The opinion
Filed 7/15/25 In re Dominic H. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re DOMINIC H., a Minor. B341350
ISMAEL H. et al.,
(Los Angeles County Super.
Petitioners and Respondents, Ct. No. 19CCAD02507)
v.
BERNARDINO G.,
Objector and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Nichelle L. Blackwell, Juvenile Court
Referee. Conditionally reversed and remanded with directions.
Christopher Blake, under appointment by the Court of
Appeal, for Objector and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal,
for Petitioner and Respondent Ismael H.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Petitioner and Respondent Marie H.
Suzanne Davidson, under appointment by the Court of
Appeal, for Respondent Dominic H., a Minor.
______________________
Bernardino G. appeals from a judgment after a court trial
that terminated his parental rights to his biological son,
Dominic H., under Family Code sections 7664 and 7822.1
Bernardino argues the trial court erred in denying him presumed
father status under Adoption of Kelsey S. (1992) 1 Cal.4th 816
(Kelsey S.) before ordering that his consent to the child’s adoption
was not necessary. (See § 7664, subd. (c).) Bernardino also
contends, and respondents concede, the court and parties seeking
termination of his parental rights failed to comply with the
inquiry and notice requirements of the Indian Child Welfare Act
(ICWA), 25 U.S.C. § 1901 et seq., and related state law. We
conditionally reverse and remand for full ICWA compliance but
otherwise reject Bernardino’s challenges to the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
Dominic was born in San Joaquin County in November
2014. His biological mother is Brittany T., who is not a party to
this appeal. Dominic’s biological father is appellant Bernardino.
After Dominic’s birth, Brittany signed a declaration of
paternity that listed Ismael H., not Bernardino, as Dominic’s
father. Ismael signed the declaration of paternity as well as
Dominic’s birth certificate. Ismael has had sole custody of
Dominic since his birth. Ismael is married to Brittany’s first
cousin once removed, Marie H. Dominic has lived exclusively
with Ismael and Marie in Los Angeles County since his birth.
Ismael, Marie, and Dominic are all respondents on appeal.
1 Statutory references are to the Family Code unless
otherwise indicated.
2
B. The Adoption Case
In December 2019, Marie filed a stepparent adoption
request to adopt Dominic. In furtherance of that request, in
November 2020, Ismael and Marie filed a petition to terminate
Brittany’s parental rights under section 8604, subdivision (b),
which allows a birth parent with sole custody to consent to
adoption where the other birth parent has abandoned the child.
Ismael and Marie also filed a petition under sections 7820 and
7822 to free Dominic from Brittany’s custody and control alleging
Brittany had abandoned him.
In April 2022, Bernardino filed (in Stanislaus County) a
petition to declare the existence of a parental relationship under
section 7630, alleging he was Dominic’s father. In May 2022, the
trial court (in Los Angeles County) appointed counsel for
Bernardino, Brittany, and Dominic, and consolidated and stayed
proceedings on Bernardino’s petition after determining it was
related to the adoption case.2
Also in May 2022, Ismael and Marie filed a petition under
section 7662 to determine the necessity of Bernardino’s consent
to Dominic’s adoption, given he was an alleged father. In
September 2023, the court determined Bernardino was Dominic’s
biological father based on genetic testing.
In April 2024, Ismael and Marie filed an amended petition
for Dominic’s freedom from parental custody and control that
additionally sought termination of Bernardino’s parental rights.
2 The court also consolidated and stayed proceedings on a
petition to determine parental relationship that Brittany had
filed in Los Angeles County in October 2019.
3
A five-day bench trial on the multiple petitions to
terminate parental rights was held in August and October 2024.
At trial, Brittany did not contest the termination of her paternal
rights and instead filed a notarized consent to Dominic’s
adoption.
C. The Trial Evidence
Before trial, the court granted Marie’s unopposed motion to
deem true unanswered requests for admission, and determined
the following facts were conclusively established: (1) Bernardino
was aware he was possibly Dominic’s father before December
2014; (2) Bernardino had known since December 2014 that
Dominic was residing with Ismael and Marie; (3) Bernardino had
never provided financial support or paid educational or medical
expenses for Dominic, nor had he ever received Dominic into his
home or had any communication or in-person contact with
Dominic; and (4) Bernardino did not take legal action or submit a
DNA sample to establish his parentage of Dominic before April
2022.
