Opinion
B315376
08-04-2022
In re HERMAN S. et al., Persons Coming Under the Juvenile Court Law. v. JESSICA H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 19CCJP07378 Jean M. Nelson, Judge. Conditionally affirmed and remanded with directions.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Jessica H. (Mother) appeals from the juvenile court's orders terminating her parental rights over 10-year-old Herman S., nine-year-old Belen S., six-year-old Luis S., and four-year-old Bailey S. under Welfare and Institutions Code section 366.26.Mother contends the juvenile court erred in finding the beneficial parental relationship exception to termination of parental rights did not apply. Mother also contends 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.
Further undesignated statutory references are to the Welfare and Institutions Code.
The juvenile court did not abuse its discretion in finding the beneficial parental relationship exception did not apply. However, we agree with Mother the Department and the juvenile court erred in failing to comply with the inquiry and the notice provisions of ICWA and related California law, and the error was prejudicial. We conditionally affirm and remand for the juvenile court and the Department to comply with the inquiry and notice provisions of ICWA and California law.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral, Dependency Petition, and Detention
On October 10, 2019 the Department received a referral alleging severe neglect of then-two-year-old Bailey by Luis S. (Father), the father of Bailey and her siblings. According to a police report, shortly after midnight on October 10, 2019 police officers stopped Father's vehicle because he was driving erratically, and the officers observed Father attempting to conceal a white crystalline substance believed to be methamphetamine by grinding it with his foot into the vehicle floorboard while Bailey was in the rear seat approximately one foot away from Father. Father was charged with child endangerment, possession of a controlled substance, and destruction of evidence. Bailey was released to maternal grandmother because Mother was working at the time. On October 15 the superior court issued a three-year criminal protective order preventing Father from having contact with Bailey.
On November 16, 2019 the Department filed a dependency petition on behalf of Herman, Belen, Luis, and Bailey. The petition alleged under section 300, subdivisions (b)(1) and (j), that Father placed the children at risk of serious harm by driving with methamphetamine in his vehicle that was accessible to Bailey; Father failed to protect the children based on his history of substance abuse and current abuse of methamphetamine; and Mother knew or reasonably should have known of Father's drug abuse and failed to protect the children by allowing Father to reside in the home and have unlimited access to children.
At the November 18, 2019 detention hearing, the juvenile court detained the children from Mother and Father and granted the parents monitored visitation.
The November 15, 2019 detention report stated the younger children were dirty and unkempt when social workers arrived at the home of the paternal grandmother, where Mother and Father lived with the children. The children did not have their own rooms because there were six relatives residing in the home, and Mother, Father, and the children slept on the floor downstairs. Herman and Belen had not had physical examinations since 2013 and had missed six months of school the previous year.
B. The Jurisdiction and Disposition Hearing
At the January 10, 2020 jurisdiction and disposition hearing, the juvenile court sustained the petition on all counts, declared the children dependents of the court, removed the children from Mother's and Father's custody, and granted Mother and Father family reunification services. The court found Mother and Father were in denial about Father's serious addiction to methamphetamine, and Mother's statements that she did not know Father was a current user of methamphetamine were not credible. The court ordered Mother to participate in a Nar-Anon 12-step program for the family of drug addicts, parenting classes, and individual counseling to address case issues. The court ordered Father to participate in a full drug and alcohol program, weekly drug testing, a parenting program, and individual counseling. The court granted Mother and Father two to three monitored visits per week for two to three hours each visit.
On January 23, 2020 the children were placed in the home of paternal grandfather Victor S. and paternal step-grandmother Irma R. (the grandparents) in Victorville.
C. The Family's Progress from January 2020 through March 2021
The October 13, 2020 status review report stated the children appeared to be happy and loved in their placement with the grandparents. They received age-appropriate services, were in school, and their physical and emotional needs were being met. The social worker did not observe any behaviors of concern during her monthly visits, and nine-year-old Herman showed improvement regarding his previously identified speech delay.
Mother and Father continued to live together in the paternal grandmother's home in La Puente. Mother worked two jobs, and Father reported he was unemployed but seeking work. Mother and Father were not in substantial compliance with their case plans: although each completed a parenting program, Mother did not show proof she enrolled in a 12-step program or individual counseling, nor did Father enroll in a drug and alcohol program or individual counseling. Father failed to show up for 33 drug tests between October 2019 and September 2020 and tested positive for methamphetamine and amphetamine in December 2019, the only time he tested during the period.
