Opinion
B314216
04-14-2022
In re JAYLEEN C. et al, Persons Coming Under the Juvenile Court Law. v. JACQUELINE C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Nos. DK20629, 18CCJP02273, Nichelle L. Blackwell, Juvenile Court Referee. Conditionally affirmed and remanded with directions.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Jacqueline C. (Mother) appeals from the orders terminating her parental rights to four-year-old Jayleen C. and three-year-old Addilyn C. under Welfare and Institutions Code section 366.26.Mother's sole contention on appeal is that the Los Angeles County Department of Children and Family Services (the 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.
All further undesignated statutory references are to the Welfare and Institutions Code.
The juvenile court found ICWA did not apply as to either Mother or Father (Carlos A.) based on Mother's and Father's denials of Indian ancestry. However, the Department failed to inquire of any extended family members whether Jayleen or Addilyn were or may be Indian children, including the maternal grandmother and paternal grandmother, each of whom was interviewed by the Department, the paternal grandfather and paternal aunt (identified by Father), or the maternal uncle (identified by Mother), nor were any efforts made to locate and inquire of the maternal grandfather. The Department also failed to inquire of the other relatives the Department interviewed, including the maternal great-grandmother, maternal great-uncle, and maternal great-aunt. We agree with Mother that section 224.2, subdivision (b), required the Department to inquire of these maternal and paternal family members, and the juvenile court erred in finding ICWA did not apply despite the Department's insufficient inquiry. Further, we conclude the error was prejudicial because we do not know what information the relatives would have provided had the Department or court inquired. We conditionally affirm and remand for the juvenile court and the Department to comply with the inquiry provisions of ICWA and California law.
On remand the Department must make an inquiry of the relatives meeting the statutory definition of an "extended family member," including the children's maternal and paternal grandparents, the maternal uncle, and paternal aunt. (See 25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c).) Through these interviews, the Department should determine whether there are other extended family members who need to be interviewed. The Department should also inquire of the maternal great-grandmother, great-uncle, and great-aunt, who have an "interest in the child" (§ 224.2, subd. (b)) and may have information bearing on whether Jayleen and Addilyn are Indian children.
We consolidated Mother's appeal of the order terminating her parental rights to Jayleen (B314216) and her appeal of the order terminating her parental rights to Addilyn (B315441). The cases are consolidated under appeal number B314216. Father has not appealed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Current Dependency Cases
On October 25, 2016 the Department received a referral alleging Father, who was 16 years old, had stolen his mother's car, was driving 55 miles per hour, and failed to stop his car when police officers arrived. Jayleen was in an unrestrained car seat, and her seatbelt was not buckled. Mother, who was 15 years old, was also in the car.
At the time of the incident, Mother and Jayleen were living with the maternal grandmother, Daniela C. As part of the Department's investigation, the social worker interviewed the maternal grandmother, as well as the paternal grandmother, Veronica A., and the maternal great-grandmother, Ramona O.The social worker also interviewed the maternal great-uncle, Alberto C., and the maternal great-aunt, Cynthia M. At the time of the interview, Mother and Jayleen were living with the maternal great-uncle and great-aunt because the maternal grandmother had moved out of the home. Father was in custody in Juvenile Hall.
The Department refers at different times to Daniela C. as the maternal grandmother or the maternal great-grandmother. It is clear from the petition filed with respect to Mother as a child that her mother (the maternal grandmother) is Daniela C. It is also clear from the record that Alberto C. and Cynthia M. are the maternal great-uncle and great-aunt, respectively, even though they are referred to as the uncle and aunt at various places in the Department's reports.
On December 8, 2016 the Department filed a petition on behalf of Jayleen pursuant to section 300, subdivision (b)(1), alleging Mother and Father failed to properly secure Jayleen in a safety restraint seat while she was a passenger in the car; Father drove with Jayleen at an unsafe speed; and Father failed to yield to law enforcement, placing Jayleen at risk of serious physical harm. The petition attached Judicial Council form ICWA-010, which stated an inquiry was made as to Jayleen's ancestry and "[t]he child has no known Indian ancestry." However, the notice did not state who, if anyone, was questioned about Jayleen's Indian ancestry.
