivers’ youngest adopted son, who was Minor’s same age. The social worker reported that Minor insisted on waking the adopted son with hugs and kisses every morning. Minor was also growing a strong attachment to the other children in the caregivers’ home, as well as the caregivers’ extended family members and friends.

DPSS reported that Minor is a healthy two-year-old girl who meets most of her developmental milestones. The prospective adoptive parents have taught Minor sign language; she caught on very quickly. The caregivers have also helped Minor feel safe around water and to transition to new things.

DPSS provided that the prospective adoptive mother works as a homeschool teacher. She, therefore, stays home to care for her children. The prospective adoptive father works in sales. The caregivers have adopted three children from Riverside County, two siblings in 2018 and a single child in 2020. The adopted children are in good health and do not present with mental health illnesses. Minor is especially bonded with their oldest son, who is seven years old. Minor always looks for him and prefers to sit next to him when reading books or watching a movie. All three adopted children appear very bonded and attached to Minor, and refer to her as their “sister.” The caregivers have extended family members who help them when needed. Minor is thriving and bonded to her new family. She is a well-cared for and happy toddler.

On September 27, 2021, the juvenile court advanced and continued the section 366.26 hearing to coincide with Ru.V.’s jurisdictional hearing.

On September 27, 2021, the court called the detention hearing on Ru.V. first. Both parents and their counsel were present. Both Mother and Father denied they had Indian ancestry. The juvenile court stated that it received the parents’ paperwork and inquired from both of them if they had Indian ancestry; their paperwork indicated that they had no Native American ancestry. The parents both stated that the information in their paperwork, their ICWA-020 forms submitted to the court, was accurate. The court ordered the forms filed. The court then detained Ru.V. and set a jurisdictional hearing. The court found the ICWA did not apply. The court continued the hearing on Minor’s case to October 20 and set the jurisdiction hearing on Ru.V. on the same date.

On October 20, 2021, the parents and counsel were present. DPSS submitted on its reports and recommendations.

Father’s counsel requested permission to proceed on an oral section 388 motion prior to the section 366.26 hearing; the court granted the motion.

Father’s counsel presented stipulated testimony that Father loves Minor very much; he has had many visits with her since the last court hearing, which have all gone very well; and Minor is bonded to him and loves him very much. Minor calls Father “dada” and always gives him big hugs and smiles when she sees him. Father believes that Minor has a connection with him based on her being in his care for the first one and a half years of her life. Father recently completed Safe Care parenting and participated in individual counseling. Father has been clean and has not used any marijuana for nearly two years now. Father also works full time at two jobs and has a suitable home. He has attempted to “kick out Mother” once for a couple of days. However, because Mother was on the streets, Father let her back in to eat and shower. They are married so their relationship presents a difficult situation. Based on his relationship with Minor, Father asked for a chance to reunify with her and for his parental rights not to be terminated.

The juvenile court took judicial notice of the entire case file and counsel presented argument.

Father’s counsel argued that there had been a change in circumstances based on Father’s continued participation in services and visitations. Moreover, counsel argued that Father had been clean for an extensive period of time and there had been no new reports of any domestic violence for months. Counsel further argued that Father had benefited from services. Father argued that the reason for Minor’s detention was the deterioration of Mother’s mental heath and Mother was doing better. Mother’s counsel supported Father’s request.

Minor’s counsel asked the juvenile court to deny the section 388 motion because domestic violence continues between the parents and Mother’s mental health was still an issue.

Counsel for DPSS joined with Minor’s counsel. Counsel argued that Father failed to have insight into his relationship with Mother and was unable to provide a safe environment for Minor.

After hearing argument, the juvenile court denied Father’s oral section 388 motion for failing to establish any change in circumstances. The court noted that although Father was aware of Mother’s mental health issues—and they have not changed—Father has chosen to stay with Mother “knowing that the mother is really doing nothing to treat her mental health issues.”

Thereafter, the juvenile court noted: “And so, honestly, dad, it’s like there’s this obstinance on your part that you’re going to keep doing the same thing and that you’re going to jump through some hoops here and there and attend some classes, but you’re not going to really make the significant changes that are necessary for you to be able to raise the children that you’ve helped bring into this world because at the heart of all of it is something so much more than you attending a few counseling sessions or a few parenting classes. [¶] You have this relationship with the mother that is creating a situation where you have no viable plan related to your kids. And [Minor] was taken from you after she was left in your care for a significant period of time because you did not recognize the mental health issues that the mother had. You had no plan to protect [Minor] from her mother.” After further discussion regarding the motion, the juvenile court reiterated the seriousness of the problems that originally led to the dependency, and other factors, and found that it would not be in the best interest of Minor to grant Father’s section 388 motion.

