Opinion
B316014
09-02-2022
In re I.R., a Person Coming Under the Juvenile Court Law. v. ALEJANDRO R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 18CCJP07644, Jean M. Nelson, Judge. Conditionally affirmed.
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, ACTING P. J.
The Los Angeles County Department of Children and Family Services (DCFS or agency) initiated dependency proceedings concerning I.R., who was one month old when the agency filed the dependency petition. After the matter was pending for several years, the juvenile court ultimately terminated the parental rights of I.R.'s mother and the child's biological father. The sole basis for father's appeal of the termination order is that DCFS violated state law implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) by failing to locate and interview I.R.'s relatives regarding whether he is or may be an Indian child.
Mother is not a party to this appeal. Mother died several months before the juvenile court issued its order terminating parental rights. (See Factual & Procedural Background, part 4, post.)
We agree that DCFS failed to comply with its duty under state law to ask extended family members about the child's potential Indian ancestry. We also conclude that this failure was prejudicial because the record contains scant information concerning mother's own father, and reveals that she may have been estranged from him. We reject father's claim that we must conditionally reverse the termination order because he would not be able to appeal an ICWA determination made upon remand. We conditionally affirm because that disposition best harmonizes I.R.'s interest in promptly obtaining permanent placement and ICWA's goal of preserving Indian patrimony.
FACTUAL AND PROCEDURAL BACKGROUND
We derive part of our Factual and Procedural Background from undisputed portions of the parties' appellate briefing. (See Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 (Artal) [" '[B]riefs and argument . . . are reliable indications of a party's position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party.' "].)
We summarize only those facts that are pertinent to our disposition of this appeal.
1. The dependency petition, the detention report, the ICWA-010(A) and ICWA-020 forms, and the detention hearing
On November 30, 2018, DCFS filed a juvenile dependency petition concerning I.R., who was then one month of age. In the petition, DCFS alleged three jurisdictional counts under Welfare and Institutions Code[ section 300, subdivision (b)(1).
Undesignated statutory citations are to the Welfare and Institutions Code.
Count b-1 averred: "On 10/28/18, the child . . . was born suffering from a detrimental condition. Such condition consisted of a positive toxicology screen for amphetamine and marijuana. Such condition would not exist except as a result of unreasonable acts by the child's mother, . . . placing the child at risk of physical harm and damage. Such illicit drug use by the mother endangers the child's physical health and safety and places the child at risk of physical harm and damage."
Count b-2 asserted: "The child['s] . . . mother . . . is a current abuser of methamphetamine, amphetamine, marijuana and hydrocodone, which renders the mother incapable of providing the child with regular care and supervision. The mother used illicit drugs during the mother's pregnancy with the child . . . and had a positive toxicology screen for methamphetamine, amphetamine and marijuana on 10/26/2018 and 10/27/2018, prior to the child's birth. On 11/02/2018, the mother had a positive toxicology screen for marijuana and hydrocodone. On 11/14/2018, the mother had a positive toxicology screen for amphetamine and marijuana. On 11/14/2018 and on prior occasions in 2018, the mother was under the influence of drugs while the child was in the mother's care and supervision. The child's father . . . failed to protect the child in that the father knew or reasonably should have known of the mother's substance abuse. The mother has a criminal history of a conviction for possession of controlled substance paraphernalia. The child is of such a young age that the child requires constant care and supervision and the mother's drug abuse inhibits the mother's ability to provide constant care and supervision. Such substance abuse by the mother and the father's failure to protect the child endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and failure to protect."
Count b-3 alleged: "The child['s] father . . . is unable to provide care and supervision of the child. The father's inability to provide care and supervision of the child endangers the child's physical health and safety and places the child at risk of serious physical harm and damage."
Accompanying the petition was an ICWA-010(A) form titled "Indian Child Inquiry Attachment." (Some capitalization omitted.) The form indicates that on October 29, 2018, mother told a DCFS social worker that I.R. "has no known Indian ancestry." The DCFS social worker further reported that "[m]other denied ancestry and completed an Indian ancestry questionnaire." (Underscoring omitted.)
