Opinion
B321872
05-01-2023
In re CIARA D., a Person Coming Under the Juvenile Court Law. v. IISHA A. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Zaragoza Law Office and Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant Iisha A. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Jjuan N. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED.
APPEAL from orders of the Superior Court of Los Angeles County, Super. Ct. No. 20CCJP05692 Stephen C. Marpet, Juvenile Court Referee.
Zaragoza Law Office and Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant Iisha A.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Jjuan N.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Iisha A. (Mother) and Jjuan N. (Father) appeal from the juvenile court's order terminating their parental rights over 11-year-old Ciara D. under Welfare and Institutions Code section 366.26. Mother and Father contend the Los Angeles County Department of Children and Family Services (Department) and the juvenile court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and related California law. In addition, Father appeals from the court's order summarily denying his section 388 petition, which sought a finding Father was the presumed father and an order granting him reunification services.
Further undesignated statutory references are to the Welfare and Institutions Code.
We agree the juvenile court abused its discretion in summarily denying Father's section 388 petition because the court ignored Father's new evidence, and the court's factual findings were not supported by substantial evidence. We also agree the Department and the juvenile court erred in failing to comply with ICWA's inquiry and notice provisions, and the error was prejudicial. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral, Petition, and Detention
On September 14, 2020 the Department received a referral alleging Mother used cocaine and methamphetamine, had recently been involuntarily hospitalized for mental illness, and generally neglected then-nine-year-old Ciara by leaving her in the care of maternal grandmother, Jerri A., for days or weeks at a time. During these absences, Mother left Ciara without any food in the house. Further, Mother and Jerri used drugs in the presence of Ciara, and Ciara was at risk of sexual abuse by Jerri's significant other, Roger, in whose home Ciara, Mother, and Jerri resided.
On September 23 a social worker interviewed Jerri, who reported Ciara and Mother had recently moved to California from Kansas. Jerri did not know the identity of Ciara's father. Ciara told the social worker her father lived in Atlanta, Georgia, but Ciara did not have any recent contact with him. Ciara denied she was ever left home alone without an adult, lacked food, or suffered sexual abuse.
On October 8, 2020 the Department received a second referral alleging Mother had been away for at least a week and Ciara had been seen in a trailer in downtown Los Angeles with her stepfather Glen D. and a group of people "who were about to use crack." Glen stated Mother "was nowhere around" and "they thought [Mother] was coming back that night but she did not return."
On October 23 the Department filed a dependency petition on behalf of Ciara alleging Mother's failure to protect Ciara under section 300, subdivision (b)(1). On October 26 Ciara was placed with maternal cousin Tamara B. At the October 29 detention hearing, Mother provided Father's name and date of birth and indicated he lived in Georgia. Mother stated she did not have Father's telephone number or email address. Although Father's name did not appear on Ciara's birth certificate, Mother stated Father's biological paternity as to Ciara had been established by a blood test. The court found Father was an alleged father and ordered the Department to perform a due diligence search for him. The court detained Ciara from her parents.
B. Notices to Father, Jurisdiction and Disposition Hearing, and Review Hearings
On November 28, 2020 the Department sent a copy of the petition and notice of a January 12, 2021 hearing to Father at three last known addresses: one in Ohio and two in Georgia, including at 3452 River Mill Lane in Ellenwood, Georgia (River Mill address). The Department filed certified mail receipts showing the notices were sent to Father at the three addresses and submitted a due diligence report summarizing its efforts to contact Father.
On December 9, 2020 (with Mother present but not Father), Mother entered a no contest plea to the amended allegations, which the juvenile court sustained, that Mother had a history of substance abuse including cocaine and ecstasy and was a current abuser of marijuana, and Mother had untreated mental and emotional problems including a diagnosis of paranoid schizophrenia with bipolar disorder. The court declared Ciara a dependent of the court and removed her from Mother's physical custody. The court granted Mother two monitored visits a week for two hours each visit. The court ordered family reunification services for Mother but none for Father because he was an alleged father.
The juvenile court struck the petition's allegation Mother had failed to make an appropriate plan for Ciara's care and supervision by leaving Ciara in the care of Jerri, who had an extensive history of substance abuse.
