Opinion
F084708
02-03-2023
In re V. C., a Person Coming Under the Juvenile Court Law. v. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.C. et al., Defendant and Appellant.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant, M.C. Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant, C.T. Diane Freeman, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County No. 21JD0093. Melissa R. D'Morias, Judge.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant, M.C.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant, C.T.
Diane Freeman, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
M.C. (mother) and C.T. (father) are the parents of V.C. (born May 2021). Father appeals the juvenile court's order terminating parental rights pursuant to Welfare and Institutions Code section 366.26. Father's sole contention on appeal is that the Kings County Human Services Agency (the agency) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because several errors occurred during the agency's further inquiry. Mother joins father's appeal.
All further statutory references are to the Welfare and Institutions Code.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
The agency does not agree with all of the parents' contentions, but concedes error occurred during further inquiry and agrees to a limited remand to cure the deficiencies. For the reasons discussed herein, we accept the agency's concession of error. Consistent with our decisions in In re K.H. (2022) 84 Cal.App.5th 566 (K.H.) and In re E.C. (2022) 85 Cal.App.5th 123 (E.C.), we conclude "the error is prejudicial because neither the agency nor the court gathered information sufficient to ensure a reliable finding that ICWA does not apply and remanding for an adequate inquiry in the first instance is the only meaningful way to safeguard the rights at issue. ([In re A.R. (2021)] 11 Cal.5th [234,] 252-254 [(A.R.)].) Accordingly, we conditionally reverse the juvenile court's finding that ICWA does not apply and remand for further proceedings consistent with this opinion, as set forth herein." (K.H., at p. 591; accord, E.C., at pp. 157-158.)
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue on appeal concerns ICWA, we restrict our facts to those bearing on that issue or helpful for clarity.
I. Petition and Detention
On June 2, 2021, the agency filed a petition on behalf of V.C. pursuant to section 300, subdivision (b) (failure to protect). V.C. had already been detained and placed with a maternal relative. The petition contained an Indian Child Inquiry Attachment (ICWA-010(A)) form that stated a social worker conducted an ICWA inquiry with both parents and they gave no reason to believe V.C. was or could be an Indian child.
The agency subsequently filed an amended petition.
On June 3, 2021, mother and father each filed Parental Notification of Indian Status (ICWA-20) forms. Father reported none of the Indian ancestry questions applied to him. Mother indicated she was a member, could be a member, or was eligible for membership in the Navajo tribe. She also checked the box indicating none of the Indian ancestry questions applied to her.
The juvenile court conducted a detention hearing that same day. Both mother and father were present. The juvenile court stated it had received their ICWA-020 forms and conducted its own inquiry. Mother confirmed she had Indian ancestry with the Navajo tribe on the maternal side of her family. She provided information for maternal grandmother Antonia Z. and great-grandmother Jessie Z. She said maternal grandmother had been in the process of being enrolled in the tribe but passed away. However, she said maternal great-grandmother was an enrolled member. Mother stated an aunt had told her to enroll in the tribe, but she had not done so. The agency stated it would follow up with mother to gather additional information. Father denied Indian ancestry on his behalf.
The court found there was reason to believe V.C. was an Indian child and ordered the agency to conduct further inquiry. The parents were ordered to provide the agency with any and all information regarding their ancestry, as well as contact information for anyone who could have information. V.C. was ordered detained.
II. Jurisdiction and Disposition
The jurisdiction and disposition report stated that at the detention hearing, the juvenile court found ICWA may apply due to mother's claim of Indian ancestry. The agency then outlined the following information:
"On [June 11, 2021], [the social worker] inquired about Native American ancestry with the maternal aunt, Victoria [M.] who stated she and her family took DNA tests which indicated they have Native American ancestry on the maternal side [of their family]. [Victoria] stated they were not enrolled members of any tribe and directed [the social worker] to contact her sister, Celia [C.] for additional information.
"On [June 11, 2021], [the social worker] contacted the maternal aunt Celia ... to inquire as to the family's Native American ancestry. Celia ... stated the family has Native American ancestry through the Navajo Nation. [Celia] provided [the social worker] with the telephone number of her maternal aunt whom she reported had additional information.