Father and DCFS agree that the "Indian Ancestry questionnaire" identified in the ICWA-010(A) form is "an apparent reference" to the ICWA-020 form that mother later submitted to the juvenile court. That ICWA-020 form is discussed later in this section.
Concurrent with the filing of the petition, DCFS filed a detention report. On October 29, 2018, DCFS received a referral alleging that although mother gave birth to I.R. the day before "with no issues[,] .... mother tested positive for marijuana and methamphetamines on . . . 10/26/2018 and . . . 10/27/2018." On the day DCFS received this referral, a social worker reported to mother's hospital room for the purpose of interviewing her. The DCFS social worker observed that I.R.'s maternal grandmother (MGM), paternal grandfather (PGF), and maternal stepgrandfather (MSGF) were in the hospital room at that time. The parties agree "[t]here is no evidence" that the social worker who reported to the hospital had "asked anyone other than [m]other about possible Indian ancestry for [I.R.]" Further, the section of the detention report titled "Indian Child Welfare Act Status" asserts that "[t]he Indian Child Welfare Act does not apply." (Boldface, underscoring, &some capitalization omitted.)
The remainder of this paragraph and the following four paragraphs summarize pertinent aspects of the detention report.
During her interview with the DCFS social worker at the hospital, mother stated that she moved back to California from Arizona several weeks before I.R.'s birth because she did not "have a support system in Arizona"; mother indicated that she began living with MGM upon her return to California. Mother told the agency that father lived in Long Beach, she and father had "been together off and on for 4 years," father was "not that supportive," and father "was present when [I.R.] was born ...."
Also on October 29, 2018, the DCFS social worker interviewed MGM, who reported that "she hadn't talked with [mother] for months, because she never had a stable place to live or a reliable telephone number." MGM told the agency that "[s]he had been trying to get [mother] home for months ...." "MGM stated that [mother] ha[d] lived in her home since she returned" "some weeks ago." MGM further "stated that she [wa]s employed and . . . willing to care for" I.R. Although MGM claimed that "she has no criminal history," she admitted being subject to "a DCFS investigation years ago." MGM asserted that "[s]he and her husband were going through a divorce and allegations were made, which was concluded as unfounded."
It appears at some point on or about October 29 or 30, 2018, the social worker responding to the referral "completed a safety plan [for] the family" in which mother would move in with maternal great-grandmother (MGGM) and I.R. would be released to MGM. On October 30, 2018, MGGM informed DCFS that "she ha[d] no concerns with [mother] and . . . ha[d] room in her home for [mother]." Also on that date, "MGM stated that she [wa]s excited that [I.R. wa]s going to be in her home," and "MSGF stated that he ha[d] no concerns and that the infant w[ould] be safe in the home."
The detention report does not clarify whether the MGGM with whom DCFS had made contact was from the patrilineal or matrilineal side of mother's family. A last minute information report filed on December 17, 2019 indicates that MGM is MGGM's daughter.
Although the detention report indicates that I.R. was initially released to MGM in accordance with this safety plan, it also shows the agency decided to place the child with MGGM on November 28, 2018. It seems that although DCFS had concluded at the outset of its investigation that "[a] non-detained petition would have been appropriate," the agency later determined that formal detention was appropriate because mother exited a drug treatment program prior to completion, meaning that mother's "unresolved drug abuse place[d] the child in danger [if] left in her care ...." The report suggests that once the agency determined that it needed to formally detain I.R., it could not allow I.R. to remain in MGM's care at that time because she was "be[ing] assessed for a clearance waiver."
The detention report does not explain why MGM needed a "clearance waiver," nor does it define that term. It does not appear the agency ultimately provided MGM with a clearance waiver because I.R. remained in MGGM's custody for years thereafter. (See Factual & Procedural Background, parts 2-4, post [noting that I.R. subsequently remained in MGGM's care for several years].)
On December 3, 2018, mother and father filed ICWA-020 "Parental Notification of Indian Status" forms, wherein they indicated they "ha[d] no Indian ancestry as far as [they] kn[ew]." (Some capitalization omitted.)
