Opinion
B314585
06-08-2022
In re ALIYAH Z. et al., Persons Coming Under the Juvenile Court Law. v. B.J., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19CCJP03095A-C. Tamara Hall, Judge. Affirmed and remanded with directions.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
STRATTON, P. J.
B.J. (Mother) appeals from the juvenile court's post-disposition order pursuant to Welfare and Institutions Codesection 388 pertaining to her children, A.Z, A.M., and I.M. Mother argues on appeal that the Department of Children and Family Services (DCFS) did not comply with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). We affirm the post-disposition order but remand with instructions that the court ensure compliance with ICWA and related California law.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Because ICWA compliance is the only issue presented by this appeal, we recite facts relevant to ICWA only. Mother and B.Z. (Father 1) have one child together, A.Z. Mother has two children with E.M. (Father 2): A.M. and I.M. The children were declared dependent children of the juvenile court under section 300, subdivisions (a), (b), and (j).
I. Initial ICWA Inquiry
A. Mother's Possible Indian Ancestry
DCFS represented in the dependency petition filed May 16, 2019, that Mother had told DCFS the children had no Indian ancestry. However, in a report filed the same day, DCFS stated ICWA may apply and Mother had been unavailable to interview about ICWA because she had been injured in a car accident.
Mother was present in court on June 26, 2019, and filed an ICWA-020 form stating her father had Pima ancestry. Mother told the court she did not believe her father was a registered and enrolled member. Mother's paternal grandmother, Rebecca W., advised the court that Mother's "grandparents, her father, her grandfather, her great grandfather, her great grandmother, and great, great grandmother are Pima Indian Tribe members out of Tucson[, ] Arizona. The great, great grandmother and great, great, great grandmother lived on the reservation. [Mother] has not finished her paperwork." The court asked if Mother was applying for membership in the tribe and someone in the courtroom answered affirmatively.
The court said, "She's making applications. Great. That's as clear as a bell. Thank you very much. I do find there is a reason to believe this is an ICWA case, and the Department should immediately contact the Pima Nation out of Tucson and let them know that their kids are in the system."
That day, DCFS interviewed Mother and Rebecca W. about ICWA. Mother and Rebecca W. told DCFS Pima ancestry ran through Mother's father and paternal grandfather, not through Rebecca W.'s ancestry. Mother and/or Rebecca W. told DCFS no known family members had been registered with the Pima tribe since the maternal great-great-great-grandmother, A. They did not know A.'s birthdate or have any registration information. DCFS reported "the family tree was taken and ICWA notices were sent."
A different DCFS worker spoke with Mother about ICWA on July 17, 2019. According to DCFS, Mother "reported she was informed by her paternal grandmother Ms. W[.], that her great great grandmother (name unknown) is Native American and registered with the PIMA TRIBE in Arizona. Mother stated she just received documents for herself and the children. [The DCFS social worker] encouraged Mother to provide [DCFS] with a copy of the documents once completed." It is unclear if Mother was referring to A., the relative previously identified as a Pima tribe member, and DCFS does not appear to have attempted to clarify this information with Mother or anyone else. There is no evidence in the record that DCFS ever followed up with Mother about the enrollment documents for herself and the children.
There is no indication in the record that DCFS inquired about or attempted to contact Mother's father, through whom Mother was believed to have Indian ancestry. DCFS obtained the names of Mother's parents and grandparents, but for none of those relatives, even those easily available to DCFS, did DCFS collect all the information required for the ICWA notices. There is no record of DCFS investigating Mother's possible Indian ancestry beyond speaking with Mother and Rebecca W.
Other relatives were available to DCFS. The maternal grandmother was in contact with DCFS from the start of the investigation, and the children were initially placed with her. Although DCFS and maternal grandmother were in regular contact, there is no indication in the record that DCFS ever asked her if the children had Indian ancestry. DCFS also was in frequent contact with the maternal aunt, with whom the children were later placed, but the record does not indicate that she was asked about Indian ancestry.