Mother and Father consistently visited with the children on the weekends, attending visits together. The grandparents reported Mother and Father acted appropriately and socialized well with the children during the visits and did not appear to be under the influence of drugs. Some "upsets" occurred during a few visits, which appear to have been related to limitations imposed by the social worker on the number of people who could be present during visits because of the COVID-19 pandemic. On the day of Belen's birthday party, Belen witnessed Father and paternal grandfather argue over the phone about the party. Mother stated she remembered what she learned in parenting classes and was upset that a disagreement occurred during the visit.
The social worker reported, "The children continue to struggle during the visits when following their rules with [grandparents] and feeling like they can do whatever they want when the parents are present." Belen stated she wanted to return home to the parents because there were "'no rules'" at home, but she also stated at times that she wanted to remain with the grandparents because all her basic needs were met, including having her own bed. Herman wanted to return to the parents. Luis and Bailey were too young to make a statement.
The social worker reported, "[M]other is the one taking the lead to reunify[] with the children," but "[M]other's codependency with the [F]ather is at times holding her back." Based on Mother's and Father's lack of compliance with their case plans, the Department recommended the court terminate the parents' family reunification services.
At the continued six-month status review hearing on October 28, 2020, the juvenile court found Mother was in partial compliance with her case plan and Father was in minimal compliance with his plan. The court continued reunification services for Mother but terminated services for Father. As to Mother, the court found, "I found her testimony credible that she made some efforts....She doesn't appear to be a highly sophisticated person who can figure out how to access certain programs in light of the pandemic....[N]ow that things have settled down a little bit, [Mother] did get back into individual counseling, she did complete parenting, [and] she did make some effort to find a way to participate in Al-[Anon] ...."
The February 1, 2021 status report reflected that Belen stated that she wanted to stay with the grandparents, and Herman likewise no longer wished to return to Mother and Father and was "okay" with visiting them instead. Luis and Bailey were too young to make a statement. The children reported Mother and Father visited with them every weekend, but Mother and Father did not speak with the children over the telephone in between visits.
Mother reported she was still in a relationship with Father, but they no longer lived together in paternal grandmother's home. Rather, in January 2021 Mother moved in with her sister in Moreno Valley and started a new job in the area, although Mother travelled to La Puente on weekends for the joint monitored visits with the children. Mother reported she was attending her court-ordered programs consistently. Mother's therapist reported Mother demonstrated signs of anxiety and depression and was working on codependency issues; Mother had begun to understand the case issues "but is not ready at this time." Mother attended three Al-Anon meetings during the reunification period: one in December 2020 and two in January 2021.
The Department recommended the juvenile court terminate Mother's family reunification services because Mother had only recently begun to demonstrate compliance with her case plan, and despite moving away from Father, she remained in a relationship with Father and "failed to see why it is necessary to separate herself from [F]ather if he is not going to change his lifestyle." (Boldface omitted.) The Department expressed concern Father had not shown proof of enrollment in a drug treatment program and had failed to drug test since his positive test in December 2019.
At the 12-month status review hearing on March 23, 2021, the juvenile court found Mother was only in partial compliance with her case plan, terminated Mother's family reunification services, and set a selection and implementation hearing (§ 366.26). The court explained, "Mother has made only partial progress, and I already terminated Father's services. Her youngest child is under the age of three. She was supposed to make substantial progress within six months. She has been given additional time and hasn't really moved forward. She seems to be stuck on remaining in some type of relationship with the Father, who has a serious methamphetamine problem."
The July 20, 2021 section 366.26 report identified the grandparents as the potential prospective adoptive parents and stated they were able to meet the children's needs emotionally, physically, and financially and "to provide the children with a clean and safe home environment." Paternal step-grandmother reported the children were "doing great" and developing well, and she and paternal grandfather loved the children and were interested in a permanent plan of adoption. All four children stated they wanted to live with the grandparents.
Mother and Father continued to jointly visit the children every Sunday for three hours, and the parents were appropriate during the visits, playing and talking to the children. However, paternal step-grandmother observed that after the visits the children "became rebellious and it takes them a day or so to readjust." Paternal step-grandmother identified a few occasions on which scheduled visits did not occur, including on Father's Day when she waited for 45 minutes for Mother and Father to arrive, but Mother never informed the grandparents she was not coming. On another occasion, Mother cancelled a visit saying she had to work, but the grandparents later learned Mother and Father went to the beach instead. The Department recommended the court terminate Mother's and Father's parental rights and select adoption as the children's permanent plan.