The juvenile court held the detention hearing on December 3, 2018. Mother, father, MGM, and MGGM were present at the hearing. The court appointed counsel for mother and father. The court observed that mother and father had indicated on their ICWA-020 forms that they had no Indian ancestry as far as they knew, and then remarked: "Based on the information we have so far, the court finds there is no reason to know the child is an Indian child within the meaning of ICWA, and the court states that ICWA does not apply ...." The minute order for the hearing provides: "Parents are to keep [DCFS], their Attorney and the Court aware of any new information relating to possible ICWA status." Although I.R.'s counsel told the juvenile court that MGM and MGGM were in attendance, the court did not speak to either of them during the hearing.
The court detained I.R. from mother and father and authorized them to have monitored visitation with the child. The court deferred ruling on whether father was I.R.'s parent, and instead ordered DNA testing to determine the paternity of the child.
2. The jurisdiction/disposition report, the March 25, 2019 last minute information report, the adjudication hearing, the May 3, 2019 last minute information report, and the disposition hearing
On January 24, 2019, DCFS filed a jurisdiction/disposition report. As of the date of the report's preparation, I.R. remained placed with MGGM. In connection with the report, DCFS interviewed father, MGM, and MGGM. Although the agency attempted to contact mother, her telephone was not receiving calls and father, MGM, and MGGM were unable to provide another telephone number for mother.
The remainder of this paragraph and the following paragraph describe relevant portions of the jurisdiction/disposition report.
Father reported that he was raised in Long Beach by his mother and father, and he had a" 'great'" relationship with them. MGM told the agency that mother began smoking marijuana" '[a]round when she was seventeen.'" The jurisdiction/disposition report does not indicate that DCFS asked MGM or MGGM whether I.R. is or may be an Indian child, or whether they were aware of any extended family members of I.R. who had information concerning that question. The section of the jurisdiction/disposition report titled "Indian Child Welfare Act Status" provides in full: "On 12/3/2018, the Court found that the Indian Child Welfare Act does not apply." (Boldface, underscoring, &some capitalization omitted.)
On March 25, 2019, DCFS filed a last minute information report, wherein the agency stated that mother and father had failed to visit the child or maintain contact with DCFS and the child's caregiver.
The juvenile court held an adjudication hearing on April 8, 2019. Although mother and father were not present at the hearing, their respective attorneys were in attendance. The court found that DNA testing had revealed that father is I.R.'s biological father. The court also sustained counts b-1 and b-2 as to mother, struck the allegation in count b-2 that father failed to protect I.R., and dismissed count b-3.
On May 3, 2019, the agency filed a last minute information report. DCFS reported that although it had attempted to contact father multiple times in April and early May 2019, it was unable to do so. Although the agency also stated that one of its social workers interviewed the paternal grandmother (PGM) in the course of attempting to contact father, the report does not show that the social worker asked PGM any questions concerning whether I.R. has Indian ancestry.
On May 8, 2019, the juvenile court conducted a disposition hearing. Mother's and father's respective counsel attended the hearing, but mother and father were not present. The court declared I.R. a dependent of the court, removed him from the custody of his parents, ordered DCFS to provide family reunification services to mother, and ordered the agency to allow mother and father to have monitored visits with the child. Pursuant to section 361.5, subdivision (a), the juvenile court declined to offer family reunification services to father because he is merely I.R.'s biological father, he did "not have a relationship" with the child, and offering services to father was "not in the best interest of the child."
Section 361.5, subdivision (a) provides in pertinent part: "Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child." (§ 361.5, subd. (a).)
3. The six-month status review report, the December 17, 2019 last minute information report, and the section 366.21, subdivision (e) review hearing
DCFS filed a six-month status review report on October 16, 2019. I.R. had remained in the home of MGGM. DCFS repeatedly telephoned mother and father in August and October 2019, but the agency was unable to contact them. On September 25, 2019, MGGM told the agency that she had not "heard from mother or father in many months."
The remainder of this paragraph discusses pertinent aspects of the six-month status review report.
On December 17, 2019, the agency filed a last minute information report. The report shows DCFS unsuccessfully attempted to contact mother multiple times in November and December 2019. This filing also indicates that during that timeframe, MGM and MGGM told the agency that they had not heard from mother in several months. Further, DCFS reported that MGGM stated that she had not heard from father in several months either.
