Opinion
F085130
06-15-2023
In re R.M. et al., Persons Coming Under the Juvenile Court Law. v. R.M. et al., Defendants and Appellants. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant, R.M. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant, A.E. Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County Nos. 19CEJ300069-3, 19CEJ300069-4. Todd Eilers, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant, R.M. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant, A.E.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
A.E. (mother) and R.M. (father) are the parents of son R.M. (born February 2021), and daughter A.M. (born April 2022) (collectively, the children). Mother and father appeal from the juvenile court's order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26. Mother contends the Fresno County Department of Social Services (the department) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because two maternal aunts and a maternal cousin were not asked about the children's possible Indian ancestry. Father joins mother's arguments. The department argues for affirmance.
All further statutory references are to the Welfare and Institutions Code.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
We conclude the department's failure to inquire of the maternal aunts was prejudicial. Consistent with our decisions in In re K.H. (2022) 84 Cal.App.5th 566 (K.H.) and In re E.C. (2022) 85 Cal.App.5th 123 (E.C.), we conclude "the error is prejudicial because neither the [department] nor the court gathered information sufficient to ensure a reliable finding that ICWA does not apply and remanding for an adequate inquiry in the first instance is the only meaningful way to safeguard the rights at issue. ([In re ]A.R [(2021)] 11 Cal.5th [234,] 252-254 [(A.R.)].) Accordingly, we conditionally reverse the juvenile court's finding that ICWA does not apply and remand for further proceedings consistent with this opinion, as set forth herein." (K.H., at p. 591; accord, E.C., at pp. 157-158.)
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue on appeal concerns ICWA, we restrict our facts to those bearing on that issue or helpful for clarity.
A. R.M.'s Petition and Detention
On February 16, 2021, the department filed a petition pursuant to section 300, subdivisions (b)(1) and (j) on behalf of R.M. shortly after his birth because mother had used methamphetamine during her pregnancy and was experiencing domestic violence problems. The petition contained an Indian Child Inquiry Attachment (ICWA-010(A)) form stating the department had been unable to complete an inquiry regarding R.M.'s Indian status. Two days later, the department filed a first amended petition, which contained a new ICWA-010(A) attachment stating mother gave no reason to believe R.M. could be an Indian child.
On February 19, 2021, the juvenile court held a detention hearing. Mother, father, paternal grandmother Sandra P., and paternal uncle Oscar M., were present. The court asked mother and father if they had Indian ancestry, which they both denied. The court ordered R.M. detained and set a jurisdiction and disposition hearing.
At the hearing, Sandra was referred to as the maternal grandmother. However, the record reflects she is the paternal grandmother.
B. Jurisdiction and Disposition for R.M.
The jurisdiction and disposition reports stated ICWA did not apply because mother and father repeatedly reported they did not have Indian ancestry. The department had inquired of mother once and inquired of father twice. Additionally, the juvenile court conducted its own inquiry at the detention hearing where mother and father also denied having Indian ancestry. Therefore, the department recommended the court find ICWA inapplicable. It should be noted that during this time, mother reported she was living with maternal aunt Jessica E.
On March 29, 2021, the juvenile court held a jurisdiction hearing and found the allegations in R.M.'s amended petition true. The disposition hearing was set for contest.
On June 14, 2021, the juvenile court held a contested disposition hearing.Mother, father, maternal aunt Isabele S., and paternal uncle Oscar were present. The court ordered R.M. removed, bypassed mother for reunification services, granted father reunification services, found ICWA did not apply, and set a six-month status review hearing.
At the hearing, mother withdrew her request for a contested hearing.
Isabele had legal guardianship of the children's half sibling.
C. A.M.'s Petition and Detention
In April 2022, mother gave birth to A.M. Shortly after her birth, the department filed a petition on her behalf pursuant to section 300, subdivisions (b)(1) and (j). The petition contained an ICWA-010(A) attachment stating mother gave no reason to believe A.M. could be an Indian child. A few days later, the department filed a first amended petition.