A status review report filed on September 22, 2021 (for the continued selection and implementation hearing) stated the children were all in school and developing in an age-appropriate manner. The social worker reported the children were "happy and comfortable at their current placement." Visits were continuing, and "[t]he children appear to be happy when they see their parents. The children also demonstrate being comfortable and are affectionate toward the parents."
Herman reported he wanted to live with his parents but was "fine" staying with the grandparents. In July 2021 the social worker referred Herman to mental health services due to his "expressing mixed emotions about not returning under the care of his parents. The child appeared to be upset as he is under the impression that parents only needed to find a place to live in order for him and his siblings to return under their care."
The September 21, 2021 report contains significantly more detail about the children's views than the July 21 report. In addition, the later report reflects contact between the social worker and the children through August 22, 2021, whereas the prior report states the last contact the social worker had with the children was on July 2, 2021.
Belen was doing well, demonstrating maturity and leadership, but she "struggled with the fact she will not be returning under the care of the parents." At times Belen stated she wanted to live with her parents, but at other times she stated she wanted to stay with the grandparents and "does not want to return [to the] parents."
Luis stated he "loves his parents and wants to go live with them but is also okay staying at his current placement." During his individual therapy, Luis struggled "with the changes of the case and knowing that he will not return under the care of the parents." Bailey was "comfortable and able to express all emotions" to the grandparents, and she wanted to stay with them.
The Department concluded the grandparents "continue to take the appropriate precautions to prevent further trauma on the children and understand the children's feelings of wanting to be with the biological parents but at the same time wanting to be at their current home." The grandparents also "demonstrated the ability to seek the appropriate help for the children and themselves while they support one another as a family including the biological parents."
D. The Selection and Implementation Hearing
At the September 21, 2021 selection and implementation hearing (§ 366.26), the juvenile court admitted the Department's reports into evidence (including the July and September 2021 reports) without objection by Mother or Father. The children's attorney argued there was clear and convincing evidence the children were adoptable and no exception to termination of parental rights applied. She joined with the Department in requesting the court terminate parental rights and designate the grandparents as prospective adoptive parents. Mother's attorney objected to termination of her parental rights, arguing, "[Mother's] bond with the children is too strong to sever this connection. Mother has been working hard with two jobs and trying to do everything she can to maintain her relationship with her children, so she is asking the court to use its discretion and not move forward with the plan of adoption today." Mother did not present any additional argument or evidence.
Father's attorney stated Father (who did not attend the hearing) previously did not object to adoption, but the attorney was unable to obtain recent direction from Father.
The juvenile court found there was clear and convincing evidence the children were adoptable; they were doing "very well with the paternal grandparents"; and "it would be detrimental to return the children to parents." Further, the "parental bond exception" did not apply for either parent. The court explained, "Although . . . Mother and Father have weekly visits, these visits don't establish anything more than just the . . . loving bond that commonly occurs and remains between parents even though they are unable to reunify. [Mother and Father] have not met the burden of proof of a parental bond as defined by case law." The court added, "The parents are still visiting together, . . . which means they haven't really moved beyond to the type of visits that could establish an exception here. There was a criminal protective order in the past that parents violated. The parents continue to be together even though they have a codependent relationship." The court found no exception to adoption applied, and it terminated Mother's and Father's parental rights and designated the grandparents as the children's prospective adoptive parents.
Contrary to the juvenile court's ruling reflected in the reporter's transcript, the minute order for the hearing stated the court made a finding "the parent has not maintained regular visitation with the child ...." This appears to be a form finding that does not reflect the court's actual findings on the record. Inclusion of this type of form finding undermines the integrity of the proceedings and is a disservice to the parties and this court. We have criticized this practice and are deeply troubled that it persists. (See, e.g., In re T.G. (2020) 58 Cal.App.5th 275, 298, fn. 20.)
Mother timely appealed.
DISCUSSION
A. The Beneficial Parental Relationship Exception
"At the section 366.26 hearing, the focus shifts away from family reunification and toward the selection and implementation of a permanent plan for the child." (In re S.B. (2009) 46 Cal.4th 529, 532; accord, In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) "'Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1).'" (In re B.D. (2021) 66 Cal.App.5th 1218, 1224-1225; accord, In re Celine R. (2003) 31 Cal.4th 45, 53 ["court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child"].)