B. Father 1's Possible Indian Ancestry
On May 17, 2019, Father 1 was present at the detention hearing and was found to be A.Z.'s presumed father. Father 1 declared on an ICWA-020 form that he had no Indian ancestry.
There is no indication in the record that DCFS ever asked Father 1 or anyone else in his family if the children had Indian ancestry.
DCFS knew Father 1 lived with his parents and had three brothers. The paternal grandmother of A.Z., Maria Z., spoke with DCFS prior to the filing of the detention report. The record does not show that DCFS ever inquired of Maria Z., the paternal grandfather, or any other extended family member whether A.Z. had Indian ancestry.
C. Father 2's Possible Indian Ancestry
Father 2's whereabouts were unknown at the beginning of the dependency proceedings. However, DCFS was in contact with Father 2's mother, Maria C., from the start of the dependency proceedings. The record does not show that DCFS asked Maria C. whether A.M. and I.M. had Indian ancestry, or that it attempted to identify other extended family members to consult in the absence of Father 2.
Father 2 was in intermittent contact with DCFS starting in June 2019. On June 26, 2019, Father 2 contacted DCFS and advised that he was homeless and did not have a phone number or a number where messages could be left. The record does not indicate that DCFS asked about Indian ancestry during this call. Father 2 agreed to meet the social worker but failed to appear for his appointment.
In July 2019, DCFS met with the paternal aunt of A.M. and I.M.; subsequently, A.M. and I.M. were placed with her. DCFS and the paternal aunt were in regular in-person and telephonic contact. The record does not indicate that DCFS consulted the paternal aunt about possible Indian ancestry at any point prior to the filing of this appeal.
II. July 2019 ICWA Notices and Responses
DCFS sent ICWA notices for the children to the Secretary of the Interior, the Bureau of Indian Affairs (BIA), the Salt River-Pima Maricopa Indian Community, and the Gila River Indian Community in July 2019, and it submitted copies of the notices to the court.
In A.Z.'s notice, every single relative of Mother's was reported by DCFS to be affiliated with both the Salt River and Gila Communities, even though DCFS had been informed which relatives were thought to have Pima ancestry. For Mother's father and grandfather, both believed by Mother's family to have Pima ancestry, DCFS listed only names, birthdates, and birth locations; DCFS provided no current or past addresses. Although DCFS was in contact with the maternal grandmother and a maternal great-grandmother, their present and past addresses were listed as unknown. The maternal great-great-grandmother's name was misspelled. No information was supplied as to Father 1's relatives.
While A.Z.'s ICWA notice identified every maternal relative as affiliated with both tribes, the opposite was true for the ICWA notices for A.M. and I.M. There, with the exception of Mother, DCFS stated "Does not apply" for tribal affiliation for every single relative listed on the ICWA forms-even the maternal relatives who had been identified to DCFS as having Indian ancestry (the maternal grandfather, the maternal great-grandfather, and A.). For Mother's father and grandfather, both believed to have Pima ancestry, DCFS again listed only names, birthdates, and birth locations; DCFS provided no current or past addresses. Also in the notices for A.M. and I.M., Mother was listed as having died 94 years before she was born. The present and past addresses of the maternal grandmother and maternal great-grandmother were again listed as unknown. No information was provided for any of Father 2's relatives.
In July 2019, the Salt River Pima-Maricopa Indian Community submitted a letter to DCFS stating that based on the information that had been provided, the children were not enrolled or eligible for membership. DCFS failed to locate this letter until October 30, 2019.
III. October 2019 ICWA Notices and Responses
On October 17, 2019, DCFS "re[-]sent" notices to the agencies and tribes. Those ICWA notices are not included in the record, and it is unknown whether these notices were identical to or different from the first notices.
DCFS submitted some, but not all, of the green receipt cards received after the ICWA notices were sent. DCFS did provide the court with a copy of the green card receipt received from the Gila River Indian Community.