The juvenile court conducted a section 366.21, subdivision (e) review hearing on December 17, 2019. The parents' respective attorneys appeared at the hearing, and although father was in attendance, mother was not. The court found that return of I.R. to the physical custody of his parents would create a substantial risk of detriment to the child, mother's progress toward alleviating or mitigating the causes necessitating placement had not been substantial, and DCFS complied with the case plan by making reasonable efforts to enable the child's safe return home. The court terminated mother's family reunification services and scheduled a section 366.26 selection and implementation hearing.
4. The selection and implementation report, the April 28, 2021 and October 21, 2021 status review reports, father's section 388 petition, the section 366.26 hearing, and father's notice of appeal
DCFS filed a section 366.26 selection and implementation report on April 6, 2020. I.R. was initially placed with MGGM on November 28, 2018, and had remained in her care ever since. "Neither parent ha[d] made an effort to maintain contact with [MGGM] to inquire about the child's well-being." In fact, "[i]t is documented that [the parents] had [only] two visits with the child at the beginning of the case." Conversely, MGGM expressed an interest in adopting I.R. DCFS described MGGM as "a woman of Mexican descent in her late sixties" who is "a divorced mother [with] adult children of her own."
The remainder of this paragraph addresses pertinent aspects of the selection and implementation report.
On April 28, 2021, DCFS filed a status review report. DCFS reported that I.R. remained placed in MGGM's home, MGGM told DCFS on April 23, 2021 that she had not seen mother since the detention hearing, and neither mother nor father had made themselves available to provide a statement to the agency or to develop a visitation schedule for the child.
The agency filed another status review report on October 21, 2021. DCFS reported that MGGM provided DCFS with a copy of a death certificate for mother, which indicates that mother was killed in an automobile accident on July 29, 2021. Further, the agency informed the court that father had not made himself available to DCFS, and that MGGM stated father had not contacted her or visited I.R. In the report, DCFS also stated that I.R. was still living with MGGM, and that "[t]he Indian Child Welfare Act does not apply."
On October 28, 2021, father filed a section 388 petition, wherein he requested that the juvenile court provide him with family reunification services and "elevate him to a presumed father status." In the petition, father asserted he "ha[d] consistently visited the child . . . and [wa]s willing to engage in any and all services recommended." Father further claimed that he "believe[d] it [wa]s in the child's best interest to be with his father to continue the father-child relationship."
Although the juvenile court denied a prior section 388 petition that father had filed in December 2019, the record does not include a copy of that petition. In any event, this omission has no impact on our resolution of the instant appeal.
The juvenile court held the section 366.26 selection and implementation hearing on October 28, 2021. Father and his counsel attended the hearing, as did mother's counsel. The court denied father's section 388 petition without a hearing. The court found that ICWA does not apply; terminated mother's and father's parental rights; relieved mother's counsel; relieved father's counsel, effective 60 days from the date of the hearing or upon timely filing of the notice of appeal (whichever comes first); designated MGGM as I.R.'s prospective adoptive parent; and scheduled a permanency planning review hearing for April 28, 2022.
Although the juvenile court had initially scheduled the section 366.26 selection and implementation hearing for April 14, 2020, the court continued the hearing to October 28, 2021 in part because of the COVID-19 pandemic.
Father timely appealed the juvenile court's October 28, 2021 rulings later that day.
5. The proceedings following the section 366.26 hearing
On April 28, 2022, the juvenile court found that the state had not received certain documents that are required to finalize I.R.'s adoption. The court continued the permanency planning review hearing to October 27, 2022. As a result, I.R. has not yet been adopted and the juvenile court still has jurisdiction over the dependency proceedings.
We, sua sponte, take judicial notice of the juvenile court's April 28, 2022 minute order that continued the permanency planning review hearing to October 27, 2022. (Evid. Code, §§ 452, subds. (c)-(d), 459.)
DISCUSSION
"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.' [Citations.]" (In re J.C. (2022) 77 Cal.App.5th 70, 76 (J.C.).)
