Opinion
A163926
06-29-2022
In re I.C., et al., Persons Coming Under the Juvenile Court Law. v. E.C., Defendant and Appellant. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. Nos. JV1900216, JV1900217)
Petrou, J.
Appellant E.C. (mother) appeals from November 19, 2021 orders in which the juvenile court found her children, I.C. and M.C., were likely to be adopted and terminated her parental rights under Welfare and Institutions Code section 366.26.
We grant the agency's April 14, 2022 request for judicial notice of the November 19, 2021 orders.
All undesignated statutory references are to the Welfare and Institutions Code. We deem mother's notices of appeal from the section 366.26 hearing, held on October 27, 2021, to be premature notices of appeal from the November 19, 2021 orders (one for each child). (See Cal. Rules of Court, rule 8.104(d)(2) [premature notice of appeal].)
Mother's contentions on appeal are that the Humboldt County Department of Health and Human Services (the agency) failed to comply with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California law (§ 224 et seq.) by not questioning mother and extended family members as to whether the children might be of Indian descent through their maternal ancestors and that the juvenile court committed prejudicial error in finding ICWA inapplicable given the agency's failure to question mother and other family members and the court's failure to inquire regarding the agency's investigation. The agency asks us to affirm the orders on the basis that mother has not shown error in the court's ICWA finding; in the alternative, the agency argues any error was harmless. Mother does not raise any other issues on appeal.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognized 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 find the record does not affirmatively show the agency complied with its statutory duty to make an initial inquiry of mother and maternal aunt B.C. as to whether the children may be of Indian descent through their maternal ancestors, and therefore the juvenile court should not have found ICWA inapplicable. Accordingly, we conditionally reverse the orders terminating parental rights and remand the matter to the juvenile court with directions that the court and the agency comply with the inquiry (and if appropriate notice) provisions of ICWA and related California law.
Factual and Procedural Background
Mother and presumed father are the parents of I.C. (born 2009) and M.C. (born 2010). Several years after the children were born, the parents separated; the children initially spent time with mother then father reportedly took custody due to mother's methamphetamine use. Just before the agency's intervention in 2019, the children (then 10-year-old I.C. and 9-year-old M.C.) were living with father and his girlfriend. During the agency's investigation leading to the court's intervention, father and the children's maternal aunts reported that mother was living in a vehicle and struggling with mental health and substance use issues.
While the juvenile court also terminated the parental rights of the children's presumed father, he is not a party to this appeal.
Following its investigation concerning father's behavior, the agency took the children into protective custody on November 4, 2019. The next day, the agency placed the children with their maternal aunt B.C. and her partner. The children have lived there since their removal and B.C. wishes to adopt the children if reunification fails.
I. Detention/Jurisdiction/Disposition Proceedings
On November 6, 2019, the agency filed a section 300 petition seeking to remove the children from father's custody based on allegations that they were at substantial risk for physical and emotional harm due to father's substance use, father's mental health issues, and domestic violence incidents between father and his girlfriend committed in the children's presence. (§ 300, subds. (b)(failure to protect), (c)(serious emotional damage).)
Before the detention hearing, the agency submitted a report in which it stated: "The Indian Child Welfare Act does not apply. Both the father and the children report that they have no Native American ancestry. The children stated that they identify themselves as 'white' and 'Mexican.'" Mother's whereabouts were then unknown.
At the November 7, 2019 detention hearing, the juvenile court found a prima facie case had been made that the children were described by section 300, and their removal from father's custody was necessary to protect the children's safety. Father's counsel represented to the court that neither father nor mother had any Indian ancestry. While mother had been notified of the hearing at her last known addresses, she did not appear and her whereabouts were unknown at that time.
On November 18, the court issued written findings and orders, noting that "[t]he Court finds the Indian Child Welfare Act does not apply," but ordered the parents to complete and file with the court "the ICWA-020 Parental Notification of Indian Status" forms. On November 21, father filed a separate ICWA-020 Parental Notification of Indian Status form for each child, stating that, as far as he knew, he had "no Indian ancestry." The agency concedes the record on appeal does not contain any ICWA 020-Parental Notification of Indian Status forms filed by mother.
The agency submitted a report in advance of the jurisdiction hearing informing the court as to the children's ICWA status as follows: "The Court found that the Indian Child Welfare Act does not apply as to [the children] at the 11/07/2019 Detention Hearing. [¶] Both the father and the children report that they have no Native American ancestry. The children stated that they identify themselves as 'white' and 'Mexican.'" The mother's whereabouts were still unknown.