The court then moved onto the section 366.26 hearing.

At the hearing, Father’s counsel argued that the parental benefit exception applied. Counsel argued that Father “has maintained consistent visitation, and the continuance of a relationship with the minor would benefit the minor,” and that “the termination of the relationship would be detrimental to the minor.” The court responded to this argument by saying that having “happy visits, . . . frankly, like a child might have with a close relative, an uncle or aunt or some other person that they have an affection for, I don’t know why that would lead to the other findings.” The court went on to state, “I’m familiar with Caden C.^[[5]^] and what it says, and so I’m just asking why—what is there to suggest that it would be detrimental [to terminate Father’s relationship with Minor]?”

After hearing further argument from Father’s counsel, Mother’s counsel, Minor’s counsel, and counsel for DPSS, the juvenile court found that the parental benefit exception did not apply. The court found that both parents met the first prong of the exception because they both maintained regular visitation and contact with Minor. The court, however, stated that it could not find that the parents met the second or third prongs of the exception. Therefore, the court found that the termination of parental rights would not be detrimental to Minor in that none of the exceptions contained in section 366.26, subdivision (c)(1)(A) and (B) applied to this case. The court found that adoption was in the best interest of Minor and terminated parental rights.

On October 20, 2021, Father filed a timely notice of appeal.

DISCUSSION

A. THE JUVENILE COURT PROPERLY FOUND THAT ICWA DID NOT APPLY

Father contends that “substantial evidence does not support the juvenile court’s finding that the ICWA did not apply as [DPSS] failed to comply with its duty.” After reviewing the record, we find that the juvenile court properly found that ICWA did not apply to this case.

1. LEGAL BACKGROUND

ICWA, enacted in 1978, is a federal law, which is recognized and applied in California. (See, e.g., In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.) Its purpose is to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; see, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) The law was adopted “in response to concerns ‘ “over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” ’ [Citations.] [The] ICWA addresses these concerns by establishing ‘minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.’ ” (In re Abbigail A. (2016) 1 Cal.5th 83, 90.)

“In 2006, California adopted various procedural and substantive provisions of ICWA. [Citation.] In 2016, new federal regulations were adopted concerning ICWA compliance. [Citation.] Following the enactment of the federal regulations, California made conforming amendments to its statutes, including portions of the Welfare and Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those changes became effective January 1, 2019 . . . , and govern here.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048, fn. omitted.) The new statute defines the actions necessary to determine a child’s possible status as an Indian child.

ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); accord, § 225.1, subd. (a) [adopting the federal standard].) “Being an ‘Indian child’ is thus not necessarily determined by the child’s race, ancestry, or ‘blood quantum,’ but depends rather ‘on the child’s political affiliation with a federally recognized Indian Tribe.’ ” (In re Austin J. (2020) 47 Cal.App.5th 870, 882 (Austin J.), italics added.)

“ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts ‘ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.’ [Citation.] The court must also ‘instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.’ ” (Austin J., supra, 47 Cal.App.5th at pp. 882-883.)

Since states may provide “a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under” ICWA (25 U.S.C. § 1921), under California law, the court and the county welfare department have an “affirmative and continuing duty to inquire” whether a child in dependency proceedings “is or may be an Indian child.” (§ 224.2, subd. (a) [the duty to inquire whether a child is or may be an Indian child begins with the initial contact]; Cal. Rules of court, rule 5.481(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 14.)

Initially, the county welfare department must ask the “child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).) At the parties’ first appearance before the juvenile court, the court must ask “each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child” (§ 224.2, subd. (c), italics added), and “[o]rder the parent . . . to complete Parental Notification of Indian Status ([Cal. Judicial Council] form ICWA-020).” (Cal. Rules of Court, rule 5.481(a)(2)(C), italics omitted.)

When there exists a reason to believe that an Indian child is involved, the social worker must “make further inquiry regarding the possible Indian status of the child.” (§ 224.2, subd. (e).) “The Legislature, which added the ‘reason to believe’ threshold for making a further inquiry in 2018, did not define the phrase. When that threshold is reached, the requisite ‘further inquiry’ ‘includes: (1) interviewing the parents and extended family members; (2) contacting the BIA and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child’s membership or eligibility in a tribe.’ ” (Austin J., supra, 47 Cal.App.5th at p. 883, italics added; see § 224.2, subd. (e)(1)-(3); Cal. Rules of Court, rule 5.481(a)(4)(A)-(C).)