The detention report stated ICWA did not apply. Mother had denied having Indian ancestry, but an inquiry had not been made with father. The department inquired of paternal uncle Oscar, who had placement of the children. He reported his family did not have Indian ancestry. At this time, mother was no longer living with maternal aunt Jessica.
On April 19, 2022, the juvenile court held a detention hearing for A.M. Only mother appeared. The court asked her if she had Indian ancestry, which she again denied. The court ordered A.M. detained and set a jurisdiction and disposition hearing.
D. Six- and 12-Month Status Review Hearing for R.M. and Jurisdiction and Disposition Hearing for A.M.
A.M.'s jurisdiction and disposition report stated the children were still in placement with paternal uncle Oscar. Mother was now living with an unidentified maternal aunt, but she did not know the address and did not follow up with the department to provide the information.
On June 20, 2022, the juvenile court held a six- and 12-month status review hearing for R.M. and a jurisdiction and disposition hearing for A.M. The parents were not present for either hearing, but paternal grandfather Renato M. was present at A.M.'s hearing. With respect to R.M., the court terminated father's reunification services and set a section 366.26 hearing. As for A.M., the court found the allegations in the amended petition true, ordered her detained, bypassed mother and father for reunification services, found ICWA did not apply, and set a section 366.26 hearing.
E. Section 366.26 Hearing for R.M. and A.M.
The section 366.26 report stated ICWA did not apply. In regard to mother, the department had conducted three inquires with her and she denied having Indian ancestry each time. Mother also reported she did not have Indian ancestry to the juvenile court. Additionally, the department noted that in July 2019, the court found ICWA did not apply in the children's half siblings' dependency case. As for father, the department conducted four inquiries with him, and he always denied having Indian ancestry. He also denied having Indian ancestry when the juvenile court conducted its own inquiry. The department also conducted inquiries with maternal grandmother Patricia L., paternal grandmother, paternal grandfather, paternal uncle Oscar, and paternal aunt Dora M. All family members denied having Indian ancestry.
On October 3, 2022, the juvenile court held a section 366.26 hearing where it terminated parental rights and selected a permanent plan of adoption.
On October 19, 2022, father filed a notice of appeal.
On November 4, 2022, mother filed a notice of appeal.
DISCUSSION
I. ICWA
A. Legal Principles
" 'ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation' [citations], in furtherance of 'federal policy" 'that, where possible, an Indian child should remain in the Indian community'"' [citations]. 'ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families' [citations], and '[w]hen ICWA applies, the Indian tribe has a right to intervene in or exercise jurisdiction over the proceeding.'" (K.H., supra, 84 Cal.App.5th 566, 594, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 138, fn. omitted.)
" 'In 2006, California adopted various procedural and substantive provisions of ICWA.' [Citations.] The Legislature's 'primary objective ... was to increase compliance with ICWA. California Indian Legal Services (CILS), a proponent of the bill, observed that courts and county agencies still had difficulty complying with ICWA 25 years after its enactment, and CILS believed codification of [ICWA's] requirements into state law would help alleviate the problem.'" (K.H., supra, 84 Cal.App.5th at p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138-139.)
" 'In 2016, new federal regulations were adopted concerning ICWA compliance. [Citation.] Following the enactment of the federal regulations, California made conforming amendments to its statutes, including portions of the Welfare and Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those changes became effective January 1, 2019 ._' [Citation.] Subsequently, the Legislature amended section 224.2, subdivision (e), to define 'reason to believe,' effective September 18, 2020." (K.H., supra, 84 Cal.App.5th at pp. 595-596, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 139.)
1. Summary of Duties
"[W]hether a child is a member, or is eligible for membership, in a particular tribe is a determination that rests exclusively with the tribe, and neither the [department] nor the court plays any role in making that determination. [Citations.]' "Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case." '" (K.H., supra, 84 Cal.App.5th at p. 596; accord, E.C., supra, 85 Cal.App.5th at pp. 139-140.)
