Opinion
A167512
05-06-2024
In re L.N., a Person Coming Under the Juvenile Court Law. v. J.L., Defendant and Appellant. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J2100001)
Richman, J.
J.L. (father) appeals from the juvenile court's order appointing a legal guardian for his son, L.N., following a Welfare and Institutions Code section 366.26 hearing. Father argues (1) he was deprived of due process because the juvenile court failed to make a finding that returning L.N. to him would be detrimental to L.N.; (2) the juvenile court abused its discretion in reducing his visitation; and (3) the Contra Costa County Children and Family Services Bureau (the Bureau) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) by not asking extended family members about L.N.'s possible Indian ancestry. We reject the first and second arguments. The Bureau concedes the third argument, and we accept the concession. Accordingly, we will conditionally reverse and remand for the Bureau to conduct the appropriate ICWA inquiries.
Further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Proceedings Before the Section 366.26 Hearing
This dependency case is before us for a second time. We summarized the proceedings before the section 366.26 hearing in our prior unpublished opinion. (J.L. v. Superior Court of Contra Costa County (Dec. 9, 2022, A166361) [nonpub. opn.] (J.L.).) We repeat a large portion of that summary here, as it is relevant to father's due process claim in this appeal.
"On January 4, 2021, the [Bureau] filed a petition pursuant to section 300, subdivisions (b)(1) and (g), alleging that L.N.-born in December 2020-and his mother E.N. (mother) had both tested positive for amphetamines and ecstasy at the time of L.N.'s birth.
"On February 19, the juvenile court held a contested jurisdiction hearing and sustained the petition, and on May 19, the juvenile court held a contested disposition hearing and ordered family reunification services to mother.
"On August 11, father contacted the assigned social worker . . . and stated that he believed he could be L.N.'s father....And on November 3, the juvenile court confirmed father's status as L.N.'s biological father and ordered visitation for one hour per week.
"At a contested six/twelve-month hearing on February 9, 2022, the juvenile court terminated reunification services to mother and ordered reunification services for father.
"The Bureau prepared a report in advance of an interim review hearing set for May 11. The report described an incident in which L.N. returned from an eight-hour visit with father on March 12 with a 'very soaked' diaper and diaper bag, the contents of which smelled of marijuana. The social worker also made an unannounced visit to father's home on April 15 and observed a jar of marijuana and jar of cigars on the coffee table. Father indicated that the marijuana belonged to his roommate. The report detailed the social worker's concern, based on various events, that father was allowing L.N. to have contact with mother, despite that he was not approved to supervise visitation between them. The Bureau recommended that the juvenile court continue reunification services to the 18-month review hearing, and indicated that mother's 'involvement with [father] around visitation with [L.N.] continues to remain a concern' and that father's 'behavior is not congruent with what he says his intentions are, and these actions have put the Bureau in a place that questions his ability to use sound judgement [sic] to provide and hold long-term safety for his son.' [¶] . . . [¶]
"On September 23, the Bureau filed a memorandum in advance of the 18-month contested review hearing-then set for September 28-which included the following:
" 'The undersigned spoke with [father] on July 27, 2022 and discussed the next Court date, and the importance of continuing to work towards reunification to include arranging for childcare, completing a home visit before increasing visitation, and scheduling an in-person meeting with the undersigned.
" 'The undersigned met with [father] at the CWS Office on August 3, 2022 and introduced him to a new Parent Partner. The undersigned discussed with [father] the importance of continuing to work together towards reunification with the goal of being able to show the Court that [father] is prepared to care for [L.N.] full time. [Father] was informed that the hearing on September 28, 2022 would be the last hearing to determine if [L.N.] will reunify with [father], and the expectation will be that he is prepared for [L.N.] to come home with him that day....When asked what [father] needed support with, he expressed a desire to move and find new housing. [Father] confirmed that he received the housing resources from the undersigned and that he applied for housing in Berkeley and was looking into housing in Antioch and Fairfield.