Evidence presented at trial showed the following additional
facts:
Ismael and Marie decided to pursue adoption after being
unable to have a biological child. In 2007, Brittany’s
grandmother (and Marie’s aunt) put Brittany and Marie in touch
when Brittany was pregnant and seeking to give up the child for
adoption. Marie met with Brittany and later traveled with
Ismael to the hospital in San Joaquin County when Brittany
went into labor. Ismael and Marie left the hospital with the child
(Dominic’s older biological half-sibling) and drove home to
Los Angeles County. A week later, Brittany retrieved the child
4
from Ismael and Marie after informing them she had changed her
mind about the adoption. Ismael and Marie were devastated.
Also in 2007, Brittany and Bernardino started dating. The
couple never married but dated on and off and lived together at
times. They share two older biological children in addition to
Dominic.
In early 2014, Brittany and Bernardino broke up,
Bernardino moved into his mother’s home with the two older
children, and Brittany began living with her grandmother.
Brittany then became homeless, and Bernardino lost track of her
until one night in late June 2014. At that time, Brittany told
Bernardino she was pregnant and he was the father. Brittany
went home with Bernardino that night and stayed with him at
his mother’s place. Brittany occasionally stayed with Bernardino
over the next few months and then moved in full-time in
September or October when Bernardino’s mother asked her to do
so on account of the pregnancy.
In September 2014, Brittany reached out to Marie,
informing her that she was pregnant and asking her if she would
like to adopt the child. A few days later, Ismael and Marie drove
to San Joaquin County and met with Brittany. Brittany stated
there was no father in the picture and she did not even know who
the father was. Ismael and Marie agreed to adopt when Brittany
threatened she would abandon the child at the hospital. They
collectively agreed to have Ismael sign the birth certificate so
that Brittany could not later take the child back.3
3 Ismael and Marie testified that the idea of having Ismael
sign the birth certificate was Brittany’s, while Brittany testified
the idea was Ismael’s.
5
In October 2014, Ismael filed (in San Joaquin County) a
petition to establish the existence of a parental relationship in
which, under penalty of perjury, he falsely described himself as
the expected child’s biological father and sought sole legal and
physical custody. Brittany later signed an acknowledgement of
her receipt of the petition.
In late November, Ismael and Marie traveled to
San Joaquin County after learning Brittany was in labor. At the
hospital, Brittany told Marie that she still wanted Marie and
Ismael to take the child. After Dominic’s birth, Ismael and
Brittany signed the declaration of paternity, under penalty of
perjury, and Ismael signed Dominic’s birth certificate. Once
Dominic was ready to be discharged, Ismael and Marie took him
home to Los Angeles County.
Brittany had left Bernardino’s mother’s home after telling
Bernardino that she was going to her sister’s house. Before
leaving the hospital, Brittany called Bernardino and told him the
child had died. In the next day or so, however, after she returned
to Bernardino’s mother’s home, Brittany admitted to Bernardino
that the child was alive and that she had given him away to
Ismael and Marie.
On December 5, Brittany reported to the San Joaquin
County Sheriff’s Office that Ismael had “taken” her child to
Los Angeles County while acknowledging that she had
voluntarily permitted Ismael to sign his name on the child’s birth
certificate “in order to grant him custody because she was giving
the child up to him.” The reporting deputy informed Brittany
that her complaint “was a civil issue and she needed to contact
someone from Family Law.” Noting there was no custody order
6
in place, the deputy also advised Brittany to contact Ismael and
try to reach an agreement to regain custody of the child.
San Joaquin County Sheriff’s Deputy Richard Ester was
assigned to further investigate Brittany’s allegations of perjury
based on a fraudulently signed birth certificate. Ester contacted
the San Joaquin County Human Services Agency, which
informed him it was aware of the case but was not getting
involved because Brittany had “voluntarily surrendered” the
child. He also contacted the hospital, which confirmed that
Brittany and Ismael had signed a declaration of paternity upon
the child’s birth.
Over the next few weeks, Ester interviewed Bernardino’s
mother, Brittany, Bernardino, and Brittany’s grandmother, who
each relayed the details recounted above. Brittany stated Ismael
signed the birth certificate to avoid the legal adoption process,
and that she realized she had made a mistake and was now
trying to fix it. Ester provided Brittany with a copy of the
declaration of paternity along with instructions on how to change
its information. Brittany also provided a DNA sample.