“In addition to the inquiry that is required in every dependency case from the outset and the ‘further inquiry’ required under California law when there is a ‘reason to believe’ an Indian child is involved, a third step—notice to Indian tribes—is required under ICWA and California law if and when ‘the court knows or has reason to know that an Indian child is involved . . . .’ [Citations.] [¶] The duty to provide notice is narrower than the duty of inquiry. Although the duty of inquiry applies to every ‘child for whom a petition under Section 300, 601, or 602 may be or has been filed’ [citation], and the duty of further inquiry applies when there is a ‘reason to believe that an Indian child is involved in a proceeding’ [citation], the duty to provide notice to Indian tribes applies only when one knows or has a ‘reason to know . . . an Indian child is involved,’ and only ‘for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement.’ ” (Austin J., supra, 47 Cal.App.5th at pp. 883-884, italics added.)

Effective January 1, 2019, the Legislature redefined the “reason to know” requirement that triggers the duty to give notice of the proceedings to Indian tribes. (In re A.M. (2020) 47 Cal.App.5th 303, 316, italics added; see § 224.3; Stats. 2018, ch. 833, §§ 4-7.) Before January 1, 2019, a “reason to know” could be based on “information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (Former § 224.3, subd. (b)(1), italics added; Stats. 2006, ch. 838, § 32.) As of January 1, 2019, the mere suggestion of eligibility for membership as to the child—or the mere suggestion of membership as to the parents, grandparents, or great-grandparents—no longer provides a reason to know that the court is dealing with an Indian child. (§ 224.2, subd. (d).) Now, the amended statute declares that there is reason to know an Indian child is involved if, for instance, “[a] person having an interest in the child . . . informs the court that the child is an Indian child.” (§ 224.2, subd. (d)(1).) The changes to the statute conform the definition of “reason to know” to the definition in federal regulations promulgated in 2016. (25 C.F.R. § 23.107(c); see A.M., at p. 316.)

“In defining the ‘reason to know’ standard as a reason to know that a child ‘is an Indian child,’ the BIA expressly denied requests for more inclusive language, such as, ‘is or could be an Indian child’ or ‘may be an Indian child.’ [Citation.] In rejecting the broader phrases, the BIA pointed to concerns that such language would cause ‘undue delay, especially when a parent has only a vague notion of a distant [t]ribal ancestor.’ [Citations.] Indeed, tribal ancestry is not among the criteria for having a reason to know the child is an Indian child.” (Austin J., supra, 47 Cal.App.5th at p. 885.)

“On appeal, we review the juvenile court’s ICWA findings for substantial evidence. [Citations.] But where the facts are undisputed, we independently determine whether ICWA’s requirements have been satisfied.” (D.S., supra, 46 Cal.App.5th at p. 1051.)

2. PROCEDURAL BACKGROUND ON ICWA

In this case, at a detention hearing for Minor’s oldest sibling, C.V., in April 2014, Father filed a Parental Notification of Indian Status form and indicated that he had no Indian ancestry. In May 2014, Mother filed the same form indicating that she also had no Indian ancestry. On May 14, 2014, the juvenile court found that ICWA did not apply to C.V.

“At the Detention Hearing held on November 5, 2018, the Court found the Indian Child Welfare Act (ICWA) does not apply to the children, [C.V. and R.V.]. During an interview on November 07, 2018, [Mother] denied any Native American ancestry. During an interview on November 19, 2018, [Father] denied any Native American ancestry. On November 29, 2018, the Court found that ICWA does not apply.”

In this case, at the six-month status review hearing, DPSS made another inquiry into ICWA. On May 7, 2019, Mother texted the social worker to inform her that she completed a “DNA Ancestry test and this showed that she is 58 percent Native American. [Mother] said she does not know her tribe yet or if she has one race of ‘a lot of different races.’ ” When the social worker inquired further and asked Mother if she was registered with a tribe, Mother responded: “ ‘No, because I just found out my [DNA] so I haven’t traced how to see if I’m from which tribe since my bio mother is deceased and bio father unknown.” When the social worker asked Father for his response again, “he texted the following: I don’t know Im [M]exican but born in Riverside California.’ ” Neither parent could identify any Native American tribe to whom they believed they belonged, or give any names of relatives DPSS could interview.

