Opinion
B328102
02-14-2024
In re SATYA G., A Person Coming Under the Juvenile Court Law. v. ERICA G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, No. 20CCJP04700A Marguerite D. Downing, Judge. Conditionally affirmed with directions.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.
SEGAL, Acting P. J.
INTRODUCTION
Erica G. appeals from the juvenile court's order terminating her parental rights to her 12-year-old son Satya G. under Welfare and Institutions Code section 366.26 and the order denying her petition under section 388. Erica argues the court failed to enforce its order for conjoint therapy and delegated control of her visitation with Satya to the child and his therapist, errors which, in Erica's view, deprived her of due process of law. Erica also argues the court erred in finding the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) did not apply because the Department failed to conduct an adequate inquiry under section 224.2, subdivision (b). The Los Angeles County Department of Children and Family Services argues that Erica forfeited her challenge to the court's orders at the disposition and subsequent review hearings and that, even if she didn't, the court did not err and did not abuse its discretion in denying the section 388 petition. The Department concedes, however, it failed to comply with ICWA and related California law. We affirm the order denying Erica's petition under section 388, conditionally affirm the order terminating Erica's parental rights, and direct the juvenile court to ensure the Department conducts a proper inquiry into Satya's possible Indian ancestry.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Erica and Her Boyfriend Fight in the Presence of Satya, the Department Files a Petition Under Section 300, and the Court Detains Satya
In late August 2020 Erica called the police to report that her boyfriend Jose A. came to her motel room, became upset, and pushed her and Satya down to the ground. When the social worker arrived at the motel to investigate, Erica pretended to be Satya's "aunt" (claiming Satya's mother was out), and Satya denied any domestic violence had occurred.
One week later, Satya's paternal grandmother, Shonna M., told the social worker that she went to the motel to pick up Satya, that Satya said Erica and Jose had fought, and that Satya was afraid to go back to them. Satya repeated these allegations to the social worker, adding that Erica and Jose fought "a lot" and that he "has to hide under the bed." Satya also stated Erica drank alcohol (sometimes finishing a entire bottle in one day) and smoked "weed" and "something out of a 'big bowl thing.'" When asked about the incident in the motel room, Satya confirmed that Jose pushed Erica but denied that Jose pushed him. Satya told the social worker that he was "scared" of Erica and that he did not like the fighting between Erica and Jose. The Department's detention report cited seven prior referrals to the Department involving Erica's substance abuse or domestic violence between Erica and Satya's father, John G., or both.
The Department filed a petition under section 300, subdivision (b), alleging: (1) Erica and Jose's history of engaging in violent altercations in Satya's presence, and Erica's failure to protect Satya from Jose, endangered Satya's physical health and safety and placed him at risk of serious physical harm; and (2) Erica's history of substance abuse and current use of alcohol and marijuana rendered her incapable of providing regular care of Satya, which endangered his physical health and safety and placed him at risk of serious physical harm. The following week, the court detained Satya from Erica, found that John was deceased, and ordered the Department to find temporary placement for Satya. The court also ordered monitored visitation for Erica three times a week for three hours per visit.
The Department also alleged a count under section 300, subdivision (a), based on the same facts.
B. The Court Sustains the Petition, Removes Satya from Erica, and Finds Visits Would Be Detrimental
The Department placed Satya with Shonna, and the social worker conducted additional interviews of the family. Satya reiterated that Erica and Jose fought a lot and that sometimes Erica called the police. Satya also said that Erica drank alcohol "every night" and smoked "'weed,'" a "'green[-]like bush,'" and that during those times he "'[b]arely'" ate and had "'to sneak'" food. Satya said that sometimes when he smelled the marijuana he felt "'loopy.'" Satya also told the social worker that Erica physically disciplined and "hurt" him. Satya told the social worker that he did not want to speak with Erica on the telephone or have in-person visits with her. Erica denied that Jose was her boyfriend, that Satya witnessed any physical violence in the home, and that she regularly used marijuana or drank alcohol to the extent alleged in the petition. A police report of the August 2020 incident reflected that Erica told the police Jose entered her motel room through a window, pushed her and Satya to the ground, and threatened to kill them both or to have someone "'do it'" for him.