On March 4, 2021 the Department mailed notices of a March 10 review hearing to the same addresses for Father in Ohio and Georgia (including the River Mill address), but Father again did not appear at the hearing. On May 24 the Department mailed notices of the June 9 six-month review hearing and the Department's report to Father at the Ohio and Georgia addresses. However, the May 24 notice sent to Father at the River Mill address was incorrectly addressed to 33425 River Mill Lane, and it was returned to sender. Notices sent to the (correct) River Mill address on May 7 and 14 were also returned. On June 1 the Department mailed notices to the two last known Georgia addresses for Father, including the River Mill address, and it filed an updated declaration of due diligence. Father did not appear at the June 9 six-month review hearing.
On November 24, 2021 the Department mailed notice of the December 8 12-month review hearing to the River Mill address, but the notice was erroneously sent to 3425 River Mill Lane (instead of 3452). On December 6 the Department resent notices to Father at the two Georgia addresses (including one correctly addressed to 3452 River Mill Lane), two Texas addresses, and a Los Angeles address. The juvenile court continued the 12-month review hearing to January 20, 2022. Father did not appear at the January 20 hearing.
At the January 20, 2022 hearing, the juvenile court found Mother was not in substantial compliance with her case plan, terminated Mother's family reunification services, and set a selection and implementation hearing (§ 366.26) for May 16, 2022.
C. Father's Appearance
On February 14, 2022 Father telephoned social worker Jason Sanchez and provided Sanchez with his phone number and River Mill address. Father also provided a phone number for the paternal grandmother. Sanchez directed Father to contact Los Angeles Dependency Lawyers and request an attorney. Dependency investigator Elizabeth Pascual attempted to contact Father by phone, text message, and email on February 17 and 23, but she received no response. On February 17 Pascual spoke with the paternal grandmother, who stated she lived with Father at the River Mill Lane address. Pascual told paternal grandmother to watch for a letter by certified mail for Father. However, the letter was returned as undeliverable on March 30, 2022. The same day Pascual tried unsuccessfully to speak with Father by phone and text. However, Pascual spoke by phone with paternal grandmother, who confirmed the address was correct but "they are not always home, and that when a note is left by the post office to pick up mail, it never specifies which post office to go to," and there were several in the area.
On April 27, 2022 Pascual spoke with Father and paternal grandmother by phone. Father confirmed he had received the notice Pascual resent to Father by first class mail. Paternal grandmother indicated Ciara had lived with Father and paternal grandmother on two occasions, once for around two months and once for "an entire summer." Father and paternal grandmother last saw Ciara about three years earlier. Father and paternal grandmother had tried to locate Ciara and "even traveled to California to an address provided by the mother, but they did not find Ciara." Father wanted to participate in the case and wanted custody of Ciara. Pascual encouraged Father to contact Los Angeles Dependency Lawyers and request an attorney.
Sanchez reported Ciara had mentioned visiting Father "for a couple of summers, but [Mother] did not allow her to visit often." While Ciara strongly preferred to stay with Tamara, Ciara expressed an interest in visiting with Father.
The Department's May 4, 2022 status review report stated Ciara was comfortable in her placement and had made significant progress in improving her academic performance. The social worker observed Ciara to be well bonded with and cared for by Tamara. Ciara expressed interest in Tamara adopting her and feared returning to live with Mother. Ciara "appeared concerned about the possibility of her father becoming involved in the case." During a March 2022 mental health assessment, the therapist observed Ciara "displays minor temperamental concerns and appears fearful and concerned believing she may have to live with her father or mother."
On May 16, 2022 (the day of the selection and implementation hearing), Father filed a statement regarding parentage in which he requested a judgment of parentage. Father stated Ciara lived with him from May to June 2019, he told all his family and friends Ciara is his child, and he participated in activities with Ciara including swimming, horseback riding, watching movies, shopping, visiting amusement parks, and bringing Ciara to get her nails done. Further, Father gave Ciara clothes and gift cards, and he and Ciara visited his family in Ohio. Father submitted a letter from the Kansas Department for Children and Families dated March 28, 2022 reflecting a Kansas child support order requiring Father to pay support for Ciara. Father also filed a notification of mailing address, listing the River Mill address.