Based on Mother’s response, DPSS sent an ICWA-030 Notice of Child Custody Proceeding for Indian Child by certified mail to the Bureau of Indian Affairs (BIA). BIA responded on July 31, 2019, and stated that the notice contained insufficient information to determine tribal affiliation.

Notwithstanding, DPSS continued to make inquiries into ICWA at subsequent hearings. On October 9, 2019, both Mother and Father “denied having tribal linkage pertaining to Native American and/or Alaskan heritage.” On October 17, 2019, at a detention hearing for Minor the parents filed an ICWA-020 Parental Notification stating that they have no Indian ancestry as far as they know. On November 7, 2019, the juvenile court found that DPSS conducted a sufficient inquiry and ICWA did not apply.

On November 23, 2020, the social worker interviewed the parents regarding ICWA again. Mother “again indicated that she is ‘native,’ but said that she does not know ‘if I belong or can claim a tribe’ ” and that she has not been “ ‘able to research.’ ” Father stated that his is “unknown.”

On September 27, 2021, at a detention hearing for Minor’s younger sibling, newborn Ru.V., both parents denied Native American ancestry. The following colloquy occurred:

THE COURT: “And then you’re both indicating you have no Native American ancestry. [¶] Is that accurate for both of you?

“THE FATHER: Yes, sir.

“THE MOTHER: Yes.

“THE COURT: At any point in time I—for some reason I have a memory of dad saying that he had Indian ancestry at some point. [¶] Is that right?

“[FATHER’S COUNSEL]: I don’t recall that.

“THE COURT: Did you ever say you had Indian ancestry, sir?

“THE FATHER: No, sir.

“THE COURT: Did you [Mother] ever say you had Indian ancestry, ma’am?

“THE MOTHER: No.”

Thereafter, after one counsel pointed out that “in the 2019 ICWA-020s both parents denied Indian ancestry,” the juvenile court ordered that the parents’ paperwork as filed.

3. ANALYSIS

In this case, Father claims that “substantial evidence does not support the juvenile court’s finding that [DPSS] complied with its duty of ICWA inquiry.” Father contends that “the record does not establish [DPSS] conducted a diligent inquiry or further inquiry.”

We disagree with Father. In his appeal, Father has failed to address the revised criteria for evaluating whether DPSS had a reason to believe that an Indian child was involved. (§ 224.2, subd. (e).) Here, the court ultimately found that ICWA does not apply. This finding implies that a duty of inquiry under California law had been satisfied. Sufficient evidence supports the court’s finding.

In this current case and in the other dependency cases involving the parents, both parents denied having any Native American ancestry. However, as provided in detail, ante, Mother texted the social worker on May 7, 2019, and indicated that her DNA ancestry test showed that she is 58 percent Native American. When the social worker inquired Mother further about this result, Mother stated that she did not know what tribe she belonged to, she was not registered with a tribe, her biological mother was deceased, and she did not know her biological father. The information revealed during this inquiry did not establish any further “reason to believe” Minor is an Indian child.

Moreover, when DPSS sent an ICWA-030 form to the BIA with the information it was provided, the BIA’s response stated that the notice contained insufficient information to determine a tribal affiliation for Minor. Furthermore, at future hearings in this dependency and the dependency of Minor’s sibling, Mother and Father consistently denied having any Indian ancestry.

Therefore, the results of Mother’s DNA test indicating Native American ancestry is insufficient to support a “reason to believe” that Minor is an Indian child as defined in ICWA. At most, it suggests a mere possibility of Indian ancestry. But, as stated in Austin J., “Indian ancestry, heritage, or blood quantum, however, is not the test; being an Indian child requires that the child be either a member of a tribe or a biological child of a member. [Citations.] Being a member of a tribe depends ‘on the child’s political affiliation with a federally recognized Indian Tribe,’ not the child’s ancestry. [Citations.] Consequently, ‘many racially Indian children’ do not fall within ICWA’s definition of an Indian child, while others may be Indian children even though they are ‘without Indian blood.’ [Citation.] Indian ancestry, without more, does not provide a reason to believe that a child is a member of a tribe or is the biological child of a member.” (Austin J., supra, 47 Cal.App.5th at pp. 888-889, italics added; see In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 [“if the child is not a tribe member, and the mother and the biological father are not tribe members, the child simply is not an Indian child”].)