Bernardino confirmed Brittany had told him he was the
father of the child, then told him the child died, and finally told
him she had given the child up for adoption. Bernardino did not
provide a DNA sample and instead told Ester he “did not want to
do this right now.”
Ester also interviewed Ismael and Marie. Marie stated she
and Ismael had taken the child home from the hospital upon
Brittany’s confirmation that she wanted to give him up. Marie
also stated Ismael was the child’s father based on a brief sexual
relationship he had with Brittany. Ismael confirmed this
account, explaining he was the child’s father based on a one-night
7
stand with Brittany. Ismael also confirmed he and Marie took
custody of Dominic with Brittany’s consent. Ismael and Marie
admitted at trial that they lied to Ester when they said Ismael
had sex with Brittany.
At the conclusion of his investigation, Ester determined—
without knowledge of Ismael and Marie’s lie—that no criminal
activity had occurred. He was not contacted by any of the
witnesses after completing his report. Likewise, Ismael and
Marie were not contacted by Brittany, Bernardino, or anyone else
regarding Dominic after the investigation concluded.
In June 2015, the San Joaquin County Superior Court
entered judgment on Ismael’s petition to establish a parental
relationship, indicating the matter was uncontested and finding
Ismael was Dominic’s father based on Ismael and Brittany’s
signed declaration of paternity. The court granted Ismael full
custody with no visitation for Brittany or any other party.
Several months later, about a year after Dominic’s birth,
Ismael was contacted by a child protective services agency that
was seeking to verify the child’s well-being in connection with an
investigation regarding another child of Brittany’s. Deciding
they needed to take action to ensure Dominic was “protected” and
“able to stay in a safe and stable home,” Ismael and Marie filed a
petition for legal guardianship in Los Angeles County. In their
petition filed in October 2016, Ismael and Marie indicated
Brittany had willingly placed Dominic in their custody at his
birth but also that Ismael had fraudulently signed the
declaration of paternity that provided the basis for the paternity
judgment. Ismael and Marie asked the court to vacate or set
8
aside both the declaration and the judgment.4 They further
indicated Dominic’s biological father’s identity and whereabouts
were unknown to them.
Hearings on the guardianship petition were held in
January and February 2017.5 Brittany and Bernardino traveled
to Los Angeles and were present for the hearings.
At the first hearing, the probate court appointed counsel for
the child but not for Brittany and Bernardino.6 Ismael and Marie
first became aware of Bernardino at that hearing, and
Bernardino—who was not a party to the case—told the court that
Dominic had been kidnapped and Bernardino was the child’s
father. The court continued the matter.
4 The petition was filed shortly before the two-year statute of
limitations was set to expire for Ismael or a non-signatory to file
a challenge to the voluntary declaration of parentage. (See
§§ 7576, 7577.)
5 Because the record contains only two brief minute orders
and no reporter’s transcript for the hearings on the guardianship
petition, most of the facts regarding the proceedings on the
petition are drawn from the parties’ testimony in this case.
6 While acknowledging he was not a party and he and
Brittany did not seek appointment of counsel, Bernardino now
contends the probate court should have appointed counsel for
them as a matter of due process, given it was no secret Ismael
and Marie intended to adopt Dominic, and they admitted the
judgment of Ismael’s paternity was based on their fraud.
Bernardino suggests we should publish an opinion holding
probate courts must appoint counsel for indigent parties in
Brittany and Bernardino’s position. We decline to address a
proceeding from eight years ago that is not directly at issue in
this appeal.
9
Between the hearings, a social worker investigated the
situation, interviewed Ismael and Marie, and prepared a report
for the court’s review. Ismael and Marie told the social worker
and the child’s counsel that Ismael was not the biological father
and that he had fraudulently signed the child’s birth certificate.
At the second hearing, the court denied the guardianship
petition because Ismael was already the legal parent as reflected
in the paternity judgment. Bernardino again told the court that
Ismael and Marie had kidnapped Dominic. Brittany also asked if
she had any rights as the child’s mother. The court explained
Ismael had sole custody under the paternity judgment and
informed Brittany and Bernardino that they needed to go to
family court to raise any complaint regarding Dominic’s
parentage or custody.