At the December 8, 2016 detention hearing, 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." Father was in custody and was not present. Jayleen was detained from Mother and placed with the maternal great-uncle and great-aunt. At the time, Mother was living with her adult sibling, Carlos C. The juvenile court found as to Mother that ICWA did not apply. The Department interviewed Mother on January 12, 2017, and she indicated she had no Indian ancestry.
Father was arraigned on January 20, 2017. On that date he filed a parental notification of Indian status form on which he checked the box stating, "I have no Indian ancestry as far as I know." The juvenile court made a finding it did not have reason to know Jayleen was an Indian child. It ordered the parents to keep the Department, the parents' attorneys, and the court apprised of any new information relating to Jayleen's possible ICWA status.
The jurisdiction and disposition report stated that in January 2017 the social worker again interviewed the maternal great-aunt and maternal grandmother. At the February 1, 2017 jurisdiction and disposition hearing, the juvenile court sustained the allegations in the petition, removed Jayleen from Mother's and Father's custody, and declared Jayleen a dependent of the court. Mother and Father were provided family reunification services. The court did not make any findings as to ICWA.
In March 2018 Mother gave birth to Addilyn. Two social workers interviewed Mother at the hospital, and Mother denied she had any Indian ancestry. On April 9, 2018 the Department filed a petition on behalf of Addilyn pursuant to section 300, subdivisions (b)(1) and (j), alleging Mother used marijuana during her pregnancy with Addilyn, and Mother was a current abuser of marijuana, placing Addilyn at risk of serious physical harm. The petition again alleged the October 25, 2016 incident in which Mother and Father, among other conduct, failed to secure Jayleen in a safety restraint seat. The petition attached Judicial Council form ICWA-010, which stated, similar to the form for Jayleen, that an inquiry was made as to Addilyn's ancestry and "[t]he child has no known Indian ancestry." However, the notice did not state who, if anyone, was questioned about Addilyn's Indian ancestry.
At the April 10, 2018 detention hearing, Mother filed a parental notification of Indian status, again stating she had no Indian ancestry as far as she knew, and the juvenile court stated it had no reason to know ICWA applied as to Mother. Father was not present at the hearing. Addilyn was detained from Mother. In an interview with the Department on April 25, 2018, Mother stated she had no Indian ancestry. On May 22, 2018 Father filed a parental notification of Indian status form stating he had no Indian ancestry as far as he knew, and at the later detention hearing the juvenile court stated it had no reason to know ICWA applied. At a hearing on that date the juvenile court found it did not have reason to know that Addilyn was an Indian child, and it again ordered the parents to keep the Department, the court, and the parents' attorneys advised of any new information about Addilyn's ICWA status.
An amended petition filed on July 26, 2018 alleged that Mother engaged in a physical altercation with the maternal grandmother, placing Addilyn at risk of serious physical harm. The social worker interviewed the maternal grandmother in connection with the allegation.
On December 6, 2018 the juvenile court sustained the allegations in the amended petition as to Addilyn under section 300, subdivision (b)(1), that Mother abused marijuana and had a physical altercation with the maternal grandmother. The court declared Addilyn a dependent of the court and removed her from Mother and Father. The remaining counts were dismissed.
By the January 31, 2019 review hearing for Jayleen, the relationship between Mother and the maternal grandmother had improved, and the court ordered Jayleen placed in the home of Mother, with Mother to reside with the maternal grandmother or other Department-approved housing. The maternal grandmother and maternal great-uncle were present for the hearing.
On July 23, 2019 maternal great-aunt reported Mother had disciplined Jayleen on two separate occasions by placing her on a time out in the bathroom with the lights off and the bathroom door almost closed. The next day maternal great-aunt reported Mother threw a sandal toward Jayleen because Jayleen was jumping on the bed and did not want to get off. Jayleen was not hurt.
At the July 26, 2018 permanency planning hearing for Jayleen (§ 366.22), reunification services were continued for Mother but terminated for Father.