Notwithstanding, Father contends that “based on mother’s statement, there was a reason to believe [Minor] was an Indian child and further inquiry was necessary. (§ 224.2, subd. (e); In re M.W. (2020) 49 Cal.App.5th 1034, 1044 (M.W.) [even where father unable to identify tribe, his statement he may have Indian ancestry triggered duty of further inquiry under § 224.2; subd. (e)]; . . . D.S.[, supra,] 46 Cal.App.5th [at p. 1052] [aunt’s statement of possible Indian ancestry established reason to believe and triggered a duty to conduct further inquiry].)” Father’s reliance on M.W. and D.S. are misplaced.

In M.W., the father provided “that he may have Indian ancestry but was neither a member of a tribe nor could he identify a tribe, his grandparents ‘may have membership,’ there was ‘possible Apache and Cherokee heritage’ which was ‘[o]ut of Colorado,’ and that the paternal grandfather’s claim that the family was part Navajo and part Apache was ‘fine.’ ” (M.W., supra, 49 Cal.App.5th at p. 1044.) “Based on the initial inquiry by the court and the Department, there was at best a reason to believe the minor may be an Indian child, thus triggering the provisions of section 224.2, subdivision (e), which required the court and the Department to make inquiry as soon as practicable.” (Id. at pp. 1044-1045.) The facts in this case are distinguishable. As provided ante, Mother told the social worker that her DNA results showed she may have Native American ancestry. Mother, however, could not provide the names of any tribes and did not provide any names of relatives who may have information regarding her ancestry. More importantly, unlike the father in M.W., Mother continually told the juvenile court in this case—and in other related cases—that she did not have Native American ancestry.

In In re D.S., supra, 46 Cal.App.5th 1041, all the parties agreed that the paternal aunt’s “statements regarding possible tribal affiliation were sufficient to establish a reason to believe D.S. is an Indian child and triggered a duty to conduct a further inquiry. Thus, the sole contested issue is the adequacy of the Agency’s further inquiry.” (Id. at p. 1052, fn. omitted.) In this case, the contested issue is whether there was reason to believe Minor is an Indian child. As discussed in detail ante, sufficient evidence supports the finding that there was no reason to believe Minor was an Indian child, based on the information Mother provided to the social worker and court on numerous occasions.

Because there was insufficient evidence to provide a reason to believe that Minor or her maternal relatives are members of, or eligible for membership in, an Indian tribe, the statute imposed no duty to make further inquiry. The juvenile court, therefore, properly found that ICWA did not apply to this case.

B. THE JUVENILE COURT PROPERLY DENIED FATHER’S SECTION 388 PETITION

Father argues that the juvenile court abused its discretion in denying his section 388 request. We disagree.

In a prior appeal, In re C.V. (Aug. 14, 2020, E074625) [nonpub. opn.], Father made a similar argument, which we rejected.

Section 388 is a general provision permitting the juvenile court, “upon grounds of change of circumstance or new evidence, . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” (§ 388, subd. (a).) The statute allows the modification of a prior order only when the petitioner establishes by a preponderance of the evidence that (1) changed circumstances or new evidence exists, and (2) the proposed modification would promote the best interests of the child. (In re L.S. (2014) 230 Cal.App.4th 1183, 1193; In re Y.M. (2012) 207 Cal.App.4th 892, 929-920.) A parent seeking relief under section 388 “must show changed, not changing, circumstances. [Citation.] The 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.)

Moreover, “ ‘t is not enough for a parent to show [i]just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.’ ” (In re S.J. (2008) 167 Cal.App.4th 953, 960, 84 Cal.Rptr.3d 557.) A parent requesting an order for reunification services after they have been terminated has the burden of proving that the benefit to the child of reinstating services outweighs the benefit the child would derive from the stability of a permanent placement. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) We review the ruling on a section 388 petition for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

In this case, Father’s counsel provided Father’s stipulated testimony at the hearing. If Father were to testify, he would state that his circumstances have changed since the court’s termination of reunification services. Father completed Safe Care, parenting, and participated in individual counseling. He had not used marijuana for over two years, was working two full-time jobs to support his family, and had a home. Moreover, Father continued to participate in visits and there had been no new reports of domestic violence.