" 'The undersigned informed [father] the importance of having childcare arranged for [L.N.], as [father] currently works two full time jobs.... The undersigned discussed the importance of being able to articulate his childcare plan to the Court and informed him that CoCo Kids has a list of childcare providers in his area on their website. The undersigned discussed the process to increase visitation, which included scheduling a home visit with the undersigned. [Father] was asked to provide the undersigned with several dates and times that he would be available to not impede with his work schedule. The undersigned offered the support of the Parent Partner with any of the tasks discussed today. The next steps identified for [father] included the following:
" '• Sign up for Supporting Father's Involvement group
" '• Call the Access Line for therapy services
" '• Provide social worker dates and times available for a home visit
" '• Research day care providers'
"The report then detailed how the social worker twice set up an appointment for a home visit, only to have father cancel. It went on:
" 'The undersigned called [father] on September 14, 2022 and initiated a conversation regarding the missed home visits. [Father] stated that he recently started a new job and his work schedule has changed to 6:30 AM -5:00 PM. [Father] stated he had not enrolled in therapy because "of his work schedule" and he did not have the time to call the Access Line. The undersigned inquired if [father] has located a daycare provider and [father] stated that he had not. The undersigned inquired as to what his plan would be if [L.N.] were approved to go home with him on the day of court. [Father] stated that he would have to pay out of pocket for childcare. The undersigned again asked which daycare providers he has located and [father] stated he has not identified a specific provider. The undersigned inquired if [father] would be able to take time off work to care for [L.N.] until he identifies childcare and [father] stated he could not take time off as he just started a new job. The undersigned informed [father] that he must be able to demonstrate to the Court that he is ready, able and prepared to take [L.N.] home with him on the day of the hearing. The undersigned stressed that at this time he [is] demonstrating that he is not prepared or able to provide full time care for [L.N.] by his inability to articulate a safe plan for childcare.'
"Finally, the report concluded in part:
" 'Before the Court today is 20-month-old [L.N.], and his father[]. [L.N.] continues to grow and thrive in his current placement. Although [father] is a caring and loving father who remains firm in his desire to have [L.N.] in his care and custody full-time, he has not presented with the insight and judgment needed to create safety for [L.N.] There continues to be inconsistencies with [father]'s case plan engagement and reunification efforts, which have been demonstrated throughout the life of the case. [Father] has not met basic expectations to demonstrate his commitment to providing full time care for his child. [Father] does not initiate communication or prioritize scheduled appointments with the undersigned and he has not demonstrated his ability to develop supports and resources to provide for the child's basic childcare needs. [Father] has shown a lack of judgment by continually engaging with [mother] and therefore lacks the insight needed to protect the child from the mother's problematic behavior. Specifically, [father] continued to violate court orders in regards to visitation, despite multiple admonishments from the Court and the Bureau.'
"The report recommended that the court terminate father's reunification services and set a hearing under section 366.26.
"The contested 18-month review hearing took place on September 28 [and October 7]. Father testified that he had not started therapy because of his work schedule and the classes he was taking on Monday nights. He also testified that he had six daycare providers that he was checking into, and that one he 'really checked into' was one in Martinez close to his job. He testified that he was told that certain of the daycare providers would have open enrollment soon, and to call back. He indicated that his daycare plan was that if he did not have a 'program that's going to help me out, I am going to pay out of my pocket.' He did not have a specific provider in mind that he could pay out of pocket because 'I'm just waiting to find out what my situation is going to be with [L.N.] before I can really make that decision.'
"Social worker Sullivan testified that she began providing reunification services to father in February 2022, and that she provided him with information about potential childcare when his visitation began in November of 2021. She added that she had 'explained that the expectation would be that at this court date he would be prepared for [L.N.] to come home with him full time, and daycare would be an important thing to have secured in order to make sure that recommendation.' Father did not tell her that he had called any daycare providers, which she learned for the first time from his testimony.