On September 19, 2019 the Department filed a subsequent petition (§ 342) with respect to Jayleen. The subsequent petition alleged under section 300, subdivisions (a) and (b)(1), that Mother physically abused Jayleen by placing her in the bathroom with the lights off and throwing a sandal at her, and on other occasions left Jayleen in the care of maternal great-uncle, who slapped Jayleen and another time threatened to strike her. The attached Judicial Council form ICWA-010 again stated Jayleen had no known Indian ancestry. The Department also filed a supplemental petition (§ 387) with respect to Jayleen alleging Mother had failed to comply with the juvenile court's order by failing to complete her counseling and allowing Jayleen to travel to Nevada. On September 20 Jayleen was detained from Mother's custody and placed with non-related caregivers, where Addilyn was placed.
In October 2019 the Department interviewed Mother and Father, and each denied Indian ancestry. Father stated he lived with paternal grandmother, but paternal grandfather visited him on the weekends. Father had one sibling, Jasmine H. The Department also interviewed the maternal great-grandmother, Ramona O.
On November 8, 2019 the juvenile court sustained the amended allegations under section 300, subdivision (b)(1), that Mother had inappropriately disciplined Jayleen; the court dismissed the remaining allegations. The court again declared Jayleen a dependent of the court. The court removed Jayleen from Mother's custody and terminated her reunification services. The court also sustained the allegation in the supplemental petition. The court did not make any findings under ICWA.
At the permanency planning hearing (§ 366.22) as to Addilyn on December 5, 2019, the juvenile court terminated family reunification services. The court did not make any findings as to ICWA.
At the July 7, 2021 selection and implementation hearing (§ 366.26), the juvenile court found returning the children to Mother and Father would be detrimental to the children and the children were adoptable. The court terminated Mother's and Father's parental rights to Jayleen and Addilyn. The non-related caregivers were identified as the prospective adoptive parents. The court did not make any findings as to ICWA.
The interim review report submitted for the July 7, 2021 hearing stated ICWA does not apply, referring to the juvenile court's May 22, 2018 finding to that effect.
Mother timely appealed from the orders terminating her parental rights.
Father has not appealed from the orders terminating his parental rights.
A. ICWA Inquiry in Other Dependency Cases
In 2014 a juvenile court sustained the allegations against maternal grandmother with respect to Mother under section 300, subdivisions (b)(1) and (g). Mother was later returned to maternal grandmother's custody, and in January 2015 the court terminated jurisdiction. At the May 9, 2014 detention hearing in the proceeding, maternal grandmother appeared and signed and filed a parental notification of Indian status form, and the court found it did not have a reason to know Mother was an Indian child.
The Department has requested we take judicial notice of the May 9, 2014 minute order filed in superior court case number DK04947 with respect to the dependency petition filed as to Mother alleging the maternal grandmother's failure to protect; and the July 28, 2021 petition, January 26, 2022 parental notification of Indian status form, and January 26, 2022 minute order filed in superior court case number 21CCJP03492 in the dependency proceeding filed with respect to Mother's other child, Anthony C. (with a different father). We grant the Department's request. (Evid. Code, §§ 452, subd. (d), 459.)
On July 28, 2021 the Department filed a petition under section 300, subdivisions (a), (b)(1), and (j), with respect to Anthony C. (Anthony), the half-sibling of Jayleen and Addilyn. Anthony's father is Anthony C. The Department attached Judicial Council form ICWA-010 stating the social worker interviewed Mother and Anthony C. and inquired whether Anthony was an Indian child, and the inquiry "gave [the social worker] no reason to believe the child is or may be an Indian child." At the January 26, 2022 jurisdiction hearing, an unsigned parental notification of Indian status form was filed by Mother's attorney, which checked the box stating none of the categories showing Anthony is or may be an Indian child applied. The court made a finding it did not have reason to know Anthony was an Indian child.