Under section 366.26, subdivision (c)(1)(B)(i), "the parent may avoid termination of parental rights" if the parent establishes by a preponderance of the evidence "that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child. [Citations.] The language of this exception, along with its history and place in the larger dependency scheme, show that the exception applies in situations where a child cannot be in a parent's custody but where severing the child's relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child." (Caden C., supra, 11 Cal.5th at pp. 629-630; accord, In re B.D., supra, 66 Cal.App.5th at p. 1225.)
A parent has regular visitation and contact when the parent "'visit[s] consistently,' taking into account 'the extent permitted by court orders.'" (Caden C., supra, 11 Cal.5th at p. 632; accord, In re I.R. (2014) 226 Cal.App.4th 201, 212.) Whether "'the child would benefit from continuing the relationship'" with his or her parent is shaped by factors "such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'" (Caden C., at p. 632; accord, In re Katherine J. (2022) 75 Cal.App.5th 303, 317 (Katherine J.).) "'If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,' even considering the benefits of a new adoptive home, termination would 'harm[]' the child, the court should not terminate parental rights." (Caden C., at p. 633; Katherine J., at p. 317.) "While application of the beneficial parental relationship exception rests on a variety of factual determinations properly reviewed for substantial evidence, the ultimate decision that termination would be harmful is subject to review for abuse of discretion." (Caden C., at p. 630; accord, In re B.D., supra, 66 Cal.App.5th at p. 1225.)
B. The Juvenile Court Did Not Abuse Its Discretion in Finding the Beneficial Parental Relationship Exception Did Not Apply
Mother contends the juvenile court abused its discretion in finding the beneficial parental relationship exception did not apply because the evidence showed as to the first step of the analysis articulated in Caden C., supra, 11 Cal.5th at page 629 that Mother consistently visited the children, and the juvenile court failed to make specific factual findings as to the second and third steps of the exception. In addition, the Department made "no assessment . . . of the children's bond with the parents" in the section 366.26 report. Mother argues in the alternative that the evidence showed the children had a substantial, positive emotional attachment to Mother and termination of parental rights would be detrimental to the children. The Department argues Mother forfeited her challenge to the adequacy of the section 366.26 report by failing to object to its admission; she failed to provide any support for her argument her visitation was consistent; and substantial evidence supported the juvenile court's findings on the second and third steps of the Caden C. analysis. The juvenile court did not abuse its discretion.
Mother's contention the Department failed in its reports admitted at the hearing adequately to evaluate the children's relationship with Mother lacks merit. Although it is not required by statute, we agree with the Court of Appeal in In re B.D., supra, 66 Cal.App.5th at page 1230, footnote 5 that "social worker assessments and evaluations should address whether or not the children have a substantial, positive, emotional attachment to the parents taking into consideration the child's age, the portion of the child's life spent in parental custody, the positive or negative impact of interaction with the parent, and the child's particular needs as required by Caden C." (But see In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344 ["The law requires the agency to provide only limited information about previous parent-child contact, to wit, a 'review' of the amount and nature of any contact between the minor and his or her parents since the time of placement" and need not "go beyond a general description of the post-placement contacts between parent and child and into a detailed evaluation about whether the continuance of the relationship manifested by such contacts would be beneficial to the child."].)
Contrary to Mother's contention, the October 30, 2020, February 1, 2021, July 21, 2021, and September 21, 2021 reports addressed the parents' visitation, the parents' interaction with the children during the visits (and lack of contact between visits), the children's behavior during and after visits, and the children's views on placement with the grandparents or parents. The September 22, 2021 status review report also included information concerning Belen's, Herman's, and Luis's expressions during therapy about separation from Mother and Father. Mother did not seek to introduce any evidence elaborating on Mother's bond with the children or to challenge the adequacy of the Department's reports, even though it was Mother's burden to prove the children developed a substantial, positive emotional attachment with her, as a result of which the children would benefit from continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 636.)
We reject the Department's contention Mother forfeited her challenge to the sufficiency of the Department's reports. Although Mother did not object to the admission of the July and September 2021 section 366.26 reports into evidence, this was not tantamount to a concession the reports were adequate. Mother's argument on appeal may fairly be understood as a challenge to the sufficiency of the evidence supporting the juvenile court's finding the beneficial parental relationship did not apply, an issue Mother raised at the selection and implementation hearing (at least in a superficial manner) when she argued her "bond with the children is too strong to sever this connection."