On October 28, 2020 the court sustained each of the counts in the petition and declared Satya a dependent child of the court. Finding that Erica was "in complete denial," the court removed Satya from Erica and maintained his placement with Shonna. The court ordered Erica to participate in a domestic violence support group, individual counseling, conjoint counseling with Satya "when recommended by her therapist and [Satya's] therapist," a parenting program, and random drug testing. Finally, the court found visitation would be detrimental to Satya.
C. Erica Eventually Complies with Her Case Plan, the Court Lifts the Detriment Finding, but Satya Refuses To Have Anything To Do with Erica
In the 12 months following the jurisdiction and disposition hearing, Satya adjusted well to living with Shonna. However, he continued to "exhibit fear and anxiety" at each monthly check-up meeting when the social worker asked him if he wanted to have a phone call or in-person visit with Erica. Satya told the social worker that he was afraid of Erica "for fear that [she] would yell and physically hit him." On a scale of 0 to 10, with 10 representing "absolute fear," Satya stated he had a fear level of 8 if he had to talk to Erica on the phone and a fear level of 10 if he had to visit her in person. He denied Shonna coerced him to make the allegations of abuse against Erica, and each month he confirmed he wanted to live with Shonna. Satya told the social worker: "'I don't want to see my mom until I am [20] to [24] years old because I have nightmares and am afraid of her still.'" Satya again explained he was afraid of Erica because she drank alcohol and smoked marijuana, yelled at him, and hit him. Satya said he "was worried and anxious about being returned to [Erica]," which interfered with his sleep, and he described the physical abuse that Erica inflicted in the past.
Shortly before the six-month review hearing, Satya told the social worker he had a dream where he got lost in the woods, Erica appeared and grabbed his hand, he tried in vain to escape, and Erica dragged him away. Satya said that in his dream he screamed and yelled for Erica to let go and that he felt relieved when he woke up.
Satya's therapists consistently declined to recommend commencing conjoint counseling sessions, concluding Satya was not yet ready to meet with Erica. One therapist stated it was not "clinically appropriate" for Satya to participate in family therapy because it would "create barriers" to his "continued individual therapeutic engagement and progress." The therapist added that Satya's "verbalized resistance toward[ ] family therapy engagement" further supported her assessment.
Meanwhile, Erica tested positive for marijuana the month after the jurisdiction and disposition hearing and missed several drug tests in succession. Eventually, Erica enrolled in a substance abuse treatment program and began to test negative for drugs. Erica continued to deny she ever placed Satya in danger or physically hurt Satya, but told the social worker she understood the court had prohibited visits with him and permitted conjoint counseling when recommended by Satya's therapist.
At the six-month review hearing under section 366.21, subdivision (e), the court maintained Satya's placement with Shonna, finding that returning him to Erica would create a substantial risk of detriment to his safety. The court set hearings every two to three months to check on the progress of conjoint counseling. At each of these hearings, Erica did not ask the court for any additional orders, and the court continued its prior orders.
At the 12-month review hearing under section 366.21, subdivision (f), the court found that, although Erica had complied with her case plan, there would be a substantial risk of detriment to Satya's safety if the court returned him to Erica. The court, however, lifted its previous finding that visitation would be detrimental. The court explained that, notwithstanding Satya's allegations of physical abuse, the Department did not allege in its petition she had abused the child. The court stated: "My concern is that Satya seems to be-it appears to the court that he is just adding stuff, so this case is just getting bigger and bigger." The court also stated: "At some point, this child needs to sit down and talk to his mother, for his sake and for her sake." The court ordered "conjoint in a therapeutic environment" once the therapist determines "it to be appropriate to commence" and stated, "We can even do conjoint in a virtual environment, if there is some safety issue, but . . . we need to move forward on this case." The court set a progress report hearing in two months for an update on the status of conjoint therapy.