Father appeared at the May 16 hearing, and the juvenile court appointed him counsel. Father's attorney requested the court find Father was the presumed father. Mother's attorney stated Mother had no objection to Father's request. However, when the court stated "We'll find [Father] is a presumed father," the Department suggested the court take time to consider whether Father was the presumed father because the Kansas child support order was not sufficient evidence under California law of presumed father status. The court then stated, "it appears as if he is a biological alleged father and nothing more at this point." Father's attorney requested the court continue the selection and implementation hearing to allow Father to prove his presumed father status, arguing Father had first become aware of the dependency proceeding in January 2022. The court questioned why Father did not appear until May if he had learned of the proceeding in January. Father's attorney responded that Father had been attempting to contact the court and secure a lawyer. The court continued the selection and implementation hearing to July 19, 2022.
D. Father's Section 388 Petition
On July 18, 2022 Father filed a section 388 petition requesting presumed father status and placement with Father or a grant of family reunification services. Father argued it was in Ciara's best interests to be raised by her natural parent with whom she could develop strong emotional bonds. Father submitted a declaration and copies of photographs of Father with Ciara.
Father declared Ciara was born in Texas (in November 2010), and shortly thereafter he, Mother, and Ciara moved to Ellenwood, Georgia. In 2012 Mother and Ciara lived with Father in Georgia for two months. During that time, Father took Ciara to Ohio without Mother to visit his family. In the years that followed, Father "constantly" tried to make plans with Mother to have Ciara live with him during the summer months, but Mother did not allow Ciara to visit him. Mother initially would agree but then back out. Father talked to Ciara on the phone, but he heard Mother in the background telling Ciara to "say mean, hateful things" to Father. Mother told Ciara that Father did not love her or care about her. Still, Father provided money and other things for Ciara whenever Mother made a request. Father moved to the River Mill address in December 2018. Sometime in 2019, after Mother moved to Kansas, she allowed Father to visit Ciara at her Kansas home. Father "dropped everything and flew out" to Kansas to visit Ciara. Mother later agreed to allow Ciara to stay with Father for the summer of 2019. Father again "dropped everything and drove to Kansas" to pick up Ciara. Father drove Ciara to Georgia, where she lived with him during the summer. Father then drove Ciara back to Kansas. Father paid child support for Ciara under a Kansas state court order since 2019. Father denied knowing Mother had mental health problems and used drugs other than marijuana. Father stated, "I take care of my kids," noting he had full custody of his son, Ciara's halfbrother. Father concluded, "I want my daughter with me and my family.... I just want a chance to raise my daughter since I've never been given the opportunity. I have a problem with someone else being allowed to raise my child when I've done my best to be in her life."
E. Section 388 and Selection and Implementation Hearings
On July 19, 2022 the juvenile court summarily denied Father's section 388 petition. The court stated, "It's not in the minor's best interest. There isn't a sufficient change of circumstance. At best, Father had visits with this child one time in Kansas, other than that there's been no contact. And I'm denying the request." The court then proceeded to hold the selection and implementation hearing (§366.26). The court found by clear and convincing evidence Ciara was adoptable and no exception to termination of parental rights applied. The court terminated Mother's and Father's parental rights and designated Tamara as the prospective adoptive parent.
Mother and Father timely appealed.