"At the conclusion of the hearing, counsel for the mother, father, and L.N. asked the juvenile court to exercise its discretion to grant father additional services before setting a section 366.26 hearing. The Bureau's counsel argued that there were neither good cause nor extraordinary circumstances to justify further reunification services and that the court should set a section 366.26 hearing." (J.L., supra, A166361.)
Following this argument, the juvenile court declined to extend services. It also found "by clear and convincing evidence that the return of the child to the custody of his parents at today's date would create a substantial risk of detriment to the safety, protection or physical or emotional well being of the child[.]"
The court stated: "I am going to indicate that while I don't think that there was entire follow through, even with the completion of the parenting class, I think that it is not safe to return [L.N.] today without a more developed plan for childcare, which has been an open discussion. Because even during a week period where there was plenty of time to set up appropriate childcare, it had to be truncated because there was not sufficient childcare. And I can not [sic] have a leap of faith that somehow it would be in place immediately if I were to return [L.N.] today. And there are clearly some inconsistencies in the testimony and what has been provided in the reports that I have admitted into evidence, and the main ongoing concerns of Ms. Sullivan is articulated at our last setting on September 28th. I have one of them being that [father] is not able to provide long-term protective capacity and meet his daily needs, which is meeting his daily needs is essentially part of the case plan." (J.L., supra, A166361.)
The juvenile court terminated father's reunification services and set a section 366.26 hearing for February 3, 2023. (J.L., supra, A166361.) Father was granted visitation of a minimum of four hours, once per week. The court advised father of the requirement for challenging its order by way of a writ petition, along with the time frame for doing so.
Father filed a writ petition, in which he raised only one issue: that the juvenile court abused its discretion in declining to extend services. On December 9, 2022, this court denied the writ petition on its merits. (J.L., supra, A166361.)
Section 366.26 Hearing
In its report for the section 366.26 hearing set for February 3, 2023, the Bureau recounted that in January 2021, L.N. was placed with his current caregivers, who had "developed a close bond with L.N." They also "have provided [L.N.] with a caring, nurturing, and structured home environment, and have met all of [L.N.'s] needs." The caregivers remained "very resolute in their intention to provide [L.N.] with permanency ...." The Bureau reported that L.N. "continues to thrive in the home of his current caregivers," who "have provided exceptionally well for [L.N.'s] material and emotional needs."
Regarding visitation, the Bureau noted that on October 7, 2022, father had been granted visitation of a minimum of four hours, once per week. Due to his work schedule, it was agreed that visits would be scheduled on Saturdays. When father began working on Saturdays in October 2022, he stated he would be able to attend visits on Saturday afternoons after 2:00 p.m.
During the month of October 2022, father worked with the caregivers to schedule visitation around his work schedule, but he would not know whether he would have to work on a given Saturday until the day before.
The caregivers accommodated father, but his last-minute scheduling prevented the caregivers from planning family activities on weekends in advance. At times, father reached out to the caregivers on the same day to let them know that he could make a visit in the afternoon. As a result, the caregivers sometimes had to stop the family activity they were engaged in at the time to accommodate father's request.
Additionally, father reportedly would not initiate scheduling a visit even on days on which he was not scheduled to work. For example, on the morning of Saturday, November 5, 2022, the caregivers were the ones to reach out to father to see if he was working that day or if they would have a visit. Father informed them that he was not at work, that he was working on his car, and that due to the rain, he did not think it was a good idea for L.N. to be out of the house.
The caregivers agreed to accommodate occasional Sunday visits. For the month of November 2022, the Bureau scheduled four visits. Father missed two of them. As to one of the missed visits, father did not show up or respond to calls or texts for over an hour. He eventually asked the caregivers if they could bring L.N. to the park later in the day or the following day, but the caregivers were unable to accommodate the request due to a prior commitment.
For the month of December 2022, father attended only two of the six scheduled visits. He missed visits due to either having a medical emergency, transportation issues, or work.
In January 2023, the caregivers and father scheduled five visits for the month. After the Bureau received a report that father was working on both Saturdays and Sundays, it reached out to see if he was working or had transportation issues, but he did not respond. The Bureau confirmed that two visits in January occurred.
