Opinion
B331211
04-18-2024
In re HEAVEN B., a Person Coming Under the Juvenile Court Law. v. FLEMISHA P., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Flemisha P., in pro. per.; and Katie Curtis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP04270A, Marguerite D. Downing, Judge.
Flemisha P., in pro. per.; and Katie Curtis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
RAPHAEL, J. [*]
INTRODUCTION
Flemisha P., the mother of now-three-year-old Heaven B., appeals the juvenile court's July 25, 2023 order terminating parental rights under Welfare and Institutions Code section 366.26. She contends the court abused its discretion when it determined that the termination of parental rights would not be detrimental to the child and concluded the parental-benefit exception to adoption did not apply. She also contends that the Los Angeles County Department of Children and Family Services (Department) failed to comply with its inquiry duties to determine whether Heaven may have Indian ancestry under the federal Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law and that the juvenile court failed to ensure such compliance.
Statutory references are to this code unless otherwise stated.
We conditionally affirm the juvenile court's order terminating parental rights. Flemisha fails to establish the court abused its discretion when it concluded no exception to adoption applied under section 366.26, subdivision (c)(1)(B)(i). We agree, however, that there was prejudicial error under ICWA and related California law and remand for full compliance with the inquiry and notice provisions of those laws.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Petition and Termination of Parental Rights
1. The Department's petitions and Heaven's detentions and removals from parental custody
On August 14, 2020, the Department filed a section 300 petition alleging Heaven's father, Joshua B., engaged in violent conduct that included threatening to kill himself, Flemisha, and their then-unborn child; and, more recently, choking Flemisha in Heaven's presence. The petition also alleged Joshua had a history of substance abuse and was a current user of cocaine and methamphetamine. At a detention hearing on August 19, 2020, the juvenile court found a prima facie case for detaining Heaven, detained Heaven from Joshua, and ordered the child released to the home of Flemisha under the Department's supervision.
On September 14, 2020, the Department filed an ex parte application seeking to detain Heaven from Flemisha based on allegations of Flemisha's substance abuse and violations of court orders. According to the Department's application, on September 6, 2020, Joshua had gone to the motel where Flemisha was staying and found the door open, Heaven crying, the child "being smashed by [Flemisha's] arm," and Flemisha passed out drunk. He attempted to wake Flemisha, but she was inebriated and would not stay awake. Because Heaven, who at the time was only three months old, was hungry and needed care, Joshua told Flemisha he would take the child. When a social worker and police officers arrived at the motel to investigate allegations of the general neglect of the child, Flemisha screamed obscenities at them. One of the officers said Flemisha had alcohol on her breath and slurred her speech. The social worker and officers later found Joshua with the infant. On September 14, 2020, the court ordered Heaven detained from Flemisha and placed the child in the Department's temporary care and custody. The next day, the Department filed a first amended section 300 petition adding a count based on allegations of Flemisha's substance abuse.
On October 14, 2020, the Department filed the first amended petition containing additional amendments by interlineation. Flemisha pleaded no contest. At the October 14, 2020 jurisdiction/disposition hearing, the juvenile court sustained the interlineated first amended petition under section 300, subdivisions (a) (serious physical harm inflicted nonaccidentally) and (b)(1) (failure to protect). The court found the parents had a history of engaging in violent altercations and Heaven was at substantial risk of serious physical harm because of Joshua's violent conduct against Flemisha; Joshua's illicit drug use; and Flemisha's alcohol use. The court sustained allegations that Flemisha had a history of alcoholism, which included two convictions for driving under the influence (DUI), and was under the influence of alcohol on September 6, 2020. The court declared Heaven a dependent of the court, removed her from parental custody, granted both parents monitored visitation, ordered the Department to provide family reunification services, and ordered a disposition case plan that included requiring the parents to participate in a drug treatment program with random testing and Flemisha to participate in a domestic violence support group.
The section 300, subdivision (a), count for serious physical harm inflicted nonaccidentally was based on allegations of Joshua's violent conduct.
According to a detention report filed on August 14, 2020, Flemisha had been convicted of driving under the influence in 2010 and 2015.
Heaven was initially placed in a foster family home in September 2020. On December 14, 2020, at the request of Heaven's counsel, the court placed the child in the home of the maternal grandparents.