DISCUSSION
A. The Juvenile Court Abused Its Discretion in Summarily Denying Father's Section 388 Petition
1. Applicable law and standard of review
Section 388, subdivision (a)(1), provides, "Any parent or other person having an interest in a child who is a dependent of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." "Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the child's best interest." (In re Malick T. (2022) 73 Cal.App.5th 1109, 1122; accord, In re Jasmon O. (1994) 8 Cal.4th 398, 414-415 ; In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"[Section 388] petitions are to be liberally construed in favor of granting a hearing to consider the parent's request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; accord, In re R.A. (2021) 61 Cal.App.5th 826, 836 (R.A.); see Cal. Rules of Court, rule 5.570(a) ["A petition for modification must be liberally construed in favor of its sufficiency."].) "'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' [Citation.] 'Whether [the petitioner] made a prima facie showing entitling [the petitioner] to a hearing depends on the facts alleged in [the] petition, as well as the facts established as without dispute'" by the court's records. (In re B.C. (2011) 192 Cal.App.4th 129, 141; see In re Justice P. (2004) 123 Cal.App.4th 181, 189.) "[T]he court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child." (In re Justice P., at pp. 188-189; accord, R.A., supra, 61 Cal.App.5th at p. 836.) "'"[T]he term 'new evidence' in section 388 means material evidence that, with due diligence, the party could not have presented at the dependency proceeding at which the order, sought to be modified or set aside, was entered."'" (In re Matthew M. (2023) 88 Cal.App.5th 1186, 1195; accord, In re D.B. (2013) 217 Cal.App.4th 1080, 1093; In re H.S. (2010) 188 Cal.App.4th 103, 105.)
"We review the juvenile court's decision to grant or deny a section 388 petition for abuse of discretion." (In re I.B. (2020) 53 Cal.App.5th 133, 152; accord, In re Stephanie M., supra, 7 Cal.4th at p. 318.) We likewise review a summary denial of a section 388 petition for abuse of discretion. (R.A., supra, 61 Cal.App.5th at p. 837; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
2. Father made a prima facie showing based on new evidence that modification of the May 16, 2022 order rejecting his request for presumed father status and denying family reunification services was in Ciara's best interests
Father contends the juvenile court abused its discretion in denying his section 388 petition despite the new evidence he submitted showing he lived with and cared for Ciara for two months in 2012 (in Georgia), sometime in 2019 (in Kansas), and two months in the summer of 2019 (again in Georgia), and he openly held out Ciara as his natural child. Further, the juvenile court's finding Father had "no contact" with Ciara other than "visits with this child one time in Kansas" was not supported by the record, and therefore, the court's denial of his section 388 petition on this basis was an abuse of discretion. The Department does not challenge Father's showing of new evidence as to his status as a presumed father, instead asserting the court acted within its discretion in finding modification of its order was not in Ciara's best interests. Father has the better argument.
"'"Dependency law recognizes three types of fathers: presumed, alleged and biological."'" (In re Mia M. (2022) 75 Cal.App.5th 792, 806; see In re Christopher L. (2020) 56 Cal.App.5th 1172, 1183 ["'"In dependency proceedings, "fathers" are divided into four categories-natural [or biological], presumed, alleged, and de facto."'"].) "An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. [Citation.] A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the child's presumed father. [Citation.] A presumed father is one who meets one or more specified criteria listed in [Family Code] section 7611 ...." (In re T.R. (2005) 132 Cal.App.4th 1202, 1209; accord, In re H.R. (2016) 245 Cal.App.4th 1277, 1283.) "'A father's status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled.'" (In re Christopher L., at p. 1184; accord, In re Mia M., at p. 806.) Generally, "'[p]resumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan.'" (In re Mia M., at p. 806; accord, In re T.R., at p. 1209; see § 361.5, subd. (a) [juvenile court "shall order" family reunification services for "the child's mother and statutorily presumed father or guardians"].) As relevant here, a person is presumed to be the natural parent of a child if the "presumed parent received the child into their home and openly holds out the child as their natural child." (Fam. Code, § 7611, subd. (d).)
Courts have referred to a "de facto" father as "someone such as a stepparent who has, on a day-to-day basis, assumed the role of a parent for a substantial period of time." (In re A.A. (2003) 114 Cal.App.4th 771, 779.) A de facto father is not treated as a parent under the dependency statutes. (In re Zacharia D. (1993) 6 Cal.4th 435, 448; In re A.A., at p. 779.)
Substantial evidence does not support the juvenile court's finding Father had no contact with Ciara other than "visits with this child one time in Kansas." Father's declaration in support of his section 388 petition provides evidence Father received Ciara into his home for two months in 2012 and for a summer in 2019. In addition, Father took Ciara to visit his family in Ohio during her 2012 visit, and Father visited Ciara in Kansas on at least one occasion in 2019 before the summer trip. Father also spoke to Ciara on the telephone, and Ciara reported she visited Father for a "couple of summers." Father provided Ciara with money and other support, including paying child support pursuant to a Kansas court child support order starting in 2019. In addition, Father told his friends and family that Ciara is his child. The Department does not contend this evidence was insufficient to support a finding Father is a presumed parent under Family Code section 7611, subdivision (d).