At the December 2, 2019 jurisdiction hearing, mother and father appeared only through counsel. The court sustained the petition's allegations against father and found by clear and convincing evidence that the children were described by subdivisions (b) and (c) of section 300. The court did not include a specific ICWA provision but stated that all previous orders not modified would remain in full force and effect.
Before the disposition hearing, the agency submitted a report regarding the family's circumstances. The report stated the agency social worker was able to contact mother for the first time by telephone on December 4, 2019; the report contains no indication mother was asked about the children's possible Indian ancestry. In addition to the children's current placement with their maternal aunt, the agency had identified two additional family members as possible placements; again, the report does not reflect any inquires of the additional family members about the children's ancestry. The report stated: "The Court found that the Indian Child Welfare Act does not apply as to [the children] at the 11/07/2019 Detention Hearing. [¶] Both the father and the children report that they have no Native American ancestry. The children stated that they identify themselves as 'white' and 'Mexican.' "
Mother was notified of the January 13, 2020 disposition hearing but did not attend. The court adjudged the children dependents of the court, having found, by clear and convincing evidence, that it was necessary to remove them from father's custody and that placement with mother would be detrimental to them. The agency was granted custody of the children and directed to provide both parents with reunification services. The court's orders stated: "The Court has previously found on 11/07/2019 that ICWA does not apply. Pursuant to Cal. Rules of Court Rule 5.481(a), no new information has been received regarding Indian ancestry."
II. Six-Month/12-Month/18-Month Status Reviews
The agency reports over the ensuing 18 months contained no additional information concerning the children's potential Indian ancestry. While the agency social worker continued to speak with mother, the status reports did not indicate mother was ever asked to complete ICWA-020 Parental Notification of Indian Status forms for the children or whether she was asked if the children had any potential Indian ancestry. Instead, the agency social worker continued to inform the court that: "The Court found on 11/07/2019 that ICWA did not apply. No new information has been received." In its written orders following those status reviews, the court adopted the agency's recommended ICWA finding, stating: "The Court has previously found on 11/07/2019 that ICWA does not apply. Pursuant to Cal. Rules of Court Rule 5.481(a), no new information has been received regarding Indian ancestry."
After the six-month status review, the parents were granted an additional six months of reunification services. After the 12-month status review, the court terminated father's reunification services, and granted mother another six months of reunification services. After the 18-month status review, the court terminated mother's reunification services, and set the matter for a section 366.26 hearing to determine the children's permanent placements.
III. Section 366.26 Proceeding
Before the section 366.26 hearing, the agency submitted a report and an adoption addendum, recommending the court terminate parental rights and place the children for adoption. As to ICWA, it stated: "On 11/07/2019, the Court found that the Indian Child Welfare Act does not apply. No new information has been received related to American Indian heritage." While the agency report and adoption addendum mentioned information received from mother and maternal aunt B.C., there was no mention of any inquiry or information received regarding the children's possible Indian ancestry.
At the section 366.26 hearing on October 27, 2021, mother was present with counsel and father was not present but was represented by counsel. The court terminated the rights of both parents and determined that adoption should be the children's permanent placement plans. The court noted it had previously found the Indian Child Welfare Act did not apply, and asked counsel for mother, father, the children, and the agency to confirm whether there was "any new information, that you're aware of, that would change the determination of the Court." Each counsel replied that there was no new information to proffer to the court. The court did not question the agency social worker or the agency's counsel as to the agency's efforts, if any, to inquire of mother or known maternal relatives regarding the children's possible Indian status or whether mother had completed and filed a Parental Notification of Indian Status form (ICWA-020 form) for each child.
In its November 19, 2021 written orders, the juvenile court included the following findings and orders: "The court previously found on 11/[0]7/2019 that the Indian Child Welfare Act does not apply. Pursuant to California Rules of Court, rule 5.481(a), no new information has been received regarding Indian ancestry. [¶] The Court finds the Indian Child Welfare Act does not apply."
Mother appealed.
Discussion
For the reasons set forth below, we find the agency and juvenile court failed in their obligations to ensure compliance with ICWA and state law to investigate the children's possible Indian ancestry through their maternal relatives. Therefore, we shall conditionally reverse and remand to permit the agency and the juvenile court to comply with their obligations.
I. Applicable Law and Standard of Review
"Congress enacted ICWA in 1978 in response to 'rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 7.)
"ICWA provides: 'In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or 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.' [Citation.] This notice requirement, which is also codified in California law [citation], 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., supra, 1 Cal.5th at p. 5; see 25 U.S.C. § 1912(a), § 224.3, subd. (a).) "[J]ust as proper notice to Indian tribes is central to effectuating ICWA's purposes, an adequate investigation of a family member's belief a child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA notice will receive it." (In re T.G. (2020) 58 Cal.App.5th 275, 289.)