After the guardianship case ended, Ismael and Marie did
not have any contact with Bernardino until he filed his petition to
determine a parental relationship in April 2022. Bernardino
sought full custody of Dominic in that petition. But at trial, when
asked if he desired custody of the child, Bernardino responded, “I
don’t know. I just want him to know who I am.”
D. The Trial Arguments and Ruling
Bernardino argued he should be granted presumed father
status under Kelsey S., supra, 1 Cal.4th 816, and that Ismael and
Marie’s fraudulent conduct was responsible for his failure to
attain that status. Bernardino also asserted the court should
vacate the declaration of paternity and dismiss the adoption
petition.
Ismael, Marie, and Dominic all argued that Bernardino did
not qualify as a presumed father under Kelsey S., emphasizing
10
that Bernardino did not promptly act to assert his parental rights
even after Ismael and Marie’s fraudulent conduct was revealed.
Ismael and Marie asserted termination of Bernardino’s parental
rights was in Dominic’s best interest under section 7664.
Dominic’s counsel further argued that, even if Bernardino was a
Kelsey S. father, he abandoned Dominic under section 7822.
In making its ruling, the court started by describing the
case as the “messiest, most imperfect, most just tragic adoption
proceeding” that it had ever seen. It also recognized throughout
its ruling that Ismael, Marie, and Brittany engaged in fraud, and
emphasized that its findings were not meant to condone Ismael
and Marie’s conduct, for which it had “disgust.”
The court determined that Bernardino was not a presumed
father under Kelsey S. because he failed to show a full-fledged
commitment to his parental responsibilities to Dominic, either
during Brittany’s pregnancy or after the birth. Because
Bernardino was not Dominic’s presumed father, his consent to
Dominic’s adoption was not necessary under section 7664. The
court alternatively found that termination of Bernardino’s
parental rights was in Dominic’s best interest because
Bernardino had abandoned the child under section 7822. Finally,
the court explained it would let the declaration of paternity stand
despite its fraudulent origin because doing so was in Dominic’s
best interest, which had to “reign[ ] supreme.”
The court entered a judgment terminating Bernardino’s
parental rights.7 Bernardino timely appealed.
7 The written judgment does not terminate Bernardino’s
parental rights under section 7664, subdivision (c), and instead
reflects only the court’s alternative ruling under section 7822.
11
DISCUSSION
A. Termination of Parental Rights Under Section 7664
Bernardino argues the trial court erred in denying him
presumed father status under Kelsey S., supra, 1 Cal.4th 816.
That ruling was the precursor to the court’s determination that
Bernardino’s consent to Dominic’s adoption was not necessary,
which order also terminated Bernardino’s parental rights under
section 7664, subdivision (c). (See Kelsey S., at p. 823 [“Whether
a biological father is a ‘presumed father’ . . . is critical to his
parental rights” in adoption proceedings].) We discern no error in
the court’s findings.8
1. Applicable law
Whether Dominic’s adoption requires Bernardino’s consent
depends on whether he is a “presumed father” or merely a
biological father. (Adoption of Michael H. (1995) 10 Cal.4th 1043,
1050-1051 (Michael H.); Kelsey S., supra, 1 Cal.4th at p. 823.) A
presumed father can withhold his consent to an adoption unless a
court finds, on statutorily specified grounds, that he is unfit.
(§§ 8604, subds. (a)-(b), 8606.) On the other hand, a biological
Further, the relevant minute order also omits the section 7664
ruling and states the court found the elements of Probate Code
section 1516.5 had been met despite the parties not addressing
that statute at trial and the court not referring to it in its oral
ruling. In each instance, we defer to the court’s oral ruling,
which is clearly reflected in the reporter’s transcript. (See In re
A.C. (2011) 197 Cal.App.4th 796, 800.) On remand, the trial
court shall correct the written judgment and minute order nunc
pro tunc to make them consistent with the court’s oral ruling.
8 Bernardino does not challenge the trial court’s decision
denying his request to vacate the judgment of paternity.
