Filed 5/9/22 In re K.G. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from an order of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Reversed and remanded with directions.

Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

_______________________________

In this dependency case (Welf. & Inst. Code, § 300 et seq.),[1] Ana C. (Mother) appeals from the juvenile court’s order terminating her parental rights over her daughters, K.G. (then, seven years old) and Kailani S. (then, two years old). Mother contends we must reverse the order because (1) the court erred in finding the parental-benefit exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not apply to her relationship with her daughters, as the court applied an incorrect legal standard, and (2) the court and the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the duty to inquire under section 224.2 whether K.G. or Kailani is or may be an Indian child within the meaning of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; (ICWA)).[2] For the reasons set forth below, we reverse the order terminating parental rights and remand the matter for a new section 366.26 hearing and further proceedings regarding ICWA.

BACKGROUND[3]

I. Detention

On June 28, 2019, DCFS obtained a warrant to remove K.G. (then, five years old) and Kailani (then, seven months old) from the custody of Mother and their respective biological fathers, after a violent altercation between Brian (Kailani’s father) and Mother. On July 1, 2019, after a brief stay in separate foster homes, K.G. and Kailani were placed together in the foster home of Mr. and Mrs. S., where they have remained since.

On July 2, 2019, DCFS filed a dependency petition regarding K.G. and Kailani under section 300, subdivisions (a) and (b), alleging: “On or about 06/10/2019, [Mother] and [Brian] engaged in a violent altercation in the presence of the children. [Brian] held a knife to the mother’s throat and threatened to kill the mother. [Brian] held glass to the mother’s neck. The mother was observed to have scratches and abrasions on [her] neck. [Brian] destroyed property inside the children’s home during the domestic violence incident. [He] held the child Kailani in [his] arms and refused to follow commands of law enforcement, placing the child in immediate danger. On 06/10/2019, [Brian] was arrested and charged with Assault with a Deadly Weapon and Inflicting Corporal Injury to Spouse. On prior occasions, the mother and [Brian] engaged in verbal altercations in the children’s home. Such violent conduct on the part of [Brian] towards the mother endangers the children’s physical health and safety and places the children at risk of serious physical harm, damage and danger.”[4] (Counts a-1 & b-1.)

As set forth in DCFS’s Detention Report, then five-year-old K.G. told a police officer that she observed Brian hold a knife and a piece of glass to Mother’s neck during the June 10, 2019 domestic violence incident. K.G. also stated Brian threw a baby carrier at Mother while Mother was lying in bed, and the baby carrier struck Mother in the face. Mother told an officer that if Brian held anything to her neck, it must have been while she was sleeping, explaining that her anxiety medication caused drowsiness. Brian admitted to an officer that he pulled out a pocket knife, but he denied using the knife, stating that Mother stopped arguing with him when he pulled out the knife.

In her first interview with a DCFS social worker after the incident, Mother described Brian as “a good guy,” denying that anything other than a loud verbal argument had occurred. Mother also told the social worker that she had been diagnosed with anxiety and depression and took medication for her anxiety. She was on disability due to her anxiety. K.G. told the social worker that she wanted to live with Mother.

Mother and Brian appeared at the July 3, 2019 detention hearing. The juvenile court found DCFS made a prima facie showing that K.G. and Kailani (collectively, the children) were persons described by section 300, and the court designated the children “a sibling unit.” The court detained the children from Mother and Brian and granted DCFS discretion to release them to Mother. The court ordered monitored visitation for Mother to occur at least twice weekly for two hours per visit and granted DCFS discretion to liberalize Mother’s visits. The court granted Mother’s request for a temporary restraining order (TRO) protecting her and the children from Brian (excepting Brian’s monitored visitation with Kailani), and the clerk served the TRO on Brian in court at the detention hearing.

At a hearing on July 31, 2019, the juvenile court granted Mother’s request for a permanent restraining order (PRO) protecting her and the children from Brian until July 30, 2024, and the bailiff served the PRO on Brian in court at that hearing. Eddie (K.G.’s father) appeared for the first time at the July 31, 2019 hearing. DCFS amended the dependency petition to include an allegation regarding Eddie’s history of substance abuse and convictions for possession of controlled substances. (Count b-2.)

II. Jurisdiction/Disposition

A. Jurisdiction/Disposition Report

As set forth in DCFS’s Jurisdiction/Disposition report, in an interview with a dependency investigator on July 24, 2019, Mother denied Brian held a knife or glass to her throat on June 10, 2019, as DCFS alleged in the dependency petition. She also denied she had scratches and abrasions on her neck after the June 10, 2019 domestic violence incident, asserting the marks were instead hickeys. She conceded Brian said he was going to kill her during the incident but stated she did not feel threatened because he was not holding anything in his hand. “She added, ‘I only got the restraining order because it was mandatory, but I don’t feel like I need it because I didn’t feel threatened.’ ” Mother told the dependency investigator that she planned to resume her relationship with Brian (and Brian said the same). Mother also reported she had been participating in psychiatric services and therapy since May or June 2019, prior to DCFS’s involvement with the family.

K.G. and Kailani remained in the foster home of Mr. and Mrs. S. Mrs. S. reported the children were doing well and appeared to be adjusting to the home. Initially, five-year-old K.G. cried and asked to return to Mother. Now, after about a month in the home, K.G. only “cries after the visits with the mother are over.” Nine-month-old Kailani continued to wake up crying around four times per night.

DCFS reported Mother had a monitored visit with the children at McDonald’s on July 10, 2019, which went well. The monitor “ ‘noticed that [Mother] was attentive to her children’s needs and gave attention to both. [Mother] sat Kailani on her lap and held her, while K[.G.] played in the McDonald’s children[’s] play area. Mother was appropriate with her children.’ ”

On or about September 5, 2019, DCFS held a Multidisciplinary Assessment Team (MAT) meeting and prepared a report summarizing its findings. According to the MAT report, K.G. identified Mother as her “main support” and stated she spoke to Mother on the phone daily. The report described K.G.’s relationship with Mother as “close.” K.G. also identified Brian (Kailani’s father) as a source of support, stating she used to always talk to him and have fun with him. K.G. stated she “want[ed] to go home and be back with her family.” Mrs. S. described K.G. as compliant and independent. K.G. reportedly enjoyed playing and interacting with other kids in Mr. and Mrs. S.’s home. Mrs. S. stated Kailani communicated her needs to Mr. and Mrs. S. and was easily soothed when she was upset. The report noted Kailani cried at the end of visits with Mother or Brian and had difficulty sleeping on her own. Mother and Brian wanted to reunify with the children. According to the report, Mother “minimized K[.G.]’s claims regarding the [June 10, 2019 domestic violence] incident and stated she [K.G.] has an ‘active imagination.’ ” Mother was unemployed but planned to find a job and return to school.