"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. These requirements are sometimes collectively referred to as the duty of initial inquiry." (In re Benjamin M., supra, 70 Cal.App.5th at p. 741.)" 'ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts "ask each participant in an emergency or voluntary or involuntary child-custody proceeding, whether the participant knows or has reason to know that the child is an Indian child." [Citation.] The court must also "instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." '" (In re J.S. (2021) 62 Cal.App.5th 678, 685.)
"In addition, 'ICWA provides that states may provide "a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under" ICWA. (25 U.S.C. § 1921.)'" (In re J.S., supra, 62 Cal.App.5th at p. 686.) Under our state law, "the burden of coming forward with information to determine whether an Indian child may be involved . . . in a dependency proceeding does not rest entirely - or even primarily - on the child and [family members]." (In re Michael V. (2016) 3 Cal.App.5th 225, 233.) Rather, "section 224.2, subdivision (a)," provides that it is the juvenile court and the agency that are "under 'an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child.'" (In re T.G., supra, 58 Cal.App.5th at p. 290, italics added; see § 224.2, subds. (a)-(c); Cal. Rules of Court, rule 5.481(a).)
All undesignated rules references are to the California Rules of Court.
The duty to inquire begins with initial contact, including asking the party reporting child abuse or neglect whether that party has any information that the child may be an Indian child. (§ 224.2, subd. (a).) Once the child is placed into the agency's temporary custody, the agency has a duty to inquire whether the child is an Indian child, including "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." (§ 244.2, subd. (b).) "If the initial inquiry gives the juvenile court or the agency 'reason to believe' that an Indian child is involved, then the juvenile court and the agency have a duty to conduct 'further inquiry' (§ 224.2, subd. (e)(1)), and if the court or the agency has 'reason to know' an Indian child is involved, ICWA notices must be sent to the relevant tribes (§ 224.3, subd. (a); 25 U.S.C. § 1912(a))." (In re Benjamin M., supra, 70 Cal.App.5th at p. 742.) The agency "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." (Rule 5.481(a)(5).)
Rule 5.481(a)(5) was adopted effective January 1, 2020 (after the commencement of this juvenile dependency proceeding) and is applicable to the agency's October 27, 2021 report filed for the section 366.26. (See generally In re Antonio R. (2022) 76 Cal.App.5th 421, 429, fn. 5 [where mother was appealing from a 2021 termination of her parental rights, the amended state law implementing ICWA applied to the proceeding to terminate parental rights.)
A juvenile court finding that ICWA is not applicable is reviewed under the substantial evidence standard. "Substantial evidence . . . . must be meaningful and significant and cannot be merely speculative." (In re Ma.V. (2021) 64 Cal.App.5th 11, 22.) "[I]f the word 'substantial' means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with 'any' evidence. It must be reasonable in nature, credible, and of solid value; it must actually be 'substantial' proof of the essentials which the law requires in a particular case." (Estate of Teed (1952) 112 Cal.App.2d 638, 644.)
II. Mother's Challenge to the Juvenile Court's Finding of ICWA Inapplicability Made at the Section 366.26 Hearing is Properly Before Us
Mother's appeal is limited to challenging the juvenile court's finding of ICWA inapplicability made at the section 366.26 hearing based on the agency's failure to make an adequate ICWA inquiry, and the juvenile court's failure to ensure that the agency made an adequate ICWA inquiry. To the extent the agency argues mother's challenge is not properly before us based on waiver, forfeiture, or the doctrine of invited error, we must disagree.
As we have noted, "[t]he duty to develop information concerning whether a child is an Indian child rests with the court and the [agency], not the parents or members of the parents' families" and, therefore, the conduct of mother and her counsel at the section 366.26 hearing (or at earlier proceedings or by way of appeal or writ review of earlier orders) to deficiencies in the agency's investigation does not preclude her from raising the issue for the first time on this appeal. (In re Antonio R., supra, 76 Cal.App.5th at p.430; see In re A.C. (2022) 75 Cal.App.5th 1009, 1017 ["[t]he statues and regulations implementing ICWA . . . expressly require that the juvenile court and child welfare agency (and not parents' counsel) inquire about a child's potential Indian ancestry"]; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425 [ICWA "is based on a presumption that it is in the best interests of the Indian child not be separated from the tribe," and therefore, a child has an "independent right that must be protected irrespective of [a parent's] action or inaction"]; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257 [the parents' counsel's comments as to ICWA applicability or inapplicability made at the jurisdictional and dispositional hearing "do not constitute invited error or other waiver of appellate review"].)