When visits took place, they were appropriate. The caregivers offered on numerous occasions for visits to occur during the week, as L.N. was not currently school-aged, but father could not attend due to his work schedule. The caregivers shared that they understood the importance of maintaining the relationship between father and L.N. At the same time, however, they expressed it was not sustainable or feasible to maintain a weekly visitation schedule moving forward, as it had been interfering with building a family dynamic with L.N. in their home.
The Bureau determined that in view of the of the above, legal guardianship was the most appropriate permanency plan for L.N. and recommended that the caregivers be appointed the legal guardians. The Bureau also recommended that father receive unsupervised visitation for a minimum of six hours per month.
The juvenile court held the section 366.26 hearing on February 3, 2023. The parties relied on the submitted documents and did not present any new testimony or evidence. The juvenile court heard argument from the parties including from father's attorney, who objected to the recommendations of legal guardianship and reduction of father's visitation. At the conclusion of the hearing, the court declined to terminate father's parental rights, granted legal guardianship of L.N. to his caregivers, reduced father's visitation to six hours per month, and terminated the dependency.
On February 10, it issued letters of guardianship to L.N.'s caregivers.
This appeal followed.
ICWA Investigation and Finding
In January and March 2021, upon inquiry of the Bureau and juvenile court, mother denied having Indian ancestry. However, in July 2021, mother filed an ICWA-020 form indicating that L.N. may be eligible for membership in the Cherokee Tribe.
In November 2021, father filed an ICWA-020 form indicating that he may be a member of the Blackfoot tribe. In January 2022, he informed the Bureau that his grandmother may also have been in the Blackfoot tribe.
In its "ICWA Further Inquiry Due Diligence Report" dated May 9, 2022, the Bureau indicated that it had interviewed the parents regarding their reports, and the parents gave additional information regarding their family history. The Bureau also documented its communications with several Cherokee tribes and the Blackfeet tribe, who subsequently confirmed that L.N. was not a member of any of these tribes.
"[T]here is frequently confusion between the Blackfeet tribe, which is federally recognized, and the related Blackfoot tribe which is found in Canada and thus not entitled to notice of dependency proceedings. When Blackfoot heritage is claimed, part of [a child welfare agency's] duty of inquiry is to clarify whether the parent is actually claiming Blackfoot or Blackfeet heritage so that it can discharge its additional duty to notice the relevant tribes." (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.) According to the Bureau's "ICWA Further Inquiry Due Diligence Report," father provided additional family history information that noted he had Blackfeet heritage, which was different from his initial claim of Blackfoot heritage. It is unclear whether the Bureau or father was aware of the difference between the two tribes or that the Bureau clarified which tribe father was claiming he had a connection to.
At the conclusion of the 18-month review hearing on October 7, 2022, the court found that there was no reason to believe or know that L.N. was an Indian child and that ICWA did not apply.
DISCUSSION
Father's Due Process Argument Lacks Merit
Father's first argument is that "[t]he juvenile court violated [his] due process rights when it ordered a legal guardianship . . . without ever finding, properly supported by clear and convincing evidence, that placement with [him] would be detrimental to [L.N.]" We disagree.
The dependency statutes distinguish between a parent with whom a child resided at the time a section 300 petition was initiated-the custodial parent-and a parent with whom the child was not residing at the time-the noncustodial parent. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1242.) Where, as in this case, the juvenile court removes a child from the custodial parent (here, mother), section 361.2 requires the court to place the child with the noncustodial parent (here, father) if the noncustodial parent requests custody and placement with that parent would not be "detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).) "To comport with due process, the detriment finding must be made under the clear and convincing evidence standard. [Citations.]" (In re C.M. (2014) 232 Cal.App.4th 1394, 1401.) "Clear and convincing evidence requires 'a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]' [Citations.]" (Ibid.)