The MAT report described Mother’s interaction with Kailani during a monitored visit as follows: “Kailani appeared to be comfortable and happy as she played with her mother. Mother . . . engaged Kailani and her sister K[.G.] by playing and providing snacks and food. Mother was observed asking several questions and praising both K[.G.] and Kailani. Both children were responsive [to] [M]other and [M]other demonstrated she was able to address the children’s needs with ease. Mother was attentive to Kailani and K[.G.] simultaneously, engaging in conversation with K[.G.] while holding Kailani. Mother presented with calm and quiet demeanor. Mother spoke softly and played with Kailani at her level. Mother was physically affectionate with Kailani.”

The MAT report described Mother’s interaction with K.G. during a monitored visit as follows: “[Mother] was observed to be very caring and attentive to K[.G.] K[.G.] appeared happy to be spending time with her mother as evident by her frequently smiling and laughing with [M]other. This assessor noted that [Mother] engaged K[.G.] in age appropriate play during their time together (hide and seek, tag). This assessor noted [M]other and K[.G.] engaged in appropriate back and forth communication and [Mother] provided K[.G.] with praise at multiple points. This assessor noted both . . . [M]other and K[.G.] have difficulties saying goodbye to one another once the visit has ended. K[.G.] and [M]other were both visibly tearful and upset.”

In a November 6, 2019 Last Minute Information for the Court, DCFS reported that K.G. was scheduled for weekly psychotherapy sessions “ ‘to reduce angry outbursts, bed wetting and nightmares.’ ” Kailani was referred to an Early Head Start program. At the beginning of the summer, Mother enrolled in a parenting class and a domestic violence support group. As of October 3, 2019, Mother had attended three out of 12 parenting sessions and three out of 26 support group sessions and was no longer attending either. She told the social worker she stopped attending due to her anxiety and depression. The social worker instructed Mother to reenroll, providing her with referrals for parenting and domestic violence programs, as well as individual counseling and low-income housing. Mother reported she was taking her anxiety medication as needed and was scheduled to meet with her psychiatrist. Mother was visiting the children once a week for two and a half hours per visit. Mother arrived on time and interacted appropriately with the children. Mother canceled one visit because she felt depressed and unwell.

B. November 6, 2019 adjudication/disposition hearing

At the adjudication/disposition hearing on November 6, 2019, Mother pleaded no contest to the amended allegation in the dependency petition regarding the domestic violence incident with Brian (as quoted above), and the juvenile court sustained the allegation under section 300, subdivision (a) against Mother (and Brian). The court also sustained the allegation regarding Eddie’s history of substance abuse and convictions for possession of controlled substances under section 300, subdivision (b). The court declared K.G. and Kailani dependents of the court, removed them from Mother and their respective fathers, and ordered them suitably placed. The court granted Mother monitored visitation to occur at least twice a week for one hour per visit in a neutral setting, and separately from the fathers’ visits. The court gave DCFS discretion to liberalize the visitation. The court ordered reunification services for the parents. Mother’s case plan required her to comply with the restraining order against Brian and to enroll in a domestic violence support group, a parenting class, individual counseling to address case issues, and conjoint counseling with Brian to the extent they decided to reconcile and the counseling did not conflict with the restraining order.

III. Reunification Period

A. April 14, 2020 Status Review Report

In a Status Review Report for an April 14, 2020 six-month review hearing, DCFS stated K.G. and Kailani were adjusting well in Mr. and Mrs. S.’s home, although six-year-old K[.G.] “continue[d] to verbalize that she misses her mother and would like to return to [M]other’s care.” K[.G.] had become more open to speaking about the domestic violence she witnessed between Mother and Brian, and she told the social worker she had nightmares about Brian holding a knife to Mother’s neck. The social worker informed K[.G.]’s therapist about the nightmares, so the therapist could address the matter during individual counseling sessions with K[.G.] These counseling sessions were inconsistent due to staffing issues at the agency that provided the services. Kailani appeared to be developing appropriately, and the social worker observed a strong bond between Kailani and her caregivers. Mr. and Mrs. S. reported no concerns regarding Kailani’s well-being.

Mr. and Mrs. S. made the children available for weekly visits with Mother. Mrs. S. reported Mother was inconsistent with her visits, which “emotionally affected” K.G., who would isolate herself and cry when Mother canceled a visit “at the last minute.” The social worker addressed the issue with Mother, but Mother continued to cancel visits at the last minute. Mother told the social worker that she canceled two of the visits due to bad weather, explaining that Kailani gets sick easily. She canceled two other visits because she was not feeling well (on one occasion she reported stress-related aches and pains and on the other occasion she reported a fever). She canceled another visit without providing a reason and failed to reply when the social worker sent her a text message offering to have the monitor bring the children to a location closer to her. On two occasions, Mother and Mrs. S. agreed to postpone visits due to poor weather conditions and the children’s health. The social worker attempted to arrange visitation for Mother on days other than Mother’s scheduled weekly visit, but Mother declined.

The monitor reported that Mother arrived late to some visits and cried in the presence of the children when visits ended. The social worker told Mother it affected K.G. when Mother cried during visits, as K.G. would immediately begin to cry.

The social worker monitored a two-hour visit between Mother and the children on February 20, 2020. “During this visit, [M]other interacted appropriately with the children and was very attentive to K[.G.] However, [M]other’s interaction with Kailani was limited. [The social worker] addressed this observation with [M]other, and she stated she would be more attentive to Kailani.” Mother “attempted to interact with Kailani, but Kailani was not responding to [M]other’s attempts to interact.”