"On [June 12, 2021], [the social worker] contacted maternal aunt, Felicia [U.] to inquire about Native American [a]ncestry. [Felicia] identified having Navajo ancestry through maternal relatives but that they were not enrolled members. [Felicia] stated that her great-grandparents were enrolled members and lived [on] the Navajo reservation in Albuquerque, New Mexico. Additionally, [Felicia] stated she had completed a DNA test that indicated her ancestry was fifty-two (52) percent Native American. [Felicia] provided her grandparent[s'] and great[-]grandparent[s'] information such as names, dates of birth, birth locations, deceased dates, and deceased locations.
"On [June 14, 2021], [the social worker] met with mother, ... to inquire as to the family's Native American ancestry. [Mother] indicated she had Native American ancestry on her maternal side through the Navajo
Nation. [Mother] completed an ICWA-020 indicating she had Native American ancestry through the Navajo Nation.
Both ICWA-020 forms filed by mother identified Indian ancestry with the Navajo tribe, but the forms did not specify the Navajo Nation.
"On [June 14, 2021], [the social worker] met with the father, ... to inquire about Native American ancestry. [Father] stated it was possible that he had some native ancestry from a tribe in Mexico. [Father] had no additional information and was unable to provide [the social worker] with contact information for persons who would have additional information on his possible Native Ancestry."
On June 25, 2021, mother filed another ICWA-020 stating V.C. was or could be a member, or eligible for membership in, the Navajo tribe in Phoenix, Arizona.
On June 24, 2021, the juvenile court held a combined jurisdiction and disposition hearing where it found the allegations true and adjudged V.C. a dependent of the court.
III. Six-Month Review
The six-month review report stated ICWA did or could apply and detailed the same information from the jurisdiction and disposition report.
On December 12, 2021, the juvenile court held a six-month review hearing where the matter was set for a contested hearing at mother's request. Mother later withdrew her request and the court set a section 366.26 hearing.
IV. Section 366.26
The section 366.26 report reiterated the previous information and added that on December 2, 2021, a social worker followed up with father regarding ICWA. Father reported he believed he had Indian ancestry through the maternal side of his family. He identified the Xochipala tribe in Mexico and provided paternal grandmother's information. He was unsure whether paternal grandmother was an enrolled member or lived on a reservation. He also provided paternal grandfather's information and stated he did not have Indian ancestry and would not have any further information. Father stated there were no other relatives the agency could contact for further inquiry. The agency noted it would provide further information regarding inquiry and notice under separate cover.
From May to July 2022 the agency submitted a series of addendum reports documenting its ICWA inquiries. In May 2022, the agency spoke to mother and various maternal family members including, Felicia, Celia, Yolanda D., and Jessie. Mother and the maternal family members claimed ancestry with the Navajo tribe and provided familial information. The agency also spoke to father and paternal grandmother Victorina F., who claimed Indian ancestry through the Xochitepec tribe in Mexico. The agency recorded the information in an "ICWA Interview Log." Additionally, that same month, the agency received a letter from the Ramah Navajo School Board, which confirmed it had received the agency's ICWA notice. The Board stated it did not have access to the entire Navajo Nation census records and could not confirm or deny whether the parents or V.C. were enrolled or eligible for membership in the tribe. Therefore, the inquiry would be forwarded to the Navajo Nation ICWA Office.
We note that the record sometimes uses the term "notice" when referring to information provided or received for further inquiry purposes. We use the same language to accurately reflect the facts as presented in the record. However, formal notice applies when it is known or there is reason to know an Indian child is involved in the proceedings, not where, as here, there is reason to believe an Indian child is involved. (§ 224.3, subd. (a).)
In June 2022, the agency's legal secretary filed a declaration detailing her contacts with the Navajo Nation, the Ramah Navajo Chapter of the Navajo Nation, the Bureau of Indian Affairs, and the State Department of Social Services. The legal secretary had conducted inquiries via email and provided information about V.C.'s family background. The information included some of the information provided by the maternal and paternal family members; however, the agency failed to provide several names identified by the family members. For example, the agency spoke to maternal great-aunt Yolanda concerning ICWA, but did not include her in the inquiry. Other family members were also excluded from the inquiry, including Benito T., Felix D., Guadalupe M., and Adelaida O. Other information was likewise omitted. (E.g., Marea Candelaria Castro was identified as Candelaria Castro.)