"In California, section 224.2 'codifies and elaborates on ICWA's requirements of notice to a child's parents or legal guardian, Indian custodian, and Indian tribe, and to the [Bureau of Indian Affairs].'" (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California law imposes "an affirmative and continuing duty [on the court and the county welfare department] to inquire whether a child for whom a petition under [s]ection 300, ... may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a).)
"The [state law] duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).) "If a child is placed into the temporary custody of a county welfare department pursuant to [s]ection 306 . . . the county welfare department . . . has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) Additionally, "[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (§ 224.2, subd. (c).)
"If the initial inquiry provides 'reason to believe' that an Indian child is involved in a proceeding-that is, if the court or social worker 'has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe'-then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable." (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) "Further inquiry 'includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.'" (Ezequiel G., at p. 999.)
"If there is 'reason to know' a child is an Indian child, the [department] shall provide notice to the relevant tribes and agencies in accordance with section 224.3, subdivision (a)(5)." (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2, subd. (f).) "There is 'reason to know' a child is an Indian child if any one of six statutory criteria is met-i.e., if the court is advised that the child 'is an Indian child,' the child's or parent's residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)
County welfare departments "must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status, as well as evidence of how and when this information was provided to the relevant tribes. Whenever new information is received, that information must be expeditiously provided to the tribes." (Cal. Rules of Court, rule 5.481(a)(5).)
All further references to rules are to the California Rules of Court.
B. Standard of Review
"The juvenile court's finding that ICWA does not apply to the proceeding rests on two elemental determinations, 'subject to reversal based on sufficiency of the evidence.'" (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, 85 Cal.App.5th at pp. 142-143.) First, "[t]he court must find there is 'no reason to know whether the child is an Indian child,' which is dependent upon whether any of the six circumstances set forth in subdivision (d) of section 224.2 apply." (K.H., at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.) Second, "[t]he juvenile court must .. find a 'proper and adequate further inquiry and due diligence ...." (K.H., at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.)
Under the substantial evidence standard," 'a reviewing court should "not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." [Citation.] The determinations should "be upheld if . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence."' [Citations.] The standard recognizes that '[t]rial courts "generally are in a better position to evaluate and weigh the evidence" than appellate courts' [citation], and 'an appellate court should accept a trial court's factual findings if they are reasonable and supported by substantial evidence in the record' [citation]. '[I]f a court holds an evidentiary hearing, it may make credibility determinations, to which an appellate court would generally defer.'" (K.H., supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, 85 Cal.App.5th at p. 143.)
The juvenile court's finding on the second element, however, "is ultimately discretionary because it requires the juvenile court to 'engage in a delicate balancing of' various factors in assessing whether the [department's] inquiry was proper and adequate within the context of ICWA and California law, and whether the [department] acted with due diligence." (K.H., supra, 84 Cal.App.5th at p. 601, quoting In re Caden C. (2021) 11 Cal.5th 614, 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1005.) Therefore, we employ a hybrid standard and review the court's determination for substantial evidence and abuse of discretion. (K.H., at p. 601; accord, E.C., at pp. 143-144; Ezequiel G., at pp. 1004-1005.)
" 'Review for abuse of discretion is subtly different [from review for substantial evidence], focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when"' "the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" [Citation.] But"' "[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court[.]" '" [Citations.] [¶] While each standard here fits a distinct type of determination under review, the practical difference between the standards is not likely to be very pronounced.'" (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 Cal.App.5th at pp. 143-144.)
"Review of the juvenile court's findings under the foregoing standards is deferential, but' "an appellate court [nevertheless] exercises its independent judgment to determine whether the facts satisfy the rule of law."' [Citations.] Where the material facts are undisputed, courts have applied independent review to determine whether ICWA's requirements were satisfied." (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 Cal.App.5th at p. 144.)
