Opinion
F084385
12-13-2022
In re LOGAN E. et al., Persons Coming Under the Juvenile Court Law. v. JIM E., Defendant and Appellant KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Nos. JD141546-00, JD141547-00, JD141548-00 Christie Canales Norris, Judge.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Plaintiff and Respondent.
OPINION 1
FRANSON, J.
Appellant Jim E. (father) is the father of the 12-year-old Logan E., 10-year-old S.E., and five-year-old J.E. (collectively "the children"), who are subjects of a dependency case. Father appeals from the juvenile court's orders terminating his parental rights at a Welfare and Institutions Code section 366.26 hearing.
On appeal, father asserts that he may also challenge the juvenile court's January 4, 2022, 12-month review hearing findings and orders, including the order terminating his family reunification services, because he was not properly advised of the requirement of filing a writ petition to preserve his appellate rights following the order setting the section 366.26 hearing on January 4, 2022. Father also argues that the juvenile court's reasonable services finding made at that hearing was not supported by substantial evidence. In addition, father contends the juvenile court considered inappropriate factors during its determination on the beneficial parent-child relationship exception. We reject each of these contentions.
Father also asserts that the juvenile court and the Kern County Department of Human Services (department) failed in their duties of initial and further inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and Welfare and Institutions Code section 224.2 such that a conditional reversal is required. Finding prejudicial error, we conditionally reverse and remand for proceedings to ensure ICWA compliance and otherwise affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Removal
On November 4, 2020, the children were taken into protective custody after a domestic violence incident between father and his girlfriend. The department had responded to a prior referral involving domestic violence between father and the children's mother, Ashley A. (mother) several weeks earlier. Father and mother had an 2 extensive history of domestic violence with both alleging that physical injuries were caused by the other person. The following day, a social worker contacted mother by phone to inform her of the children's removal, and she denied having any Indian ancestry. The maternal grandparents informed the social worker over the phone that they were interested in emergency placement of the children. The social worker was unable to reach father, who fled the scene prior to law enforcement's arrival.
On November 6, 2020, the department filed petitions alleging the children were described by section 300, subdivision (b)(1). The petitions alleged the children were at substantial risk of suffering serious physical harm as a result of the parents' domestic violence and mother's untreated mental health issues. The department provided father with notice of the detention hearing by an overnight letter that was mailed to his residence in Taft.
At the detention hearing held on November 9, 2020, mother was present in the courtroom, and father was present by phone. Both parents were appointed counsel, and the hearing was continued to the following day at the request of their counsel. Father was not present for the continued detention hearing, but his counsel and mother were present.
The juvenile court directly inquired of mother regarding Indian ancestry in her family, and she denied having any Indian ancestry in her family. Mother also indicated that no one in her family had ever lived on an Indian reservation, been enrolled in or eligible for enrollment in an Indian tribe, or received any type of benefit from an Indian tribe. A parental notification of Indian status form (ICWA-020 form) was filed on mother's behalf indicating there was no reason to believe the children were Indian children. Mother did not know whether father had any Indian ancestry in his family. Based upon its inquiry, the juvenile court found ICWA was not applicable to mother, and it reserved its finding as to father. The juvenile court ordered the children detained from mother and father, supervised visits for mother and father twice per week, and the setting of a combined jurisdiction and disposition hearing for January 13, 2021. 3
Jurisdiction and Disposition
The department's jurisdiction report, dated December 23, 2020, and disposition report, dated January 7, 2021, recommended that the juvenile court find the allegations in the petition true and order the children remain in out-of-home care with family reunification services provided to mother and father. The children were placed together with the paternal grandparents. A family finding and engagement social worker contacted father by phone and explained his family finding efforts. However, father did not provide any family information and hung up the phone after being provided with the contact information for the social worker's supervisor. Another social worker left a detailed voice message for father requesting a meeting to discuss the case.
Father was emotional during his first virtual visit with the children, and he had to be redirected after telling the children that they would be coming home. On December 15, 2020, father became incarcerated in relation to past charges of assault and manufacturing a controlled substance with an anticipated release date in June 2021. The department sent a notice of the jurisdiction and disposition hearing date by certified mail to both father's residence and the central receiving facility located in Bakersfield. Father was released from custody on January 5, 2021, due to the prison being at 90 percent capacity.
At the January 13, 2021, jurisdiction and disposition hearing, father was present in the courtroom and mother was not present. The juvenile court acknowledged receipt of father's ICWA-020 form, which indicated that father either is or may be a member or eligible for membership in an unknown tribe located in Oklahoma. Father explained that he would need to contact the paternal side of his family to determine the name of the tribe. Father claimed that his paternal uncle (child's paternal great-uncle) was a member and elder in the tribe. The paternal great-uncle had recently passed away, and father stated the tribe had a ceremony when he passed away. 4
The paternal great-grandmother, father's paternal grandmother, was identified by father as the person that would have information about the paternal great-uncle's membership. Father provided the paternal great-grandmother's phone number, and he stated that he would contact the paternal great-uncle's family to find out more information. Father denied that he was currently a member of a tribe or eligible for membership, but he did receive "pamphlets for TANF and stuff." He believed that his father (the child's paternal grandfather) was eligible to be a member of a tribe based upon his uncle's tribal membership, but he denied that his father was a member of a tribe.
The juvenile court reserved making an ICWA finding as to father to allow the department to contact the paternal great-grandmother for more information on his Indian ancestry. Counsel for the children informed the juvenile court that the children's paternal grandparents had placement of the children and may have additional information regarding ICWA. The juvenile court thanked the children's counsel for making note of that possibility, and it set a contested hearing at father's request for February 2, 2021. Father provided a Notification of Mailing Address form (JV-140 form) identifying the address of his residence in Taft, and he confirmed that it was the correct address on the record.