DCFS reported Mother was not enrolled in programs and services and had not made herself available for monthly, in person contact with the social worker. It was difficult for the social worker to maintain contact with Mother because Mother often changed her phone number without notifying DCFS. Mother told the social worker she could only communicate by text message “due to not having access to a telephone line.” In January 2020, Mother informed the social worker that she had not enrolled in programs because she had been feeling depressed, and it was “very difficult for her to get out of bed and be productive.” Mother also reported she could not control her anxiety and was not taking her anxiety medication or meeting with her psychiatrist. Mother stayed either at the home of the children’s maternal grandmother or at the maternal uncle’s trailer.

DCFS also reported that Brian was serving a four-year prison sentence, which exceeded the time for him to reunify with Kailani. Eddie was not complying with his case plan and had not contacted DCFS to arrange visitation with K.G. Mother sometimes visited the home of K.G.’s paternal grandmother to allow the paternal grandmother and Eddie to speak with K.G. during Mother’s monitored telephone calls with K.G. The social worker instructed Mother not to do that because the calls were supposed to be between Mother and K.G. only.

Hearings scheduled in April and May 2020 were continued due to the COVID-19 pandemic.

In a Last Minute Information for the Court, dated June 11, 2020, DCFS reported that the social worker was still having trouble contacting Mother by phone or email. On May 27, 2020, when the social worker reached Mother by calling the children’s maternal grandmother’s phone, Mother reported that she had enrolled in a parenting class and a domestic violence support group but had not yet enrolled in individual counseling. Mother also reported that she participated in video visits with the children whenever she had access to Wi-Fi; otherwise, she maintained contact with the children by phone. Due to the pandemic, she was not visiting the children in person. DCFS attached to the report a May 21, 2020 letter from a services agency confirming that K.G. was regularly receiving mental health therapy services. DCFS also attached a concurrent planning assessment stating Mr. and Mrs. S. were willing to adopt K.G. and Kailani if they did not reunify with their parents.

B. August 27, 2020 Status Review Report

As stated in a Status Review Report for an August 27, 2020 review hearing, the social worker observed that 21-month-old Kailani had grown very attached to Mr. S. and appeared comfortable with both caregivers. The social worker heard Kailani refer to her caregivers as “ ‘dada’ ” and “ ‘mama.’ ” Although the social worker believed both children had adjusted well to Mr. and Mrs. S.’s home, six-year-old K.G. “continue[d] to verbalize that she misses her mother.” K.G. continued to participate in individual therapy, and she opened up to her therapist about the domestic violence she had witnessed between Mother and Brian. The therapist addressed K.G.’s nightmares about “ ‘a monster trying to kill [her] mom,’ ” and the therapist suggested K.G. engage in guided meditation to help her fall asleep. Mrs. S. informed the therapist that K.G. was sleeping better throughout the night. In July 2020, K.G. began wraparound services to address “reported outbursts and crying spells.”

Mother continued to participate in a parenting class and a domestic violence support group, but she had not enrolled in individual therapy. The social worker had been unable to reach Mother by phone since May 27, 2020. Mother’s last in-person visit was on February 20, 2020. Mrs. S. reported that Mother was having FaceTime video calls with the children three times per week for 15 minutes each call. According to Mrs. S., Mother was appropriate during the calls. DCFS also reported: “Per [Mrs. S.], the mother sometimes stays quiet during the FaceTime calls because the mother does not know what to say to the children. [Mrs. S.] stated that Kailani becomes impatient during the calls, tries to take the phone away from K[.G.] and hangs up. [Mrs. S.] stated that the children do not have the ability to engage in longer conversation due to their young age. [The social worker] asked [Mrs. S.] to facilitate an additional FaceTime call per week. [Mrs. S.] agreed. [Mrs. S.] reported that during the FaceTime calls the mother informs K[.G.] that she will soon reunify with them because she is now participating in her classes.” According to Mrs. S., Mother had not requested in-person visits.

C. August 27, 2020 hearing

At the six/12-month review hearing on August 27, 2020, DCFS recommended the juvenile court terminate reunification services for all parents and set a section 366.26 permanency plan hearing. Mother’s counsel and the children’s counsel urged the court to grant Mother additional reunification services. The children’s counsel informed the court that K.G. stated she missed Mother and wanted to reunify with her. The court terminated reunification services for the children’s fathers and granted Mother further reunification services. The court ordered DCFS to refer Mother to a parent partner (a mentor) and to schedule a team meeting to address services for Mother immediately.

D. December 17, 2020 Status Review Report

In a Status Review Report for a December 17, 2020 review hearing, DCFS reported: “K[.G.] has stated she feels comfortable in the foster home and states that foster parents are nice. However, [Mrs. S.] has expressed concerns with K[.G.]’s crying spells and K[.G.] continues to verbalize that she misses her mother.” K.G. continued to “ ‘actively participate[] in [mental health] treatment and reports utilizing skills outside of treatment to improve symptoms.’ ” As set forth in the report, K.G. informed the social worker she “needs to be in the same home as Kailani and wants to return with her mother.” Kailani remained very attached to Mr. S. and appeared comfortable with both caregivers, referring to them as “ ‘dada’ ” and “ ‘mama,’ ” as DCFS previously reported.

Mother began participating in individual counseling. Her therapist reported that she “ ‘was doing well, but was struggling with her anxiety a lot.’ ” The social worker had not been able to reach Mother by phone since May 2020 (a period of around six months), and Mother only sporadically responded to the social worker’s text messages and emails. DCFS was unable to assess Mother’s residence (the children’s maternal uncle’s trailer) because Mother had not provided the address.

Mother continued to decline in-person visits with the children because of the pandemic. Her last in-person visit was February 20, 2020 (around nine months before this report). Mrs. S. reported Mother’s last video visit was in September 2020 (a few months before this status review report), and her telephone calls with the children were inconsistent. When the social worker inquired, Mother indicated there were technical issues with the video calls (poor Internet connection), so she talked to the children over the phone instead. Mother said she had only missed two calls due to lack of Internet or phone access.