In November 2019, the Gila River Indian Community advised DCFS that Mother, Father 1, and Father 2 were not enrolled members. According to the Gila River Indian Community, "If the parents are enrolled members of a federally recognized tribe, their blood quantum could possibly make the child[ren] eligible." The tribe's letter quoted its enrollment ordinance, which provides, "Any biological child, regardless of age, of a current member shall be entitled to membership in the Community if they are of at least one-quarter degree Indian blood." The tribe concluded the children did not meet its eligibility criteria.
IV. Further Proceedings
On January 8, 2020, the juvenile court found ICWA did not apply.
After the court made these findings, additional extended family members of Mother and Father 1 were identified. In 2020, A.Z. was placed in the home of a maternal cousin, and as of June 2021, DCFS had identified and spoken with an additional maternal aunt. Additionally, by June 2021, DCFS possessed contact information for a paternal great-aunt of A.Z. There is no record of any ICWA inquiry made to these extended family members.
As to Father 2, in March 2020 I.M. and A.M's paternal aunt told DCFS Father 2 was living with his parents. DCFS asked for their telephone number, but the aunt did not want her parents to be bothered because the paternal grandmother had recently received an upsetting medical diagnosis. DCFS asked the paternal aunt to have Father 2 contact DCFS if she spoke with him.
On August 20, 2020, Father 2 met with DCFS and provided his address and telephone number. In September 2020, DCFS informed Father 2 of court-ordered reunification services. DCFS met again with Father 2 in November 2020. There is no record of DCFS inquiring into Father 2's possible Indian ancestry during these interactions.
On August 17, 2021, the court granted DCFS's section 388 petition seeking termination of the children's extended visitation with the maternal grandmother and reverting Mother's visitation from unmonitored to monitored. Mother appealed.
While this appeal was pending, we granted County Counsel's request to take judicial notice of two documents from March 2022 reflecting subsequent ICWA-related developments in the juvenile court: a DCFS report stating that both Father 2 and the paternal aunt of A.M. and I.M. denied Indian ancestry and the juvenile court's minute orders indicating the court found that ICWA did not apply with respect to Father 2's children.
DISCUSSION
ICWA reflects a congressional determination to protect American Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; In re Josiah T. (2021) 71 Cal.App.5th 388, 401 (Josiah T.) To that end, ICWA established unique standards for the removal and placement of American Indian children. (25 U.S.C. § 1901 et seq.) Central to the protections of ICWA are procedural rules to determine whether an Indian child is involved. Federal regulations implementing ICWA require state courts to ask participants in child custody proceedings whether the participant knows or has reason to know the child is an Indian child. (25 C.F.R. § 23.107(a); Josiah T., at pp. 401-402.)
We recently examined the juvenile court's duties under ICWA in Josiah T. The juvenile court has "an affirmative and continuing duty to inquire" whether a child subject to a section 300 petition may be an Indian child. (§ 224.2, subd. (a); Josiah T., supra, 71 Cal.App.5th at p. 402.)" 'This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.'" (Josiah T., at p. 402.) On appeal, Mother argues the court failed to ensure its duty was performed in all three phases and the matter must be remanded for the juvenile court to ensure ICWA compliance.
When "the juvenile court finds ICWA does not apply to a child, '[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.'" (In re J.S. (2021) 62 Cal.App.5th 678, 688.)" '[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.] We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.'" (In re D.F. (2020) 55 Cal.App.5th 558, 565.)
I. Initial Duty of Inquiry
State law lays out the requirements for initial inquiry. (Josiah T., supra, 71 Cal.App.5th at p. 402.) DCFS must ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) At each participant's first appearance at dependency proceedings, the court must ask whether the participant knows or has reason to know the child is an Indian child. (Id., subd. (c).)