Father claims his due process rights were violated when the juvenile court ordered a legal guardianship "without ever making a detriment finding, sufficiently supported by clear and convincing evidence, during the pendency of the case." However, in the same breath, he admits that at the 18-month review hearing on October 7, 2022, the court stated: "I am finding by clear and convincing evidence that the return of [L.N.] to the custody of his parents at today's date would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of [L.N.]" Clearly, then, the juvenile court in fact made a detriment finding, and did so under the clear and convincing evidence standard.
Perhaps recognizing this, father proceeds to essentially argue that the juvenile court did not actually mean what it said. He argues that the court was "simply recit[ing] the canned proposed findings" submitted by the Bureau in its 18-month review report. Such assertions are manifestly unsupported, especially in light of the principle that a trial court is presumed to have understood and followed the applicable law. (In re Julian R. (2009) 47 Cal.4th 487, 499 [" 'we apply the general rule "that a trial court is presumed to have been aware of and followed the applicable law"' "]; Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 741 [" 'It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties' "]; accord, In re A.L. (2022) 73 Cal.App.5th 1131, 1156.) But beyond that, the court's comments at the 18-month review hearing reflect that it specifically addressed the question of whether it could safely return L.N. to father and carefully considered the evidence pertinent to that question. In sum, because the court did not fail to make a finding of detriment by clear and convincing evidence, father's due process argument fails.
Although he avoids framing the question in such a way, father's argument is really that substantial evidence did not support the detriment finding. This is evident by his contention that "the more consequential error at the hearing occurred when the court found that placing the minor with [him] would be detrimental to [L.N.'s] safety, because this finding is not supported by clear and convincing evidence of detriment." To the extent father is challenging the sufficiency of the evidence to support the detriment finding, we agree with the Bureau that such a claim is not cognizable in this appeal because father did not raise it in his prior petition for extraordinary writ.
"[S]ection 366.26, subdivision (l) bars direct appeals from orders setting a section 366.26 hearing." (In re Merrick V. (2004) 122 Cal.App.4th 235, 248.) This bar applies to "all orders issued at a hearing at which a setting order is entered," "regardless of [their] nature." (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1023, 1024; accord, In re Tabitha W. (2006) 143 Cal.App.4th 811, 817 ["All orders issued at a hearing in which a section 366.26 hearing is ordered are subject to section 366.26, subdivision (l) and must be reviewed by extraordinary writ"]; In re Merrick V., at p. 247 [same].)
This "rule is the only way to ensure that all outstanding issues will have been reviewed by the Court of Appeal prior to the section 366.26 hearing and that it is both conducive to judicial economy and sensitive to the increasing emphasis on the importance of expeditiously achieving finality in dependency matters in the best interests of the children affected by the process." (In re Tabitha W., supra, 143 Cal.App.4th at p. 817.)
In this case, the juvenile court made the detriment finding contemporaneously with its order terminating reunification services and setting the section 366.26 hearing. Father then filed a timely petition for extraordinary writ pursuant to section 366.26, subdivision (l)(1). However, as the Bureau observes, father raised no challenge to the detriment finding in his petition. (J.L., supra, A166361.) We therefore agree with the Bureau that father is precluded from seeking review of that finding in the present appeal.
Even if father's claim were properly before us, we would reject it. In evaluating his claim, we review the record to determine whether there is substantial evidence from which the juvenile court could have made the detriment finding by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) "In conducting substantial evidence review, we review the evidence in the light most favorable to the juvenile court's finding[ ], and draw all inferences and resolve all evidentiary doubts in favor of those findings." (In re D.M. (2015) 242 Cal.App.4th 634, 640; accord, In re Caden C. (2021) 11 Cal.5th 614, 640; In re Angelia P. (1981) 28 Cal.3d 908, 924, superseded by statute on other grounds as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 229-230.)
Here, substantial evidence supports the juvenile court's finding, by clear and convincing evidence, that returning L.N. to father would be detrimental to the safety, protection, or physical or emotional well-being of L.N. As the court emphasized, by the time of the 18-month review hearing, father had failed to "follow through" on the components of his case plan. The court, as well as the social worker, were especially troubled by father's failure to develop a plan for L.N.'s care and supervision, despite having ample time and opportunities to do so. Given this, the court reasonably determined that father failed to demonstrate he was able "to provide long-term protective capacity" for L.N. and "meet his daily needs."