For the purposes of ICWA and related state law, an "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe ...." (25 U.S.C. § 1903(4); see also Welf. & Inst. Code, § 224.1, subd. (a) [adopting ICWA's definition of this term].) Under state law, "[a] determination by an Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe . . . shall be conclusive." (See § 224.2, subd. (h).)
" '" 'Federal regulations implementing ICWA . . . 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.] ....'"' [Citations.]" (J.C., supra, 77 Cal.App.5th at p. 77.)" 'State law . . . more broadly imposes on social services agencies and juvenile courts (but not parents) an "affirmative and continuing duty to inquire" whether a child in the dependency proceeding "is or may be an Indian child."' [Citations.]" (Ibid.)
Of particular relevance here is section 224.2, subdivision (b), which provides in pertinent part: "If a child is placed into the temporary custody of a county welfare department[,] . . . 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, . . . extended family members, [and] others who have an interest in the child . . . whether the child is, or may be, an Indian child ...." (See § 224.2, subd. (b).) "Under ICWA, the term 'extended family member' is 'defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.' [Citation.]" (In re A.C. (2022) 75 Cal.App.5th 1009, 1015 (A.C.).)
Although this version of section 224.2, subdivision (b) was not operative when DCFS initiated the dependency proceedings on November 30, 2018, this version was effective long before the juvenile court terminated parental rights on October 28, 2021. (See 2018 Cal. Legis. Serv. Ch. 833, §§ 4-5 [Assembly Bill No. 3176, which added the current version of § 224.2, subd. (b)]; In re A.M. (2020) 47 Cal.App.5th 303, 316 [noting that Assembly Bill No. 3176 became effective on January 1, 2019].) Because this subdivision imposes a duty that "continues throughout the dependency proceedings" (see J.C., supra, 77 Cal.App.5th at p. 77), this provision obligated DCFS to interview extended family members and other persons having an interest in I.R. once it went into effect. Indeed, in their appellate briefing, DCFS and father tacitly agree that the current version of section 224.2, subdivision (b) governs our analysis. (See Artal, supra, 111 Cal.App.4th at p. 275, fn. 2 [noting that a reviewing court may rely upon the parties' concessions of law and fact].)
"Where, as here, the juvenile court finds that ICWA does not apply, '" '[t]he finding implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry.' [Citations.]" '[W]e review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order. [Citations.] ....'" [Citation.]' [Citation.]" (In re Q.M. (2022) 79 Cal.App.5th 1068, 1079-1080 (Q.M.).)
On appeal, father argues DCFS did not conduct an adequate inquiry concerning I.R.'s possible Indian ancestry "because DCFS did not make meaningful efforts to interview MGM, MGGM, PGF and PGM, and failed to locate and interview any other 'extended family members,' as defined by ICWA and related California law." In response, DCFS does not claim to have discharged its duty of inquiry, but instead maintains that "father has failed to demonstrate that DCFS's failure to interview extended family members about [I.R.'s] status as an Indian child was prejudicial under the facts of this case." For the reasons discussed below, we hold that DCFS's failure to interview extended family members violated section 224.2, subdivision (b), and that this error was prejudicial. Further, we conditionally affirm the order terminating parental rights to expedite the proceedings and accommodate I.R.'s interest in establishing a permanent placement.
Father also argues that the juvenile court should have asked MGM and MGGM about I.R.'s potential Indian ancestry at the detention hearing. This argument is moot in light of our disposition.
A. DCFS Violated California Law Implementing ICWA by Failing to Ask Extended Family Members About I.R.'s Potential Indian Ancestry
Although DCFS social workers contacted MGM, MGGM, PGF, and PGM during the dependency proceedings, there is no evidence the agency asked any of these individuals whether I.R. is or may be an Indian child. (See Factual &Procedural Background, parts 1-4, ante [summarizing pertinent aspects of the record concerning events occurring before issuance of the order terminating parental rights].) Absent from the record is evidence that DCFS made any attempt to interview other extended family members to determine whether I.R. has Indian ancestry. (See Factual &Procedural Background, parts 1-4, ante.) Therefore, the juvenile court's implicit finding that DCFS satisfied its duty of inquiry under section 224.2, subdivision (b) is unsupported by substantial evidence. (See J.C., supra, 77 Cal.App.5th at p. 77; In re Y.W. (2021) 70 Cal.App.5th 542, 553; Q.M., supra, 79 Cal.App.5th at pp. 1079-1080.)