C. Analysis
1. Summary of ICWA Inquiry
In the present case, the department and the juvenile court conducted inquires with mother and father. They both repeatedly denied having Indian ancestry. The department also inquired of maternal grandmother, paternal grandmother, paternal grandfather, paternal uncle Oscar, and paternal aunt Dora, who all denied having Indian ancestry. The record does not reflect that maternal aunt Jessica, who mother lived with at one point, and maternal aunt Isabele, who was present at a hearing, participated in a team decision making meeting, and had legal guardianship of the children's sibling, were inquired of.
Mother argues that the failure to inquire of the maternal aunts, and maternal cousin L.C., who was mentioned in mother's prior child welfare history, resulted in prejudicial error. She contends the failure to inquire of these maternal family members was significant because they may have had information about maternal grandfather. We note maternal grandmother was not married to maternal grandfather. The department submits the inquiry was not perfect, but that it substantially complied with inquiry requirements and, therefore, any error was not prejudicial.
L.C. was not part of the current proceedings but was mentioned in the department's reports under the prior child welfare history section. The 2019 referral states mother had planned to take the children's sibling to live with L.C. The referral expressly states mother did not provide the department with any contact information for L.C. There is no indication the department ever made contact with or subsequently obtained L.C.'s contact information.
In K.H. and E.C., we addressed ICWA error at the inquiry stage. There, we explained our decision not to follow the approaches articulated by other appellate courts for determining whether ICWA error requires reversal and concluded that the Supreme Court's decision in A.R. supplies the appropriate framework for assessing prejudice in this context. (K.H., supra, 84 Cal.App.5th at pp. 607-608, citing A.R., supra, 11 Cal.5th at pp. 252-254; accord, E.C., supra, 85 Cal.App.5th at p. 152.) Applying the standards we articulated in K.H. and E.C., as we will discuss below, we agree with the parents and conclude the department's error is prejudicial and remand for the department to conduct a proper, adequate, and duly diligent inquiry is necessary.
2. The Department and Juvenile Court Erred
As previously mentioned, "[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) Here, maternal aunt Isabele, paternal uncle Oscar, paternal grandmother, and paternal grandfather made appearances in court. The juvenile court, however, failed to ask them whether they knew or had reason to know whether the children were Indian children. The court only conducted inquiries with the parents. Therefore, the juvenile court erred.
Moreover, when "a child is placed into the temporary custody of a county welfare department . .., the county welfare department ... has a duty to inquire whether [the] child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b), italics added.) Extended family members include aunts. (§ 224.1, subd. (c); 25 U.S.C. § 1903(2).) Although the department conducted inquiries with all available paternal family members, it failed to do the same with the maternal family members. On mother's side of the family, it conducted an inquiry only with maternal grandmother, but not the maternal aunts. As mother points out, the department's failure to inquire of the maternal aunts was significant here because they could have had more information about maternal grandfather-either as to his ancestry or his whereabouts. As we noted, maternal grandmother and maternal grandfather were not married. The record does not disclose whether maternal grandmother, or anyone else, was asked if they had information about him. The record is completely silent as to maternal grandfather or the department's efforts to locate him. There may be cases where the individual could not be found, or there is no one else to ask, but if that is so, the record must be developed to reflect that fact and supported by documentation. (Rule 5.481(a)(5).) "On a well-developed record, the court has relatively broad discretion [in such cases] to determine [that] the [department's] inquiry was proper, adequate, and duly diligent on the specific facts of the case." (K.H., supra, 84 Cal.App.5th at p. 589; accord, E.C., supra, 85 Cal.App.5th at p. 157.)
As for L.C., even though first and second cousins are also considered extended family members (§ 224.1, subd. (c); 25 U.S.C. § 1903(2)), it does not appear L.C. was available to the department or that the department had contact information for L.C. In fact, the record specifically states mother did not provide the department with L.C.'s contact information. Thus, we agree the department erred in failing to inquire of the maternal aunts, but not the maternal cousin. Accordingly, the juvenile court's finding that ICWA did not apply was not supported by substantial evidence, and its contrary conclusion was an abuse of discretion. (§ 224.2, subd. (i)(2).)