E. December 17, 2020 hearing

By the time of the December 17, 2020 18-month review hearing, Mother had completed her parenting and domestic violence classes. DCFS continued to recommend the juvenile court terminate Mother’s reunification services and set a section 366.26 permanency plan hearing. At the hearing, Mother’s counsel and the children’s counsel urged the court to grant Mother additional reunification services and set up a team meeting to try to allay Mother’s fears about in-person visits during the pandemic. The court granted Mother additional reunification services, ordered DCFS to refer Mother to a parent partner (which had not been done despite the court’s order at the August 27, 2020 review hearing), and ordered a team meeting regarding Mother’s progress in therapy and a transition to in-person visits with the children.

In a Last Minute Information for the Court dated February 11, 2021, DCFS updated the juvenile court on Mother’s progress in services, a January 7, 2021 team meeting, and Mother’s visitation. By January 5, 2021, Mother had completed 12 out of 20 individual counseling sessions. Mother’s therapist noted the following areas for improvement: “ ‘practicing skills such as mediation, positive self-talk, respond versus reacting, and more self-care.’ ” The social worker had difficulty reaching Mother regarding a referral to a parent partner and setting up the team meeting. Mother agreed to regularly communicate with the social worker by email and twice monthly phone calls. Mother reported that she had not spoken to her psychiatrist since August 2020 and did not have any anxiety medication. Mother stated her anxiety and depression increased in 2019 after she lost custody of her children and moved out of Brian’s home and was without stable housing.

At the January 7, 2021 team meeting, Mother agreed to connect with her former psychiatrist; attend a weekly in-person visit with the children at a park and have three phone or video calls per week with the children; and continue to participate in individual counseling. DCFS reported: “The team also discussed the mother’s monitored visits and explained to the mother the negative effects of not having in-person visits with the children. [The social worker] informed the mother that [Mrs. S.] has reported that due to the mother’s inconsistency with phone calls, K[.G.] cries while waiting to speak to her.”

DCFS assigned a parent partner to Mother. On January 19, 2021, the parent partner reached out to Mother, but Mother did not respond. On January 20 and 27, 2021, Mother attended in-person visits with the children. The monitor reported that the visits went well.

F. April 15, 2021 Status Review Report

In a Status Review Report for an April 15, 2021 review hearing, DCFS stated the children were “thriving” in Mr. and Mrs. S.’s home and appeared comfortable with the caregivers, based on the social worker’s observations. Seven-year-old K.G. was performing well in school. Two-year-old Kailani was participating in an infant-toddler program over video. She was able to communicate well with her peers and teachers, and she was meeting her milestones, according to program staff. A teacher also reported that Mr. and Mrs. S. were very attentive to Kailani during class, and Kailani appeared to have a very strong attachment to her caregivers. Kailani’s primary care physician referred her to a Regional Center for evaluation (for reasons not specified in the report).
On February 4, 2021, the social worker spoke with K.G. at Mr. and Mrs. S.’s home and asked K.G. about her visits with Mother. K.G. stated the visits went well. Mother gave her sweets and played with her. The social worker asked why she cried when she returned from visits with Mother. She responded, “ ‘I miss my mom.’ ” The social worker asked if she wanted to return to Mother’s care. She responded, “ ‘Kind of,’ ” and added,

“ ‘Only if my mom has a house, a car, a job, and money to buy

food.’ ” She explained that she and Mother had lived in hotels in the past, and sometimes the maternal grandmother had cooked for them because Mother did not have money to buy food. K.G. also stated she did not want to return to Mother’s care if Mother was living with Brian because Brian was “ ‘mean’ ” to her and Mother. She discussed the June 10, 2019 domestic violence incident and an occasion when Brian threw water on her to wake her up as she slept in bed. K.G. reported she felt comfortable living with Mr. and Mrs. S. “because ‘they travel a lot and have food.’ ” She asked the social worker if she could be adopted by her caregivers. The social worker responded by asking her if she knew what adoption means. K.G. replied, “ ‘It means that I will stay with [Mr. and Mrs. S.] forever until I am 18.’ ” K.G. referred to her caregivers by their first names. The social worker asked if anyone had spoken to her about being adopted, and K.G. said no.

Mr. and Mrs. S. reported that since Mother’s in-person visits resumed, “Kailani returns home overly active due to the mother giving Kailani sweets,” and K.G. “returns defiant, shuts down and isolates herself.” Mr. S. also observed that K.G. started rubbing her hands until they turned red. K.G.’s services team addressed these issues during her wraparound services, and “K[.G.]’s irritable behaviors have decreased throughout the weeks.” Mother agreed to stop giving candy to the children. Mrs. S. also stated Mother regularly called the children 10-15 minutes past the scheduled start time and complained when Mrs. S. ended the call on time, per the agreed-upon schedule. Mother was appropriate during the telephone calls, according to Mrs. S. Mother no longer used video calls.

The monitor reported that since Mother’s in-person visits resumed in January 2021, Mother had consistently arrived 15-25 minutes late, and she canceled two visits in March 2021. Mother canceled the visits because it was raining and she was supposed to meet the children at a park. Mother declined when the social worker offered to reschedule the visits at an indoor space (e.g., a public library) because she wanted to have visits at the park where the children could run around and play.

DCFS reported Mother had completed parenting and domestic violence programs and individual counseling. Mother’s therapist reported that although Mother had made progress during treatment, the therapist recommended Mother “seek further help to treat her anxiety symptoms.” Mother agreed to seek such services, and the social worker provided her with referrals. Mother still had not responded to the assigned parent partner’s phone calls. Mother stated she did not pursue conjoint counseling with Brian because she did not intend to reconcile with him. Reconciliation was a condition that would have required her to participate in conjoint counseling under her case plan (to the extent it did not violate the restraining order). In March 2021, DCFS went to the maternal grandmother’s home, where Mother was staying, and Mother refused to let the social worker inside to assess the residence.

In a Last Minute Information for the Court dated April 15, 2021, DCFS reported Kailani was assessed and found eligible for Regional Center services. The services could not begin until Mother signed a consent form because the caregivers did not have educational rights. Because it had been difficult to reach Mother by phone, DCFS recommended the juvenile court appoint the caregivers as co-educational rights holders with Mother.