III. The Juvenile Court's Finding of ICWA Inapplicability is Not Supported by Substantial Evidence as the Agency Failed in its Inquiry Duty and the Juvenile Court Failed to Ensure the Agency Met its Inquiry Duty
We conclude the juvenile court's finding of ICWA inapplicability made at the section 366.26 hearing is not supported by substantial evidence as the agency failed to make the requisite inquiries as to the children's possible maternal Indian ancestry, and the juvenile court failed to ensure that the agency had made such adequate ICWA inquiries.
The record on appeal fails to affirmatively show that the agency met its initial inquiry duty to investigate the children's possible maternal Indian ancestry. As the agency correctly notes, the record is completely silent as to the agency's efforts to investigate the children's possible maternal Indian ancestry. While the record shows the agency social worker asked father and the children whether the children had any Indian ancestry, the agency reports filed after January 1, 2020 do not include any "detailed descriptions" of any inquiries made of mother and the maternal extended family members as required by rule 5.481(a)(5).
Even where a parent denies any Indian ancestry, section 224.2, subdivision (b) still requires the agency to question extended family members regarding a child's possible Indian ancestry. (See, e.g., In re J.C. (2022) 77 Cal.App.5th 70, 75-76, 78-79, 80, fn. 4 [although parents reported no Indian ancestry, and did not report being adopted or being unfamiliar with biological relatives, juvenile court erred in concluding ICWA did not apply where agency failed to inquire of parents' extended family members]; In re Antonio R., supra, 76 Cal.App.5th at p. 426 [although mother reported no Indian ancestry, juvenile court erred by concluding ICWA did not apply where the agency failed to inquire of relatives about the child's possible Indian ancestry]; In re H.V. (2022) 75 Cal.App.5th 433, 438 [although mother denied Indian ancestry, agency had a duty to make an initial inquiry of the child's extended relatives].)
While the agency contends mother bears the burden of inadequacies in the record and is therefore unable to prevail on appeal, we conclude it is the agency that bears the responsibility for the paucity of information regarding the children's possible maternal Indian ancestry. (See, e.g., In re H.V., supra, 75 Cal.App.5th at p. 438, fn. 4 ["the [agency's] failure to discharge its inquiry duty under ICWA and state law is responsible for the absence of information in the record about the child's possible Indian ancestry"].) Even before the change in the court rules in 2020, mandating that the agency include detailed descriptions of inquiries in each report filed with the court, it was held that the agency could not" 'omit from its reports any discussion of its efforts to locate and interview family members who might have pertinent information and then claim that the sufficiency of its efforts cannot be challenged on appeal because the record is silent.'" (In re N.G. (2018) 27 Cal.App.5th 474, 484, quoting In re K.R. (2018) 20 Cal.App.5th 701, 709.)
We further conclude the record fails to affirmatively show that the juvenile court met its duty to ensure the agency had made an adequate investigation of the children's possible maternal Indian ancestry before finding ICWA inapplicable. The agency's report for the section 366.26 hearing included a section on ICWA applicability informing the court only that "[o]n 11/07/2019, the Court found that the Indian Child Welfare Act does not apply. No new information has been received related to American Indian heritage." However, the report did not contain the mandated "detailed descriptions of the inquiries" as required by rule 5.481(a)(5).
Therefore, the juvenile court could not know whether the agency social worker had made adequate inquiries of persons (i.e., mother and maternal aunt B.C.) who might have relevant information. "[A] court must know enough about the persons contacted to determine if the agency failed to inquire of persons who might have helpful information; murky documentation of the agency's efforts may support a reasonable inference that it failed to do so." (In re Benjamin M., supra, 70 Cal.App.5th at pp. 745- 746.) Moreover, at the section 366.26 hearing the juvenile court asked counsel if there was any new ICWA information, but it did not ask the agency's counsel or social worker to describe the inquiries made to ascertain the children's possible Indian ancestry.
Because mother limits her argument to the failure to inquire of the children's maternal Indian ancestry, we do not address whether a proper investigation was made as to the children's paternal ancestry.