It is unclear whether section 224.2, subdivision (b) obligated DCFS to interview MSGF, given that he is not related to I.R. and does not appear to have any cognizable interest in the child. (See § 224.2, subd. (b) [requiring the agency to interview "extended family members" and "others who have an interest in the child"]; A.C., supra, 75 Cal.App.5th at p. 1015 [noting that extended family members include grandparents].) We need not resolve that issue because DCFS's failure to interview I.R.'s blood relatives violated the statute.
B. DCFS's Violation of California Law Implementing ICWA Was Not Harmless
DCFS's failure to satisfy its duty of inquiry is reversable error only if the error is prejudicial under People v. Watson (1956) 46 Cal.2d 818. (See In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.) ["Because the failure here concerned the agency's duty of initial inquiry, only state law is involved.... [An error is prejudicial under the Watson standard of prejudice applicable to errors of state law] 'only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error,'" quoting Watson, supra, 46 Cal.2d at p. 836].) This Division employs the standard of prejudice articulated in Benjamin M. (See, e.g., In re Darian R. (2022) 75 Cal.App.5th 502, 509-510 (Darian R.); In re S.S. (2022) 75 Cal.App.5th 575, 582-583 (S.S.).) Under that standard, appellate relief is appropriate "where the record demonstrates that the agency has not only failed in its duty of . . . 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." (See Benjamin M., supra, 70 Cal.App.5th at p. 744.) There, the failure to interview the brother of the child's father was prejudicial because the father had not appeared in that proceeding. (See id. at pp. 744-745.)
In determining whether the agency's failure to inquire was prejudicial in prior cases, we rejected speculative claims that extended family members would have had meaningful information about Indian ancestry. (See, e.g., Darian R., supra, 75 Cal.App.5th at pp. 504, 506, 509-510 [holding that the failure to interview the mother's father and sister was not prejudicial where there was an earlier finding of no Indian ancestry involving two of the three children, all of whom had the same biological parents; the mother, the father, and the paternal aunt denied having Indian ancestry; during the dependency proceedings, the mother had lived with the relatives she complained were not interviewed; and the mother was under a court order to continue to provide information relevant to ICWA].) In contrast, we have concluded it was prejudicial to rely solely on the parents' denial of ICWA ancestry where one of the detention reports indicated that the child may be an Indian child, and the mother was the product of foster care and may not have known about the child's potential Indian heritage. (See A.C., supra, 75 Cal.App.5th at pp. 1015-1016.)
DCFS argues father has not demonstrated that its failure to interview extended family members about Indian ancestry was prejudicial. In particular, DCFS asserts mother and father denied any Indian ancestry, and intimates we should not doubt the veracity of those denials because "there was no evidence the parents were estranged from the available extended relatives father claims should have been interviewed ...." DCFS asserts that "mother lived with [MGM] and was supported by both [MGM] and [MGGM,]" and "father lived nearly his entire life with [PGF and PGM], with whom he described having a 'great' relationship."
Absent from the record is evidence that DCFS made any attempt to locate and contact I.R.'s maternal grandfather (MGF) or otherwise seek information concerning mother's paternal heritage. (See Factual &Procedural Background, parts 1-4, ante.) Additionally, the record reveals that mother may have been estranged from MGF. When a DCFS social worker arrived at the hospital shortly after I.R.'s birth, MGF was not present. Instead, mother's stepfather, MSGF, was in attendance. MGM told the responding social worker that at an unspecified point in time, DCFS conducted an investigation of certain "unfounded" allegations that were made when "[s]he and her husband were going through a divorce ...." It is unclear whether MGM was referring to MGF but, if she was, a contentious divorce may have caused mother to become distant from MGF. Furthermore, the fact that mother lived with MGM, but apparently not MGF, shortly before I.R.'s birth is consistent with the possibility that mother did not have much contact with MGF.