G. April 15, 2021 hearing

At the 24-month review hearing on April 15, 2021, DCFS and the children’s counsel urged the juvenile court to terminate Mother’s reunification services and set a section 366.26 permanency plan hearing. The children’s counsel noted, however, that K.G. asked him to express to the court that she wanted to reunify with Mother. Mother’s counsel asked the court to return the children to her, pointing out she had completed her case plan. In the alternative, Mother requested unmonitored visitation. The court terminated Mother’s reunification services and set a section 366.26 hearing. Over DCFS’s objection, the court granted Mother unmonitored visits for up to four hours in a public setting, so long as she was participating in individual therapy. The court ordered Mother to confirm the visits 24 hours in advance and also inform DCFS of the location in advance. The court granted DCFS discretion to liberalize Mother’s visits. The court appointed Mrs. S. as co-holder of the children’s educational and developmental rights with Mother.

IV. Termination of Parental Rights

A. Section 366.26 report

In the report for the section 366.26 hearing, DCFS stated Mother signed the Regional Center consent forms, and Kailani began receiving speech, occupational, and motor skills therapy in May 2021. K.G. continued to receive wraparound services. Her tantrums had decreased, and she was working on improving her communication by expressing her needs. It appeared to the social worker that the children felt comfortable and safe in Mr. and Mrs. S.’s home and had developed a strong attachment to their caregivers.

Mr. and Mrs. S. wanted to adopt the children. They had been married for 20 years and had two minor children. They lived in a five-bedroom, three-bath home, located in a residential area. Mrs. S. was a fulltime homemaker. Mr. S. was previously employed as a “Hygiene Tech,” but he was now unemployed and on disability.

DCFS stated in the section 366.26 report: “Mr. and Mrs. S. appear to have a clear understanding of adoption and the difference between adoption and legal guardianship. They understand that once the adoption has been finalized neither the court nor DCFS will be involved in the children’s care. Furthermore, they will have the complete responsibility over the care of the child[ren] as [if the children were] their birth child[ren].” The record does not indicate whether Mr. and Mrs. S. would consider legal guardianship in the event the juvenile court declined to terminate parental rights. DCFS also stated in the report: “K[.G.] and Kailani are too young to give a statement regarding their placement and prospect for permanence with Mr. and Mrs. S.; however, as previously noted the applicants are meeting their needs and they are thriving in their home.”

On April 29, 2021, Mother had an intake appointment for individual therapy, and her first therapy session was on May 11, 2021. Because Mother was participating in individual therapy, her unmonitored visits could begin. Starting May 12, 2021, Mother was scheduled for a weekly visit with the children at a public park from 12:00-4:00 p.m. The social worker reminded Mother to confirm her visits 24 hours in advance and arrive on time.

On June 2, 2021, Mrs. S. called the social worker to report that Mother was late for her weekly visit. Mrs. S. needed to leave the park by 12:15 p.m. to pick up her children at school. Because Mother did not arrive by that time, the visit was canceled. When the social worker called Mother to inform her of the cancellation, Mother started crying and explained she was running late because she and the children’s maternal uncle were loading the children’s bicycles into the car. The social worker reiterated that Mother needed to arrive on time, and Mother said she understood. Shortly after this discussion, Mrs. S. informed the social worker that she would reschedule Mother’s visit for later the same day (June 2, 2021).

Mrs. S. informed the social worker that on June 9, 2021, when she was driving to a park to pick up the children at the end of Mother’s visit, she saw Kailani running toward the street. Mrs. S. stated she stopped her car in the middle of the street, exited the car, and ran to intercept Kailani. She asked Mother why she left Kailani unattended and told Mother something could have happened to the child. According to Mrs. S., Mother “did not appear concerned for Kailani’s safety as she stated, ‘I know huh, I got scared too.’ ”

On June 16, 2021, Mrs. S. called the social worker to report that Mother’s visit was canceled. According to Mrs. S., Mother had called Mrs. S. crying, stating she was going to be late. The children’s maternal uncle took the phone from Mother and explained that Mother “was having a breakdown and could not speak on the phone.” The maternal uncle asked Mrs. S. if they could reschedule the visit to a later time the same day. Mrs. S. told him she would wait 15 minutes for Mother to arrive. The maternal uncle said they would not arrive by then, so the visit was canceled.

In the section 366.26 report, DCFS recommended the juvenile court terminate parental rights and order the permanent plan of adoption for the children.

B. August 13, 2021 section 366.26 hearing

At the August 13, 2021 section 366.26 permanency plan hearing, the juvenile court stated it would “be considering the entire contents of the court file” in making its findings and ruling.

Mother testified on her own behalf. She described the activities the children engaged in during their weekly four-hour unmonitored visits with her. She and Kailani worked on Kailani’s motor skills and finger play. K.G. enjoyed building things, “doing her outfits,” and riding on the swings, a scooter, and a skateboard. K.G. also tried riding a bicycle, but she could not do it yet. Mother stated the children called her “ ‘mommy.’ ”

Mother testified that when Kailani heard Mother’s voice, Kailani would “hum” or “coo” because she found Mother’s voice soothing. Kailani would lay her head on Mother’s chest, close her eyes, and take a nap or meditate.

The juvenile court asked Mother when she resumed in-person visits with the children. Mother believed her in-person monitored visits resumed at the beginning of February 2021, and her in-person unmonitored visits began at the end of April 2021.[5] Mother denied she requested that in-person visits stop during the pandemic; she stated that was Mrs. S.’s idea. Mother testified that Kailani’s therapist from the Regional Center attended her last visit with the children to observe. Neither DCFS nor the caregivers explained to Mother why Kailani had a therapist.

Mother stated that during telephone calls with K.G., they discussed how K.G.’s day went, what happened at school, what homework she had, what she ate that day, and K.G.’s thoughts and feelings. Mother recalled talking to K.G. about a project on Harriet Tubman, which K.G. enjoyed making for school.

On cross-examination, the children’s counsel asked Mother if she recalled a visit during which Kailani ran into the street. Mother recalled the visit but explained Kailani did not run into the street. According to Mother, Kailani tagged Mother’s wrist and ran off to start a game of hide and seek. Mother stated Kailani was not near the street when Mrs. S. stopped her car, exited, and ran to Kailani.