On January 27, 2021, the court found Flemisha had made substantial progress in her treatment programs and ordered Heaven returned to Flemisha's physical custody on the condition that Flemisha stay in the home of the maternal grandmother, paternal grandmother, or any other residence approved by the Department.
On July 21, 2021, Flemisha told a social worker that a week earlier she had relapsed by drinking two shots of alcohol. On July 27, 2021, the maternal grandfather called a different social worker to express concerns about Flemisha's recent relapse and said the prior two weeks "have really been bad." Flemisha had gone on a "binge of alcohol," requiring the maternal grandparents to pick up Heaven. The maternal grandfather had found Flemisha sleeping in a car, under the influence. He said Flemisha was continuing to drink.
The court again ordered Heaven detained from Flemisha. By the beginning of August 2021, the child had been placed once more in the home of the maternal grandparents. In September 2021, the juvenile court sustained amended counts in petitions under sections 342 and 387. The sustained counts contained additional allegations regarding Flemisha's alcohol abuse. The court also removed Heaven from Flemisha's custody; noted Heaven had previously been removed from Joshua's custody; and again ordered family reunification services for both parents.
2. Termination of family reunification services
According to a status review report filed on September 7, 2022, Flemisha said in June 2022 that she had been discharged from a treatment center but relapsed within two weeks of discharge. The maternal grandmother said Flemisha had tried killing herself in June and was taken to the hospital. Flemisha had taken a lot of pills and had been under the influence of alcohol. In July 2022, the maternal grandmother said Flemisha had been staying with a niece but had been told by the niece that she could no longer stay due to her drinking and altercations with Joshua, whom she would invite over. On July 7, 2022, a social worker received a telephone call from the maternal grandmother, who said a law enforcement officer was at her home because Joshua threatened to kill her and her family with a handgun. An officer then told the social worker that Joshua, who was with Flemisha, said he was going to shoot the maternal family. The officer said Flemisha was intoxicated.
In its September 2022 report, the Department reported that Flemisha was able to stay sober while in treatment but relapsed once she was discharged; she did not submit to court-ordered weekly random or on-demand drug/alcohol testing while not in treatment; her visits with Heaven were inconsistent; and the social worker was unable to observe a visit in person because of the inconsistency. Flemisha had also not addressed the domestic violence issues and had not enrolled in a domestic violence program. The Department determined that returning Heaven to Flemisha, as with a return of the child to Joshua, presented a very high level of risk to the child. The Department recommended terminating reunification services. On October 31, 2022, the juvenile court found that the parents' progress in alleviating the causes necessitating the child's placement was insubstantial. The court terminated family reunification services and set a date for a section 366.26 hearing.
3. The Department's February 2023 court filings
The Department's February 14, 2023 report for the section 366.26 hearing stated Flemisha's visits were sporadic and her last visit occurred on November 12, 2022. In addition, although a social worker had told Flemisha she was entitled to makeup visits that were missed while Heaven was in Texas for a month in 2022, Flemisha still had not contacted the social worker for makeup dates.
On February 14, 2023, the Department filed a form titled, "Concurrent Planning Assessment (CPA): Permanency Planning Adoption Assessment." On the form, the Department stated that the maternal grandparents were willing to adopt Heaven. It checked none of the boxes for statements under the heading "Compelling Reason(s) for Not Pursuing Adoption," including the box for the statement "Parents/Guardians have regular visitation and contact with child, and child would benefit from continued relationship." Rather, the Department stated that the recommended plan for Heaven was adoption with the maternal grandparents.
4. The Department's May 2023 reports to the court
According to a May 18, 2023 report titled, "Update on Adoptive Planning," the adoptions social worker observed Heaven to be well-adjusted and happy with the maternal grandparents. The social worker observed a "healthy bond and secure attachment between the child and the prospective adoptive parent[s]." The maternal grandmother, who was described as "loving, compassionate[,] and kind," had pursued a degree in early childhood development but stopped the pursuit of her degree to raise her children. The maternal grandfather, who was described as "responsible, supportive, and hardworking," worked full time as a project safety manager. The maternal grandparents stated they loved Heaven, had the love and support of their family and friends, and had the means to meet Heaven's needs. They wanted to proceed with adopting the child to provide her with a permanent, safe, and nurturing home environment in which to thrive.