Under the described circumstances, "the juvenile court should not have found that ICWA did not apply" as there was no showing of an adequate investigation regarding the agency's inquiry of mother and the children's maternal relatives. (In re K.T. (2022) 76 Cal.App.5th 732, 744.)" '[T]he court had a duty either to require [the agency] to provide a report with complete and accurate information regarding the results of [the agency's inquiry of mother and maternal family members] . . . or to have the individual responsible . . . testify in court regarding the inquiry made, [and] the results of the inquiry . . . . Only then could the court determine whether . . . ICWA applied.'" (In re K.T., supra, p. 744, quoting In re L.S. (2014) 230 Cal.App.4th 1183, 1198; see In re J.C., supra, 77 Cal.App.5th at pp. 79-80 [although parents' ICWA-020 forms stated no known Indian ancestry and one parent told the agency she had no Indian ancestry, the juvenile court had not met its ICWA duty where, among other things, it did not ask whether the agency social worker made the relevant ICWA inquiry of extended family members and did not ask the agency to describe its efforts to ascertain the child's ancestry]; In re Antonio R., supra, 76 Cal.App.5th at p. 432 [where agency "never interviewed any extended family members on the maternal side regarding Antonio's possible Indian ancestry," "the record does not support the juvenile court's finding that ICWA does not apply given the [agency's] failure to satisfy its initial duty of inquiry as to maternal extended family members, and the court's failure to ensure that the [agency] met its duty"].)
The agency contends, however, that we should find there is substantial evidence supporting the juvenile court's finding of ICWA inapplicability based on the following factors: the court's earlier ICWA inapplicability findings made at the status reviews and the conduct of mother and her counsel at those proceedings; mother's failure to appeal the court's earlier ICWA inapplicability findings and her failure to file a writ petition challenging the court's order setting the section 366.26 hearing made at the 18-month status review; and mother's failure to augment the record to include the reporter's transcripts of the status reviews.
The agency's arguments ignore the fact that the juvenile court had an affirmative, continuing, and present duty to determine ICWA applicability at the section 366.26 hearing. (In re Isaiah W., supra, 1 Cal.5th at p. 15.) Because the court had a continuing duty to inquire regarding Indian ancestry in the proceeding to terminate parental rights, the November 19, 2021 orders terminating mother's parental rights were "necessarily premised on a current finding by the juvenile court that it had no reason to know" the children were Indian children and therefore ICWA did not apply. (In re Isaiah W., supra, at p. 10.) In other words, the court's finding of ICWA inapplicability at the earlier status reviews "had no effect on its ongoing inquiry and notice obligations" at the section 366.26 hearing, though there was no submission of any new information between the 6-month status review hearing and the section 366.26 hearing to terminate parental rights. (In re Isaiah W., supra, at p. 12.)
The agency's reliance on the conduct of mother and her counsel at the section 366.26 hearing is similarly unpersuasive. As noted, the duty to develop information concerning whether a child is an Indian child rests with the agency, not mother or her counsel. Moreover, the agency's "first-step inquiry duty under ICWA and state law" is broader than just an inquiry of a parent as it is also required to interview, among others, extended family members, i.e., the children's maternal aunts including maternal aunt B.C. with whom the children were placed after their removal from father's custody. (In re H.V., supra, 75 Cal.App.5th at p. 438.) As we have already described, the agency failed to meet its initial duty to investigate those extended family members, some of whom were readily available, despite ample opportunity.
IV. The Agency's Failure to Meet Its Statutory Initial Inquiry Duty is not Harmless Error
The parties agree that the standard to evaluate whether the agency's failure to meet its statutory initial inquiry duty constitutes harmless error is set forth in In re Benjamin M., supra, 70 Cal.App.5th 735. Since the briefing was completed in this case, Division Two of the Second Appellate District has proposed another standard for determining "how harmlessness is to be assessed where an agency has failed to conduct the statutorily required initial inquiry into a dependent child's" Indian ancestry. (In re Dezi C. (2022) __Cal.App.5th__ [2022 Cal.App. Lexis 514 at p.*2, original italics].) We need not address which standard of review we should adopt, as we conclude the agency's failure to meet its initial inquiry duty is not harmless under either standard of review.
We do not address the two other standards of reviews ("the automatic reversal rule" or "presumptive affirmance rule") as we agree with those courts that have held those standards should not apply for the reasons stated by those courts. (In re Dezi C., supra, 2022 Cal.App. Lexis 514, at pp. *16- 23; see In re Antonio R., supra, 76 Cal.App.5th at pp. 433-434; In re Benjamin M., supra, 70 Cal.App.5th at pp. 743-744.)
The In re Benjamin M. court held that in ICWA cases, "a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) Hence, the court held that a conditional reversal and remand was required: "although [f]ather never appeared in the juvenile court and thus it never asked whether he had reason to believe that Benjamin is an Indian child, [the agency] nevertheless failed its duty of initial inquiry by not asking 'extended family members' . . . whether Benjamin has Indian ancestry on his paternal side." (Id. at pp. 744, 746.)