The children’s counsel asked Mother about Kailani’s Regional Center services. Mother stated she did not know what services Kailani was receiving until she spoke with the therapist at the last visit. According to Mother, the therapist explained they were working on Kailani’s motor skills and teaching her to express her emotions without acting aggressively (e.g., throwing things, hitting people, pulling people’s hair).

The children’s counsel also asked Mother if she had been late to visits. Mother stated she had been five or 10 minutes late on two or three occasions. According to Mother, Mrs. S. told her if she was running late and gave Mrs. S. 30 minute’s notice, Mrs. S. was amenable to changing the time of the visit. Mother stated she recalled an occasion when the social worker requested to talk to her before a visit, which caused her to run late. Mother texted Mrs. S., and Mrs. S. agreed to change the start time of the visit from 12:00 to 1:00 p.m. According to Mother, the social worker did not approve the change, and canceled the visit. Mother stated she would communicate with Mrs. S. and apprise her of the situation when she was running late.

DCFS’s counsel asked Mother on cross-examination if she had ever canceled a visit because she felt “stressed or overburdened” or was “unable to handle the children,” and Mother said no.[6]

DCFS’s counsel urged the juvenile court to terminate parental rights, arguing the children are adoptable and Mr. and Mrs. S. “are the ones who provide the children with their day-to-day emotional, medical, and other needs. They are, in all essence, the parents for these two children.” DCFS’s counsel also argued Mother’s visitation was inconsistent, and it would not be detrimental to the children to terminate Mother’s parental rights, based on the nature of the contact between Mother and the children.

Mother’s counsel argued Mother established the parental-benefit exception to termination of parental rights, but if the juvenile court decided to terminate her rights, Mother requested “the court grant her discretion to continue visiting the children.”

The children’s counsel “submit[ed] on [DCFS]’s recommendation to terminate parental rights.” Counsel informed the juvenile court: “K[.G.] has stated that -- her position is that she loves her mother, and if she could live with both her mother and Ms. S[.], she would. She also states that she would also be happy with being adopted by Ms. S[.], and that position does reveal the extent of the bond and it’s relative weight compared to the benefits of permanency today.” Counsel argued Mother had “not taken full advantage of the visitation that was available to her.” Counsel noted Mother’s therapist “conclude[d] that if the mother is unable to really care for herself, that is going to hamper her ability to care for others.” Counsel argued Mother’s bond with the children did not outweigh the benefits of permanency for the children and asserted K.G. had “expressed defiance due to her bond with the mother.” The children’s counsel concluded his argument by stating: “And I do believe, given K[.G.]’s position, that it is in her best interest today that she receive stability, and also to have continued contact with the mother.”

The juvenile court referenced Mother’s anxiety and depression and commented: “I don’t think in any way that the mother doesn’t love these kids deeply, but I also believe that she has done things that have limited her ability to have the level of commitment and consistency with them that she has implied today has existed.”

The juvenile court ruled as follows, in pertinent part:

“The court finds, by clear and convincing evidence, return to the parents would be detrimental.

“[¶] . . . [¶]

“Regarding the mother, the court believes the mother has had regular and consistent visitation and contact for some time; but in light of the history of her visitation and contact in the -- while the mother has formed some level of a parental role and relationship, I believe that that really is more so with K[.G.] than with her sister [Kailani].

“The mother, although having formed a parental role and relationship, at least with K[.G.] and to some extent with both, has not had the level of consistency of visits to make it as strong as she has implied in her testimony; nor has she shown that that parental role and relationship, to the extent it exists, outweighs the benefits of permanence and adoption; nor has she shown that it will be detrimental to the children to sever that relationship.

“I note that Kailani came into the system when Kailani was seven months old and has not been in a parent’s custody since seven months old. And the children have now been outside of the parents’ custody for over two years. And it’s only very recently that the mother started having the unmonitored visits and just in the last six months that the mother began having in-person visits again.

“The court finds, by clear and convincing evidence, the children are adoptable.

“The parental rights are terminated. Care, custody, and control is taken from the parents and transferred to [DCFS] for the purposes of adoptive planning and placement.

“[¶] . . . [¶]

“The caretakers have discretion to permit ongoing contact with the parents.”

DISCUSSION

I. Parental-Benefit Exception

Mother contends the juvenile court committed reversible error in finding the parental-benefit exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not apply to her relationship with the children.

A. Applicable law

When a juvenile court “cannot safely return a dependent child to a parent’s custody within statutory time limits, the court must set a hearing under section 366.26.” (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) At the section 366.26 hearing, the juvenile court is required to select and implement a permanent plan for a dependent child. The “question before the court [at a section 366.26 hearing] is decidedly not whether the parent may resume custody of the child,” as “reunification services have been terminated, and the assumption is that the problems that led to the court taking jurisdiction have not been resolved.” (Ibid.) If the court determines by clear and convincing evidence that the dependent child is likely to be adopted, “the court shall terminate parental rights to allow for adoption” unless a parent shows termination would be detrimental to the child for one of the reasons enumerated in section 366.26, subdivision (c)(1). (Caden C., at pp. 630-631.) If the parent makes the requisite showing, the “court should decline to terminate parental rights and select another permanent plan.” (Ibid.) Only “ ‘in exceptional circumstances’ ” will a court choose a permanent plan “ ‘other than the norm, which remains adoption.’ ” (Id. at p. 631.)

The parental-benefit exception, at issue here, applies where the juvenile “court finds a compelling reason for determining that termination would be detrimental to the child” because: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) As our Supreme Court has explained, a parent must prove three elements “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.” (Caden C., supra, 11 Cal.5th at p. 631.) “n assessing whether termination would be [i]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.] By making this decision, the trial court determines whether terminating parental rights serves the child’s best interests.” (Id. at p. 632.)

As to the first element of the exception—regular visitation and contact—the “question is just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) In evaluating this element, courts should not “punish parents or reward them for good behavior in visiting or maintaining contact – here as throughout, the focus is on the best interests of the child.” (Ibid.) “Visits and contact ‘continue[] or develop[] a significant, positive, emotional attachment from child to parent.’ ” (Ibid.)