Here, DCFS failed in its duty of initial inquiry with respect to all three parents. As to Mother, although her paternal Pima ancestry was disclosed at her first court appearance (triggering the duty to further inquire, discussed below), there is no indication that DCFS asked any relatives about possible Indian ancestry in Mother's maternal line, although the maternal grandmother and a maternal aunt were both in regular contact with DCFS. As to Father 1, once he filed an ICWA-020 form denying knowledge of any Indian ancestry, there is no indication in the record that DCFS ever interviewed him or anyone else in his family concerning possible Indian ancestry despite available multiple relatives being known to and accessible to DCFS. Parents' statements on "ICWA-020 forms d[o] not relieve the Department of its duty to interview the parents' extended relatives." (In re J.C. (2022) 77 Cal.App.5th 70, 81 (J.C.).) For Father 2, whose whereabouts were initially unknown to DCFS, several paternal relatives were known to DCFS, but there is no indication they were asked about Indian ancestry. Father 2 later contacted DCFS and his address was known to DCFS, and yet, DCFS admits, no ICWA inquiry was made of Father 2 or his family until after this appeal was filed. DCFS's failure to ask the children's extended relatives about their possible Indian ancestry violated the express mandate of section 224.2, subdivision (b).
With respect to Father 2, while DCFS conceded in its respondent's brief that remand was necessary to permit an ICWA inquiry, it now contends no remand is necessary because DCFS has subsequently reported that Father 2 and his sister both denied Indian ancestry. The record submitted to this court is insufficient to establish that DCFS has satisfied its inquiry obligations. DCFS documented contacting Father 2 and the paternal aunt with whom A.M. and I.M. were placed, but it did not provide evidence that it made any attempt to inquire with Father 2's mother, with whom it had been in contact since the start of the case, or that it had made any effort to identify and inquire with other extended relatives who were likely to have information bearing on the inquiry of whether the children were Indian children. If DCFS made any such efforts, they were not documented in the records provided to this court. Absent a showing that DCFS did anything more than ask Father 2 and the paternal aunt whether A.M. and I.M. were Indian children, or a showing that despite due diligence, no other extended family members could be reached, we cannot conclude substantial evidence supports the court's finding, implicit in the ruling that ICWA did not apply, that DCFS's inquiry was adequate. DCFS has an "obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child[ren]'s possible Indian status" (In re K.R. (2018) 20 Cal.App.5th 701, 709 (K.R.)), and "the court may not find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a DCFS inquiry that is not proper, adequate, or demonstrative of due diligence." (Josiah T., supra, 71 Cal.App.5th at p. 408.)
II. The Errors Were Not Harmless
A. Failure to Inquire with Extended Family
Relying upon In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.), DCFS argues that as to both Mother and Father 1, any failure to inquire into the children's possible Indian ancestry with extended family members after it interviewed Mother and Rebecca W. and after Father 1 filed his ICWA-020 form was harmless because it was not likely to bear meaningfully upon whether the children were Indian children. Presumably, DCFS also believes any failure to inquire with additional family members as to Father 2 after speaking with Father 2 and one other relative was harmless for the same reasons. Even if Benjamin M. governed the inquiry here, remand would nonetheless be required. The Benjamin M. court held the agency's failure to ask known extended family members whether a child had Indian ancestry was not harmless because the missing information there was readily obtainable, as the agency had spoken to or could easily reach the relatives in question, and "the information those relatives could have given would likely have shed meaningful light on whether there is reason to believe [the child] is an Indian child." (Id. at p. 744.) As the Benjamin M. court noted," 'Reason to believe' is broadly defined as '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, '" and a relative's knowledge of his own Indian status would be suggestive of the parent's status. (Id. at pp. 744-745.) Here, just as in Benjamin M., DCFS's failures mean that neither the juvenile court nor this court can know whether the many relatives DCFS failed to ask about Indian ancestry would have provided information suggesting the children were Indian children-but, certainly, inquiring with the children's extended family on this topic would have been likely to elicit knowledge that would have allowed the juvenile court to make a reasoned, evidence-based determination whether there was reason to believe they were Indian children. (See id. at p. 745.)
Because no ICWA inquiries had been made with respect to Father 2 at the time the respondent's brief was filed, DCFS limited its harmlessness argument in that brief to Mother and Father 1 and did not oppose remand for further proceedings as to Father 2. As DCFS now contends that an adequate inquiry was performed as to Father 2 during the pendency of this appeal but yielded no information suggesting the children were Indian children, we assume DCFS would also contend that any error with respect to Father 2 was also harmless, and we therefore consider the harmlessness argument as to all three parents.