Under the In re Benjamin R. standard of review, we have no difficulty in concluding the agency's failure to meet its duty of initial inquiry in this case constitutes prejudicial and reversible error. As noted, the record does not show the agency made any efforts to question mother about her possible Indian ancestry, though the agency social worker spoke with mother concerning the family's circumstances. Moreover, even before detaining the children and contacting mother, the agency social worker spoke with the children's maternal aunts, including B.C. Any information B.C. could have given "would likely have shed meaningful light on whether there [was] reason to believe [the children are Indian children]. . . . [B.C.'s] knowledge of [her] own Indian status, would be suggestive of [mother's] status. While we cannot know how [B.C.] would answer the inquiry, [her] answer is likely to bear meaningfully on the determination at issue," namely the children's possible maternal Indian ancestry. (In re Benjamin M., supra, 70 Cal.App.5th at pp. 744-745; see also In re Antonio R., supra, 76 Cal.App.5th at p. 435 ["[w]here the [agency] fails to discharge its initial duty of inquiry under ICWA and related California law, and the juvenile court finds ICWA does not apply notwithstanding the lack of an adequate inquiry, the error is in most circumstances, as here, prejudicial and reversible;" italics added]; "[s]peculation as to whether [mother or] extended family members might have information likely to bear meaningfully on whether the child is an Indian child has no place in the analysis of prejudicial error where there is an inadequate initial inquiry"].)
Likewise, we would find the agency's failure to question mother and the children's maternal aunts constitutes prejudicial and reversible error under the standard of review explicated in In re Dezi C., supra, 2022 Cal.App. Lexis 514. The In re Dezi C. court proposed the following rule: "In our view, an 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. For this purpose, the 'record' includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal[, which is appropriate to consider under Code of Civil Procedure section 909]." (In re Dezi C., supra, at p. *10, fn. omitted.) As one example, In re Dezi C. explained that "a reviewing court would have 'reason to believe' further inquiry might lead to a different result if the record indicates that someone reported possible American Indian heritage and the agency never followed up on that information." (Ibid.) But In re Dezi C. also concluded that the" 'reason to believe'" standard would be met "if the record indicates that the agency never inquired into one of the two parents' heritage at all (e.g., [In re] Benjamin M., supra, 70 Cal.App.5th at p. 740)." (In re Dezi C., supra, at p. *10, original italics.) As the court explained, "the notion that inaction will be rewarded ignores that inaction affecting the soundness of the juvenile court's ICWA finding will be prejudicial: If an agency fails entirely to ask the parents about their possible American Indian heritage, as noted above, there is 'reason to believe' the parents may have such heritage and the agency's inaction will demand remand." (In re Dezi C., supra, at p. *19, original italics.) Applying the standard in In re Dezi C., we cannot deem the agency's ICWA inquiry error harmless as the record provides a" 'reason to believe'" the children may have maternal Indian ancestry given that the record indicates the agency never inquired into mother's heritage "at all." (In re Dezi C., supra, at p. *10, original italics.)
In arguing that any deficiency in its ICWA inquiry is harmless, the agency again asks that we consider mother's failure to raise any challenge to the juvenile court's ICWA findings coupled with her failure on appeal "to definitively state that she has Native American ancestry and would have disclosed it had she been directly asked about it" by the agency. The agency then argues that "[g]iven this glaring omission and mother's inability to minimally articulate what Native American ancestry she may have either at the trial level or on appeal,"" 'there is no reason to suppose that, absent the [agency's] error, the outcome would have been any different.' See In re A.C. (2021) 65 Cal.App.5th 1060, 1065." We disagree.
The agency's reliance on In re A.C., supra, 65 Cal.App.5th 1060, is misplaced. In In re A.C., the appellate court held that "a parent asserting failure to inquire must show - at a minimum - that, if asked, [the parent] would in good faith, have claimed some kind of Indian ancestry." (Id. at p. 1069.) However, "[a] parent . . . does not need to assert . . . Indian ancestry to show a child protective agency's failure to make an appropriate inquiry under ICWA and related law is prejudicial. The court[ ] in . . . In re A.C., supra, 65 Cal.App.5th 1060 missed (and the [agency's] argument misses) the point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child: to obtain information the parent may not have. It is unreasonable to require a parent to make an affirmative representation of Indian ancestry where the [agency's] failure to conduct an adequate inquiry deprived the parent of the very knowledge needed to make such a claim. [Citation.] The [agency's] failure to conduct an adequate inquiry into [the children's] possible Indian ancestry makes it impossible for . . . [mother] to demonstrate prejudice." (In re Y.W. (2021) 70 Cal.App.5th 542, 556.)