Over the next eight months, the social worker continued to explore ways for Satya to agree to see Erica. The social worker asked Satya what he feared about a monitored in-person visit with Erica, and Satya said that "'she might have more people.'" The social worker offered to arrange a visit with just Satya, Erica, and the social worker, and Satya said he would still be scared. Satya continued to rate his level of fear at 10 for an inperson visit and an average of 9.5 for phone contact. Satya explained he did not want to participate in conjoint therapy because he believed that Erica had not "genuinely changed" and that she "'would lie'" to him. In Satya's view, conjoint therapy "would cause him to re-experience the painful and distressing memories" of his mother.
Satya told the social worker that, when he had a monitored visit with Erica at the courthouse (on the day of the 12-month review hearing), the visit made him "'feel like she [Erica] hadn't changed that much'" and that, during the visit, he "'was kinda regretting it.'"
Satya's therapist reported it was not "clinically appropriate" for Satya to engage in conjoint family therapy because "it would allow barriers to [his] progress toward his therapeutic goals and impact [his] sustained progress." At two subsequent hearings, Erica did not ask the court for any additional orders, and the court continued its prior orders.
At the 18-month review hearing under section 366.22, counsel for Erica argued the services the Department had offered "were not tailored to the case at hand." She cited as examples that the social worker never attempted to interview Satya away from Shonna's house, such as at a library or park, and that the social worker did not try to set up a three-way call between Satya, Erica, and the social worker, even though the social worker had suggested the call to facilitate communication between Satya and Erica. Counsel for Erica asserted that "there has not been a pathway" for Erica to reunify with Satya and that, "without this court stepping in and making specific orders for there to be a pathway, then there could have never been one and it was all shenanigans." Counsel suggested that the court could find a conjoint therapist who can "speak individually" with Erica and Satya, that Erica could write letters to Satya, and that "there can be attempts for Face Time calls."
The court found the Department had provided reasonable services, commenting that the efforts did "not need to be perfect." The court observed that the Department "tried to find a way to work around" Satya's resistance to visiting with Erica, but that Erica also "has had an attorney," and that if Erica wanted "to veer off of a standard or try something different," it was "incumbent upon" counsel to bring such alternative measures to the court's attention. The court acknowledged that "conjoint has been a challenge," that the parties "have tried various ways," that the court had spoken to Satya, but that Satya's therapist said Satya was not ready. The court terminated reunification services and set the matter for a selection and implementation hearing under section 366.26.
At a progress hearing two months later, the parties discussed "ideas" for Erica "to connect" with Satya. The court approved all of counsel for Erica's suggestions, with the exception of audio or video recordings of Erica reading books, because, according to counsel for Satya, Satya would not "be receptive to that." The court ordered conjoint therapy "to start forthwith" and explained conjoint therapy did not mean Erica and Satya were "going to start to meet together, but that the process start." The court set another progress report hearing in two months. Shortly before the selection and implementation hearing, Satya's therapist reported that, over the course of three sessions, she could not convince Satya to meet Erica in a session "even for 5 minutes" and that Satya "was very firm." The therapist tried to have Satya recall good memories with Erica, but he refused.
D. The Court Denies Erica's Petition Under Section 388 and Terminates Erica's Parental Rights
On February 28, 2023 Erica filed a petition under section 388, arguing that the court should reinstate reunification services for six months because, during "the majority of the case," the Department failed to facilitate conjoint therapy or select or approve a therapist "for months." The court summarily denied the petition, finding the request did not state new evidence or changed circumstances.
Two weeks later, at the selection and implementation hearing, Erica testified Satya was bonded to her "because there's no way that he couldn't be." Counsel for Erica argued the parental-benefit exception applied because Erica did "everything she" could, Shonna was responsible for Satya's allegations against Erica, Satya had "a substantial positive relationship" with Erica, and it would be detrimental to Satya not "to have a parent in his life."
The court found that Satya was adoptable, that neither the parental-benefit nor any other exception to adoption applied, that returning Satya to Erica would be detrimental to Satya, that the Department and the court had tried conjoint therapy, books, and letters, but that Satya "has been very, very consistent" he did not want to speak to Erica. The court observed that Satya had even expressed frustration with the court because the court "continually" tried "to do conjoint counseling." The court also found there was no evidence Shonna "poisoned the well." The court terminated Erica's parental rights, selected adoption as the permanent plan for Satya, and designated Shonna as the prospective adoptive parent. Erica timely appealed.