On June 22, 2022, the agency filed an addendum report stating it received a letter from the Bureau of Indian Affairs. The letter stated, "In the ICWA notice, you indicated Indian ancestry but provided no documentation that the child and the child's parent(s) are members of a federally recognized Indian [t]ribe and/or the child is eligible for membership in a federally recognized Indian [t]ribe. The child must meet the definition of an 'Indian child' ... for ICWA to apply. ... If additional information becomes available, you may request further assistance ...."
On June 24, 2022, the agency filed another addendum report adding that they received two additional responses. The Bureau of Indian Affairs sent a letter acknowledging receipt of the ICWA notice and stating that the Navajo Nation was the eligibility decision maker. The Navajo Nation sent a letter stating it was in the process of verifying V.C.'s enrollment or eligibility for enrollment in the tribe.
On July 22, 2022, the agency filed another addendum report providing updated ICWA information. The agency had received a response from the Navajo Nation stating it had been unable to verify V.C.'s eligibility for tribal membership based on the parents' ancestry that was provided and would be closing the intake. Thereafter, the social worker made several contacts via telephone with the Ramah Navajo Social Services Department, the Navajo Nation, and the Bureau of Indian Affairs in an attempt to gather more information about V.C.'s eligibility. The Ramah Navajo Social Services Department stated there were insufficient resources to determine eligibility. The agency social worker was advised to contact the Navajo Nation Division Department. The Navajo Nation intake social worker then informed the agency social worker that no record was found for V.C. and a letter had already been sent verifying the same. Finally, the Bureau of Indian Affairs informed the agency social worker that only the Navajo tribe could directly answer the question about V.C.'s eligibility.
On July 27, 2022, at the conclusion of the section 366.26 hearing, the juvenile court found ICWA did not apply and terminated parental rights. In reaching its decision, the court stated as follows:
"And the [c]ourt will make the finding based upon the addendum report dated July 27, 2022, the [a]gency has made multiple contacts with the Navajo Nation to determine whether the child is an ICWA child with an [enrollment] eligibility with Navajo Nation. There is no record of that based upon the [a]gency's contacts with the Navajo Nation both through the Bureau of Indian Affairs as well as directly with the Navajo Nation themselves. [¶] So with that, [the c]ourt is going to find that notice has been given as required by California law and the Indian Child Welfare Act.
On July 29, 2022, mother filed a notice of appeal. On August 1, 2022, father filed a notice of appeal.
DISCUSSION
I. ICWA
A. Background
" '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.'" (K.H., supra, 84 Cal.App.5th 566, 594, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 138, fn. omitted.)
" '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 into state law would help alleviate the problem. [Citation.]'" (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.)
B. Summary of 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 agency 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).)
"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.)
"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).) "Notices must include the identifying information for the child's biological parents, grandparents, and great-grandparents, to the extent known. (§ 224.3, subd. (a)(5)(C).) As a best practice, they should also contain 'all available information about the child's ancestors, especially the ones with the alleged Indian heritage.'" (In re K.T. (2022) 76 Cal.App.5th 732, 742.)
II. Analysis A. Summary of ICWA Inquiry
On appeal, the parents challenge ICWA findings as they relate to mother only.
The record reflects mother claimed Indian ancestry with the Navajo tribe, specifically the Navajo Nation. The juvenile court found there was reason to believe V.C. was an Indian child and ordered the agency to conduct further inquiry. The agency spoke with mother and several maternal aunts on multiple occasions to gather additional information. The maternal aunts confirmed the family had Indian ancestry with the Navajo Nation and provided additional familial information. The agency was able to obtain the names and information of various maternal family members who had Indian ancestry with the Navajo tribe. The agency then sent further inquiry via email to the State Department of Social Services, the Bureau of Indian Affairs, the Ramah Navajo Chapter of the Navajo Nation, and the Navajo Nation of Arizona, New Mexico, and Utah. In conducting its inquiry, the agency provided some of the familial information received from the maternal family but failed to list some of the maternal family members, misspelled some names, and omitted other details. For instance, Marea Candelaria Castro, who reportedly lived on a reservation, was listed as Candelaria Castro.