Father also argued in his section 388 petition it would be in Ciara's best interests to be raised by her natural parent, allowing for the development of strong emotional bonds. And Ciara herself expressed that although she preferred to stay with Tamara (with whom she had been living since October 2020), she was interested in visiting with Father. Moreover, the juvenile court's finding that modification of its order was not in Ciara's best interests was based on its erroneous finding Father had no contact with Ciara other than one visit in Kansas. Thus, the juvenile court abused its discretion in summarily denying Father's petition. (See In re K.H. (2022) 84 Cal.App.5th 566, 589 [juvenile court's conclusion was not supported by substantial evidence, and therefore constituted "a clear abuse of discretion"]; Waterwood Enterprises, LLC v. City of Long Beach (2020) 58 Cal.App.5th 955, 966 ["[a] trial court also abuses its discretion if it relies on a fact wholly unsupported by the evidence" because "consideration of the evidence '"'"is essential to a proper exercise of judicial discretion"'"'"].)
Liberally construing Father's petition and supporting evidence in favor of a hearing, Father made a prima facie showing requiring the juvenile court to conduct a full evidentiary hearing on his petition. (See In re Marilyn H., supra, 5 Cal.4th at pp. 309-310; R.A., supra, 61 Cal.App.5th at p. 836.) On remand, the juvenile court must conduct a full evidentiary hearing to determine whether Father has met his burden to show changed circumstances and that the requested modification would be in Ciara's best interests.
Although we reverse the juvenile court's order denying Father's section 388 petition without a hearing, we reject Father's contention we should remand with directions to grant the petition. Under section 388, subdivision (d), if the parent makes a prima facie showing in support of the parent's request, "the court shall order that a hearing be held." Father provides no authority for the proposition an appellate court may order the section 388 petition be granted absent consideration by the juvenile court of the petition in the first instance after holding an evidentiary hearing.
Father's contention that to obtain reunification services he only needed to prove he was the presumed father without showing that granting reunification services was in Ciara's best interests (the second step of the section 388 showing), lacks merit. It is true that section 361.5, subdivision (a), provides, with limited exceptions, that when a child is removed from a parent's custody, the juvenile court "shall" order reunification services to a presumed father. But as the Supreme Court in In re Zacharia D. (1993) 6 Cal.4th 435, 451 (Zacharia D.) observed, "only a presumed, not a mere biological, father is a 'parent' entitled to receive reunification services under section 361.5." Further, under section 361.5, subdivision (a), the Legislature has limited statutory reunification services to a maximum of 12 months, which in certain circumstances may be extended to 18 months. (Zacharia D., at p. 452.) Therefore, "if a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, whether that period be 6, 12, or 18 months . . ., he is not entitled to such services under section 361.5." (Id. at p. 453; accord, In re Vincent M. (2008) 161 Cal.App.4th 943, 947.)
During the reunification period, Father was still an alleged father, so he was not entitled to reunification services. Accordingly, Father's only recourse following termination of the reunification period was to file a section 388 petition and to show that granting him reunification services was in Ciara's best interests. (See Zacharia D., supra, 6 Cal.4th at p. 453 [where biological father did not establish presumed father status prior to termination of reunification period, his only remedy was to file a section 388 petition to modify his parental status]; In re Vincent M., supra, 161 Cal.App.4th at p. 947 ["a biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388 that there are changed circumstances or new evidence demonstrating the child's best interest would be promoted by reunification services"].)
Father's contention that the best-interests requirement under section 388 infringed upon his fundamental right to parent Ciara as secured by the due process clause of the Fourteenth Amendment is not at this stage persuasive. The Supreme Court in In re B.G. (1974) 11 Cal.3d 679, 688 to 689, relied on by Father, held a state must afford a parent "adequate notice and an opportunity to be heard" before awarding custody to a nonparent, depriving the parent of his or her fundamental liberty interest in parenting. However, Father did not argue in his section 388 petition and does not contend on appeal the Department failed to perform an adequate due diligence search or that he lacked notice of the proceedings.