We granted Erica's request to amend her notice of appeal filed on March 22, 2023 to include the juvenile court's order denying her petition under section 388 on February 28, 2023.
DISCUSSION
A. Erica Forfeited Her Challenge to the Court's Conjoint Therapy Order, and the Court Did Not Err
Erica contends the juvenile court's failure to enforce its order for conjoint therapy and the court's "continuous delegation of the power to control visits" to Satya and his therapist deprived her of "any chance" to establish the parental-benefit exception under section 366.26, subdivision (c)(1)(B)(i), and her ability to establish "the best interests prong" under section 388. Aside from the court's order for conjoint therapy, Erica does not specify the exact court orders, actions, or omissions she is now challenging. The only orders the court made regarding visitation and conjoint therapy were: (1) at disposition, the court found it would be detrimental for Erica to visit with Satya and ordered conjoint therapy when recommended by Erica's and Satya's therapists; (2) at the 12-month review hearing, the court lifted the detriment finding and again ordered conjoint therapy to begin when recommended by the therapists; and (3) in September 2022, the court renewed its order for conjoint therapy and directed it to begin "forthwith." We agree with the Department that Erica forfeited her challenge to these orders, but that, even if she hadn't, they lack merit.
Erica does not address the Department's forfeiture argument.
1. Erica's Arguments Are Forfeited
Section 395, subdivision (a)(1), provides that a "judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment." (See In re S.B. (2009) 46 Cal.4th 529, 531-532.) "'"A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order."'" (Id. at p. 532; accord, In re A.J. (2022) 77 Cal.App.5th 7, 16-17; In re T.G. (2015) 242 Cal.App.4th 976, 984.)
By waiting to challenge the court's conjoint therapy orders (and the court's enforcement of those orders) until this appeal, Erica forfeited her arguments the court committed any errors in its orders relating to conjoint therapy and visitation. (See Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 [mother could not "challenge the court's order providing for reunification services [that restricted visitation] because she never appealed it"]; In re Julie M. (1999) 69 Cal.App.4th 41, 47 ["By failing to appeal, [the mother] has waived any complaint she may have regarding the [visitation] plan as ordered."].) And because Erica failed to object in the juvenile court that the court had improperly delegated to the therapist and Satya when conjoint therapy could begin, she doubly forfeited her challenge. (See In re F.P. (2021) 61 Cal.App.5th 966, 974 [the mother "forfeited her challenge to the order for conjoint counseling by failing to raise any objection in the juvenile court"].)
2. Erica's Arguments Lack Merit
Even if not forfeited, there is no merit to Erica's contentions the juvenile court erred in failing to enforce its order and in delegating control of conjoint therapy to Satya and his therapist. The record shows that the court did all it reasonably could do to facilitate conjoint therapy and visitation.
a. The Court Did Not Improperly Delegate the Decision To Begin Conjoint Therapy to Satya or His Therapist
Section 362.1, subdivision (a)(1)(A), provides: "In order to maintain ties between the parent . . . and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent . . ., any order placing a child in foster care, and ordering reunification services, shall provide . . . [¶] . . . for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child." (See In re Sofia M. (2018) 24 Cal.App.5th 1038, 1044.) Section 362.1, subdivision (a)(1)(B), states: "No visitation order shall jeopardize the safety of the child." (See In re S.H. (2003) 111 Cal.App.4th 310, 317, fn. 9 ["The court may deny a parent visitation only if visitation would be harmful to the child."].) "Unlike visitation, there is no statutory right to counseling. Counseling is merely a service the court may order if the court thinks it would benefit the parent and the child. [Citation.] A court may properly decline to order conjoint counseling if the child's therapist believes the child is not ready for it." (In re F.P., supra, 61 Cal.App.5th at p. 975.)