DISCUSSION
A. ICWA Inquiry and Notice Requirements
ICWA provides as to dependency proceedings, "[W]here the court knows or has reason to know that an Indian child is involved, the party seeking . . . termination of parental rights to . . . an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) ICal.5th 1, 5; In re T.G. (2020) 58 Cal.App.5th 275, 288; In re Elizabeth M. (2018) 19 Cal.App.5th 768, 784.) California law similarly requires notice to the Indian tribe and the parent, legal guardian, or Indian custodian if the court or the Department "knows or has reason to know" the proceeding concerns an Indian child. (§ 224.3, subd. (a); see In re T.G., at p. 288; In re Elizabeth M., at p. 784; In re Breanna S. (2017) 8 Cal.App.5th 636, 649, disapproved on another ground in In re Caden C. (2021) IICal.5th 614, 637, fn. 6; Cal. Rules of Court, rule 5.481(c)(1) [notice is required "[i]f it is known or there is reason to know an Indian child is involved in a proceeding listed in rule 5.480," which includes dependency cases filed under section 300].) 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 T.G., at p. 288; see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3, subd. (d).)
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 Antonio R. (Mar. 16, 2022, B314389)__Cal.App.5th__[2022 Cal.App. Lexis 216, at *7]; In re H.V. (2022) 75 Cal.App.5th 433, 437.) "The continuing duty to inquire whether a child is or may be an Indian child 'can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.'" (In re Y.W. (2021) 70 Cal.App.5th 542, 552; accord, In re Antonio R., at p. __[2022 Cal.App. Lexis 216, at *7-8]; In re H.V., at p. 437.)
"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. (§ 224.2, subds. (a)-(c))." (In re T.G., supra, 58 Cal.App.5th at p. 290; see In re Antonio R., supra, __Cal.App.5th at p. __[2022 Cal.App. Lexis 216, at *8]; In re H.V., supra, 75 Cal.App.5th at p. 737 ["[F]rom the [Department]'s initial contact with a minor and his family, [section 224.2] imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child."].)
Section 224.2, subdivision (b), effective January 1, 2019, 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 . . . ." (§ 224.2, subd. (b); 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"]; In re Antonio R., supra, __ Cal.App.5th at p. __[2022 Cal.App. Lexis 216, at *8]; In re Y.W., supra, 70 Cal.App.5th at pp. 551-552.) Under ICWA, the term "extended family member" is "defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin or stepparent." (25 U.S.C. § 1903(2); see Welf. & Inst. Code, § 224.1, subd. (c) ["As used in connection with an Indian child custody proceeding, the terms 'extended family member' and 'parent' shall be defined as provided in Section 1903 of the federal Indian Child Welfare Act."].)
Because Mother is appealing from the July 7, 2021 termination of her parental rights, which occurred after the 2019 effective date of the amendment to section 224.2, the amended provisions apply here. (In re Antonio R., supra, Cal.App.5th at p. [2022 Cal.App. Lexis 216, at *8, fn. 5; In re A.M. (2020) 47 Cal.App.5th 303, 321.)
"The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families." (In re Antonio R., supra, __Cal.App.5th at p. __ [2022 Cal.App. Lexis 216, at *9]; see In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 ["the agency has a duty to gather information by conducting an initial inquiry, where the other party-here a parent . . . has no similar obligation"]; In re K.R. (2018) 20 Cal.App.5th 701, 706 ["The court and the agency must act upon information received from any source, not just the parent [citations], and the parent's failure to object in the juvenile court to deficiencies in the investigation or noticing does not preclude the parent from raising the issue for the first time on appeal . . . ."].)
B. The Juvenile Court Failed To Ensure the Department Complied with ICWA and Related California Law
On appeal, Mother contends the Department should have inquired of the maternal and paternal family members, many of whom were interviewed, about Jayleen and Addilyn's possible Indian ancestry. We agree the Department failed to satisfy its duty of inquiry under section 224.2, subdivision (b), and once again, as we and other Courts of Appeal have done, reject the Department's contention that inquiring of Mother and Father was sufficient. It was not.