Because defective notice may be easily corrected if promptly raised in the juvenile court, Father has forfeited the right to argue lack of due diligence and timely notice by failing to raise the contention below. (In re P.A. (2007) 155 Cal.App.4th 1197, 1209-1210 ["Because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court, [father] has forfeited the right to raise these issues on appeal."]; see In re S.B. (2004) 32 Cal.4th 1287, 1293 ["a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court," and "[d]ependency matters are not exempt from this rule"].)
Nor does Adoption of Kelsey S. (1992) 1 Cal.4th 816, 822 assist Father. There, in the context of a petition for a private adoption, the unwed (biological) father presented evidence the mother prevented him from taking the child into his home and becoming a presumed father. Because the statutory scheme provided mothers and presumed fathers greater rights to prevent termination of parental rights for purposes of adoption than unwed biological fathers, the Supreme Court held the "statutory scheme violates the federal constitutional guarantees of equal protection and due process for unwed [biological] fathers to the extent that the statutes allow a mother unilaterally to preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest." (Id. at p. 849.)
The Supreme Court in Zacharia D., supra, 6 Cal.4th at pages 450 to 451 distinguished Kelsey S. and declined to reach whether similar reasoning would apply to a biological father in a dependency proceeding who claimed the mother prevented him from attaining presumed father status. As the court explained, "As in the adoption context addressed in Kelsey S., . . . a biological father's paternal rights may ultimately be terminated in the dependency process. Such termination is almost inevitable if a father is not involved in the dependency process prior to the section 366.26 hearing. The issue would arise therefore, under facts not presented here, whether the statutory distinctions between biological and presumed fathers are unconstitutional as applied to a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S." (Zacharia D., at p. 451.) Although the
Supreme Court in Zacharia D. did not decide whether the reasoning in Kelsey S. should be applied to dependency proceedings, we concluded in In re Jerry P. (2002) 95 Cal.App.4th 793, 812 that it does. We explained, "[I]t is plain to us that at least with respect to biological fathers section 7611 and the related dependency scheme violate the federal constitutional guarantees of equal protection and due process to the extent they allow a mother or third person unilaterally to preclude the father from becoming a 'presumed father' where he promptly comes forward and demonstrates as well as he can under the circumstances a full commitment to his parental responsibilities-emotional, financial and otherwise." (Jerry P., at p. 812.)
Here, Father presented evidence he received Ciara in his home and held her out as his child to friends and family. To the extent Father contends Mother's actions unilaterally precluded him from doing more to establish presumed father status, Father may renew that argument on remand. However, we are not persuaded on the record before us that Father has shown it was Mother's conduct that prevented him from attaining presumed father status during the reunification period or that he timely came forward in the dependency process given that notice of the dependency proceedings was first mailed to him at the correct River Mill address on November 28, 2020, then again on March 4, June 1, and December 6, 2021, yet he did not contact the Department until February 2022 and did not appear until May 16, 2022, well after the reunification period had ended in January 2022.
Although some of the notices to Father were mailed to incorrect addresses or returned to the Department, the November 28, March 4, June 1, and December 6 notices were correctly mailed to the River Mill address, and there is no evidence the notices were returned to the Department.
B. The Juvenile Court and the Department Failed To Comply with ICWA and Related California Law
1. ICWA inquiry and notice requirements
ICWA and California law require in dependency proceedings that where the court knows or has reason to know an Indian child is involved, notice must be given to the relevant tribes. (25 U.S.C. § 1912(a); Welf. &Inst. Code, § 224.3, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 5; In re Rylei S. (2022) 81 Cal.App.5th 309, 317; Cal. Rules of Court, rule 5.481(c)(1).) The notice requirement is at the heart of ICWA because it "enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (In re Isaiah W., at p. 5; accord, In re Antonio R. (2022) 76 Cal.App.5th 421, 428 (Antonio R.).)