During the proceedings below, DCFS could have asked mother (at least at the outset of the case) and MGM for more information concerning MGF, including his identity and contact information, the nature and extent of mother's relationship with MGF, and whether MGF had any Indian ancestry. Because MGM suggested that her ex-husband had reported false allegations against her to DCFS, the agency also could have reviewed its own records to determine whether that ex-husband was MGF. Additionally, although the copy of mother's death certificate that is in the record is difficult to read, it appears to provide MGF's full name. That information could have assisted DCFS in attempting to locate and contact MGF. It follows that "the agency [has] forgo[ne] basic inquiry into potentially meaningful, easily acquirable information" concerning I.R.'s Indian status. (See Benjamin M., supra, 70 Cal.App.5th at p. 745.) Under these circumstances, we cannot conclude that DCFS's failure to attempt to locate and interview MGF was not prejudicial.
Lastly, DCFS asserts that this case is akin to S.S., a decision from this Division in which we concluded the agency's failure to satisfy its duty of inquiry was not prejudicial. (See S.S., supra, 75 Cal.App.5th at pp. 577, 580-583.) There, at the outset of the proceedings, DCFS placed the child "in foster care with someone who remained her caregiver throughout the proceedings and whom the court subsequently granted de facto parent status and identified as the prospective adoptive parent." (See id. at p. 578.) The child's maternal grandmother later expressed an interest in adopting the child, and the mother's and the child's respective attorneys subsequently asked the juvenile court to place the child with the maternal grandmother, a request that DCFS opposed. (See id. at pp. 579-580.) The court ultimately denied the maternal grandmother's request for placement, terminated the mother's parental rights, and designated the child's foster caregiver as her prospective adoptive parent. (See id. at p. 580.) We held that it was speculative to conclude that the failure to ask the maternal grandmother about Indian ancestry was prejudicial where she had every incentive to tout any such ancestry in her efforts to obtain custody of the child because, if she had information suggesting the minor was an Indian child, disclosing those facts to the court would have given her preference in placing the child. (See id. at pp. 582-583, citing 25 U.S.C. § 1915(a) &(b).)
DCFS suggests that because "the maternal relatives [in our case] sought placement of the child," they too had a strong incentive to "divulg[e]" any information they had regarding I.R.'s Indian status. Whereas with the help of the child's and the mother's counsel, the maternal grandmother in S.S. sought a court order that would have placed the child in her custody over DCFS's objection (see S.S., supra, 75 Cal.App.5th at pp. 579-580), DCFS's decisions to initially place I.R. in MGM's custody and to place him in MGGM's care shortly thereafter were not subjects of litigation. DCFS later recommended that MGGM be designated as I.R.'s prospective adoptive parent, and there is no indication that MGM or any of the parties objected to that recommendation. Under these circumstances, we have no basis to conclude that MGM or MGGM had a "strong incentive" to come forward with information concerning whether I.R. is or may be an Indian child. (See id. at pp. 582-583.)
For these reasons, we find that DCFS's failure to satisfy its statutory duty of inquiry was prejudicial.
C. Father Fails to Demonstrate That a Conditional Reversal of the Termination Order, Rather Than a Conditional Affirmance Thereof, Is Appropriate
Upon concluding that the child welfare agency failed to discharge its duty of inquiry, Courts of Appeal in this District have in recent decisions conditionally affirmed orders terminating parental rights. (See, e.g., In re Antonio R. (2022) 76 Cal.App.5th 421, 436-437.) Under that approach, the reviewing court instructs the juvenile court to ensure that the agency complies with the inquiry and notice provisions of ICWA and related state law upon remand. (See ibid.) The benefit of this approach is that it limits the juvenile court's authority to modify the termination order, thereby reducing further delays in establishing permanency for the child, apart from those attendant with complying with ICWA and state law implementing that statute.
(See § 366.26, subd. (i)(1) ["After making the order [terminating parental rights], the juvenile court shall have no power to set aside, change, or modify it."].)
(See In re Christopher L. (2022) 12 Cal.5th 1063, 1076 ["' "Once reunification services are ordered terminated [by the juvenile court], the focus shifts to the needs of the child for permanency and stability."' "].)