Information relevant to Jayleen and Addilyn's possible Indian ancestry was readily obtainable from several of the extended family members. Prior to the December 2016 detention hearing as to Jayleen, the Department interviewed the maternal grandmother. At the time of the hearing, Mother was living with her brother, maternal uncle Carlos. Yet the Department never inquired of the maternal grandmother or the maternal uncle. The Department also interviewed the maternal great-grandmother, maternal great-uncle, and maternal great-aunt. Although these family members did not fall within the definition of extended family members under 25 United States Code section 1903(2), they had "an interest in the child[ren]" under Welfare and Institutions Code section 224.2, subdivision (b), and may have had information relevant to whether the children were Indian children.
In October 2019 the Department interviewed Father, who indicated he had one sibling, Jasmine (the paternal aunt), he lived with the paternal grandmother, and the paternal grandfather visited him on the weekends. The Department failed to inquire of any of these extended family members.
Despite having multiple opportunities, the Department failed to inquire of any of these family members as to Jayleen and Addilyn's possible Indian ancestry, and the court erred in failing to ensure that the Department satisfied its duty of inquiry and in finding ICWA did not apply despite the lack of an adequate inquiry. (See In re Antonio R., supra, _ Cal.App.5th at p. __ [2022 Cal.App.__Lexis 216, at *11] ["Although section 224.2, subdivision (b), places on the Department the duty to inquire, including of extended family members, section 224.2, subdivision (a), makes clear that the 'affirmative and continuing duty to inquire' whether a child is or may be an Indian child rests with both the Department and the court."]; § 224.2, subd. (i)(2) ["If the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence."].)
Contrary to its contention, the Department does not fulfill its duty of inquiry by inquiring only of the child's parents where there are other readily ascertainable family members, including relatives the Department has interviewed, relatives identified by the family, and relatives the Department can locate with reasonable diligence. (See In re Antonio R., supra, __Cal.App.5th at p. __ [2022 Cal.App. Lexis 216, at *12, 14] [Department erred in failing to inquire of maternal grandmother and grandfather and other extended maternal relatives, limiting its inquiry to mother, father, and paternal great-grandmother]; In re H.V., supra, 75 Cal.App.5th at p. 438 [Department erred in failing to speak to any family members about possible Indian ancestry other than mother despite interviewing maternal greatgrandfather and maternal great-grandmother]; In re Y.W., supra, 70 Cal.App.5th at p. 553 [Department erred in failing to contact extended family members, including child's biological family members despite a "potentially viable lead"].)
The Department attempts to distinguish In re Y.W., supra, 70 Cal.App.5th at page 553 on the basis Mother and Father, unlike the mother in Y.W., were not adopted. But our holding in Y.W. was not so narrow. Rather, we explained the Department was required to "make meaningful efforts to locate and interview" extended family members, which in the case of the mother in Y.W., included her biological family members. (Id. at p. 552-553.) The Department also argues that because Mother and Father resided with their family members, their denial of Indian ancestry was a "sufficient and reliable" indicator that Jayleen and Addilyn did not have Indian ancestry. This argument assumes that Mother and Father would have discussed their Indian ancestry with their family members. But parents may lack knowledge of a child's Indian ancestry even where the child's extended family members possess strong evidence of the child's possible Indian ancestry. (See In re S.R. (2021) 64 Cal.App.5th 303, 314 ["[T]he children's parents apparently had no idea of their family's connection to the Yaqui tribe of Arizona, even though the children's great-grandmother was a member and still lived with the grandparents in Colorado."]; In re T.G., supra, 58 Cal.App.5th at p. 289 ["Oral transmission of relevant information from generation to generation and the vagaries of translating from Indian languages to English combine to create the very real possibility that a parent's or other relative's identification of the family's tribal affiliation is not accurate."].) Further, there are many reasons parents may not want to reveal their Indian ancestry, including the parents' fear of being identified as Indian or concern that the tribe may want to participate in the case or assume jurisdiction. (In re Antonio R., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 216, at *13].)