“As to the second element, courts assess whether ‘the child would benefit from continuing the relationship.’ (§ 366.26, subd. (c)(1)(B)(i).) Again here, the focus is on the child. And the relationship may be shaped by a slew of factors, such as ‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) Courts “often consider how children feel about, interact with, look to, or talk about their parents. [Citations.] Doing so properly focuses the inquiry on the child, even as courts must remain mindful that rarely do ‘[p]arent-child relationships’ conform to an entirely consistent pattern.” (Ibid.)

“Concerning the third element – whether ‘termination would be detrimental to the child due to’ the relationship – the court must decide whether it would be harmful to the child to sever the relationship and choose adoption. (§ 366.26, subd. (c)(1)(B); see also § 366.26, subd. (c)(1)(D).) Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship. [Citations.] What courts need to determine, therefore, is how the child would be affected by losing the parental relationship – in effect, what life would be like for the child in an adoptive home without the parent in the child’s life.” (Caden C., supra, 11 Cal.5th at p. 633.) Where the parent-child “relationship involves tangled benefits and burdens,” the “court faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship.” (Id. at p. 634.) “When 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.

(§ 366.26, subd. (c)(1)(B)(i).)” (Id. at pp. 633-634.)

“When it weighs whether termination would be detrimental, the court is not comparing the parent’s attributes as custodial caregiver relative to those of any potential adoptive parent(s). Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent. [Citation.] Accordingly, courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home.” [Citation.] Even where it may never make sense to permit the child to live with the parent, termination may be detrimental. [Citation.] And the section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver.” (Caden C., supra, 11 Cal.5th at p. 634.) The parental-benefit exception does not permit “a judgment about the parent’s problems to deprive a child of the chance to continue a substantial, positive relationship with the parent.” (Id. at p. 643.)

As our Supreme Court pointed out, “the ‘Task Force,’ which the Legislature created in 1987 to redesign the dependency system and whose recommendations the Legislature adopted,” “explained why the parental-benefit exception existed and when it should be applied: ‘Termination would not be permissible, however, in the following situation[]: [¶] a) Termination would be detrimental to the child due to the strength of the parent-child relationship. There is substantial clinical evidence that some children in foster care retain very strong ties to their biological parents. Since termination in such situations is likely to be harmful to the child, courts should retain parental ties if desired by both the parents and the child.’ ” (Caden C., supra, 11 Cal.5th at p. 635.)

The parent challenging the termination of parental rights based on the parental-benefit exception has the burden of proving by a preponderance of the evidence that the exception applies. (Caden C., supra, 11 Cal.5th at p. 629.)

We review the juvenile court’s determination whether the parent has visited and maintained contact with the child consistently, given the extent permitted by the court’s orders, for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) We likewise review for substantial evidence the court’s determination whether the relationship is such that the child would benefit from continuing it. (Id. at p. 640.) We may “ ‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts,’ ” and we will uphold the trial court’s determinations supported by substantial evidence even if

“ ‘substantial evidence to the contrary also exists.’ ” (Ibid.)

We review whether termination of parental rights would be detrimental to the child for abuse of discretion. (Caden C., supra, 11 Cal.5th at p. 640.) “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 p. 641.)

B. Analysis

Here, as Mother and DCFS agree, the juvenile court found Mother established the first element of the parental-benefit exception—regular visitation and contact with the children. From there, the juvenile court turned to its determinations of whether Mother formed a “parental role and relationship” with the children, and whether that “parental role and relationship, to the extent it exists, outweighs the benefits of permanence and adoption” such that “it will be detrimental to the children to sever that relationship.”

A “parental role and relationship” is not an element of the parental-benefit exception. (See § 366.26, subd. (c)(1)(B)(i).) In Caden C., supra, 11 Cal.5th 614, our Supreme Court did not define or mention a “parental role and relationship” in discussing the application of the parental-benefit exception.[7]

As the Court of Appeal explained in In re L.A.-O. (2021) 73 Cal.App.5th 197 (L.A.-O.), “the words ‘parental role,’ standing alone, can have several different meanings. They can mean being the person whom the child regards as his or her parent (or at least as more his or her parent than any other caregiver). However, we already know that the parental-benefit exception does not require that the parent be the child’s primary attachment. [¶] They can mean being a good parent – nurturing, supportive, and guiding. Caden C., however, tells us that the parental-benefit exception does not require being a good parent; it does not require that the parent have overcome the struggles that led to the dependency, and it does not require that the parent be capable of resuming custody. [¶] These words can also mean giving parental care, such as changing diapers, providing toys and food, and helping with homework. This would conflict, however, with Caden C.’s warning that ‘rarely do “[p]arent-child relationships” conform to an entirely consistent pattern.’ ” (Id. at p. 210.)

As we stated in In re Katherine J. (2022) 75 Cal.App.5th 303 (Katherine J.): “While each of these definitions [set forth above] may be useful as factors to determine the strength of a parent’s relationship with their child, none is dispositive on its own. Therefore, problems arise when juvenile courts use the phrase ‘parental role’ without explaining which meaning(s) they impart to it.” (Id. at p. 319.) Here, we cannot discern what the juvenile court meant by “parental and role and relationship” and whether the court’s definition contravenes the analysis in Caden C. for application of the parental-benefit exception. It is not clear whether the court properly placed the focus on the children, including a consideration of how they felt about Mother and their relationship with her; or, whether the court improperly placed the focus on Mother’s shortcomings, without consideration of whether those shortcomings negatively impacted the children such that termination of parental rights would not be detrimental to them. As set forth above, Mother’s ability to be the children’s caregiver is not a proper consideration in evaluating the parental-benefit exception. Yet, the juvenile court began its ruling on termination of parental rights by stating: “The court finds, by clear and convincing evidence, return to the parents would be detrimental.”