Father acknowledges that a conditional affirmance is a potential remedy for an ICWA violation, but nonetheless maintains that we should instead conditionally reverse the order before us. The only specific objection he raises is that a conditional affirmance may prevent him from obtaining appellate review of a subsequent finding that DCFS has complied with ICWA and related state law. In particular, he claims that "[a]lthough the [juvenile] court may make a new ICWA finding on remand, there is no new or ensuing termination order or judgment from which an appeal can be taken." This contention is without merit.
" 'A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.' [Citations.] As a result of these broad statutory terms, '[j]uvenile dependency law does not abide by the normal prohibition against interlocutory appeals ....' [Citations.]" (In re S.B. (2009) 46 Cal.4th 529, 531-532 (S.B.).) Notwithstanding this exemption from the bar against interlocutory appeals," 'one does not appeal from a finding; one appeals from a judgment or from an order that the Legislature has designated as appealable.' [Citation.] . . . [R]eview of findings is normally obtained by appeal from the ensuing judgment or order."
(See S.B., supra, 46 Cal.4th at p. 534, italics added, citing, inter alia, Code Civ. Proc., § 906 ["[T]he reviewing court may review . . . any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party .... The provisions of this section do not authorize the reviewing court to review any decision or order from which an appeal might have been taken," italics added].)
In this context, the appealability of an order depends on whether it "substantially affected" the interests of a party, i.e., the order rendered him or her an "aggrieve[d]" party. (See S.B., supra, 46 Cal.4th at pp. 534, 537.) In S.B. for instance, the high court deemed appealable an "order [to] search for an appropriate adoptive family" that was issued pursuant to section 366.26. (See S.B., at p. 531 &fn. 1.) The S.B. court reasoned that although this order did not terminate parental rights, it nonetheless "substantially affected" "[t]he interests of parents and children" because the order had the effect of "limit[ing] the permanency planning options to adoption or guardianship" and" 'eliminat[ing] the option of long-term foster care ....'" (See id. at pp. 533-537.) Relying on this reasoning, our Supreme Court rejected Court of Appeal decisions "holding that appeals by parents from [these] orders were premature" because they were "mere continuances of section 366.26 hearings ...." (See S.B., at p. 534.)
A postremand order containing a new finding that ICWA is inapplicable satisfies S.B.'s test for appealability because it would likely foreclose the restoration of father's parental rights. This order's "substantial[ ] [e]ffect" on father's parental rights would render it appealable. (See S.B., supra, 46 Cal.4th at p. 537.)
(See, e.g., § 366.26, subd. (b)(1) ["At the [section 366.26] hearing . . . [the court] shall make findings and orders in the following order of preference: [¶] . . . [t]erminate the rights of the parent or parents and order that the child be placed for adoption."]; § 366.26, subd. (c)(1)(B)(vi)(II) ["[T]he court shall terminate parental rights unless . . . [¶] . . . [¶] . . . [t]he court finds a compelling reason for determining that termination would be detrimental to the child due to . . . [¶] . . . [¶] [the fact that t]he child is an Indian child and . . . [¶] . . . [¶] [t]he child's tribe has identified guardianship, foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child."]; see also In re H.G. (2015) 234 Cal.App.4th 906, 909 [ordering a juvenile court to conduct "a new section 366.26 hearing in compliance with ICWA" because the children's Indian tribe was deprived of its right to intervene in the dependency action].)
Because we have rejected father's sole reason for preferring a conditional reversal of the termination order to a conditional affirmance, and, as noted earlier, a conditional affirmance would expedite permanent placement, we conditionally affirm.
DISPOSITION
The juvenile court's order terminating parental rights is conditionally affirmed. We remand this matter to the juvenile court for respondent Los Angeles County Department of Children and Family Services and the court to comply with the Indian Child Welfare Act of 1978 (ICWA) and related California law consistent with this opinion. If the court finds that I.R. is an Indian child, then it shall conduct further proceedings in compliance with ICWA and related California law. If not, then the court's original order terminating parental rights will remain in effect.
We concur: CHANEY, J., BENKE, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.