Father’s counsel argued “that there has been a change of circumstance based on father’s continued participation in services, also father’s continued visitations with the minor, that he has been clean now for an extensive period of time, that there’s been no reports of any new domestic violence for many, many, many months, and showing that over this last six months since his services were denied—four to six months since his services were denied as to [Minor], on a motion, that he has benefited from the services, showing that he continues to be sober despite reunification services being denied to him as to [Minor], that he continues to not engage in domestic violence even though—you know, even though his services were terminated previously, and he continues to work two jobs and do what he needs to do to be a good father. I truly believe that he has changed his circumstances.”

Father’s counsel then went on to admit that “the biggest concern is mother’s mental health had deteriorated which resulted in the detention of the sibling [Ru.V.], and that because of the detention of [Ru.V.] and also of [Minor] he was denied services based on not having addressed all those issues. [¶] So I understand that he is still with mother right now. He hasn’t kicked her out onto the streets.” The court responded by asking why Father has to kick Mother out since “he is fully well capable of walking away himself.” The court then went on to state, “I gather that it’s a challenging situation, but I think based on the birth of the most recent child, it’s pretty clear that the problem is ongoing and very cyclical.”

Thereafter, the court stated: “In any event, historically—so I’m just pointing out he—his statement that I kicked her out is a very narrow way of looking at the situation. There’s a whole host of things that people do when they’re serious about ending relationships, including filing for divorce, you know, obtaining a separate residence. If he’s the one who is the breadwinner, he certainly has the ability, one would think, to do that. I know it’s complicated. [¶] But I think the record that is made in both of the appeals that were taken in this matter from prior denials of services and denials of 388 and .26 motions really indicates what the court’s underlying view is of what the issues are.”

Minor’s counsel requested the court find that there was no change of circumstance. She stated: “It is heartbreaking because I was impressed by the quality of father’s visitation. I do obviously believe him when he said in his stipulated testimony that he loves his daughter . . . . but the fact of the matter is there is absolutely no change in circumstances whatsoever. [¶] This case been going on since 2014.” Counsel noted that the parents’ parental rights were terminated as to R.V. and C.V. Thereafter, as to Minor, the parents “had family maintenance for quite a long time,” and Minor was eventually removed. “And through all of this time father has taken what I would imagine would be multiple parenting classes. I believe he’s participated in therapy prior, domestic violence prior, but we are in the exact same situation that we were in in May when we held the contested hearing about [Minor]—or it was June 2nd.”

Minor’s counsel went on to discuss Minor’s younger sibling, Ru.V., wherein after she was born, the NICU nurses were concerned about Mother’s flat affect and demeanor. Moreover, Father continued to work and admitted he had no alternative arrangements for the newborn. Although Mother’s mental health was extremely unhealthy, Father had no intention of leaving her.

Counsel for DPSS agreed with Minor’s counsel. She also stated, “Had [Father] left the mother and essentially made a home for himself and his child, and got into services, and maintained a healthy lifestyle away from the mother, I think we would be in a different position today. Unfortunately, that’s not the case.”

After hearing Father’s stipulated testimony and arguments from counsel, the juvenile court stated: “So to be clear, I do not find any changed circumstances by a preponderance of the evidence or any other standard. And, therefore, I don’t need to get to the issue of best interest. [¶] But just because dad has positive visits with the child it does really not amount to this being in the child’s best interest to return to the father.”

We agree with the juvenile court that the evidence supports the finding that the problems in this current dependency are essentially the same as in the prior dependency proceedings involving Minor’s siblings. Father continues to repeat the same mistakes and has not shown a material change of circumstances. We, therefore, do not discern an abuse of discretion in denying Father’s section 388 petition.

Notwithstanding the above, in his reply brief, Father argues that the court erred because “ there was no dispute that father could safely and effectively parent [Minor] on his own. Yet, the juvenile court based its ruling on both mother and father’s conduct.” (Fn. omitted.) We disagree. Father cannot simply make an argument he could parent Minor safely by himself with no evidence to support this claim. Father has and continues to live with Mother, and has stated that he will remain with Mother. Father has never indicated that he would leave Mother to parent Minor. The juvenile court properly did not find any changed circumstances. At most, Father was thinking about parenting Minor on his own. He needed to show that he had already separated with Mother and was ready to raise Minor without Mother. He did not.

Even if the court erred in finding Father failed to show a material change of circumstances, Father has been unable to demonstrate that a changed order was in the best interests of Minor. As noted by the parties and the court in this case, Father has had good visits with Minor, and the two of them love each other. However, Father has failed to show how it would be in Minor’s best interest to reinstate his reunification services.