The juvenile court and the Department "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; In re J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.).) The duty to inquire begins with initial contact (§ 224.2, subd. (a)) and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child. (In re Rylei S., supra, 81 Cal.App.5th at p. 316; J.C., at p. 77; In re H.V. (2022) 75 Cal.App.5th 433, 437.)
Section 224.2, subdivision (b), imposes on the Department a duty to inquire whether a child in the Department's temporary custody is an Indian child, which "[i]nquiry 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 ...." (See Cal. Rules of Court, rule 5.481(a)(1) [the Department "must ask . . . extended family members . . . whether the child is or may be an Indian child"].) "The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families." (Antonio R., supra, 76 Cal.App.5th at p. 430; see In re K.R. (2018) 20 Cal.App.5th 701, 706.) And as we have repeatedly held, "[w]here the Department fails to discharge its initial duty of inquiry under ICWA and related California law, and the juvenile court finds ICWA does not apply notwithstanding the lack of an adequate inquiry, the error is in most circumstances . . . prejudicial and reversible." (Antonio R., at p. 435; accord, J.C., supra, 77 Cal.App.5th at pp. 80-81.)
2. The juvenile court failed to ensure the Department satisfied its duty of inquiry
Mother and Father contend the Department should have inquired of the maternal extended relatives, including maternal cousins Tamara, Charles C., and Ronica C., regarding Ciara's possible Indian ancestry. The Department concedes remand is necessary for additional ICWA inquiry because the Department failed to inquire of the extended family members whether Ciara is an Indian child, as required by section 224.2, subdivision (b). We agree the juvenile court and Department failed to satisfy their duty of inquiry under section 224.2, subdivision (b).
On October 29, 2020 Mother filed a parental notification of Indian status form (Judicial Council form ICWA-020), on which she checked the box stating, "I have no Indian ancestry as far as I know." At the October 29 detention hearing (and subsequent hearings), the juvenile court found there was no reason to know ICWA applied to the proceeding.
A social worker interviewed Jerri on September 23, 2020 but made no inquiry about whether the family had Indian ancestry. On October 19 a social worker interviewed Tamara but likewise made no inquiry regarding the family's Indian ancestry. Although Ciara was later placed with Tamara, with whom the Department continued to have regular contact, the record does not include any evidence an ICWA inquiry was ever made of Tamara. On October 21 a social worker interviewed Charles but did not inquire about Indian ancestry. And on November 11 a social worker interviewed Ronica but likewise did not inquire whether the family had Indian ancestry. The Department's December 3, 2020 jurisdiction and disposition report noted Mother was raised by maternal great-grandmother, occasionally spoke with maternal grandfather, and sometimes stayed with a Ronald.
On May 16 Father filed a parental notification of Indian status form identifying no known Indian ancestry. In his declaration in support of his section 388 petition, Father referenced unnamed paternal relatives-"an entire family, cousins, aunts and uncles that [Ciara] hasn't [been] able to form relationships with because of [Mother]."
Notwithstanding Mother's and Father's denial of Indian ancestry, section 224.2, subdivision (b), obligated the Department to inquire of extended family members as to Ciara's possible Indian ancestry. (See J.C., supra, 77 Cal.App.5th at p. 77; Antonio R., supra, 76 Cal.App.5th at p. 431.) Information relevant to Ciara's possible Indian ancestry was readily obtainable from maternal relatives Tamara, Charles, and Ronica. Further, Mother made reference to Ciara's maternal greatgrandmother, maternal grandfather, and maternal great-uncle, but the Department made no effort to obtain their contact information. And the Department made no effort to obtain the contact information of the paternal "cousins, aunts and uncles" referenced by Father in his declaration in support of his section 388 petition. The juvenile court therefore erred in finding ICWA did not apply to the proceedings and in failing to ensure the Department complied with its duty of inquiry. (J.C., at p. 74; Antonio R., at p. 432.)
DISPOSITION
The orders terminating Mother's and Father's parental rights and denying Father's section 388 petition are reversed. We remand for the juvenile court to conduct a hearing on Father's section 388 petition, comply with the inquiry and notice provisions of ICWA, and for further proceedings consistent with this opinion.
We concur: PERLUSS, P. J. SEGAL, J.