The Department's May 22, 2023 last minute information for the court stated that Flemisha's visits continued to be few and sporadic. For the month of April 2023, there were numerous times in which Flemisha cancelled her visit or failed to confirm a visit. Flemisha never provided makeup dates for Heaven's 2022 month-long trip to Texas. For the child's 2023 trip to Texas, which was to begin in May and end in June, the social worker again asked Flemisha what dates she would like for her makeup visits, but Flemisha had not yet provided any dates. Flemisha recently asked to change the dates of her visits because she was in a treatment program, but when the social worker asked several times for dates that would work best for her, Flemisha did not respond.
5. The Department's July 2023 report to the court
In a July 2023 last minute information for the court, the Department reported Flemisha was regularly scheduled to have visits on certain days of the week (every Tuesday, Thursday, and Saturday) in June 2023 after Heaven returned from Texas. The visitation schedule required Flemisha to confirm each visit with the social worker and the maternal grandparents in advance. No such regularly scheduled (as opposed to makeup) visits, however, took place in June: With one exception, Flemisha failed to confirm any of those visits; and for the one exception, the visit was canceled after Flemisha said she would be an hour late. Flemisha did, however, have several makeup visits in June. She also had several visits in July 2023. However, during a July visit, when Heaven was playing with a water gun and other children were trying to take Heaven's toys, Flemisha instructed Heaven to tell the children, "I am going to blast your asses." This prompted the social worker to inform Flemisha and Heaven that Flemisha's proposed statement to the other children was inappropriate.
Although Flemisha was permitted to have daily video calls with Heaven during the child's trip to Texas with the maternal grandparents, Flemisha failed to call on multiple occasions. Several times calls had to be terminated because Flemisha was being disrespectful or put other people on the phone. According to the maternal grandfather, Flemisha had been under the influence on multiple occasions from May 21, 2023, to mid-June 2023. For example, on June 13, 2023, the maternal grandfather received a call from a stranger, who explained that Flemisha was sitting outdoors on a city street late at night. Flemisha seemed intoxicated when she spoke on the phone, so the maternal grandfather arranged to have her picked up and taken to a hospital, where she remained the next day.
In November 2022, a social worker explained to Flemisha that the Department continued to have concerns about her sobriety because her last drug test in October 2022 came back positive for methamphetamine and other substances. When shown those results, Flemisha denied using and claimed she did not know how she had tested positive. Moreover, in December 2022, the maternal grandfather told a social worker that Flemisha was in another abusive relationship. He provided photographs of Flemisha's swollen mouth and bruises on her body. The Department concluded its July 2023 last minute information for the court by recommending the termination of parental rights.
The social worker also explained to Flemisha that she was no longer required to submit to drug testing for the Department after the court had terminated family reunification services on October 31, 2022.
6. The section 366.26 hearing and termination of parental rights
The section 366.26 hearing took place on July 25, 2023. The juvenile court heard testimony from Flemisha, the sole witness, about her visits with Heaven. Flemisha's counsel, referring to the "[section 366.26, subdivision] (c)(1)(B)(i) exception," asked the court to apply the parental-benefit exception to adoption and not terminate parental rights. Joshua's counsel, stating he had no direction from his client, objected to the termination of parental rights "out of an abundance of caution." The Department's and the minor's attorneys, joining in each other's arguments, asserted that parental rights should be terminated and no exception applied.
Addressing whether any harm from terminating the parental relationship outweighed the benefit the child would gain from adoption, the minor's counsel pointed out that Heaven, who had just turned three, had "spent very little of her short life in [Flemisha's] care" and had been living with the maternal grandparents for most of her life. The minor's counsel also argued that there were inappropriate interactions between Flemisha and Heaven, requiring the social worker to intervene and redirect Flemisha to encourage Heaven to socialize with other children in a more suitable manner.
The juvenile court explained that, once family reunification services are terminated, the focus shifts from a parent's interest in the return of a child to a greater emphasis on the child's best interest. The court carefully considered and weighed different factors: It compared its findings that there appeared to be "a lot of visitation" and "a lot of fun" when Flemisha visited Heaven against the length of time Heaven had been out of Flemisha's custody and the benefit to Heaven of a permanent placement. It ultimately determined that the termination of parental rights and permanent adoptive placement would be in the child's best interest. Concluding no exception to adoption applied, the court ordered the termination of parental rights on July 25, 2023.