DCFS asserts: “Even if this [c]ourt accepts [Mother]’s argument that the juvenile court articulated the wrong standard in evaluating whether the parent-child beneficial relationship exception applied, this [c]ourt reviews the juvenile court’s ruling, not its rationale, and must affirm if the ruling is correct on any ground. [Citation.] Because the evidence supports the juvenile court’s finding that no parent-child beneficial relationship exception applied, this [c]ourt should affirm.” We disagree with DCFS’s position. Without knowing whether the juvenile court exercised its discretion based on proper factors, we cannot review the court’s ruling for abuse of discretion. (See In re J.D. (2021) 70 Cal.App.5th 833, 840, 865 [remanding the matter “for a new section 366.26 hearing in light of the legal standards articulated in Caden C.,” where the appellate court could not “be sure whether the juvenile court’s determination that mother did not occupy a ‘parental’ role encompassed factors that Caden C. deems irrelevant”]; L.A.-O., supra, 73 Cal.App.5th at pp. 211-212 [same]; cf. Katherine J., supra, 75 Cal.App.5th at pp. 319-320 [affirming order terminating parental rights where the juvenile court explained what it meant by its conclusion “that father ‘has not occupied a significant parental role’ ”: “father’s unresolved issues with substance abuse and violence had consistently destabilized Katherine’s life for years, fatally compromising father’s attempts to maintain a strong, positive emotional attachment with her”].)

Mother, in contrast, asserts that the undisputed facts lead to only one conclusion—that she established the parental-benefit exception as a matter of law. We disagree with Mother’s position, too. As our lengthy recitation of the evidence in this case shows, evaluating Mother’s relationships with the children for purposes of the parental-benefit exception is no easy task. The juvenile “court faces the complex task of disentangling” the benefits and the burdens of the relationships. (Caden C., supra, 11 Cal.5th at p. 634.) We remand the matter for the juvenile court to undertake this task in light of the analysis set forth in Caden C.

We note the record does not state whether Mr. and Mrs. S. were amenable to legal guardianship in the event the juvenile court declined to terminate parental rights (only that they understood the differences between adoption and legal guardianship). It may be helpful for the juvenile court to have this information before a new section 366.26 hearing. As set forth above, at the August 13, 2021 section 366.26 hearing, the children’s counsel concluded his argument by stating: “And I do believe, given K[.G.]’s position, that it is in her best interest today that she receive stability, and also to have continued contact with the mother.” The only means of ensuring such an outcome would be legal guardianship, as termination of parental rights contemplates the end of the parent-child relationship. We express no opinion on the appropriate permanent plan for the children or whether the juvenile court should terminate Mother’s parental rights in applying the analysis of the parental-benefit exception set forth in Caden C.

II. ICWA Finding

Mother contends the order terminating parental rights must be reversed and the matter remanded for another reason—the initial inquiry regarding the applicability of ICWA was inadequate.

Under section 224.2, subdivision (b), “If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 . . ., the county welfare department . . . has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian child is domiciled.” (§ 224.2, subd. (b).) DCFS “must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child’s Indian status . . . .” (Cal. Rules of Court, rule 5.481(a)(5).)

On June 18, 2019, DCFS inquired of Mother, and she denied Indian ancestry, as reflected in DCFS’s detention report and form ICWA-010(A) attached to the July 2, 2019 dependency petition. On July 3, 2019, the day of the detention hearing, Mother and Brian (Kailani’s father) each submitted form ICWA-020, denying Indian ancestry. Kailani’s paternal aunt was present at the detention hearing, and she denied Indian ancestry when the juvenile court inquired. The court made the following finding at the detention hearing as to each child: “The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA.”

When Eddie (K.G.’s father) appeared in these proceedings on July 31, 2019, he also submitted form ICWA-020 denying Indian ancestry. On that date, the court made the following finding as to K.G.: “The Court finds ICWA does not apply as to the G[.] father.” K.G.’s paternal grandmother was present in court on that date, but the juvenile court did not inquire of her about Indian ancestry.

DCFS came into contact with several of the children’s extended family members (the maternal grandmother, K.G.’s paternal grandmother, the maternal uncle), but did not inquire whether the children may be Indian children, as required under section 224.2, subdivision (b).

Upon remand, prior to the new section 366.26 hearing, DCFS is to satisfy the duty of inquiry, as specified below in the disposition.

DISPOSITION

The order terminating parental rights is reversed, and the matter is remanded for the juvenile court to issue an order forthwith directing DCFS to comply with its duties of ICWA inquiry and notice under applicable law. (See Welf. and Inst. Code, §§ 224.2, 224.3; Cal. Rules of Court, rules 5.481, 5.482; 25 U.S.C. § 1912; 25 C.F.R. §§ 23.107, 23.111.) The court shall further direct DCFS to file with the juvenile court a report within 30 days of the issuance of our remittitur containing the information required by rule 5.481(a)(5) of the California Rules of Court. As soon as practicable after DCFS files the report, the court shall hold a new section 366.26 hearing, reconsidering the application of the parental-benefit exception in light of Caden C. and this opinion.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J. VOGEL, J.*

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

[2] K.G. and Kailani have different biological fathers, whose parental rights the juvenile court also terminated. Neither Eddie G. (K.G.’s father) nor Brian S. (Kailani’s father) is a party to this appeal, so we need not set forth in detail the facts and proceedings as they relate to the fathers.

[3] Facts and proceedings related to the juvenile court’s finding that ICWA does not apply in this case are set forth below in a separate section of this opinion.

[4] On November 6, 2019, when the juvenile court sustained this allegation against Mother and Brian under section 300, subdivision (a), the court added language to the last sentence, as follows: “Such violent conduct on the part of [Brian] towards the mother and mother’s inability to protect endangers the children’s physical health and safety and places the children at risk of serious physical harm, damage and danger, and failure to protect.” (Italics added.)

[5] As set forth above, DCFS’s reports state Mother resumed in-person monitored visitation on January 20, 2021, and she had her first in-person unmonitored visit on May 12, 2021.

[6] Brian, who was released from prison in December 2020, also testified at the hearing. His testimony is not germane to the issues before us on appeal.

[7] The Supreme Court issued its opinion in Caden C. two and a half months before the juvenile court terminated Mother’s parental rights in this case. Neither the parties nor the juvenile court referenced Caden C. or the tripartite analysis the Supreme Court announced in Caden C. for applying the parental-benefit exception.

* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.