The agency argues we should not rely on In re Y.W. because the mother in that case had been adopted and was estranged from her biological parents, but the agency had access to information about mother's biological parents that it could have pursued by a proper inquiry of mother's adoptive mother. We see nothing in In re Y.W. that supports the agency's argument that its duty to make an initial inquiry of extended family members is limited to the specific circumstances presented in In re Y.W. As the In re Y.W. court clarified by its decision in In re J.C., supra, 77 Cal.App.5th 70, it is not a parent's responsibility to secure information from extended family members, but rather it is the responsibility of the agency and the court to ensure ICWA compliance. Hence, in In re J.C., the appellate court ordered a remand for ICWA compliance due to the agency's failure to make an initial inquiry of extended family members concerning the children's Indian ancestry, even though "neither parent 'reported being adopted or being unfamiliar with their biological relatives,'" and both parents denied any Indian ancestry in their ICWA-020 Parental Notification of Indian Status forms and when questioned by the juvenile court at the detention hearing. (In re J.C., supra, at pp. 75-76, 78-79, 80-81, fn. 4; see also In re Antonio R., supra, 75 Cal.App.5th at p. 434, fn. 9 [In re Antonio R. court found that the In re A.C. court "set the bar too high for showing inquiry error is prejudicial" to the extent the In re A.C. decision can be read as holding that evidence of a parent's lack of knowledge of their ancestry "is necessary to demonstrate prejudicial error - showing a likelihood extended family members will have information indicating the child is an Indian child," original italics].)
The agency also contends that any deficiency in its ICWA inquiry is harmless because mother "cannot show that the maternal aunt had any separate, different, or new information that would have changed the juvenile court's finding that ICWA does not apply or that would bear meaningfully upon whether [the children] are Indian children." In support of this contention, the agency asks us to consider portions of In re Benjamin M., supra, 70 Cal.App.5th 735 and In re Darian R. (2022) 75 Cal.App.5th 502. We find the argument unavailing for the reasons stated by the court in In re J.C., supra, 77 Cal.App.5th at pages 81-83:
"In its reliance on In re Benjamin M., the [agency] fundamentally misunderstands the prejudice standard the court adopted in that case. The court in In re Benjamin M. actually stated that the failure to comply with section 224.2 is not harmless where the readily obtainable information was likely to bear meaningfully upon the inquiry whether a child is an Indian child, regardless of whether the information was likely to show that the child is an Indian child. (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) As the court in In re Benjamin M. explained, in a passage the [agency] ignores, 'it would frustrate the statutory scheme if the harmlessness inquiry required proof of an actual outcome (that the parent may actually have Indian heritage), rather than meaningful proof relevant to the determination, whatever the outcome will be.' (Id. at pp. 743-744.) Focusing on the inquiry (rather than the result), the court in In re Benjamin R. found the child protective agency's failure to interview the father's relatives, essentially the same error the [agency] committed here, was not harmless. (See id. at p. 744 ['the information those relatives could have given would likely have shed meaningful light on whether there is reason to believe [the minor] is an Indian child'].) . . .
"In re Darian R. (2022) 75 Cal.App.5th 502 . . . [is also] . . . distinguishable. In In re Darian R. the court held the child protective agency's failure to ask a maternal aunt and a grandfather about the children's Indian ancestry was harmless because the juvenile court in a prior dependency case involving two of the three dependent children (and the same parents) found ICWA did not apply. (In re Darian R., at pp. 506, 509.) While In re Darian R. is arguably limited to the relatively unusual circumstances of a prior finding in a previous dependency proceeding involving the same family, the court's harmless error analysis in that case is questionable. The finding in the prior dependency case that ICWA did not apply was in 2015. (In re Darian R., at pp. 509-510.) In the later dependency case, filed July 2019, the juvenile court made findings in September 2019, November 2019, and October 2020 that ICWA did not apply. (In re Darian R., at p. 510.) Between the findings in the prior case and those in the later case, however, the law governing the duty to inquire under ICWA changed: The Legislature amended sections 224.2 and 224.3, effective January 1, 2019, to require inquiry of extended family members; . . . . The court in In re Darian R. did not consider whether applying these new laws, which expanded the duty of inquiry, would necessarily produce the same result."
"The court in In re Darian R. also relied on the fact the mother had been 'under court order to continue providing information relevant to ICWA.' (In re Darian R., supra, 75 Cal.App.5th at p. 510.) But the [agency], not the parent, has the burden to provide information relevant to ICWA, and even a parent under a court order cannot provide information about possible Indian ancestry the parent does not know." (In re J.C., supra, 77 Cal.App.5th at p. 83, fn. 5.)