B. The ICWA-related Inquiry and Findings
When the Department filed its initial section 300 petition on August 14, 2020, it included an Indian Child Inquiry Attachment (ICWA-010(A) form). The social worker who prepared the form had checked the boxes indicating that an Indian child inquiry had been made as to Heaven and that the child may have Indian ancestry. The form also stated that Flemisha had been questioned on July 15, 2020. Under "[s]ummary of information," the form further set forth the following: "Mother confirmed Indian Ancestry and stated that she is linked to the Cherokee tribe; however, she is not a registered member."
In its detention report filed on August 14, 2020, the Department stated that ICWA "does or may apply" and that Flemisha in July 2020 had confirmed Indian ancestry linked to the Cherokee tribe.
On August 19, 2020, Flemisha's counsel filed a Parental Notification of Indian Status (ICWA-020 form) indicating Flemisha did not have Indian ancestry. Although Flemisha's name was typed on the form, the signature line was left blank.
At the August 19, 2020 detention hearing, the juvenile court observed that Flemisha had "completed an ICWA-020 [form] indicating no Indian ancestry" and found it had no reason to know ICWA applied as to Flemisha. Informed that Joshua may have Native American ancestry, the court ordered the Department to investigate the paternal claim.
On September 2, 2020, Joshua's attorney signed and filed an ICWA-020 form on Joshua's behalf. The form indicated Joshua was or may be a member of, or eligible for membership in, a federally recognized tribe. It identified the relevant tribes as Apache and "Awauk."
In a report filed on September 9, 2020, the Department again stated ICWA "does or may apply." It said Flemisha on July 15, 2020 confirmed there was Indian ancestry linked to the Cherokee tribe. It also stated that Flemisha on September 7, 2020 had said she did not have Indian blood or heritage, but the Department provided no explanation for the inconsistency with Flemisha's July 2020 representation of Indian ancestry. The Department did not mention in the report any Indian ancestry information as to Joshua.
The Department attached to its September 9, 2020 report an ICWA-010(A) form dated September 7, 2020. The social worker who prepared the September 7, 2020 form had checked the box stating that Heaven may have Indian ancestry. Indicating Flemisha had been questioned in September 2020, the form stated, "Mother denied having [I]ndian blood or heritage but said she was Cherokee Tribe on 07/15/2020."
In its jurisdiction/disposition report filed on August 31, 2021, the Department stated that Heaven was placed in the home of the maternal grandparents. According to that report, Flemisha had said she had one sibling, a 25-year-old brother; she had a "great relationship" with her parents and sibling; and she could call them if she needed help or in the event of an emergency. In discussing ICWA status, the Department in its report observed that the court on August 19, 2020 had found no reason to know that ICWA applied as to Flemisha. It also stated that the court on September 2, 2020 had been informed there may be Apache and Awauk heritage in Joshua's background; Joshua had confirmed his statement regarding possible Apache and Awauk heritage; and the Department had sent out a Notice of Child Custody Proceeding for Indian Child to the Bureau of Indian Affairs, the Secretary of the Interior, and to "all appropriate tribes." The jurisdiction/disposition report attached copies of signed certified mail return receipts from various Apache tribes, as well as letters from different Apache tribes stating Heaven was not eligible for enrollment with the tribe.
The record does not indicate any notices were sent to any Cherokee tribe.
In a report filed on March 4, 2022, for the six-month section 366.21, subdivision (e), status review hearing, the Department reiterated that the court in August 2020 had found no reason to know that ICWA applied as to Flemisha; referred the court to the letters from Apache tribes stating Heaven was not eligible for tribal enrollment; asserted that ICWA did not apply; and requested an ICWA finding as to Joshua. At the sixmonth review hearing on March 21, 2022, the court found no reason to know that ICWA applied or that Heaven was an Indian child.
In its report filed in 2023 for the section 366.26 hearing at which the court terminated parental rights, the Department stated that the paternal grandparents had denied having any Indian ancestry.