As to the first step of the beneficial parental relationship exception analysis as articulated by Caden C., supra, 11 Cal.5th at page 629, we agree with Mother the juvenile court impliedly found Mother met her burden to demonstrate regular visitation with the children. Notwithstanding the inaccurate description in the minute order, the court found "Mother and Father have weekly visits," which we interpret as a finding of regular visitation. Further, substantial evidence supports a finding Mother regularly visited the children. The Department reported Mother "consistently" visited the children every Sunday for three hours. The grandparents reported only two occasions (in mid-2021) when Mother failed to attend scheduled visits. Although the custody order authorized two weekly three-hour visits, as of January 2021 Mother lived in Moreno Valley, held two jobs, and travelled to La Puente on the weekends for visits with the children. Under the circumstances, Mother maintained "regular visitation and contact with the child[ren]" (§ 366.26, subd. (c)(1)(B)(i)), even "taking into account 'the extent permitted by court orders.'" (Caden C., supra, 11 Cal.5th at p. 632; cf. In re I.R., supra, 226 Cal.App.4th at p. 212 [visitation not regular where "there were significant lapses" in the mother's visitation]; In re J.C. (2014) 226 Cal.App.4th 503, 531 [visitation not regular where the mother missed five visits in the six weeks preceding the selection hearing and there was a "troubling manner of [m]other's cancellations and pattern of changing her plans last minute"]; In re C.F. (2011) 193 Cal.App.4th 549, 554 [visitation not regular where "overall [the mother's] visitation was sporadic," including visiting three times in a three-month period despite order allowing for weekly visitation].)
With respect to the second step, Mother's attorney argued in a cursory manner only that Mother's "bond with the children is too strong to sever this connection." The juvenile court's findings were no more detailed, finding simply that Mother and Father "have not met the burden of proof of a parental bond as defined by case law." To the extent the court considered the fact Mother and Father were still visiting together and had previously violated the prior criminal protective order, this was error. Under Caden C., the beneficial parental relationship exception applies precisely in the situation where the parent is unable to reunify with the child because of the problems that led to the dependency case (here, Mother's failure to protect the children from Father's substance abuse) but severing the parent's bond with the child would be detrimental to the child. (Caden C., supra, 11 Cal.5th at pp. 629-630 ["the question before the court is decidedly not whether the parent may resume custody of the child"]; In re B.D., supra, 66 Cal.App.5th at p. 1225.) Further, the juvenile court incorrectly focused on the detriment that would occur from returning the children to the parents instead of the detriment to the children from severing their relationship with the parents. (Caden C., at pp. 629-630; In re B.D., at p. 1225.)
Although the better practice is for a juvenile court to make findings on the record as to the three steps of the Caden C. analysis-for the benefit of the parents and potential appellate review-it is not required. As the Court of Appeal explained in In re A.L. (2022) 73 Cal.App.5th 1131, at page 1156, "[W]e infer from section 366.26, subdivision (c)(1)(D)-under which the juvenile court is required to 'state its reasons in writing or on the record' when it makes a finding that termination of parental rights would be detrimental to the child-that the court is not required to make findings when it concludes that parental rights termination would not be detrimental." (Accord, In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109 [evidence in the record describing the nature of parents' visitation and the child's reaction supported an implied finding the parents failed to establish the beneficial parental relationship exception].) The California Rules of Court do not impose any additional requirement that the juvenile court make findings on the record when finding termination of parental rights would not be detrimental to the child. (See Cal. Rules of Court, rule 5.725(d).)
However, to the extent the juvenile court considered improper factors in deciding the parental benefit exception did not apply, any error was harmless because Mother failed to establish the children had a substantial, positive emotional attachment with her, as a result of which the children would benefit from continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 636; Katherine J., supra, 75 Cal.App.5th at p. 317; see In re Jesusa V. (2004) 32 Cal.4th 588, 624 [harmless error standard applies in dependency cases]; In re Malick T. (2022) 73 Cal.App.5th 1109, 1128 [same].)