"A juvenile dependency court has the power to issue 'all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of [a dependent] child' and to 'direct any reasonable orders to the parents or guardians of [that] child.' [Citation.] '"The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion."'" (In re F.P., supra, 61 Cal.App.5th at p. 975; see § 362, subds. (a) &(d); see also In re D.P. (2020) 44 Cal.App.5th 1058, 1070 ["The power to regulate visits between dependent children and their parents rests with the juvenile court and its visitation orders will not be disturbed on appeal absent an abuse of discretion."].)
The court's order for Erica and Satya to participate in conjoint therapy once the therapists recommended such sessions could begin did not, as Erica asserts, improperly delegate to Satya or his therapist "the power to control visits." As discussed, unlike visitation, Erica did not have a statutory right to conjoint therapy. The court ordered conjoint therapy as a benefit to Erica and Satya and did not abuse its discretion in requiring the therapists to advise when sessions should begin. (See In re F.P., supra, 61 Cal.App.5th at p. 975 ["Having [the child's] therapist decide when conjoint counseling would be appropriate was not . . . an unlawful delegation of judicial power."]; In re Julie M., supra, 69 Cal.App.4th at p. 51 [in fashioning a visitation order, "the court may appropriately rely upon an evaluation by treating therapists of the children's emotional condition and evolving needs"].) The court did not err in considering the opinion of Satya's therapist that conjoint therapy would impede Satya's progress. Satya had nightmares about Erica taking him back and expressed extreme fear and anxiety whenever the social worker asked him about seeing or speaking with Erica. The court reasonably concluded that taking a more heavy-handed approach (or disregarding the advice of mental health experts) would risk making matters worse. (See F.P., at p. 975 [juvenile court did not abuse its discretion in ordering conjoint counseling when deemed appropriate by the child's therapist because the child "repeatedly stated he was afraid of [the] mother and said he wanted no contact with her," became "stressed and anxious when [the] mother made harassing phone calls to his caregiver," and "engaged in self-harming behaviors and was twice hospitalized for suicidal ideation"]; In re Andrea G. (1990) 221 Cal.App.3d 547, 556 [where a 12-year-old child "insisted . . . she did not want conjoint therapy with her mother" because the mother did not "understand the consequences of her own actions," the court did not abuse its discretion in not ordering it].)
Citing In re Hunter S. (2006) 142 Cal.App.4th 1497, Erica argues the juvenile court impermissibly delegated to Satya and his therapist "the decision whether any visits or contact would occur in this case." In Hunter S., after terminating reunification services, the juvenile court ordered the child protective agency "to set up 'visitation for [the mother] as can be arranged through her [rehabilitation] program.'" (Id. at p. 1501.) Despite efforts by the social worker, relatives, and his therapist, the seven-year-old child refused all visitation, as well as letters and phone calls from his mother. (Ibid.) The mother asked for visits "in a therapeutic or any other setting," but the court "noted it had a visitation order in place" and ordered the child protective agency to discuss the matter with the child's therapist. (Id. at p. 1502.) At subsequent review hearings, the court again denied or failed to rule on the mother's renewed request for conjoint therapy. (Id. at p. 1503.) Shortly before the selection and implementation hearing, the mother filed a petition under section 388, seeking to vacate the hearing and to reinstate reunification services, which the court denied. (Ibid.) The court in Hunter S. concluded the child "was given virtually complete discretion to veto visitation, and indeed all contact, with his mother, a discretion he exercised without any oversight or direction by the court," which "was clearly improper." (Id. at p. 1505.)
In re Hunter S., supra, 142 Cal.App.4th 1497 is distinguishable. That case involved a visitation order, not an order for conjoint therapy, which, as discussed, the juvenile court may properly condition on the therapist's determination that starting the sessions would benefit rather than harm the child. (See In re F.P., supra, 61 Cal.App.5th at p. 975.) In addition, the juvenile court here did not leave it up to the therapists to decide whether conjoint therapy would take place, only when the sessions should begin, consistent with the therapeutic goals of counseling. And, as the record shows, at a progress hearing where the parties discussed additional methods for Erica to communicate with Satya, the court ordered that the process of starting conjoint therapy had to begin. (Cf. In re C.S. (2022) 80 Cal.App.5th 631, 640-641 ["the visitation order granting [the mother] visitation rights and expressly stating the frequency and duration of visits, while requiring [the mother's] therapist to approve the start of those visits, did not constitute an unlawful delegation of judicial authority"]; In re S.H., supra, 111 Cal.App.4th at p. 319 ["the [child protective agency] and mental health professionals working with it and with the dependent child may determine when visitation should first occur"].)