DISCUSSION
A. Flemisha Fails To Establish That the Juvenile Court Abused Its Discretion When It Determined the Termination of Parental Rights Would Not Be Detrimental to Heaven and Concluded the Parental-benefit Exception Did Not Apply
1. Relevant law and standard of review
"'Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.' [Citation.] 'A section 366.26 hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child.'" (In re Celine R. (2003) 31 Cal.4th 45, 52.) "'Adoption, where possible, is the permanent plan preferred by the Legislature.' [Citations.] '"[B]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement."'" (In re I.E. (2023) 91 Cal.App.5th 683, 690.) "When the juvenile court finds that a dependent child is likely to be adopted, it must terminate parental rights and select adoption as the permanent plan unless it finds that termination would be detrimental to the child under one of several exceptions." (Ibid.)
One exception under section 366.26, subdivision (c)(1)(B)(i), is "the parental-benefit exception." (In re Caden C. (2021) 11 Cal.5th 614, 629.) That exception "requires a parent to establish, by a preponderance of the evidence," (1) "that the parent has regularly visited with the child"; (2) "that the child would benefit from continuing the relationship"; and (3) "that terminating the relationship would be detrimental to the child." (Ibid.; see § 366.26, subd. (c)(1)(B)(i).) "[I]n assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child's relationship with the parent outweighs the benefit to the child of placement in a new adoptive home. [Citation.] By making this decision, the trial court determines whether terminating parental rights serves the child's best interests." (In re Caden C., at p. 632.)
"A substantial evidence standard of review applies to the first two elements"-that is, a court's factual findings as to whether the parent has regularly "visited and maintained contact with the child" and whether the "relationship is such that the child would benefit from continuing it." (In re Caden C., supra, 11 Cal.5th at pp. 639-640.) As for the third element, "the ultimate decision that termination would be harmful is subject to review for abuse of discretion." (Id. at p. 630; see In re G.H. (2022) 84 Cal.App.5th 15, 26 ["determining whether termination of parental rights would be detrimental to the child, is reviewed for abuse of discretion"].)
2. Flemisha forfeited her arguments
Asking "to restore [her] parental rights," Flemisha seeks reversal of the juvenile court's order terminating parental rights. She essentially argues the court abused its discretion when, concluding the parental-benefit exception to adoption did not apply, it implicitly determined the termination of parental rights would not be detrimental to Heaven. Acknowledging her visits with Heaven were sporadic, Flemisha asserts her missed visits were due to her participation in a mental health treatment program and frequent trips to Texas by the maternal grandparents. She also asserts she is "sober today," an assertion she attempts to support with evidence that includes, for example, her own representation that she is currently taking "'vitriol'" shot(s) (presumably intending to refer to Vivitrol, or naltrexone, injections) to reduce alcohol cravings.
The only exception to the termination of parental rights raised by Flemisha's counsel at the section 366.26 hearing was the parental-benefit exception under section 366.26, subdivision (c)(1)(B)(i).
Flemisha's counsel filed an opening brief raising only the ICWA issue but requested permission for Flemisha to file on her own behalf a supplemental letter brief raising the non-ICWA-related issues challenging the court's order terminating parental rights. We granted that request.
Flemisha, however, does not support her brief with citations to the record or legal authority. She has thus forfeited her arguments. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 793 ["'[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration'"]; United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 ["'[i]n order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record'"; concluding appellant forfeited many of its claims of error after failing to comply with that requirement]; Cal. Rules of Court, rule 8.204(a)(1)(B), (C) [each brief must "support each point by argument and, if possible, by citation of authority" and must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].)
3. The juvenile court did not rely on Flemisha's missed visits or substance abuse when it determined the termination of parental rights would not be detrimental to Heaven
In any event, even if she had not forfeited her arguments, Flemisha fails to show the juvenile court abused its discretion when it implicitly determined the termination of parental rights would not be detrimental to Heaven and concluded the parental-benefit exception did not apply. Whatever the merits of Flemisha's explanations for her sporadic visitations with Heaven, the juvenile court expressly explained, "The issue for the court is not missing a visit, a visit is cut short, visit does not happen because Mom is in programming; it's not that." Rather, the court found there was "a lot of visitation," but concluded that the parental-benefit exception did not apply because adoption was nonetheless in Heaven's best interest. Because the court did not rely on Flemisha's missed visits, Flemisha's explanations for her missed visits, even if true, do not establish that the court abused its discretion when it impliedly determined the termination of parental rights would not be detrimental to Heaven.