The September 21, 2021 report (reflecting contact between the social worker and the children on August 22, 2021) stated that Herman, Belen, and Luis expressed a desire to live with their parents, or at least ambivalence. Ten-year-old Herman stated he wanted to live with his parents but was "fine" staying with the grandparents. He had "mixed emotions" about not returning to live with Mother and Father. Nine-year-old Belen "struggled" with the fact she could not return to the care of Mother and Father, and sometimes stated she wanted to live with her parents, but at other times said she wanted to stay with her grandparents. And six-year-old Luis preferred to live with his parents but was "okay" with staying with his grandparents. Luis was having difficulty in therapy with the impact of the dependency case and accepting that he would not return to his parents. Four-year-old Bailey wanted to stay with the grandparents instead of Mother and Father.
Although the three older children expressed difficulty with the fact they would not return to live with their parents, these challenges (and preferences as to living arrangements) do not rise to the level of "'substantial, positive emotional attachment'" to the parent. (See Caden C., supra, 11 Cal.5th at p. 633.) And Bailey, who was only two years old when she was first placed in foster care, did not express any concern about not seeing Mother again. Moreover, during the almost two years in which the children were placed in foster care or with the grandparents, the only contact the children had with Mother was during the single monitored visit they had each week. Mother was allowed a second visit, but she did not visit with the children or have any contact with them other than her single weekly visit. Although Mother and Father interacted appropriately with the children during the visits, the grandparents reported the children felt "like they [could] do whatever they want[ed] when the parents [were] present." Further, the children acted rebelliously after the visits, and needed a day or two to readjust following the visits. Absent from the record is any evidence the children requested to see Mother more frequently or were unhappy about being separated from Mother after the visits.
Mother also failed to make any showing as to the third (and most significant) step of the Caden C. analysis that the children "losing the relationship with [Mother] would harm the child[ren] to an extent not outweighed, on balance, by the security of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 634.) As discussed, if the three older children were no longer able to see Mother, they would need to continue to address their emotions about the loss of this relationship. But the grandparents were able to meet the children's needs emotionally, physically, and financially and to provide a clean and safe home for the children. And as discussed, all the children were happy in the grandparents' home and developing well. Further, the record does not reflect any willingness by the grandparents to provide stability through a legal guardianship, which would have enabled Mother and Father to continue to visit the children. On this record, there is no showing of "'exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.'" (Id. at p. 631.) The juvenile court therefore did not abuse its discretion in impliedly finding the benefit and security provided by the children's continued placement with the grandparents as the prospective adoptive parents outweighed any harm that would be caused by the loss of their parental relationship with Mother. (Id. at p. 634; Katherine J., supra, 75 Cal.App.5th at p. 317.)
C. The Juvenile Court and the Department Failed To Comply with ICWA and Related California Law 1. The juvenile court's ICWA findings
The November 15, 2019 dependency petition included an Indian child inquiry attachment (ICWA-010) form, in which the social worker reported she asked Mother and Father about the children's Indian ancestry, and both denied any known Indian ancestry. At the November 18, 2019 detention hearing, Mother and Father each filled out a parental notification of Indian status form (ICWA-020), in which they indicated they had no known Indian ancestry.
At the detention hearing, the juvenile court found, "[E]ach parent has indicated that they do not have Indian ancestry; therefore, I find there is no reason to know that the children are Indian children within the meaning of [ICWA]." However, the court ordered the Department "to continue to investigate." The court did not make any additional findings as to ICWA at the jurisdiction and disposition hearing or thereafter. Nor did the court inquire of the paternal grandparents, paternal aunt, and "paternal sister" who were identified as present at the detention hearing.
The children's attorney stated the "paternal sister" was present at the hearing, but we assume this is a reference to the paternal aunt given the absence of any half-siblings.
2. 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) 1 Cal.5th 1, 5 ; In re Antonio R. (2022) 76 Cal.App.5th 421, 428 (Antonio R.); In re T.G. (2020) 58 Cal.App.5th 275, 288.) California law also 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 Antonio R., at p. 429; In re T.G., at p. 288; 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, Antonio R., at p. 428; 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 H.V. (2022) 75 Cal.App.5th 433, 437 ["The trial court and [Department] have an affirmative and continuing duty in every dependency proceeding to determine whether ICWA applies."].) "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; accord, In re J.C. (2022) 77 Cal.App.5th 70, 77; In re H.V., supra, 75 Cal.App.5th at p. 437 ["[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 ...." (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 D.F. (2020) 55 Cal.App.5th 558, 566; 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."].)