“After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child [is] no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability.’ ” (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The court here recognized this shift of focus in determining the ultimate question—what is in the best interests of Minor?

The juvenile court stated: “But just because dad has positive visits with the child it does really not amount to this being in the child’s best interest to return to the father. [¶] And, frankly, it does not appear that the father has the child’s best interest at heart. I understand that the father is in a conflicted situation, but as has been noted—and I have gone back and looked at the beginning of the file. Counsel is right. This is the fourth child, when we talk about [Ru.V.], that has been brought into the world under very similar circumstances. [¶] . . . [¶] Whether that’s true or not, we have now these other two babies that have come into the world under identical circumstances, father knowing that the mother has these severe mental health issues, father knowing that the mother is really doing nothing to treat her mental health issues. [¶] And so, honestly, dad, it’s like there’s this obstinance on your part that you’re going to keep doing the same thing.”

Moreover, the record showed that Minor’s caregivers are strong advocates who are able to meet Minor’s developmental, emotional, and physical needs. They have provided Minor a loving home that is structured and consistent, and are committed to providing Minor a permanent home that will extend into her adulthood. Minor is thriving and bonded to her new family, and presents as a happy and well-cared for toddler.

Under the facts discussed ante, the juvenile court did not abuse its discretion in denying Father’s section 388 petition.

C. THE TRIAL COURT PROPERLY FOUND THAT THE BENEFICIAL EXCEPTION TO ADOPTION DID NOT APPLY

Father contends that “the juvenile court erred when it found the beneficial relationship exception to adoption did not apply because Father maintained a consistent presence in [Minor’s] life and she had a positive and substantial emotional bond with father.” We disagree.

At a section 366.26 hearing, the juvenile court selects and implements a permanent plant for the child. If a child cannot be returned to his or her parents and is likely to be adopted if parental rights are terminated, a court must select adoption as the permanent plan unless one of the exceptions provided in section 366.26, subdivision (c) applies. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 946; In re Celine R. (2003) 31 Cal.4th 45, 53.)

In order to invoke an exception under section 366.26, subdivision (c)(1)(B)(i), “the moving parent must establish, by a preponderance of the evidence, each of the following elements: (1) that the parent has regularly visited with the child; (2) that the child would benefit from continuing the relationship; and (3) that terminating the relationship would be detrimental to the child.” (In re Katherine J. (2022) 75 Cal.App.5th 303, 316 (Katherine J.).) This exception “to the general rule that the court must choose adoption where possible—‘must be considered in view of the legislative preference for adoption when reunification efforts have failed.’ ” (In re Celine R., supra, 31 Cal.4th at p. 53.)

We review the juvenile court’s findings on the first two elements under the substantial evidence standard of review. (In re LA-O (2021) 73 Cal.App.5th 197, 206 (LA-O).) “But ‘the ultimate decision—whether termination of parental rights would be detrimental to the child due to the child’s relationship with his parent—is discretionary and properly reviewed for abuse of discretion.’ ” (Id., at p. 206, quoting Caden C., supra, 11 Cal.App.5th at p. 639.) “ ‘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.” ’ ” ’ ” (LA-O, at pp. 206-207, quoting Caden C., at p. 641.)

In this case, the juvenile court analyzed the parental benefit exception under Caden C., supra, 11 Cal.5th 614. The court stated: “What Caden C. does tell us is that what it requires a parent to establish—and I quote—by a preponderance of the evidence is that the parent has regularly visited with the child and the child would benefit from continuing the relationship . . . and the third prong . . . that terminating the relationship would be detrimental to the child.” The court acknowledged that Father had maintained regular visitation with Minor. However, the court could not find that Minor would benefit from continuing the relationship or that severing the relationship would be detrimental to Minor. The court stated: “So when comparing the quality of father’s consistent visits, even 14 visits, two times a month with the child, the Court, taking into account the totality of the evidence, can’t find that terminating the relationship between the child and the father and/mother would be detrimental to the—I can’t find that terminating the relationship would be detrimental to the child.”

Here, the juvenile court explicitly asked Father’s counsel why the relationship between Father and Minor was beneficial and “Why would it be detrimental?” The court then stated that it did not “feel like [it] received any compelling answers on this.” The court then went on to note that Minor “is in a very fit and appropriate home where the child is receiving great love and appears to be extremely bonded to the people in that home. [¶] By terminating parental rights, the child has absolute security in that home, and this Court really can’t see how termination of parental rights would be detrimental, given even the nature of this relationship, taking into account the permanency and the benefits of permanency that this child is going to receive in her current home.”