As for Flemisha's argument that she is currently sober, she similarly fails to show the juvenile court relied on a contrary finding to determine that the termination of parental rights would not be detrimental and adoption would be in Heaven's best interest. In explaining at the section 366.26 hearing it had "not been persuaded that [Flemisha] has met her best interest argument," the juvenile court focused on the length of time Heaven had been out of Flemisha's care and the benefit to be gained from the permanency and stability of adoption, rather than on Flemisha's substance abuse. Flemisha does not show that the juvenile court abused its discretion in doing so.
Although the record does not indicate the juvenile court agreed with Flemisha's claim of sobriety, neither does it show that the court relied on Flemisha's substance abuse issues when it determined that the termination of parental rights would not be detrimental and adoption would be in Heaven's best interest. Regardless, it is a laudable goal for Flemisha to work towards achieving sobriety.
A parent's continued substance abuse and application of the parental-benefit exception are not mutually exclusive. (Cf. In re Caden C., supra, 11 Cal.5th at pp. 639, 637 [although "a parent's struggles with substance abuse, mental health issues, or other problems could be directly relevant to a juvenile court's analysis in deciding whether termination would be detrimental," "[a] parent's continued struggles with the issues leading to dependency are not a categorical bar to applying the [parental-benefit] exception"].)
B. The Juvenile Court Prejudicially Erred Under ICWA and Related California Law
1. ICWA-related requirements
In 1978, Congress enacted ICWA to combat "'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 placement in foster care or adoption. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) ICWA requires notice to Indian tribes under certain circumstances, in part to "ensure[ ] that an Indian tribe is aware of its right to intervene in or, where appropriate, exercise jurisdiction over a child custody proceeding involving an Indian child," including a proceeding to terminate the parental rights to the child. (Id. at p. 8; see 25 U.S.C. §§ 1911(c), 1912(a).) "The statute authorizes states to provide '"a higher standard of protection"' to Indian children, their families and their tribes than the rights provided under ICWA." (In re Rylei S. (2022) 81 Cal.App.5th 309, 316.)
California law imposes on courts and county welfare departments "an affirmative and continuing duty to inquire" whether a child for whom a Welfare and Institutions Code section 300 petition has been filed "is or may be an Indian child." (Welf. &Inst. Code, § 224.2, subd. (a).) The duty to inquire, which "begins with the initial contact" (ibid.), "'obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child.'" (In re Rylei S., supra, 81 Cal.App.5th at p. 316.) If the county welfare department places the child into temporary custody, it has a duty to inquire that includes, but is not limited to, "asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child ...." (Welf. &Inst. Code, § 224.2, subd. (b).) Welfare and Institutions Code section 224.1, subdivision (c), defines the term "extended family member" "as provided in Section 1903 of [ICWA]." ICWA, in turn, provides that the term "shall be as 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." (25 U.S.C. § 1903; see In re Antonio R. (2022) 76 Cal.App.5th 421, 430.)
Welfare and Institutions Code section 224.1, subdivision (a), defines the term "Indian child" as provided in ICWA. Under ICWA, "'Indian child' means 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 In re Rylei S., supra, 81 Cal.App.5th at p. 317, fn. 5.)
Further inquiry must be made "as soon as practicable" if "the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child." (§ 224.2, subd. (e); see Cal. Rules of Court, rule 5.481(a)(4) [if the social worker "knows or has reason to know or believe that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable"].) "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." (§ 224.2, subd. (e)(1).) "Further inquiry includes, but is not limited to," "[i]nterviewing the parents, Indian custodian, and extended family members"; "[c]ontacting the Bureau of Indian Affairs and the State Department of Social Services"; and "[c]ontacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility." (§ 224.2, subd. (e)(2).)