Additionally, father failed to demonstrate adequate progress on other aspects of his case plan, including participating in therapy and arranging for a home visit by the social worker. Arranging for a home visit, in particular, was important given that in a past unannounced visit of father's home, the social worker found marijuana, cigars, and ashes that were within reach of L.N. Father, however, canceled scheduled home visits. He also did not initiate arranging for a home visit. Father thus failed to demonstrate that he could provide a safe living environment for L.N.
As the Bureau observed, "[father] has not met basic expectations to demonstrate his commitment to providing full time care for his child. [Father] does not initiate communication or prioritize scheduled appointments with the undersigned and he has not demonstrated his ability to develop supports and resources to provide for the child's basic childcare needs." Based on these circumstances, the juvenile court could reasonably find by clear and convincing evidence that returning L.N. to father would be detrimental to L.N.'s safety, protection, or physical or emotional well-being.
The Court Did Not Abuse Its Discretion in Reducing Visitation
Father argues that the juvenile court abused its discretion when at the section 366.26 hearing it reduced his visitation from one visit per week to one six-hour visit per month. Again, we disagree.
The stage of the dependency proceeding greatly affects the priority placed on a parent's visitation rights. During reunification, visitation is "essential." (In re Alvin R. (2003) 108 Cal.App.4th 962, 972.) Reunification services must provide for "visitation between the parent or guardian and the child," and the visitation must be "as frequent as possible" while protecting the safety of the child. (§ 362.1, subd. (a)(1)(A)-(B).) However, where, as here, "reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
"We review an order setting visitation terms for abuse of discretion." (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) "We will not disturb the order unless the [juvenile] court made an arbitrary, capricious, or patently absurd determination." (Ibid., quoting Stephanie M., supra, 7 Cal.4th at p. 318.)
Father has not demonstrated an abuse of discretion. At the 18-month review hearing on October 7, 2022, father was granted visits for a minimum of four hours, once per week. At that hearing, the court instructed father: "Don't let this be a situation that when we come back in February [for the section 366.26 hearing] that there have been a lot of missed visits. That is not going to work out well for you. [¶] I'm trying to make it very clear so that you know how important maintaining regular contact and visitation with [L.N.] is ...." Apparently, father did not heed this admonition, since he subsequently failed to consistently visit with L.N. As discussed, during the months of November and December 2022, father missed six out of 10 scheduled visits. In December, father claimed he missed visits due to either having a medical emergency, transportation issues, or work. When the Bureau tried to contact father to follow up on visitation and discuss his work schedule and purported issues with transportation, father did not respond.
Moreover, father contributed significantly to scheduling difficulties in various ways. For example, during the month of October 2022, father reached out to the caregivers to schedule visits either the day before or the day of the visit. The caregivers accommodated father's requests. Unfortunately, father's last-minute scheduling had the result of interfering with the family activities that the caregivers were already engaged in with L.N. or their ability make future weekend plans for such activities. It was also reported that father would not initiate the scheduling of a visit even on a day on which he was not scheduled to work.
It is true that father was appropriate during visits and undoubtedly loves L.N. However, the fact remains that father sporadically attended visits. Further, he made it difficult to schedule visits, which had the effect of interfering with L.N.'s ability to obtain stability in his current placement, where he had been thriving. After the court had terminated reunification services for father, the focus shifted to L.N.'s needs for stability and permanency. (See Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H., supra, 5 Cal.4th at p. 309.) In light of father's actions described above, and in order to prioritize L.N.'s evolving needs, it was reasonable for the juvenile court to reduce father's visitation. Accordingly, we find no abuse of discretion in the court's visitation order.