The department submitted a supplemental report in advance of the contested hearing to provide the juvenile court with an update on its ICWA inquiry. The contested hearing was continued to February 19, 2021, after father informed his counsel that he was unavailable due to his potential exposure to COVID-19. The report documented a paralegal's telephone contact with the paternal great-grandmother regarding the family's Indian ancestry. The paternal great-grandmother was unsure if either her own mother or late husband was Native American. She met the paternal great-grandfather in Oklahoma, but she was not sure as to which tribe he may have had ancestry from. The paralegal noted that there were over 20 different tribes in Oklahoma, and without further information she was unable to determine which tribe the family had ancestry from. 5 Based upon this information the department determined that no further inquiry was needed.
At the February 19, 2021, continued jurisdiction and disposition hearing, father and mother were not present. Father's counsel entered an objection on father's behalf as to jurisdiction and submitted on the recommendation for reunification services as to disposition. Counsel for the department requested the juvenile court find that ICWA did not apply because the family members were unable to provide the department with "any specific information as to whether or not there is even Indian heritage or any particular tribe." The juvenile court found the allegations of the original petition true, determined ICWA was not applicable, ordered reunification services for both parents, and set a six-month review hearing for August 19, 2021. Father was ordered to participate in random drug testing and counseling for child neglect, domestic violence as a perpetrator, and parenting. The parents' visits were to be twice per week for two hours while out of custody and once per month for one hour while in custody.
Family Reunification Period
The six-month review report, prepared by the department for the hearing on August 19, 2021, recommended that family reunification services continue to be provided to both parents. The children were moved from the home of their paternal grandparents to the maternal grandparents in March 2021. The social worker made multiple attempts to contact father from February to June to discuss his case plan by phone, text, and knocking on his door. However, father's repeated failure to respond left the social worker unable to speak with him about his case plan.
On July 14, 2021, the social worker conducted an inmate search and discovered that father was incarcerated at the Bob Wiley Detention Facility in Visalia since his arrest on June 15, 2021. The social worker mailed a letter to father at the jail to remind him of the requirements of his case plan. Father had not enrolled in any of his case plan components or maintained contact with the department during the six-month review 6 period. His last visit with the children occurred on January 20, 2021. Mother participated in 11 visits with the children during the review period, but she failed to enroll in any of the components of her case plan.
The children were happy, safe, and comfortable in the home of their maternal grandparents. Logan had not heard from his father since arriving to the grandparents' home, and J.E. was excited to start school. S.E. informed the social worker that she would enjoy living with her grandparents for a long time, and she had not talked to her father. The paternal grandparents lived in a home behind the maternal grandparents, and they each were aware that father could not come to their residence. The maternal grandparents were diligent in caring for the children and were committed to adoption in the event that reunification efforts were unsuccessful.
The juvenile court ordered father be physically present for the six-month review hearing unless he executed a knowing waiver of his right to be present. The department mailed notice of the six-month review hearing to father at the Bob Wiley Detention Facility, but his designated mailing address remained his residence in Taft. At the six-month review hearing held on August 19, 2021, mother was present and father was not present. Father's counsel entered a submission on father's behalf. The juvenile court found that the department provided reasonable services, ordered that the children were to remain in out of home placement with continued family reunification services for mother and father, and set a 12-month review hearing for January 4, 2022.
The department's report for the 12-month review hearing, dated December 21, 2021, recommended that mother and father's family reunification services be terminated. Mother and father both failed to enroll in any of the components of their case plan. The children remained placed with their maternal grandparents, and they told the social worker that they would like to be adopted by the maternal grandparents. The maternal grandparents reported that father called the children on three occasions during the review 7 period, and the phone calls lasted approximately two minutes. Father informed the maternal grandparents that he did not want the children to see him in prison.
The social worker was unable to locate father in multiple inmate databases on August 31, 2021, and father did not respond to the social worker's request to set up visits while he was incarcerated. An unsuccessful attempt to locate father at his residence was made by the social worker on September 1, 2021. On September 30, 2021, father was located by the social worker at a jail in Ventura County, and he was scheduled to be released on February 4, 2022, after he pled guilty to multiple charges.
In October 2021 and November 2021, the social worker mailed two additional letters to father at the Todd Road Jail in Ventura County informing him of the requirements of his case plan and the need to arrange visitation with his children. A return mail envelope was provided for father to reply with a decision to either exercise or waive his visitation rights. An excerpt of the letter began with father's full name, seven digits, and an address of P.O. Box 6929, Ventura, CA 93006. The front page of the report listed an address for father at "Todd Road Jail, 600 Todd Rd, Santa Paula, California, 93060." The department sent father's notice of the 12-month review hearing to the mailing address of "Todd Road Jail, 600 S. Todd Road., Santa Paula, CA 93060."
Mother and father were not present for the 12-month review hearing held on January 4, 2022; father was in custody at the Todd Road Jail. Mother's counsel made a special appearance on behalf of father's counsel. Counsel for the department and minor submitted on the report and recommendations, and mother's counsel entered an objection on behalf of mother and father. The juvenile court found that both parents made no progress in mitigating the causes necessitating placement of the children and reasonable services were provided by the department.
The juvenile court ordered that mother and father's family reunification services be terminated, reduced the frequency of mother and father's visits to once per month for one hour, and set a section 366.26 hearing for May 3, 2022. That same day, the clerk of 8 the juvenile court mailed a notification of the father's writ rights to father's residence and the Todd Road Jail. The address for the Todd Road Jail included father's full name, the name of the facility, and a seven-digit number. The mailing address for the facility was listed as "600 Todd Road, Santa Paula, CA 93060." Neither parent filed a notice of intent to file a writ petition.