The agency also argues that any deficiency in their ICWA inquiry is harmless error because the children are currently in a pre-adoptive placement with their maternal aunt B.C., and therefore the purpose of ICWA, to keep Indian children with their native families, has been achieved. In support of this argument, the agency asks us to consider In re S.S. (2022) 75 Cal.App.5th 575. We find the agency's reliance unavailing for the reasons stated in In re J.C., supra, 77 Cal.App.5th at pages 83-84:
"In In re S.S., supra, 75 Cal.App.5th 575, the court held the child protective agency's failure to ask a grandparent who wanted to adopt the child about possible Indian ancestry was harmless because ICWA gives preference to placing an Indian child with a member of the Indian child's extended family. (In re S.S., at p. 582; see 25 U.S.C. § 1915.) The court in In re S.S. also relied on the assumptions that the grandmother, as a prospective adoptive parent, would have had 'a strong incentive to bring to the court's attention any facts that suggest that [the minor] is an Indian child' and that her failure to do so implied she was 'unaware of such facts.' (In re S.S., at p. 582.) This analysis erroneously places the burden on a parent or the parent's family to provide information about possible Indian ancestry, when under ICWA and California law that burden is on the child protective agency. (See In re Michael V. (2016) 3 Cal.App.5th 225, 233 . . ['the burden of coming forward with information to determine whether an Indian child may be involved and ICWA notice required in a dependency proceeding does not rest entirely - or even primarily - on the child and his or her family'].) It also subverts a central purpose of ICWA and related California law: to protect the interests of the Indian tribes. (See In re Benjamin M., supra, 70 Cal.App.5th at p. 745 ['it is in part the tribe's right to a determination of a child's Indian ancestry, but the tribe is not present, and the agency is charged with obtaining information to make that right meaningful']; In re S.R. (2021) 64 Cal.App.5th 303, 314 [same]; see also In re Isaiah W., supra, 1 Cal.5th at p. 13 ['Indian tribes have interests protected by ICWA that are separate and distinct from the interests of parents of Indian children,' and 'ICWA's notice requirements are "intended to protect the interests of Indian children and tribes despite the parents' inaction" '].) Finally, not only was the court's decision in In re S.S. based on speculation about the maternal grandmother's incentives, it was based on a false premise: As the prospective adoptive parent, the grandmother's incentive would be not to provide any information suggesting the child was an Indian child, so that she could adopt the child without any potential interference from the tribe."
V. Conclusion
As the agency failed to make a proper inquiry of mother and maternal relatives regarding the children's possible Indian ancestry, the juvenile court failed to ensure the agency's compliance with its duty of inquiry, and the court's ICWA finding was therefore erroneous, we conditionally reverse and remand to permit the agency and the court to comply with ICWA and state law. On remand, the juvenile court should ensure, at a minimum, that the record reflects the agency's complete and accurate inquires of mother and maternal relatives, and that mother has complied with the court's order to complete a "Parental Notification of Indian Status (form ICWA-020)" for each child as required under rule 5.481(a)(2)(C). In so concluding, we note that a conditional reversal and remand could have easily been avoided here: even before filing a petition and during the ongoing dependency proceeding the agency social worker had spoken with the children's maternal aunts concerning the family's circumstances, and "it would have taken very little additional effort to ask" them about possible Indian ancestry on mother's side of the family and document that information in the agency's reports to the court. (In re J.C., supra, 77 Cal.App.5th at p. 79.)
"We are mindful of [a] child's need for a permanent and stable home, and we agree that swift and early resolution of ICWA notice issues is ideal. But the federal and state statutes were clearly written to protect the integrity and stability of Indian tribes despite the potential for delay in placing a child. The provisions of the California statute . . . recognize the importance of properly determining a child's Indian status, even when a dependency proceeding has progressed beyond the initial stages." (In re Isaiah W., supra, 1 Cal.5th at p. 12; see In re K.T., supra, 76 Cal.App.5th at p. 745 ["our state's goal for providing children with permanent and stable homes does not override the importance of properly determining a child's Indian status and protecting the integrity and stability of Indian tribes"].) Because the only error is defective ICWA compliance, if it is "ultimately determined on remand that the child is not an Indian child, the matter . . . should end at that point," thereby allowing the children "to achieve stability and permanency in the least protracted fashion the law permits." (In re Francisco W. (2006) 139 Cal.App.4th 695, 708.)
Disposition
The orders terminating parental rights are conditionally reversed. The matter is remanded to permit the juvenile court and the Humboldt County Department of Health and Human Services to comply with the inquiry (and if appropriate notice) provisions of ICWA and state law. If, after compliance with the law, the juvenile court concludes ICWA does not apply, the orders terminating parental rights shall be immediately reinstated. If the juvenile 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 state law.
WE CONCUR: Fujisaki, Acting P.J., Rodríguez, J.