The Department also argues that no inquiry was required because in Mother's dependency proceeding as a child the juvenile court made a finding there was no reason to know Mother was an Indian child based on the maternal grandmother's representation. It may well be that maternal grandmother has no additional information bearing on whether Jayleen and Addilyn are Indian children. But the Department failed to determine, despite repeated contact with maternal grandmother, whether she had any additional information she acquired in the more than six years since the prior proceeding bearing on whether Jayleen and Addilyn may be Indian children. Nor does this argument address the information other family members may have. And significantly, although the juvenile court in Mother's dependency proceeding found ICWA did not apply, this finding in 2016 was made prior to the 2018 amendment of section 224.2, subdivision (b), by Assembly Bill No. 3176 (Stats. 2018, ch. 833, § 5), effective January 1, 2019, to require inquiry of extended family members.
Although the Department requested we take judicial notice of court filings in the 2022 dependency proceeding filed with respect to Anthony, Jayleen and Addilyn's half-sibling, the Department does not argue the finding by the juvenile court in that case that Anthony was not an Indian child negates its duty of inquiry. Nor could it. As discussed, Anthony had a different father, and further, the documents before us do not reflect what inquiry the Department or the court made of family members in that proceeding (other than of Mother and maternal grandmother).
The Department's position in this case ignores the express obligation that section 224.2, subdivision (b), imposes on the Department to inquire of a child's extended family members, regardless of whether the parents deny Indian ancestry. "By requiring the Department to inquire of a child's extended family members as to the child's possible Indian ancestry, the Legislature determined that inquiry of the parents alone is not sufficient." (In re Antonio R., supra, __Cal.App.5th at p. __ [2022 Cal.App. Lexis 216, at *12]; see In re Y.W., supra, 70 Cal.App.5th at p. 556 ["the point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child" is "to obtain information the parent may not have"].)
The Department argues in the alternative that given the denial by Mother and Father of any Indian ancestry, inquiry of extended family members was not likely to bear meaningfully upon whether Jayleen and Addilyn are Indian children, citing to In re Benjamin M., supra, 70 Cal.App.5th at page 742. We disagree with the Department's interpretation of the standard for harmless error articulated in In re Benjamin M., which concluded the reviewing court "must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Id. at p. 744.) As we observed in In re Antonio R., supra, __ Cal.App.5th at page __[2022 Cal.App. Lexis 216, at *18-19], "Where 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, as here, prejudicial and reversible. Speculation as to whether extended family members might have information likely to bear meaningfully on whether the child is an Indian child has no place in the analysis of prejudicial error where there is an inadequate initial inquiry. Rather, in determining whether the failure to make an adequate initial inquiry is prejudicial, we ask whether the information in the hands of the extended family members is likely to be meaningful in determining whether the child is an Indian child, not whether the information is likely to show the child is in fact an Indian child." (See In re Benjamin M., supra, 70 Cal.App.5th at p. 745 ["While we cannot know how Father's brother would answer the inquiry, his answer is likely to bear meaningfully on the determination at issue about his brother."].)
The maternal and paternal relatives are likely to have meaningful information about whether Jayleen and Addilyn are Indian children-regardless of whether the inquiry ultimately reveals they are. The Department's failure in the course of its interviews of multiple relatives to ask the simple question whether they had any reason to believe the children were Indian children is troubling. On remand, the Department must inquire at a minimum of the maternal grandmother, maternal uncle, maternal great-grandmother, maternal great-uncle, maternal great-aunt, paternal grandfather, paternal grandmother, and paternal aunt. The Department should also use reasonable diligence to locate and interview the maternal grandfather and any other extended family members.
DISPOSITION
The July 7, 2021 orders terminating Mother's and Father's parental rights are conditionally affirmed. We remand to the juvenile court for the Department and the juvenile court to comply with the inquiry and notice provisions of ICWA and California law. If the court finds Jayleen and Addilyn are Indian children, it shall conduct a new section 366.26 hearing, as well as all further proceedings, in compliance with ICWA and related California law. If not, the court's original section 366.26 orders will remain in effect.
We concur: PERLUSS, P.J., SEGAL, J.