Section 366.26 Hearing
Father was released from incarceration in Ventura County in February 2022, and he was personally served with notice of the section 366.26 hearing on February 25, 2022. The department's section 366.26 report, dated April 21, 2022, recommended that the parental rights of mother and father be terminated and a plan of adoption be ordered. The children were developmentally on target with no serious medical or emotional concerns. The children's last visit with father occurred on January 15, 2021, and the department recorded six visits between father and the children throughout the case. During the four-hour supervised visit on January 15, 2021, father brought pizza and played with the children at a park. The department was not aware of father's current whereabouts, and the social worker received no response from a letter sent to father's last known address on January 14, 2022.
The social worker described father's relationship with each of the children in relation to the benefits that would be provided by a stable, permanent home through adoption. Logan and S.E. each lived with father for several years, and J.E. was removed from father at the age of two. However, the department believed that father's previous role as a primary parent was now filled by the maternal grandparents. The children enjoyed living with the maternal grandparents, and Logan and S.E. were in agreement with the plan of adoption.
At the section 366.26 hearing held on May 3, 2022, father was present and mother was not present. Father's counsel objected to the department's recommendation and requested that the children be placed into long-term foster care. His counsel explained 9 that "[father]'s issue was that he was incarcerated during this time. He was unable to engage in the case plan. But he did - has raised these children from the time they were infants. He does have a bond with them, and they have a bond with him."
The juvenile court followed the department's recommendation by finding the children adoptable and terminating the parental rights of mother and father. Prior to finding that there was "not an articulate parent benefit exception at this time," the juvenile court noted that "there were only six visits reported between the father and the children. And they've not had any visits with the father since January 2021." On May 23, 2022, father's counsel filed a timely notice of appeal from the orders terminating his parental rights.
DISCUSSION
I. CHALLENGE OF PRIOR ORDERS ON APPEAL FROM SECTION 366.26 ORDERS
Father contends that we may review the juvenile court's reasonable services finding from the 12-month review hearing on January 4, 2022, at which the juvenile court set the matter for a section 366.26 hearing, because he was not provided proper notice of his right to challenge the 12-month review orders through a petition for extraordinary writ. Father also argues in the alternative that we may review these prior orders because his counsel rendered ineffective assistance of counsel when he failed to challenge the juvenile court's finding of reasonable services.
A. Legal Principles
" 'A challenge to the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.'" (John F. v. Superior Court (1996) 43 Cal.App.4th 400, 405, quoting Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) "The rule serves vital policy considerations of promoting finality and reasonable expedition, in a carefully balanced legislative scheme, and preventing late-stage 'sabotage of the process' through a parent's attacks on earlier 10 orders." (In re Jesse W. (2001) 93 Cal.App.4th 349, 355, quoting In re Janee J. (1999) 74 Cal.App.4th 198, 207; accord, Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 259.)
Section 366.26, subdivision (l)(1), states: "An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [¶] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits." "Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section." (§ 366.26, subd. (l)(2).)
California Rules of Court, rule 5.590(b), states: "When the court orders a hearing under Welfare and Institutions Code section 366.26, the court must advise all parties and, if present, the child's parent ..., that if the party wishes to preserve any right to review on appeal of the order setting the hearing under Welfare and Institutions Code section 366.26, the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record (... Rule 8.450) (form JV-820) or other notice of intent to file a writ petition and request for record and a Petition for Extraordinary Writ (... Rules 8.452, 8.456) (form JV-825) or other petition for extraordinary writ." (See § 366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.695(g)(10) [disposition order setting section 366.26 hearing].) California Rules of Court, rule 5.590(b)(2), states:" If a party is not present when the court orders a hearing under section 366.26, within 24 hours of the hearing, the advisement must be made by the clerk of the court by first-class mail to the last known address of the party or by electronic service in accordance with section 212.5…." (See Cal. Rules of Court, rule 5.695(g)(10)(A).) 11
B. Standard of Review
A parent's failure to comply with the writ requirements of section 366.26, subdivision (l) will not deprive him or her of appellate review if the parent shows the juvenile court failed to "adequately inform the parent of their right to file a writ petition." (In re A.A. (2016) 243 Cal.App.4th 1220, 1240; see also In re Harmony B. (2005) 125 Cal.App.4th 831, 838 ["When notice is not given, the parents' claims of error occurring at the setting hearing may be addressed on review from the disposition following the section 366.26 hearing"].)" 'In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend.'" (Mia M. (2022) 75 Cal.App.5th 792, 807.) "Technical noncompliance with the advisement requirement does not determine whether the juvenile court has committed error." (In re T.W. (2011) 197 Cal.App.4th 723, 729 [mother not excused from filing writ because written advisement sent to her failed to contain a zip code].) What matters for purposes of assessing compliance with the written advisement requirement is whether the juvenile court sent notice "to an address where [the party] would likely receive it" (A.A., supra, at p. 1240).
C. Analysis
Father relies on a line of cases that excused compliance with the writ requirement where the clerk failed to send proper notice of that requirement to a parent who was not present when the juvenile court set the section 366.26 hearing. We find cases such as In re Serenity S. (2020) 55 Cal.App.5th 355, distinguishable from the present case. In that case, the only notice provided to the father failed to mention the writ requirement and was sent one month after the hearing. (Id. at p. 371) Therefore, the appellate court concluded that the father could seek review of the juvenile court's detriment finding on appeal of the orders terminating his parental rights. (Ibid.)