12
father who does not qualify as a presumed father has no right to
block an adoption unless the court finds it is in the child’s best
interest for the father to retain his parental rights. (§ 7664,
subd. (c); Michael H., at pp. 1051-1052.) When the child’s best
interest is instead for an adoption to proceed, the court can order
that the biological father’s consent is not required and terminate
his parental rights. (§ 7664, subd. (c).)
Under section 7611, a man is presumed to be the father of a
child if he has married or attempted to marry the child’s mother
or he has received the child into his home and openly held out the
child as his natural child. (§ 7611, subds. (a)-(d).) Bernardino
does not qualify as a presumed father under section 7611.
In Kelsey S., however, the Supreme Court held that an
unwed biological father who does not qualify as a presumed
father under section 7611 may still have a constitutional right to
withhold his consent to an adoption where he has been thwarted
from attaining statutory presumed father status. (Kelsey S.,
supra, 1 Cal.4th at p. 849; accord, Michael H., supra, 10 Cal.4th
at pp. 1052, 1054-1055.) The court recognized that a “child has a
genetic bond with its natural parents that is unique among all
relationships the child will have throughout its life” (Kelsey S., at
p. 848), and “[t]he biological connection between father and child
is . . . worthy of constitutional protection if the father grasps the
opportunity to develop that biological connection into a full, and
enduring relationship” (id. at p. 838).
To assert this constitutional right, the biological father
must show “he promptly came forward and demonstrated as full
a commitment to his parental responsibilities as the biological
mother allowed and the circumstances permitted within a short
time after he learned or reasonably should have learned that the
13
biological mother was pregnant with his child.” (Michael H.,
supra, 10 Cal.4th at p. 1060; accord, Kelsey S., supra, 1 Cal.4th at
p. 849; see also Adoption of Baby Boy W. (2014) 232 Cal.App.4th
438, 452 [biological father must demonstrate “an unequivocal
commitment to his parental responsibilities”].) He must also
demonstrate “ ‘a willingness himself to assume full custody of the
child—not merely to block adoption by others.’ ” (Kelsey S., at
p. 849.) When assessing whether a father constitutes a “Kelsey S.
father,” the court must consider his conduct “both before and after
the child’s birth,” including his “public acknowledgement of
paternity, payment of pregnancy and birth expenses
commensurate with his ability to do so, and prompt legal action
to seek custody of the child.” (Ibid.; accord, Adoption of Baby
Boy W., at p. 452.)
A biological father seeking Kelsey S. status bears the
burden of establishing the factual predicate for that status.
(In re D.S. (2014) 230 Cal.App.4th 1238, 1244; Adoption of O.M.
(2008) 169 Cal.App.4th 672, 679-680.) Bernardino does not
challenge any of the court’s factual findings. When, as here, the
trial court determines the father seeking Kelsey S. status has
failed to meet his burden of proof, the question on appeal, as in
all failure of proof cases, is “ ‘whether the evidence compels a
finding in favor of the appellant[] as a matter of law.’ ”
(In re Aurora P. (2015) 241 Cal.App.4th 1142, 1163; accord,
In re Matthew M. (2023) 88 Cal.App.5th 1186, 1194.) Whether
the facts satisfy the legal standard established by Kelsey S. is a
mixed question of law and fact, and “we exercise our independent
judgment in measuring the facts against the applicable legal
standard.” (Adoption of Myah M. (2011) 201 Cal.App.4th 1518,
1539.)
14
2. The evidence did not compel a finding that
Bernardino qualified as a Kelsey S. father
The court found, and Bernardino admits, Bernardino has
never met or communicated with Dominic or provided the child
with any financial, emotional, or practical support. While
Bernardino provided some support to Brittany before Dominic
was born and Ismael and Marie (and Brittany) thwarted his
ability to assert parental rights at and immediately after
Dominic’s birth, Bernardino knew Dominic was residing with
Ismael and Marie in December 2014 and did not take legal action
to establish his parentage until April 2022. These facts do not
demonstrate a prompt and full commitment to parental
responsibilities that is required for Kelsey S. status.
Bernardino also concedes that, despite his pursuit of “the
right to veto any adoption,” he is not seeking custody of Dominic.
Rather, he “only wants Dominic to know the truth of his origins
and who he is and who his father is and, possibly, for visitation.”