A Limited Remand Is Appropriate for the Bureau to Comply with Its ICWA Inquiry Duties
Father contends the Bureau failed to comply with its duties of inquiry under ICWA because it did not inquire of L.N.'s extended family members about L.N.'s potential Native American ancestry. The Bureau concedes the point and requests for a limited remand so that it can comply with its inquiry duties.
Father did not raise this argument in the juvenile court or, as he acknowledges, in his writ petition. But as we explained in In re V.C. (2023) 95 Cal.App.5th 251, 255, fn. 3 (V.C.), "Because of the continuing duty imposed by ICWA and related state law to inquire whether a child is an Indian child (In re Isaiah W. (2016) 1 Cal.5th 1, 10-11), our Supreme Court has held that a parent may challenge a finding that ICWA is inapplicable in an appeal from a subsequent order, even though the parent did not raise that issue in the trial court or in an appeal from a previous order (id. at p. 6)."
ICWA establishes minimum federal standards that a state court must abide by "before removing Indian children from their families and placing them into foster care or adoptive homes." (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).) ICWA's requirements are incorporated in California's statutory scheme through section 224.2, which "creates three distinct duties regarding ICWA in dependency proceedings." (D.S., at p. 1052.)
First, from the Bureau's initial contact with a minor and his family, the statute imposes a duty of initial inquiry. (§ 224.2, subds. (a), (b); D.S., supra, 46 Cal.App.5th at p. 1052.) That duty requires the Bureau to ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2 subd. (b).) "Extended family members" mean adults who are the 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); § 224.1, subd. (c) [adopting ICWA definition].)
"Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [Bureau] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' ([§ 224.2], subd. (e), italics added.)" (D.S., supra, 46 Cal.App.5th at p. 1052.) "Further inquiry includes, but is not limited to, all of the following: (A) Interviewing the parents, Indian custodian and extended family members .... (B) Contacting the Bureau of Indian Affairs and the
State Department of Social Services . . . [and] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility." (§ 224.2, subd. (e)(2).)
"Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. [Citation.]" (D.S., supra, 46 Cal.App.5th at p. 1052.)
The juvenile court must determine whether ICWA applies to the child's proceedings. (In re Y.W. (2021) 70 Cal.App.5th 542, 552.) "The juvenile court . . . may not find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a [Bureau] inquiry that is not proper, adequate, or demonstrative of due diligence." (In re Josiah T. (2021) 71 Cal.App.5th 388, 408, citing In re D.F. (2020) 55 Cal.App.5th 558, 570-571 [in turn citing § 224.2, subds. (g) and (i)(2)].) In general, we review the juvenile court's ICWA findings for substantial evidence. (In re N.F. (2023) 95 Cal.App.5th 170, 178; see also In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-1005 [adopting substantial evidence review of juvenile court finding that it had no reason to know child is an Indian child but abuse of discretion review of decision that ICWA inquiry was adequate].)
Father argues the juvenile court erred in finding that ICWA did not apply because (1) the Bureau did not fulfill its duty of initial inquiry by not interviewing extended family members on mother's side of the family, and (2) the Bureau failed to fulfill its duty of further inquiry by not interviewing extended family members on his side of the family. The Bureau "concedes that it failed to inquire from known relatives."
For reasons not apparent to us, father does not argue the Bureau failed to fulfill its initial inquiry duty by not inquiring of any extended family members on his side, or that the Bureau failed to fulfill its duty of further inquiry by not inquiring of any extended members on mother's side.
With respect to the initial inquiry, as father notes, mother provided the Bureau with some information about her biological family: she was raised by both parents, who are divorced; she has two brothers and two sisters; and she has "several" half-siblings on her father's side, whom she considered to be her support system. Contrary to father's assertion, the record indicates that the Bureau interviewed mother's mother (the maternal grandmother), who denied having Indian ancestry. However, we agree with father that the record contains no indication that the Bureau attempted to contact the other maternal relatives described above.
Also, although not raised by father, our review of the record discloses the Bureau did not inquire of any extended paternal family members either. The record shows the Bureau was aware that father was close to his mother and had siblings, but there is no indication it attempted to contact these relatives. In short, we agree with the parties that the Bureau did not fulfill its duty of initial inquiry.