Without citing any authority, Erica argues, "conjoint therapy is a structured form of visitation, particularly when ordered as a condition precedent to any lesser structured visitation." We do not consider this argument. (See In re J.F. (2019) 39 Cal.App.5th 70, 79 ["'"Appellate briefs must provide argument and legal authority for the positions taken." [Citation.] "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived."'"]; In re A.C. (2017) 13 Cal.App.5th 661, 672 [same].)
b. The Court Did Not Fail To Enforce Its Order for Conjoint Therapy
Erica argues that "the juvenile court's order for conjoint therapy was never enforced" and that, "[w]ithout court intervention or enforcement of [her] visitation rights, unsurprisingly, the parent-child relationship eroded." Erica's argument suggests the court had the burden to make sure Satya participated in conjoint therapy. It did not.
In re Sofia M., supra, 24 Cal.App.5th 1038, which concerned visitation (as opposed to conjoint therapy), is instructive. In that case, the juvenile court ordered visitation, but following the mother's failure to make progress on her case plan, her 14-year-old daughter began to refuse visits. (Id. at pp. 1041-1042.) Months later, to address the teenager's continued refusal to visit, the court granted the mother's request for a visitation order at the rate of two times per week and ordered the child protective agency to make "efforts" to arrange for visitation to occur "'inside a therapeutic setting to the extent that can take place,'" but those efforts proved unsuccessful. (Id. at p. 1043.) The mother filed a petition under section 388, asking the court to vacate the selection and implementation hearing and to reinstate reunification services; counsel for the mother argued "the court's visitation orders had not been enforced." (Ibid.) The juvenile court denied the petition and terminated the mother's parental rights. (Id. at pp. 1043-1044.) The court in Sofia M. held the juvenile court's visitation order "was proper" because it specified the frequency and duration of each visit. (Id. at p. 1046.) As for enforcing the order, the court stated that, when a child refuses visitation, "it is the parent's burden to request a specific type of enforcement, or a specific change to the visitation order" and that "it is not the court's burden to sua sponte come up with a solution to the intractable problem of a child's steadfast refusal to visit a parent." (Ibid.)
Like the parent in Sofia M., Erica had the burden to seek any additional orders that, in her view, would have encouraged Satya to participate in conjoint therapy. Erica did not, even when the juvenile court gave her the opportunity to request such orders at the progress report hearings the court set every two to three months. In any event, short of coercing Satya to see Erica against his will (which Erica did not argue and does not argue on appeal the juvenile court should have done), the court did all it could to facilitate conjoint therapy. (See In re S.H., supra, 111 Cal.App.4th at p. 317 ["the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation"]; In re Julie M., supra, 69 Cal.App.4th at pp. 50-51 ["a child's aversion to visiting an abusive parent may be a 'dominant' factor in administering visitation, but it could not be the sole factor"]; In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238 [juvenile court reasonably believed "forced contact would not be beneficial" because of "the possibility of adverse psychological consequences of an unwanted visit between mother and child"].)
The court spoke to Satya, discussed with counsel alternative and creative approaches to persuading Satya to agree to at least one session of conjoint therapy, authorized all but one of the relationship-building ideas Erica suggested, and when those efforts proved unsuccessful, ordered conjoint therapy to begin. As the juvenile court commented at the 18-month review hearing, Erica had counsel, and it was incumbent upon Erica to ask for more or different court orders if she wanted further intervention from the court.