Our consideration of this court's previous decision in In re Cathina W. (1998) 68 Cal.App.4th 716 is also not helpful to father's cause. In Cathina W., the court clerk 12 belatedly mailed the advisement to the mother four days after the order setting the section 366.26 hearing, and it misstated the date of that order by months, which effectively misinformed her of the deadline for filing the required notice of intent to file a writ. (Cathina W., supra, at p. 723.) In addition, the clerk failed to resend the advisement after the mailing was returned to the court with a dated" 'Return to Sender' stamp" and "a label setting forth a new address" for the mother. (Ibid.)
In this case, father notified the juvenile court that his address for purposes of mailing was his residence in Taft. At no point in the dependency proceedings did father file a new notification of mailing address form (JV-140 form). At the time of the 12-month review hearing, the department listed an additional address for the father at the Todd Road Jail. On the date of the 12-month review hearing, where the section 366.26 hearing was set, the clerk of the juvenile court sent the notice advising father of the writ requirement to his residence (designated mailing address) and the Todd Road Jail (physical address).
We grant appellant's request for judicial notice filed August 8, 2022, and direct the Clerk/Executive Officer to file the previously received "EXHIBITS TO REQUEST FOR JUDICIAL NOTICE," which exhibit shall be deemed part of the record on appeal. However, we reject appellant's contention that such information establishes that government mail from the juvenile court was rejected under its policies. There is no evidence in the record that the juvenile court or department had mail returned from the Todd Road Jail, and it is not clear on the face of the policy that government mail from a superior court would be rejected as the notice was addressed.
A parent's "permanent mailing address" or "last known address" is not required to be an address that the parent is currently located, it only needs to be where a person can receive mail. (In re Rashad B. (1999) 76 Cal.App.4th 442, 450.) Father was aware that the address of his residence in Taft had been, and would be used, for notice purposes until changed. Based on the record before us, we must conclude father did not provide the court or social worker a new address each time he was incarcerated. Accordingly, the 13 father's residence was his last known address and could properly be used for mailing notice of his writ rights as required by California Rules of Court, rule 5.590(b)(2).
In addition, the record also reflects that father was personally served with the "NOTICE OF HEARING ON SELECTION OF A PERMANENT PLAN" on February 25, 2022. The notice stated the date of the section 366.26 hearing, and the social worker was recommending termination of parental rights. However, father did not attempt to obtain review of the order setting the section 366.26 hearing or raise any issues with the juvenile court's prior finding that reasonable services were provided at the section 366.26 hearing.
Under these circumstances, we do not believe that father has made a sufficient showing of good cause warranting review on the merits of the 12-month review hearing findings and orders. The juvenile court's chosen course of action in sending written notice of the writ requirement to father's designated mailing address and physical address of Todd Road Jail was proper, and we cannot excuse father's lack of compliance with the writ requirement. We therefore dismiss as non-justiciable his challenge to the reunification services termination order and the determinations underlying it.
Even addressing the issue on the merits, we find the findings and orders from the 12-month review hearing were supported by substantial evidence, and the failure of father's counsel to seek review of that order did not amount to ineffective assistance of counsel. Any failure of the department to assist father in completing components of his case plan while in custody was the result of father's repeated failure to maintain contact with the department. The record contains numerous attempts by the department to contact father while he was both in and out of custody, and father's lack of progress in his case plan can be directly attributed to his own failure to communicate with the department. 14
II. BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION
Father contends the juvenile court erred when it did not apply the beneficial parent-child relationship exception to adoption. Father argues that the juvenile court erred by misapplying the law because the department's report included various references to "parental role" and "primary bond" when assessing the children's respective relationships with the maternal grandparents and father.
A. Legal Principles
At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption unless a statutory exception applies. (§ 366.26, subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship exception, which applies when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Id., subd. (c)(1)(B)(i).)
A parent claiming an exception to adoption has the burden of proof to establish by a preponderance of evidence that the exception applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Thus, the parent must prove three elements in order to prevail under the beneficial relationship 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." (In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)
The first element of the beneficial relationship determination asks the "straightforward" question of whether the parent visited consistently, considering the extent permitted by court orders. (Caden C., supra, 11 Cal.5th at p. 632.) The focus is on the best interest of the child as opposed to punishing or rewarding parents for good behavior in maintaining contact. (Ibid.) 15
The second element of the exception asks whether the child would benefit from continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 629.) The parent-child 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.'" (Id. at p. 632, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The juvenile court's focus should again be on the child, and it "must remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Caden C., supra, at p. 632.)
When considering the third element, courts must determine "how the child would be affected by losing the parental relationship - in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Caden C., supra, 11 Cal.5th at p. 633.) Potential negative effects from severance of the relationship might include "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression." (Ibid.) While an adoptive home might provide a new source of stability that alleviates emotional stability and preoccupation leading to those problems, making the loss "not, at least on balance, detrimental." (Ibid.) Under this element, the court is again guided by the child's best interest, but in a "specific way: it decides whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.'" (Ibid.)
In Caden C., the Court of Appeal held "that because the parent continued to struggle with substance abuse and mental health issues and because of the risks of foster care and benefits of the potential adoptive home, no reasonable court could find the child's relationship with his parent outweighed the benefits of adoption." (Caden C., supra, 11 Cal.5th at p. 625-626.) Rejecting that conclusion, our Supreme Court found "[t]he Court of Appeal did not explain how the parent's struggles related to the specific elements of the statutory exception: the importance of the child's relationship with the parent or the detriment of losing that relationship." (Id. at p. 626.) A parent's struggles 16 with issues that led to dependency were determined to be relevant only to the extent they inform whether the child would "benefit from continuing the relationship and be harmed, on balance, by losing it." (Id. at p. 638.)