But as discussed, to gain presumed father status, a biological
father must demonstrate “ ‘a willingness himself to assume full
custody of the child—not merely to block adoption by others.’ ”
(Kelsey S., supra, 1 Cal.4th at p. 849; see also Adoption of T.K.
(2015) 240 Cal.App.4th 1392, 1401 [“If an unwed father’s
assertion of full commitment to the responsibilities of parenthood
means anything, it means he must be prepared to support the
child in his own home with his own resources”]; Adoption of
Myah M., supra, 201 Cal.App.4th at p. 1540 [where “record
establishe[d] that mother and father are not able or willing to
take immediate custody” of child, parents did not meet Kelsey S.
requirements]; Adoption of O.M., supra, 169 Cal.App.4th at
p. 681 [biological father not entitled to Kelsey S. status where he
15
did not seek full custody of child, but rather sought “only legal
custody, while relegating physical custody to his parents until he
is released from his present lengthy incarceration”].)
Instead of arguing that he met the Kelsey S. criteria,
Bernardino effectively argues he should be excused from doing so
in light of Ismael and Marie’s fraudulent conduct. He further
implicates the San Joaquin County Sheriff’s Office, the San
Joaquin County Human Services Agency, and the probate court
that denied Ismael and Marie’s guardianship petition in 2017
and argues these government entities should have done more to
reveal and undo that fraudulent conduct. Bernardino asserts
these circumstances show this is a unique case, requiring a
unique solution.
We readily agree with Bernardino that dishonesty and
deceit abound in this case and more thorough investigations by
the involved agencies early on could have led to a different
outcome. The trial court also acknowledged that the “under the
table” adoption and subsequent cover-up in this case are more
egregious than the circumstances of a typical Kelsey S. case. But
as lurid as the facts of this case may be, they do not justify
departing from the framework set forth in Kelsey S. The
Kelsey S. analysis turns not on the frustration of a biological
father’s ability to assert his parental rights but rather on what
the father has done in response to that frustration. (See
Kelsey S., supra, 1 Cal.4th at p. 849 [“[o]nce the father knows or
reasonably should know of the pregnancy, he must promptly
attempt to assume his parental responsibilities as fully as the
mother will allow and his circumstances permit”], italics added.)
Bernardino’s response to the chain of events was not a
timely attempt to assume his parental responsibilities as fully as
16
his circumstances permitted. Bernardino refused to give a DNA
sample during the San Joaquin County Sheriff’s investigation in
2014. Had he provided a DNA sample, it is highly unlikely the
sheriff’s deputy would have accepted Marie and Ismael’s
misrepresentation that Ismael was Dominic’s biological father.
As the trial court found, Bernardino’s refusal to get tested
showed a lack of commitment to parenting Dominic.
Further, when Bernardino attended the 2017 guardianship
proceedings and the probate court advised him that he needed to
file any claim for parental rights in family court, he failed to do so
until 2022, more than five years later. The trial court properly
determined that once Bernardino became aware through the
guardianship proceedings of the identity of the man who claimed
to be Dominic’s father, “he should have pursued his rights and
responsibilities as a father more vehemently, more adamantly,
and more thoroughly in a committed manner to show . . . he
wanted his child.” Bernardino’s inaction is thus at least partially
to blame for his failure to assume a parental role. (See Adoption
of O.M., supra, 169 Cal.App.4th at pp. 680-681 [father’s crime
and incarceration responsible for failure to qualify for Kelsey S.
status, not just mother’s refusal to communicate].)
Because Bernardino failed to demonstrate a prompt and
full commitment to his parental rights, the trial court properly
concluded he was not a presumed father under Kelsey S.
Bernardino does not challenge the court’s subsequent
determination that adoption was in Dominic’s best interest.9
9 Even if he had, substantial evidence supports the finding as
to Dominic’s best interest. At the time of trial, Dominic was
almost 10 years old and had been living with Ismael and Marie
17
Thus, the court did not err in ordering that Bernardino’s consent
to the child’s adoption was not necessary and terminating his
parental rights as a biological father under section 7664,
subdivision (c).10
B. ICWA Conditional Reversal
Although the trial court properly terminated Bernardino’s
parental rights under section 7664, we agree with the parties
that conditional reversal of the judgment is necessary because
since birth. Ismael and Marie each had a loving bond with
Dominic, and they were fully providing for his needs. They were
also the only parents he had ever known. Bernardino conceded in
the trial court and on appeal that remaining in Ismael and
Marie’s care was best for Dominic.