The agency received several letters in response to its inquiry. A letter from the Bureau of Indian of Affairs stated, "the Navajo Nation is the decision maker on who is eligible for enrollment." The Ramah Navajo School Board sent a letter stating it did not have access to the entire Navajo Nation census records and would be forwarding the inquiry to the Navajo Nation ICWA Office. The Navajo Nation sent a letter stating it was unable to verify membership eligibility based on the parents' ancestry as provided and would be closing the intake. After receiving the letters, the agency contacted the Navajo Nation Division Department, the Ramah Navajo Social Services, the Bureau of Indian Affairs, and the Navajo Nation by telephone to again inquire about V.C.'s eligibility, but was unable to obtain additional information. Thereafter, the juvenile court found ICWA did not apply.
The parents argue the agency should have used the ICWA-030 form in conducting its inquiry, the inquiry contained several errors and omissions, and the agency's failure to notice all federally recognized Navajo tribes, specifically the Colorado River Indian tribe, was erroneous. The parents contend these errors were prejudicial and reversal is required. The agency concedes there were errors in its further inquiry but disagrees that failure to use the ICWA-030 form and not inquire with the Colorado River Indian tribe was erroneous. The agency agrees to a limited remand to correct the deficiencies in its further inquiry.
Recently, in K.H. and E.C., we addressed ICWA inquiry error. There, we explained our decision not to follow the approaches articulated by other appellate courts for determining whether ICWA error requires reversal and concluded that the Supreme Court's decision in A.R. supplies the appropriate framework for assessing prejudice in this context. (K.H., supra, 84 Cal.App.5th at pp. 607-608; accord, E.C., supra, 85 Cal.App.5th at p. 152.) Applying the standards we articulated in K.H. and E.C., as we will discuss below, we conclude the agency's error is prejudicial and remand for the agency to conduct a proper, adequate, and duly diligent inquiry is necessary.
B. 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." (Ibid.) Second, "[t]he juvenile court must ... find a 'proper and adequate further inquiry and due diligence .." (K.H., at p. 601, quoting § 224.2, subd. (i)(2)); accord, E.C., 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 In re Caden C. (2021) 11 Cal.5th 614, 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 pp. 143-144; 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 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. 601; accord, E.C., supra, 85 Cal.App.5th at p. 144.)
C. Agency and Juvenile Court Erred
1. Duties
As previously mentioned, "[i]f the court[ or the agency have] 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 agency] 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).) "Further inquiry includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of [s]ection 224.3[;] [¶] (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in, and contacting the tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility[; 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. Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under the federal Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.). Contact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case." (§ 224.2, subd. (e)(2)(A)-(C).)
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).)
All further references to rules are to the California Rules of Court.
2. Juvenile Court's Finding Unsupported by Substantial Evidence
Here, the agency gathered detailed information about the maternal side of the family, but failed to adequately transmit that information to the tribe so that it could make an informed decision. As noted, "[c]ontact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case." (§ 224.2, subd. (e)(2)(C).) We fail to locate authority providing that the agency was required to use the ICWA-030 form when there was only reason to believe V.C. could be an Indian child. Therefore, while we agree the agency failed to provide the tribe with all the available information to make an ICWA determination, we disagree it was required to use the ICWA-030 form in conducting its further inquiry. Moreover, we disagree the agency was required to send notice to the Colorado River Indian tribe as mother and the maternal family members specifically claimed Indian ancestry with the Navajo Nation. Nevertheless, as mentioned, the agency did not provide all relevant and available information when it conducted further inquiry.
Accordingly, under these circumstances, the agency 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).)
D. Prejudice
"Where, as here, the deficiency lies with the agency's duty of [_] 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., supra, 70 Cal.App.5th at p. 742, italics omitted). 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.)" (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., 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, "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 agency, or the juvenile court. (K.H., at p. 590; accord, E.C., at pp. 139-140.)
"[W]here the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost 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 A.R., supra, 11 Cal.5th at pp. 252-254; accord, E.C., supra, 85 Cal.App.5th at p. 155.) Here, it is undisputed the agency's inquiry was deficient. Therefore, the error is prejudicial, and reversal is required.
Accordingly, the juvenile court's finding that ICWA does not apply is conditionally reversed and the matter is remanded. The juvenile court is instructed to ensure the agency 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.)
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the agency to comply with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b) and (e), and rule 5.481(a)(5). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its
ICWA finding shall be reinstated. In all other respects, the juvenile court's order terminating parental rights is affirmed. --------- Notes: [*] Before Franson, Acting P. J., Pena, J. and Smith, J.