B. Standard of Review
Appellate courts review a juvenile court's ruling on the application of the beneficial parent-child relationship exception using a" 'hybrid'" standard. (Caden C., supra, 11 Cal.5th at p. 641.) The substantial evidence standard applies to the first two elements of regular visitation and existence of a beneficial relationship. (Id. at pp. 639-640.) The juvenile court's decision as to the third element - whether termination of parental rights would be detrimental to the child - is reviewed for an abuse of discretion. (Id. at p. 640.) "Review for abuse of discretion is subtly different, focused not primarily on the evidence but the application of a legal standard. 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.'" '" (Id. at p. 641.)
The standard of review of a court's determination that a parent did not meet his or her burden to prove an exception to termination of parental rights, is "whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Specifically, the question is "whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (Ibid.)
C. Analysis
In the present case, the juvenile court determined that father did not meet his burden of proof as to the application of the beneficial parent-child relationship exception. In making its determination, the juvenile court noted that "there were only six visits reported between the father and the children. And they've not had any visits with the 17 father since January 2021." Father contends that the juvenile court misapplied the law in relation to the exception by "implicitly inject[ing] improper factors into the weighing process."
First, the department argues that father forfeited his right to raise the parental benefit exception to adoption when his counsel entered a general objection to the recommendation to terminate his parental rights. In asserting his claim of error, father contends the juvenile court erred by relying on an improper analysis of the parent-child relationship and deficiencies in the department's reports. Father did not object to the sufficiency or adequacy of the department's adoption assessment in the juvenile court, and his counsel merely entered a general objection to the termination of his parental rights.
Courts have held that a parent forfeits a claim that an adoption assessment does not comply with the statutory requirements where the parent fails to object to the adequacy of the assessment in the juvenile court. (See In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [failure to object to assessment report at section 366.26 hearing waived the issue of the report's inadequacy].) One rationale for this rule is that it is"' "unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." '" (In re Dakota S. (2000) 85 Cal.App.4th 494, 501, italics omitted.) As father did not object below to the adequacy of the adoption assessment, he cannot make these challenges on appeal. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886 [waiver of issue of adequacy of adoption assessment].)
Nevertheless, we reject father's claims regarding the beneficial-parent child relationship determination on the merits. Father cites to the cases of In re B.D. (2021) 66 Cal.App.5th 1218, In re J.D. (2021) 70 Cal.App.5th 833, and In re M.G. (2022) 80 Cal.App.5th 836, in support of his contention that the juvenile court's orders must be reversed for improper consideration of certain factors. 18
In In re B.D., supra, 66 Cal.App.5th 1218, a juvenile court noted that "the social worker's report stated that the paternal grandmother met the children's daily needs and opined that the parents were 'currently not in a position where they are able to take on the parental role.'" (Id. at p. 1229.) The juvenile court also emphasized the parents' failure to complete the reunification plan and their continued untreated substance abuse issues. (Id. at pp. 1229-1230.) The In re B.D. court found the juvenile court's reliance on the fact that the parents had not completed their reunification plan and were unable to meet the children's needs to be "concerning because it is unclear what weight the juvenile court placed on these conclusions when balancing the harm of severing the natural parent-child relationship to the benefits of a new adoptive home in the crucial third step of the analysis." (Id. at p. 1230.) The appellate court reversed, without conducting a harmless error analysis, so the juvenile court could conduct a new parent-child bond exception analysis in light of Caden C. (B.D., supra, at p. 1231.)
Similarly, in In re J.D., the appellate court concluded that it was unclear to what extent the juvenile court-there, acting before Caden C.-considered improper factors at the second step of analyzing the parent-child beneficial relationship exception, and it reversed and remanded for a new section 366.26 hearing in accordance with Caden C. (In re J.D., supra, 70 Cal.App.5th at pp. 865, 870.) Specifically, it observed that the juvenile court had appeared to improperly consider "the mere fact [that mother] had been unable to succeed in overcoming her parenting struggles," "the suitability of [the minor's] current placement," the minor's attachment to his current caregiver, and the court's determination that mother did not occupy a "parental" role-all factors improper under Caden C. (Id. at pp. 864-865.)
In In re M.G., supra, 80 Cal.App.5th 836 the appellate court reversed an order terminating parental rights that was entered one week after Caden C. was published because the juvenile court relied on a bonding study that "offered minimal if any information about the nature of the child's relationship with his parents in the context of 19 their developmental disabilities" and improperly compared "the parents' ability to manage [the child's] medical and developmental needs" to the caregiver's ability to meet the child's needs. (Id. at p. 851.) A bonding study was performed because the three-year-old child was non-verbal and developmentally disabled, and the study was intended to assess the child's bond with his developmentally disabled parents. (Id. at p. 850.)
The appellate court was concerned that the only evidence as to the emotional attachment the child had with the parents was the bonding study, which considered improper factors. (In re M.G., supra, 80 Cal.App.5th at p. 850.) The case was remanded for reconsideration of the juvenile court's finding that no emotional bond existed between the child and parents, however, the appellate court did not review the juvenile court's findings as to the third element regarding the balance of termination with the benefits of adoption. (Id. at p. 851-852)
We do not find that, in making its determination, the juvenile court abused its discretion by relying on impermissible factors. The department's report does contain statements that father no longer filled a "parental role" and the children looked to the maternal grandparents as their "primary parental figures." However, the juvenile court's ruling on the exception did not consider father's inability to provide a home in comparison to the suitability of their current placement, and there is no indication that the juvenile court relied on father's present inability to fill a "parental role" to bar the parent-child relationship exception.