10 The court alternatively found that, even if Bernardino did
qualify as a Kelsey S. father, he abandoned the child under
section 7822. That abandonment ruling is supported by the same
substantial evidence that supports the Kelsey S. determination.
(See § 7822, subd. (a)(2) [court may declare a child free from a
parent’s custody and control if the parent has left the child “in
the care and custody of another person for a period of six months
without any provision for the child’s support, or without
communication from the parent . . . , with the intent on the part
of the parent . . . to abandon the child]; id., subd. (b) [the “failure
to provide support[ ] or failure to communicate is presumptive
evidence of the intent to abandon”]; Adoption of A.B. (2016)
2 Cal.App.5th 912, 923-924 [father’s perfunctory efforts to see
and communicate with child and lack of active inquiry or pursuit
of visitation for more than four years was sufficient to show
intent to abandon]; In re Adoption of Allison C. (2008)
164 Cal.App.4th 1004, 1013 [father’s failure to communicate with
or provide support for child for over three years showed intent to
abandon].)
18
the court and the petitioning parties did not fulfill their duty to
inquire whether Dominic is, or might be, an Indian child.
Congress enacted ICWA to protect Indian children and “to
promote the stability and security of Indian tribes and families”
by formalizing federal policy and standards regarding the
removal and placement of Indian children outside the family
home. (25 U.S.C. § 1902; see In re Dezi C. (2024) 16 Cal.5th 1112,
1129 (Dezi C.).) “ICWA establishes minimum standards for state
courts to follow before removing Indian children from their
families and placing them in foster care or adoptive homes.”
(Dezi C., at p. 1129; see 25 U.S.C. §§ 1902, 1921.) “[W]hen ICWA
applies, ‘the Indian child’s tribe shall have a right to intervene at
any point’ in a proceeding involving the removal of an Indian
child from their family.” (Dezi C., at p. 1129; see 25 U.S.C.
§ 1911(c); In re Isaiah W. (2016) 1 Cal.5th 1, 8.)
ICWA applies in proceedings to terminate parental rights.
(See §§ 170, subd. (c), 177, subd. (a), 180; see also Cal. Rules of
Court, rule 5.480.)11 As a result, the court and any petitioner
seeking a termination of parental rights have an affirmative and
continuing duty to inquire whether a child who is subject to the
proceedings is, or may be, an Indian child. (Welf. & Inst. Code,
§ 224.2, subd. (a); rule 5.481(a).) This duty to inquire “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.” (Welf.
& Inst. Code, § 224.2, subd. (b)(2); rule 5.481(a)(1)-(2).)
11 All references to rules are to the California Rules of Court.
19
When an ICWA inquiry is inadequate, prejudice is
impossible to ascertain. (Dezi C., supra, 16 Cal.5th at p. 1136.)
Under these circumstances, remand is required along with
directions to the court and any other responsible party to fully
comply with the duty of inquiry—and, when necessary, ICWA’s
further notice requirements—and to document said compliance.
(Ibid.)
Along with the 2019 adoption request, Ismael and Marie
each submitted a signed form denying any Indian ancestry. (See
rule 5.480(a)(1).) But there is no indication elsewhere in the
record that inquiry was made regarding the potential Indian
ancestry of Dominic, Brittany, Bernardino, or any members of the
child’s extended biological family, including Bernardino’s mother
and Brittany’s grandmother. The record also does not include a
finding from the court at the trial that culminated in the
termination of Bernardino’s parental rights as to whether ICWA
applied. Accordingly, we conditionally reverse the judgment
terminating parental rights and remand the matter for the court
and petitioning parties to fulfill their duty of inquiry and, if
necessary, further notice obligations under ICWA.
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DISPOSITION
The judgment terminating Bernardino’s parental rights is
conditionally reversed. If, after reasonable inquiry, the court
finds there is no reason to believe Dominic is an Indian child, or if
no tribe or agency determines Dominic is an Indian child after
notice has been provided under ICWA, the judgment shall be
reinstated. If, on the other hand, a tribe determines Dominic is
an Indian child and the trial court finds ICWA applies, the court
shall proceed in accordance with ICWA.
STONE, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
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