The court then went on to discuss whether “the relationship with the parent is so important to the child that the security and stability of a new home wouldn’t outweigh its loss, termination would be detrimental to the child due to the child’s beneficial relationship with the parent.”

We agree with the juvenile court’s reasoning and findings. This court recently explained that “ ‘in assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child’s relationship with the parent outweighs the benefit to the child of placement in a new adoptive home.’ [Citation.] The court must ask, ‘does the benefit of placement in a new, adoptive home outweigh “the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]” ’ ” (LA-O, supra, 73 Cal.App.5th at p. 206.)

Here, the juvenile court did just that. There is no evidence that severing the relationship between Father and Minor would be detrimental to her. DPSS filed an out of custody petition as to Minor one month after she was born. The court ordered the parents to receive family maintenance services. However, as provided in detail ante, the parents’ behavior led to the removal of Minor from their care in March of 2021, when Minor was only18 months old, and she has been out of her parents’ custody since that time. During this time, Father visited with Minor regularly, as permitted, and the visits went well. Father, therefore, contends that there was evidence of a significant parent-child relationship despite the lack of daily contact and Minor’s positive bond with her caretakers and members of the family.

“ ‘Yet, the beneficial relationship exception demands something more than the incidental benefit a child gains from any amount of positive contact with her natural parent. (In re Dakota H., supra, 132 Cal.App.4th at p. 229 [a parent must demonstrate something ‘more than frequent and loving contact, an emotional bond with the child, or pleasant visits’]; In re Angel B. (2002) 08 Cal.App.4th 454, 458 [‘for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt’].)” (Katherine J., supra, 75 Cal.App.5th at p. 316.) Here, Father has been unable to show that his relationship with Minor was compelling enough to forego adoption. Instead, the evidence showed that although visits between Minor and Father went well, Minor never cried at the end of the visits or asked to see Father any other time. Indeed, Father has failed to present evidence that his relationship with Minor was more than an “incidental benefit” from positive interactions with Father, particularly when weighed against the benefit of a permanent home. The exception requires the existence “ ‘ “ ‘of a substantial, positive emotional attachment’ ” ’ between parent and child.” (Katherine J., supra, 75 Cal.App.5th at p. 319.) There was no evidence that Minor had a substantial, positive emotional attachment to Father.

Hence, there is no evidence Minor would be “greatly harmed” by the termination of her natural parent-child relationship with both parents. (In re Angel B., supra, 97 Cal.App.4th at p. 466.) Therefore, we conclude Father has failed to show that the juvenile court’s findings lack the support of substantial evidence or that its exercise of discretion rested on an unsupported factual basis. In short, the court properly found the parent-child relationship exception to adoption did not apply.

DISPOSITION

The juvenile court’s orders denying Father’s section 388 petition, terminating his parental rights and placing Minor for adoption, are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.

[1] This appeal does not involve Mother or any of Minor’s siblings.

[2] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

[3] The factual and procedural histories are taken from our unpublished opinion in a writ involving Minor. (In re R.V. (Sept. 23, E077193) [nonpub. opn.].) The record from the writ has been incorporated and made part of the record on this appeal.

[4] “On October 16, 2019, DPSS filed a dependency petition under section 300, subdivisions (b)(1) (failure to protect) and (j) (abuse of a sibling) on behalf of [Minor] based on both parents’ substantiated allegations of general neglect of their older children, who had been exposed to acts of domestic violence. According to the detention report, both parents denied ‘having tribal linkage pertaining to Native American and/or Alaskan heritage.’ Each parent filed separate parental notification of Indian status forms indicating the same. Mother refuted her prior report of a domestic violence incident from February 2019, claiming that she ‘ “passed out and must have imagined something happened that did not happen,” or attributed it to her being ‘ “pregnant and having hormonal issues.” Father also denied the incident, asserting mother was making it up. Father stated that he and mother ‘know not to “tattle-tell” on each other now.’ Law enforcement had not received any calls from the home since May 2019. On October 17, 2019, the juvenile court detained [Minor]. On November 7, 2019, the court found [Minor] came within section 300, subdivisions (b)(1) and (j), adjudged her a dependent of the court, and allowed her to remain in both parents’ care, with family maintenance services.”

[5] In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).