With respect to the duty of further inquiry, mother's disclosure that she had possible Cherokee ancestry, and father's disclosure that he had possible Blackfoot or Blackfeet ancestry, gave the Bureau "reason to believe" L.N. was an Indian child, triggering the Bureau's duty of "further inquiry." (§ 224.2, subd. (e).) Consequently, the Bureau was obligated to make further inquiries, including of the individuals they had already contacted (i.e., the maternal grandmother), to gather information about the parents' claimed Indian heritage. (Ibid.) Father argues the Bureau failed to interview his parents and siblings.
We disagree that the Bureau was required to interview father's father (the paternal grandfather), as he was reportedly deceased. However, we agree that there is no documented inquiry of father's mother or siblings. Also, the Bureau apparently did not interview any maternal extended family members regarding mother's claim of Cherokee ancestry as well. Thus, as the Bureau concedes, it also failed to discharge its duty of further inquiry.
We turn to the issue of prejudice. Although reviewing courts have generally agreed that reversal is dependent on showing prejudice, approaches for assessing prejudice have varied. (See V.C., supra, 95 Cal.App.5th at pp. 260-261 [summarizing the various prejudice standards].) Our Supreme Court has granted review in In re Dezi C. (2022) 79 Cal.App.5th 769, review granted September 21, 2022, S275578. In V.C., we adopted the standard of In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.): A finding that ICWA does not apply cannot stand "where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (V.C., supra, 95 Cal.App.5th at p. 261, quoting Benjamin M., supra, 70 Cal.App.5th at p. 744.)
Father urges us to follow V.C., and, by extension, Benjamin M., and find prejudicial error here. The Bureau does not directly respond to this assertion, but it appears to concede it, as it requests that the matter be remanded so that it can conduct the appropriate inquiries of extended family members.
In light of the Bureau's concession and the record, we conclude reversal is required under the standard of Benjamin M. The record discloses at least two readily available extended family members who may have information regarding L.N.'s possible Indian ancestry: the paternal grandmother and maternal grandmother. Father reported he was close to his mother, as he spoke to her "just about every day." Because she was accessible through father, the Bureau could have tried to contact her and ask her about L.N.'s possible Indian ancestry. We reach the same conclusion as to the maternal grandmother, who was involved in the proceedings and maintained contact with the Bureau. Although she was initially asked whether, and denied that, she herself had Indian ancestry, the Bureau could have followed up with her regarding mother's claim that she had Cherokee ancestry. While we cannot know how the paternal grandmother and maternal grandmother would answer the inquiry, their answers are "likely to bear meaningfully on the determination at issue." (Benjamin M., supra, 70 Cal.App.5th at p. 745.) This is especially true, considering the record does not suggest the parents were fully informed of their Indian heritage. Mother gave conflicting information, first denying, but later claiming, possible Indian heritage. Also, father initially claimed had he Blackfoot heritage, but according to another report, claimed having Blackfeet heritage. Because we conclude the failure to interview the paternal and maternal grandmothers was prejudicial, we need not additionally determine whether the Bureau's failure to interview the other relatives identified by father was also prejudicial.
DISPOSITION
The order appointing a legal guardianship is conditionally reversed. The matter is remanded with directions for the juvenile court to order the Bureau to comply with the duty of initial ICWA inquiry (§ 224.2, subd. (b)) and the duty of further inquiry (§ 224.2, subd. (e)) as to available extended family members, and, if applicable, the duty to provide notice to the pertinent tribes (§ 224.3, subd. (a)). If the court determines ICWA does not apply, then it shall immediately reinstate the order appointing a legal guardianship. If the court finds that ICWA applies, the court shall proceed in conformity with ICWA and related California law. The court shall enter its findings on the record as to whether ICWA applies and whether the Bureau complied with its duties under the law.
We concur: Stewart, P.J., Mayfield, J.
Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.