3. The Department and Juvenile Court's Errors Were Prejudicial
"Where, as here, the deficiency lies with the [department's] duty of initial inquiry and a juvenile court's related finding of 'proper and adequate further inquiry and due diligence' (§ 224.2, subd. (i)(2)), the error is one of state law ([In re] Benjamin M., supra, 70 Cal.App.5th at p. 742). Under the California Constitution, '[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, 85 Cal.App.5th at p. 151.)
" '[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice' [citations], and California law generally interprets its constitutional miscarriage of justice requirement 'as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.'" (K.H., supra, 84 Cal.App.5th at pp. 606-607; accord, E.C., supra, 85 Cal.App.5th at pp. 151-152.) However, in A.R., the Supreme Court "recognized that while we generally apply a Watson likelihood-of-success test to assess prejudice, a merits-based outcome-focused test is not always appropriate because it cannot always adequately measure the relevant harm. [Citation.] In other words, where the injury caused by the error is unrelated to an outcome on the merits, tethering the showing of prejudice to such an outcome misplaces the measure, at the expense of the rights the law in question was designed to protect." (K.H., at p. 609, italics omitted.)
People v. Watson (1956) 46 Cal.2d 818, 836.
As we explained in K.H., " 'ICWA compliance presents a unique situation ._'" (K.H., supra, 84 Cal.App.5th at p. 608.) "ICWA is not directed at reaching, or protecting, a specific outcome on the merits." (Id. at p. 609; accord, E.C., supra, 85 Cal.App.5th at p. 154.) Rather," '[t]he purpose of ICWA and related California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings' [citation], and an adequate initial inquiry facilitates the information gathering upon which the court's ICWA determination will rest." (K.H., at p. 608; accord, E.C., at pp. 152-153.) The ultimate determination whether a child is an Indian child rests with the tribe, not with a parent, the department, or the juvenile court. (K.H., at p. 590; accord, E.C., at pp. 139140.) As such, an error is prejudicial "where the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost because there has not been an adequate inquiry and due diligence, [and] reversal for correction is generally the only effective safeguard." (K.H., at p. 610.)
Here, the department's inquiry" 'fell well short of that required to gather the information needed to meaningfully safeguard the rights of the tribes, as intended under ICWA and California law'" (E.C., supra, 85 Cal.App.5th at p. 156, quoting K.H., supra, 84 Cal.App.5th at p. 620), and "[a] finding of harmlessness on this record would necessarily require speculation and 'is at odds with the statutory protections that ICWA and California law intend to afford Indian children and Indian tribes.'" (E.C., at p. 155, italics added, quoting K.H., at p. 611.) Therefore, the error is prejudicial and reversal is required.
Accordingly, the juvenile court's finding that ICWA does not apply is conditionally reversed and the matter is remanded. The juvenile court is instructed to ensure the department conducts" 'a proper, adequate, and duly diligent inquiry under section 224.2, subdivision[s] (b) [and (e)], and document its inquiry in the record in compliance with rule 5.481(a)(5).'" (E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 84 Cal.App.5th at p. 621.)" 'This should not be interpreted as requiring an exhaustive search for and questioning of every living relative of [the children]' but '[w]e leave that determination for the juvenile court in the first instance because it is better positioned to evaluate the evidence provided by the [d]epartment. So long as the court ensures the inquiry is reasonable and of sufficient reach to accomplish the legislative purpose underlying ICWA and related California law, the court will have an adequate factual foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)'" (E.C., at p. 157, quoting K.H., at p. 621.)
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the department to comply with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b) and (e), and rule 5.481(a)(5). The juvenile court is directed to comply with the inquiry provisions of section 224.2, subdivision (c). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the juvenile court's order is affirmed.
[*] Before Hill, P. J., Franson, J. and DeSantos, J.