Moreover, DCFS's harmlessness argument amounts to the contention that as its defective performance worsens, it becomes more harmless. "By failing to conduct an adequate inquiry, the Department virtually guarantees that the (incomplete) information it obtains will support a finding ICWA does not apply and that the juvenile court's error in failing to require the Department to comply with the law is harmless. Under the Department's theory, the less it complies with its duties to inquire under state and federal law, the more harmless is its erroneous failure to inquire." (J.C., supra, 77 Cal.App.5th at p. 80.) The failure to inquire with members of the children's extended families as required by law, was not harmless with respect to any parent. (In re H.V. (2022) 75 Cal.App.5th 433, 438 & fn. 4 [juvenile court's "ICWA error was prejudicial and reversible" where the child protective agency's "failure to discharge its inquiry duty under ICWA and state law [was] responsible for the absence of information in the record about the child's possible Indian ancestry"]; In re Antonio R. (2022) 76 Cal.App.5th 421, 433; In re N.G. (2018) 27 Cal.App.5th 474, 484-485; see also K.R., supra, 20 Cal.App.5th at p. 709 ["The agency cannot 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"].)
B. Tribal Eligibility Requirements
The Gila River Indian Community's enrollment ordinance provides that only biological children of a current member are eligible for membership, and the Salt River Pima-Maricopa Indian Community requires enrollees to be, inter alia, the biological child or biological grandchild of an enrolled member of the community. DCFS argues that any error in its ICWA inquiry or notice is harmless because the children are not currently eligible for membership in either tribe. As an initial matter, the children's eligibility for membership in either tribe based on Mother's paternal lineage is entirely irrelevant to, and cannot therefore excuse the absence of, adequate inquiry into possible Indian ancestry in Mother's maternal line or through either father. But even as to Mother's Pima ancestry, DCFS's argument is unconvincing because DCFS failed to conduct an adequate or diligent inquiry into Mother's family history and submitted inaccurate and misleading ICWA notices to the agencies and tribes.
At DCFS's request, we take judicial notice of the Salt River-Pima Maricopa Indian Community Code of Ordinances, section 2-23. (Evid. Code, § 452.)
Once Mother and Rebecca W. disclosed that Mother's paternal family had Pima ancestry and that Mother was in the process of applying for membership in a tribe, DCFS had "reason to believe" Indian children were involved in the dependency proceeding. "There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer 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. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know [the child is an Indian child]." (§ 224.2, subd. (e)(1).) The court and DCFS social workers must make "further inquiry" as soon as practicable when the court or DCFS has "reason to believe" an Indian child is involved. (§ 224.2, subd. (e).)" 'Further inquiry as to the possible Indian status of the child includes:
(1) interviewing the parents and extended family members to gather required information; (2) contacting the Bureau of Indian Affairs and State Department of Social Services for assistance in identifying the tribes in which the child may be a member or eligible for membership in; and (3) contacting the tribes and any other person that may reasonably be expected to have information regarding the child's membership or eligibility.'" (Josiah T., supra, 71 Cal.App.5th at pp. 404-405; § 224.2, subd. (e)(2).)
DCFS failed to fulfill its duty to engage in further inquiry. (§ 224.2, subd. (e).) DCFS interviewed Mother and Rebecca W. about the Pima ancestry that came not through Rebecca W. but through Mother's father and paternal grandfather, but the record is entirely silent as to any further inquiry by DCFS based on this information. DCFS's conclusory statement that "the family tree was taken and ICWA notices were sent" suggests that no investigation was undertaken to obtain missing information or speak with other family members. If DCFS made any effort to find out more about or to contact any of Mother's paternal relatives to ask more about their possible Pima ancestry, DCFS failed to document it. Moreover, both Mother and Rebecca W. indicated Mother was in the process for applying for tribal membership for herself and the children. It appears from the record on appeal that DCFS did not even identify the tribe to which Mother was applying, let alone follow up with her or anyone else about the documents she reported receiving for herself and her children.