Viewed in its context, the juvenile court considered the proper factors of the effect of interactions with father and the nature of the parent-child relationship when it referenced the lack of contact between father and the children since their removal. On balance, it concluded that continuing the children's relationship with father was not as beneficial as their need for stability. Under these circumstances, the juvenile court's ruling is entitled to a presumption of correctness, and remand is unwarranted. (Caden C., supra, 11 Cal.5th at p. 640.) Therefore, the juvenile court did not err in declining to 20 apply the beneficial parent-child relationship exception, and its orders terminating father's parental rights were proper.
III. ICWA INQUIRY
Father also contends the juvenile court's finding that ICWA did not apply was not supported by substantial evidence because the department failed to comply with its duties of initial and further inquiry. Father argues the record is insufficient to support the juvenile court's ICWA finding because it does not include interviews conducted by the department with all available paternal family members regarding his claim of unknown Indian ancestry. We agree with father that initial inquiry was inadequate and conditionally reverse and remand for further proceedings consistent with this opinion, as set forth herein.
Legal Principles
" 'ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation' [citations], in furtherance of 'federal policy" 'that, where possible, an Indian child should remain in the Indian community'"' [citations]. 'ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families' [citations], and '[w]hen ICWA applies, the Indian tribe has a right to intervene in or exercise jurisdiction over the proceeding.'" (In re K.H. (2022) 84 Cal.App.5th 566, 594 (K.H.); accord, In re E.C. (2022) 85 Cal.App.5th 123, 138, fn. omitted (E.C.).)
" 'In 2006, California adopted various procedural and substantive provisions of ICWA.' [Citations.] The Legislature's 'primary objective … was to increase compliance with ICWA. California Indian Legal Services (CILS), a proponent of the bill, observed that courts and county agencies still had difficulty complying with ICWA 25 years after its enactment, and CILS believed codification of [ICWA's] requirements 21 into state law would help alleviate the problem.'" (K.H., supra, 84 Cal.App.5th at p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138, 139.)
" 'In 2016, new federal regulations were adopted concerning ICWA compliance. [Citation.] Following the enactment of the federal regulations, California made conforming amendments to its statutes, including portions of the Welfare and Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those changes became effective January 1, 2019 .…' [Citation.] Subsequently, the Legislature amended section 224.2, subdivision (e), to define 'reason to believe,' effective September 18, 2020." (K.H., supra, 84 Cal.App.5th at pp. 595-596, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 139.)
Duties of Inquiry and Notice
"[W]hether a child is a member, or is eligible for membership, in a particular tribe is a determination that rests exclusively with the tribe, and neither the [department] nor the court plays any role in making that determination. [Citations.]' "Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case." '" (K.H., supra, 84 Cal.App.5th at p. 596; accord, E.C., supra, 85 Cal.App.5th at pp. 139, 140.)
"In California, section 224.2 'codifies and elaborates on ICWA's requirements of notice to a child's parents or legal guardian, Indian custodian, and Indian tribe, and to the [Bureau of Indian Affairs].' " (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California law imposes "an affirmative and continuing duty [on the court and the county welfare department] to inquire whether a child for whom a petition under [s]ection 300, … may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a).) 22
Section 224.2, subdivision (k), was amended by Assembly Bill No. 2960 (2021-2022 Reg. Sess.). This amendment, effective January 1, 2023, is not relevant to our discussion here.
"The [state law] 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." (§ 224.2, subd. (a).) "If a child is placed into the temporary custody of a county welfare department pursuant to [s]ection 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 custodian is domiciled." (§ 224.2, subd. (b).) Additionally, "[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (§ 224.2, subd. (c).)
"If the initial inquiry provides 'reason to believe' that an Indian child is involved in a proceeding-that is, if the court or social worker 'has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe'-then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable." (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) "Further inquiry 'includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.'" (Ezequiel G., at p. 999.) 23
"If there is 'reason to know' a child is an Indian child, the agency shall provide notice to the relevant tribes and agencies in accordance with section 224.3, subdivision (a)(5)." (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2, subd. (f).) "There is 'reason to know' a child is an Indian child if any one of six statutory criteria is met-i.e., if the court is advised that the child 'is an Indian child,' the child's or parent's residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)
Summary of ICWA Inquiry
In the present case, father informed the department and juvenile court at the jurisdiction/disposition hearing that he was or may be a member or eligible for membership in an unknown tribe located in Oklahoma. According to father, his paternal uncle, now deceased, was a member and elder of a tribe, and he needed to contact his paternal uncle's side of the family to gather more information. Father indicated that his own father, the children's paternal grandfather, was not a member of a tribe, but he believed he was eligible to be a member. The children's paternal great-grandmother was also identified as someone with information about the family's Indian ancestry. Minor's counsel suggested that the paternal grandparents, who had placement of the children, may have additional information regarding the family's Indian ancestry. Following the hearing, the department reported that the paternal great-grandmother indicated that she was unsure of her own possible Indian ancestry and did not know which in tribe the paternal great-grandfather may have had ancestry.
We agree that the department was required to interview the children's paternal grandfather, who was the son and brother of the claimed sources of the children's possible Indian ancestry, and who had placement of the children. The department's reports do not expressly indicate that the family's Indian ancestry was discussed with the paternal grandfather. Although it appears that the department complied with the juvenile 24 court's request that they speak with the paternal great-grandmother about her Indian ancestry to identify a tribe, there is no evidence demonstrating that the department directly inquired of the paternal grandfather.
The department should have made a meaningful effort to interview the paternal grandfather and attempted to gather the necessary information to assist them in determining whether there was a reason to believe the children were Indian children.