B. The Court Did Not Abuse Its Discretion in Summarily Denying Erica's Petition Under Section 388
"Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstance and demonstrates modification of the previous order is in the child's best interest. [Citations.] '"The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child." [Citation.] "[T]he change in circumstances must be substantial."'" (In re Malick T. (2022) 73 Cal.App.5th 1109, 1122, fn. omitted; see In re Matthew M. (2023) 88 Cal.App.5th 1186, 1194.) "We generally review the denial of a section 388 petition for abuse of discretion." (Malick T., at p. 1123; see Matthew M., at p. 1195.) As the Department points out (and Erica acknowledges), Erica did not make a prima facie showing that extending reunification services would be in the best interest of Satya, given her lack of contact with him.
Again citing In re Hunter S., supra, 142 Cal.App.4th 1497, Erica argues that a parent can use section 388 as "a request to enforce the visitation order" and that the juvenile court abused its discretion in denying her petition because the petition provided the court "an opportunity to rectify its errors." There is some question whether a petition section 388 is a proper vehicle for bringing to the juvenile court's attention prior court orders or rulings that may have contributed to the failure of conjoint therapy to occur. In Hunter S. the court stated the juvenile court had the "power" to grant relief under section 388 to "continue the permanency planning hearing" and "reopen reunification services." (Id. at p. 1507.) The court stated: "By virtue of the [juvenile] court's persistent failure or refusal to enforce its visitation order, [the mother] was denied any chance to demonstrate the bond she once held with her son might be salvageable." (Id. at p. 1508.) Unlike the juvenile court in Hunter S., the juvenile court here did not make an order about visitation; the court ordered conjoint therapy, and the court renewed that order after lifting the detriment finding at the 12-month review hearing. And because the alleged lack of enforcement did not concern visitation, which the court in Hunter S. stressed was "a pivotal component of the dependency scheme" (id. at p. 1504), the reasoning of Hunter S. may not apply to cases where the court orders conjoint therapy.
But even if Erica's use of a petition under section 388 to challenge the court's alleged failure to enforce its order for conjoint therapy was proper, Hunter S. is again distinguishable. In Hunter S. the mother "consistently raised the issue of the juvenile court's failure to enforce its visitation order for over two years, . . . but received no assistance in response." (In re Hunter S., supra, 142 Cal.App.4th at p. 1505.) The court in Hunter S. held "it was unfair" for the juvenile court in that case to focus on "the absence of contact or current bond" between the mother and her child because she "had been denied any chance to satisfy the contact requirement" and that the juvenile court "deprived [the mother] of crucial benefits and protections of the dependency scheme." (Id. at pp. 1507-1508.) In contrast, the juvenile court here did whatever Erica asked (other than allowing her to make recordings of her reading); whenever Erica asked the court for assistance or suggested ideas for encouraging Satya to participate in conjoint therapy, the court largely granted those requests. As discussed, Erica does not identify any requests the court improperly denied that she claims may have made Satya change his mind about conjoint therapy. The court also set numerous progress hearings to give Erica an opportunity to update the court on the status of conjoint therapy and to make any further requests. The court closely supervised the case, worked with the parties to find ways to persuade Satya to agree to conjoint therapy, and even spoke to Satya to the point Satya became frustrated with the court. As the court in In re Sofia M. stated, "if it turns out, after reasonable efforts have been exhausted, the child simply cannot be persuaded to visit, that, in and of itself, is not a basis for reversal" of an order denying a petition under section 388. (In re Sofia M., supra, 24 Cal.App.5th at p. 1047.) Erica's failure to specify what more the juvenile court could have done (other than assert generally that the court failed to enforce its orders) confirms the court did all that it reasonably could have done.
C. The Juvenile Court Failed To Ensure the Department Complied with ICWA and Related California Law
Congress enacted ICWA "out of concern that 'an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.'" (Haaland v. Brackeen (2023) 599 U.S. 255, [143 S.Ct. 1609, 1623].) "ICWA and governing federal regulations (25 C.F.R. § 23.101 et seq. (2022)) set minimal procedural protections for state courts to follow before removing Indian children and placing them in foster care or adoptive homes." (In re Rylei S. (2022) 81 Cal.App.5th 309, 316; see In re Jerry R. (2023) 95 Cal.App.5th 388, 409.) "'The minimum standards established by ICWA include the requirement of notice to Indian tribes in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights "where the court knows or has reason to know that an Indian child is involved."'" (Jerry R., at p. 409; see In re Antonio R. (2022) 76 Cal.App.5th 421, 428-429; In re T.G. (2020) 58 Cal.App.5th 275, 288.)