Failure to document ICWA inquiries would violate the requirement of California Rules of Court, rule 5.481(a)(5) that DCFS" '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 we have previously noted, "DCFS has a duty 'to document it[s inquiry] and to provide clear information to the court' so the court may rule on the question of whether the ICWA applies." (Josiah T., supra, 71 Cal.App.5th at p. 406.)
Nor does DCFS identify any evidence in the record demonstrating it reached out to the BIA or the Pima tribes to ascertain whether the children are Indian children. "The burden is on the Agency to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA." (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) DCFS argues its ICWA notices satisfied its duty of further inquiry, but sharing information with a tribe at the "further inquiry" stage is distinct from formal notice, which is required when a court finds it has reason to know a child is an Indian child. (Josiah T., supra, 71 Cal.App.5th at p. 403.)
These failures undermine DCFS's harmlessness argument. According to DCFS, because Mother and/or Mother's non-Pima paternal grandmother said she/they did not know of any relatives registered with "the Pima tribe" since a great-great-great- grandparent, the children could not be eligible to enroll in either tribe. But according to DCFS, all current and past whereabouts of Mother's father and grandfather were unknown. If Mother and Rebecca W. were so out of touch with the Pima members of the family that they did not know where the family had ever been located, how could they know none had enrolled with a tribe?
We are also unable to conclude that DCFS's inquiry and notice failures were harmless as to Mother based on the tribes' responses that the children were not eligible for membership because DCFS submitted inadequate and incorrect ICWA notices riddled with errors and lacking information that was obviously known to or available to it. In some cases, these errors pertain to relatives not believed to have been of Pima ancestry and are therefore less significant. But in other cases, the deficiencies are meaningful: In A.Z.'s inaccurately overinclusive notice, every single relative of Mother was reported to be affiliated with the Salt River and Gila Communities, even though DCFS had been informed of which relatives were thought to have Pima ancestry. Conversely, on the ICWA notices for A.M. and I.M., DCFS stated "Does not apply" for tribal affiliation for every person other than Mother who was listed on the ICWA forms-even the relatives identified to DCFS as having Pima ancestry. On all of the ICWA notices, DCFS listed only names, birthdates, and birth locations for Mother's father and grandfather, the most immediate relatives believed by Mother's family to have Pima ancestry; DCFS provided no current or past addresses.
As a result of these errors and omissions, neither the tribes nor the agencies to which DCFS gave notice were presented with a coherent indication of which relatives were believed to be of Indian ancestry, let alone a full report of accurate information DCFS was supposed to collect about those relatives. (The record does not include copies of the second set of ICWA notices, so we are unable to evaluate whether they contained any more accurate or complete information than the first notices.) We cannot say the tribes would have made the same determination the children were not Indian children had DCFS fulfilled its obligations under ICWA and related California law and mailed notices with more complete information. (In re E.H. (2018) 26 Cal.App.5th 1058, 1074; In re Y.W. (2021) 70 Cal.App.5th 542, 558.) DCFS's failure to satisfy its inquiry and notice obligations was not harmless. The matter must be remanded so the juvenile court may ensure full compliance with the inquiry and notice provisions of ICWA and related California law.
Because Mother's parental rights have not been terminated, we need not reverse the court's order. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.)
DISPOSITION
The post-disposition order is affirmed. The matter is remanded with directions to the juvenile court to ensure DCFS complies fully with the inquiry and notice provisions of ICWA and related California law. After proper inquiry and notice, if the minors are determined to be Indian children, appellant is entitled to petition the juvenile court to invalidate orders which violate ICWA.
I concur: GRIMES, J.
HARUTUNIAN, J., Concurring: [*]
I fully concur in the result, but on narrower grounds than the majority. In my view, once the juvenile court had information family members were reporting Indian ancestry in the child's lineage, the Department's failure to make inquiry with multiple extended family members constituted non-harmless error. It is unnecessary for us to discuss whether that error would have been harmless if the existence of Indian ancestry had not been reported. We should address that issue when those facts are before us. But based on the current record, remand for compliance with the inquiry and notice provisions of ICWA is fully justified.
[*] Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.