Recently, in K.H. and E.C., we addressed ICWA error at the inquiry stage, and explained our decision not to follow the four general approaches articulated by other appellate courts for determining whether ICWA error requires reversal and concluded that the Supreme Court's decision in In re A.R. (2021) 11 Cal.5th 234 supplies the appropriate framework for assessing prejudice in this context. (K.H., supra, 84 Cal.App.5th at pp. 607-608, citing In re A.R., supra, at pp. 252-254; accord, E.C., supra, 85 Cal.App.5th at p. 152.) Applying the standards we articulated in K.H. and E.C., we conclude the department's error here is prejudicial and remand for the department to conduct a proper, adequate, and duly diligent inquiry is necessary.
Father also argues that the department failed in its duty of further inquiry. Because we find error at the initial stage of inquiry, we do not address the issue of further inquiry.
Standard of Review
"The juvenile court's finding that ICWA does not apply to the proceeding rests on two elemental determinations, 'subject to reversal based on sufficiency of the evidence.'" (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, 85 Cal.App.5th at pp. 142, 143.) First, "[t]he court must find there is 'no reason to know whether the child is an Indian child,' which is dependent upon whether any of the six circumstances set forth in subdivision (d) of section 224.2 apply." (K.H., supra, at p. 601.) Second, "[t]he juvenile court must … find a 'proper and adequate 25 further inquiry and due diligence .…'" (K.H., supra, at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, at p. 143.)
Under the substantial evidence standard," 'a reviewing court should "not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." [Citation.] The determinations should "be upheld if … supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence."' [Citations.] The standard recognizes that '[t]rial courts "generally are in a better position to evaluate and weigh the evidence" than appellate courts' [citation], and 'an appellate court should accept a trial court's factual findings if they are reasonable and supported by substantial evidence in the record' [citation]. '[I]f a court holds an evidentiary hearing, it may make credibility determinations, to which an appellate court would generally defer.'" (K.H., supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, 85 Cal.App.5th at p. 143.)
The juvenile court's finding on the second element, however, "is ultimately discretionary because it requires the juvenile court to 'engage in a delicate balancing of' various factors in assessing whether the agency's inquiry was proper and adequate within the context of ICWA and California law, and whether the agency acted with due diligence." (K.H., supra, 84 Cal.App.5th at p. 601, quoting Caden C., supra, 11 Cal.5th at p. 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1005.) Therefore, we employ a hybrid standard and review the court's determination for substantial evidence and abuse of discretion. (K.H., at p. 601; accord, E.C., at p. 143; Ezequiel G., at pp. 1004-1005.)
" 'Review for abuse of discretion is subtly different [from review for substantial evidence], focused not primarily on the evidence but the application of a legal standard. 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 26 facts, the reviewing court has no authority to substitute its decision for that of the trial court." '" [Citations.] [¶] While each standard here fits a distinct type of determination under review, the practical difference between the standards is not likely to be very pronounced.'" (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 Cal.App.5th at pp. 143, 144.)
"Review of the juvenile court's findings under the foregoing standards is deferential, but' "an appellate court [nevertheless] exercises its independent judgment to determine whether the facts satisfy the rule of law."' [Citations.] Where the material facts are undisputed, courts have applied independent review to determine whether ICWA's requirements were satisfied." (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 Cal.App.5th at p. 144.)
Department and Juvenile Court Error
As previously mentioned, "[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (§ 224.2, subd. (c).)
Moreover, when "a child is placed into the temporary custody of a county welfare department …, the county welfare department … has a duty to inquire whether [the] 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 custodian is domiciled." (§ 224.2, subd. (b).) Extended family members include adult grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) 27
"If the court[ or the department] has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court[ or the department] shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (§ 224.2, subd. (e).) "There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (Id., subd. (e)(1).) County welfare departments "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, as well as evidence of how and when this information was provided to the relevant tribes. Whenever new information is received, that information must be expeditiously provided to the tribes." (Cal. Rules of Court, rule 5.481(a)(5).) In this case, the department and juvenile court were made aware that paternal grandfather, who had placement of the children, might have information about father's claimed Indian ancestry. However, there is no indication in the record that the department spoke to paternal grandfather about any possible Indian ancestry.
All further references to rules are to the California Rules of Court.
"We recognize the frustration with the sheer volume of cases suffering from this fundamental defect given that the vast majority of inquiries will not result in a finding that a child is or may be an Indian child. However, '[t]he judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function.' [Citation.] [County welfare departments] and lower courts are, by now, on very clear notice of the problems caused when little to no inquiry is made. While we are not persuaded that 28 compliance with section 224.2 will prove onerous once [county welfare departments] provide a record of their efforts for the juvenile court to review, we may not interpret the law to relieve either one of the burden of complying with the plain directives of the statute." (K.H., supra, 84 Cal.App.5th at pp. 619-620, fn. omitted.)
"[T]he law demands more than merely inquiring of [m]other and [f]ather" (K.H., supra, 84 Cal.App.5th at p. 620, citing In re Antonio R. (2022) 76 Cal.App.5th 421, 431; accord, In re M.M. (2022) 81 Cal.App.5th 61, 74, review granted Oct. 12, 2022, S276099 (dis. opn. of Wiley, J.)). There may be cases in which there is no one else to ask, but if that is so, the record must be developed to reflect that fact and be supported by documentation. (Cal. Rules of Court, rule 5.481(a)(5).) "On a well-developed record, the court has relatively broad discretion to determine [that] the [department's] inquiry was proper, adequate, and duly diligent on the specific facts of the case." (K.H., at p. 589; accord, E.C., supra, 85 Cal.App.5th at p. 157.) Under these circumstances, the department did not fulfill its statutory duty of inquiry. (§ 224.2, subds. (b) & (e).) As a result, the juvenile court's finding that ICWA did not apply was not supported by substantial evidence, and its contrary conclusion was an abuse of discretion. (§ 224.2, subd. (i)(2).)