"State law also expressly requires the juvenile court to ask participants who appear before the court about the child's potential Indian status. (§ 224.2, subd. (c).)" (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742; accord, In re Josiah T., supra, 71 Cal.App.5th at p. 402.) Similarly, under federal regulations, "[s]tate courts must ask each participant in an . . . involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child." (25 C.F.R. § 23.107(a) (2022).) "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 ["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 ...."].)
"[I]f the court or child protective agency 'has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child,' the court and the Department 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.'" (In re J.C., supra, 77 Cal.App.5th at p. 78, quoting § 224.2, subd. (e); see In re H.V., supra, 75 Cal.App.5th at p. 437; In re T.G., supra, 58 Cal.App.5th at p. 290; Cal. Rules of Court, rule 5.481(a)(4).)
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., supra, 76 Cal.App.5th at p. 435; accord, In re J.C., supra, 77 Cal.App.5th at pp. 80-81; see In re E.V. (2022) 80 Cal.App.5th 691, 698 ["[W]e reject county counsel's argument Father must show prejudice from the lack of initial inquiry. Father's failure to make affirmative representation about possible Indian heritage does not render the error harmless."]; In re Y.W., supra, 70 Cal.App.5th at p. 556 ["A parent . . . does not need to assert he or she has Indian ancestry to show a child protective agency's failure to make an appropriate inquiry under ICWA and related law is prejudicial."]; but see In re Dezi C. (2022) 79 Cal.App.5th 769, 779 ["[A]n agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding."].)
3. The juvenile court failed to ensure the Department satisfied its duty of inquiry
Mother contends the juvenile court erred when it found at the detention hearing that ICWA did not apply based solely on the parental notification of Indian status forms filed by Mother and Father stating they had no known Indian ancestry without inquiring of extended relatives, including at a minimum the maternal grandmother, paternal grandparents, and paternal aunt, regarding the children's possible Indian ancestry. The Department concedes there is no evidence a social worker ever asked known extended family members whether the children had Indian ancestry but notes that "some appellate court[s] have deemed similar ICWA-related inquiry errors to be harmless." Nonetheless, the Department "submits the ICWA issue to this [c]ourt" in light of our decisions holding a failure to inquire of extended family members is in most circumstances prejudicial error.
The Department failed to satisfy its initial duty of inquiry under section 224.2, subdivision (b). Notwithstanding Mother's and Father's denial of known Indian ancestry, section 224.2, subdivision (b), obligates the Department to inquire of children's extended family members as to the child's ancestry. (Antonio R., supra, 76 Cal.App.5th at p. 431 ["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 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"].) It is undisputed the Department did not make an inquiry of any extended family members, even though the maternal grandmother and paternal grandparents were known to the Department, and a paternal aunt and "paternal sister" were present at the detention hearing.
The juvenile court also erred in finding ICWA did not apply to the proceedings despite the Department's failure to satisfy its duty of inquiry under section 224.2, subdivision (b). (See In re J.C., supra, 77 Cal.App.5th at p. 74 ["the court's finding ICWA did not apply" was not supported by substantial evidence where the court "failed to ensure the Department fulfilled its duty of inquiry under section 224.2, subdivision (b)"]; Antonio R., supra, 76 Cal.App.5th at p. 432 [court's finding ICWA did not apply was erroneous where Department failed to inquire of child's extended family members about possible Indian ancestry, and court failed to ensure Department satisfy its duty of initial inquiry].) Although the court instructed the Department "to continue to investigate," the court determined ICWA did not apply based only on the parents' parental notification of Indian status forms, and there is no evidence the Department or the court ever revisited the issue.
Moreover, the error in failing to inquiry of readily ascertainable extended family members is prejudicial. As we explained in Antonio R., supra, 76 Cal.App.5th at page 435, "[I]n 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. In most circumstances, the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child-regardless of whether the information ultimately shows the child is or is not an Indian child." Because the children's grandparents and other extended relatives may possess information relevant to the children's Indian ancestry not known by the parents, the failure of the court and Department to inquire of the family members was prejudicial.
DISPOSITION
The order terminating Mother's parental rights as to Herman, Belen, Luis, and Bailey is conditionally affirmed. We remand to the juvenile court for the Department and the court to comply with the inquiry and notice provisions of ICWA and related California law, including inquiry of the maternal grandmother, the paternal grandparents, the paternal aunt, and any other reasonably available extended family members, and to follow up on any information the Department may obtain about the children's possible Indian ancestry. If the court finds the children 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.