"'Indian child' means 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); see § 224.1, subds. (a), (b); In re Jerry R., supra, 95 Cal.App.5th at p. 408.)
"To ensure notice in cases in which it is known or there is reason to know an Indian child is involved [citations], the law imposes an affirmative and ongoing duty to inquire whether a child subject to dependency proceedings is or may be an Indian child." (In re Jerry R., supra, 95 Cal.App.5th at p. 411; see § 224.2, subd. (a); In re E.C. (2022) 85 Cal.App.5th 123, 141; In re Rylei S., supra, 81 Cal.App.5th at p. 316.) The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child. "That duty to inquire begins with initial contact" and "obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child." (In re T.G., supra, 58 Cal.App.5th at p. 290; see § 224.2, subds. (a)-(c); E.C., at p. 140.) Section 224.2, subdivision (b), requires the child protective agency to 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." (See In re L.B. (2023) 98 Cal.App. 5th 512, 518; E.C., at p. 141; In re J.C. (2022) 77 Cal.App.5th 70, 77; Cal. Rules of Court, rule 5.481(a)(1).)
An "'extended family member' shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); see § 224.1, subd. (c); In re J.C. (2022) 77 Cal.App.5th 70, 78.)
"'The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families.'" (In re Rylei S., supra, 81 Cal.App.5th at p. 317; see In re Antonio R., supra, 76 Cal.App.5th at p. 430.) "Thus, a juvenile court errs in making a finding ICWA does not apply to the proceedings without first ensuring that the Department has made an adequate inquiry under ICWA and California law, and if necessary, the court must continue the proceedings and order the Department to fulfill its responsibilities." (Antonio R., at p. 431.) "After the duty of inquiry has been discharged, the juvenile court may make a finding that ICWA does not apply, if it finds 'that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child.'" (In re E.C., supra, 85 Cal.App.5th at p. 142; see § 224.2, subd. (i)(2); In re J.C., supra, 77 Cal.App.5th at p. 78; Cal. Rules of Court, rule 5.481(b)(3).)
On the Parental Notification of Indian Status form (ICWA-020), Erica stated that neither she nor Satya is a member of or eligible for membership in a federally recognized Indian tribe. The social worker interviewed Shonna, who denied Satya had any known Indian ancestry. At the detention hearing, the court confirmed that Erica's ICWA-020 form indicated "no Indian ancestry," and counsel for Erica informed the court that Satya's deceased father did not have Indian ancestry. The court stated, "based on [Erica's] response, the court finds that the court has no reason to know that [ICWA] applies or that this child is an Indian child."
Erica contends, the Department concedes, and we agree the Department did not comply with section 224.2, subdivision (b). The record reflects that, aside from Shonna, the social worker did not attempt to locate or interview any of Satya's extended family members about his possible Indian ancestry, even though the Department knew their identities, including Satya's maternal grandmother, paternal grandfather, paternal stepgrandfather, a maternal aunt, and a paternal aunt. In fact, the social worker interviewed some of these relatives about the issues in the case, but did not make any of the inquiries required by section 224.2, subdivision (b). The juvenile court also erred in failing to ensure the Department complied with ICWA and related California law before finding ICWA did not apply. (See In re Ricky R. (2022) 82 Cal.App.5th 671, 680 [child protective agency failed to discharge its duty of inquiry, and "the juvenile court erred by implicitly finding that ICWA did not apply, in the absence of evidence that [the agency] had discharged its duty of initial inquiry in full"].)
DISPOSITION
The juvenile court's order denying Erica's petition under section 388 is affirmed. The order terminating Erica's parental rights is conditionally affirmed, and the juvenile court is directed to ensure the Department complies fully with ICWA and related California law.
We concur: FEUER, J. MARTINEZ, J.