Prejudice
"Where, as here, the deficiency lies with [a department's] duty of initial inquiry and a juvenile court's related finding of 'proper and adequate further inquiry and due diligence' (§ 224.2, subd. (i)(2)), the error is one of state law ([In re] Benjamin M., [(2021) 70 Cal.App.5th [735,] 742). Under the California Constitution, '[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" 29 (K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, 85 Cal.App.5th at p. 151.)
" '[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice' [citations], and California law generally interprets its constitutional miscarriage of justice requirement 'as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.'" (K.H., supra, 84 Cal.App.5th at pp. 606-607; accord, E.C., supra, 85 Cal.App.5th at pp. 151, 152.)
However, in A.R., supra, 11 Cal.5th at pages 252-253, the Supreme Court "recognized that while we generally apply a Watson likelihood-of-success test to assess prejudice, a merits-based outcome-focused test is not always appropriate because it cannot always adequately measure the relevant harm. [Citation.] In other words, where the injury caused by the error is unrelated to an outcome on the merits, tethering the showing of prejudice to such an outcome misplaces the measure, at the expense of the rights the law in question was designed to protect." (K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
People v. Watson (1956) 46 Cal.2d 818, 836.
As we explained in K.H.," 'ICWA compliance presents a unique situation .…'" (K.H., supra, 84 Cal.App.5th at p. 608.) "ICWA is not directed at reaching, or protecting, a specific outcome on the merits." (Id. at p. 609; accord, E.C., supra, 85 Cal.App.5th at p. 154.) Rather," '[t]he purpose of ICWA and related California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings' [citation], and an adequate initial inquiry facilitates the information gathering upon which the court's ICWA determination will rest." (K.H., at p. 608; accord, E.C., at pp. 152, 153.) Yet, 30 "while the appealing party is usually a parent, parents do not bear the burden of gathering information in compliance with ICWA [citations], and parents may raise the claim of error for the first time on appeal." (K.H., at p. 608; accord, E.C., at p. 153.) Further, the ultimate determination whether a child is an Indian child rests with the tribe, not with a parent, the department, or the juvenile court. (K.H., at p. 590; accord, E.C., at p. 154.)
"Although the duty of inquiry is a continuing one (§ 224.2, subd. (a)), as we have seen in countless cases including here, if the inquiry is inadequate at the outset, the likelihood that the opportunity to gather relevant information will present itself later in the proceeding declines precipitously." (K.H., supra, 84 Cal.App.5th at p. 609; accord, E.C., supra, 85 Cal.App.5th at p. 154.) "Thus, 'the relevant injury under ICWA is not tied to whether the appealing parent can demonstrate to the juvenile court or a reviewing court a likelihood of success on the merits of whether a child is an Indian child[, under a standard Watson analysis]. The relevant rights under ICWA belong to Indian tribes and they have a statutory right to receive notice where an Indian child may be involved so that they may make that determination. It necessarily follows that [in the context of ICWA and consistent with In re A.R., supra, 11 Cal.5th 234,] the prejudice to those rights lies in the failure to gather and record the very information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required, and whether ICWA does or does not apply. Many cases do not proceed beyond the inquiry at the first stage in the compliance process and, therefore, ensuring adequacy and accuracy at this step is critical'" (E.C., at p. 154, quoting K.H., at p. 591), and" 'requiring adequacy as the law directs "is generally the only meaningful[ ] way to safeguard the statutory right[s]" as intended under ICWA and related California law [citation]. If this step is disregarded, the protection Congress and the state Legislature intended to afford tribes goes unrealized.'" (E.C., at p. 154, quoting K.H., at p. 609.)
As we explained in K.H., "where the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost 31 because there has not been adequate inquiry and due diligence, reversal for correction is generally the only effective safeguard." (K.H., supra, 84 Cal.App.5th at p. 610, citing In re A.R., supra, 11 Cal.5th at pp. 252-254; accord, E.C., supra, 85 Cal.App.5th at p. 154.) Here, the department's inquiry, limited only to father and" 'fell well short of that required to gather the information needed to meaningfully safeguard the rights to tribes, as intended under ICWA and California law'" (E.C., at p. 156, quoting K.H., at p. 620), and "[a] finding of harmlessness on this record would necessarily require speculation and 'is at odds with the statutory protections that ICWA and California law intend to afford Indian children and Indian tribes.'" (E.C., at p. 155, quoting K.H., at p. 611.) Therefore, the error is prejudicial and reversal is required.
Accordingly, the juvenile court's finding that ICWA does not apply is vacated and this matter is remanded. The juvenile court is instructed to ensure the department conducts" 'a proper, adequate, and duly diligent inquiry under section 224.2, subdivision[s] (b) [and (e)], and document its inquiry in the record in compliance with rule 5.481(a)(5).'" (E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 84 Cal.App.5th at p. 621.)" 'This should not be interpreted as requiring an exhaustive search for and questioning of every living relative of [the children]' but '[w]e leave that determination for the juvenile court in the first instance because it is better positioned to evaluate the evidence provided by the [department]. So long as the court ensures the inquiry is reasonable and of sufficient reach to accomplish the legislative purpose underlying ICWA and related California law, the court will have an adequate factual foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)'" (E.C., at p. 157, quoting K.H., at p. 621.)
DISPOSITION
The juvenile court's finding that ICWA does not apply is vacated and this matter is remanded. The court is directed to order the department to comply with the inquiry requirements set forth in Welfare and Institutions Code section 224.2, subdivisions (b) 32 and (e), and the documentation provisions of California Rules of Court, rule 5.481(a)(5). If after determining an adequate inquiry has been made, the court finds ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court finds, instead, that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the court's order terminating father's parental rights is affirmed.
WE CONCUR: LEVY, ACTING P. J. SMITH, J. 33