If the inquiries "result in reason to know the child is an Indian child, notice to the relevant tribes is required." (In re Rylei S., supra, 81 Cal.App.5th at p. 317, fn. omitted; see Welf. &Inst. Code, § 224.3; see also 25 U.S.C. § 1912(a).) Those notices must provide, among other things, "information regarding the time, date, and any location of any scheduled hearings" and a statement of the "absolute right of the child's parents, Indian custodians, and tribe to intervene in the proceeding." (Welf. &Inst. Code, § 224.3, subd. (a)(5).)
"The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families." (In re Antonio R., supra, 76 Cal.App.5th at p. 430.) In addition, the Department "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." (In re Josiah T. (2021) 71 Cal.App.5th 388, 406; see Cal. Rules of Court, rule 5.481(a)(5) [the child welfare 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, as well as evidence of how and when this information was provided to the relevant tribes"].)
2. The juvenile court failed to ensure the Department complied with its duties of inquiry into Heaven's possible status as an Indian child
As shown by the Department's reports provided to the court, the only family members questioned about Heaven's possible Indian status other than the child's parents were the paternal grandparents. Although the maternal grandparents were involved in the dependency proceedings as caregivers for the child, there is no evidence the Department ever asked them about Heaven's Indian ancestry or tribal membership. Relying on these circumstances, Flemisha contends the Department failed to comply with its duty of inquiry into Heaven's possible status as an Indian child and the juvenile court erred in failing to ensure it did so. She also argues the record contained unexplained inconsistent statements regarding Heaven's Indian ancestry, which should have triggered a duty of further inquiry that the court failed to ensure was satisfied.
The Department concedes, and we agree, that it erred in failing to ask the maternal grandparents whether Heaven is or may be an Indian child. In addition, although Flemisha said she had a "great relationship" with not only her parents but also her 25-year-old brother and could call them if she needed help or in the event of an emergency, there is nothing in the Department's reports or anywhere else in the record to indicate the Department even attempted to contact Heaven's maternal uncle. The Department thus failed to satisfy its section 224.2, subdivision (b), duty of inquiry, which required it to ask extended family members whether the child is or may be an Indian child. (See Welf. &Inst. Code, §§ 224.1, subd. (c), 224.2, subd. (b); 25 U.S.C. § 1903; see also In re Antonio R., supra, 76 Cal.App.5th at pp. 430-431.)
The Department's errors extended beyond the inadequacy of its inquiry under section 224.2, subdivision (b). The Department's reports showed that in July 2020 Flemisha "said she was Cherokee Tribe" and had Indian ancestry, and its reports acknowledged ICWA "does or may apply." The Department thus had reason to believe Heaven is an Indian child through maternal Indian ancestry and was required to engage in further inquiry under subdivision (e) as soon as practicable, but failed to do so. (See § 224.2, subd. (e); Cal. Rules of Court, rule 5.481(a)(4); see also In re A.M. (2020) 47 Cal.App.5th 303, 322 [further inquiry was required even though "the only specific information Mother provided was a statement that she was told and believed that she may have Indian ancestry with the Blackfeet and Cherokee tribes but was not registered" and mother listed, without additional information, her grandfather as having possible Indian heritage].)
The juvenile court also erred in failing to ensure the Department complied with its duties of inquiry before finding ICWA did not apply. (See § 224.2, subd. (i)(2) ["the court may make a finding that [ICWA] does not apply to the proceedings" if "the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted"]; see also In re Rylei S., supra, 81 Cal.App.5th at p. 320 ["[r]esponsibility for the errors and omissions here does not rest solely with the Department"; "[t]he juvenile court also erred in failing to ensure the Department had satisfied its duties of inquiry before finding ICWA did not apply to the proceedings"]; In re Antonio R., supra, 76 Cal.App.5th at pp. 430, 432 [concluding the juvenile court failed to ensure the Department complied with ICWA and related California law].)
To be sure, the Department's reports showed Flemisha subsequently, in September 2020, denied having Indian heritage. However, the reports contained no explanation for Flemisha's subsequent denial and provided no specifics regarding the inquiry made of Flemisha as to her Indian heritage, including whether she had been asked to explain or elaborate on her inconsistent responses. The record also does not indicate that the Department ever contacted the maternal extended family members-nor that it contacted the Bureau of Indian Affairs or any Cherokee tribe-to ascertain whether Heaven is an Indian child. The Department may not simply rely on a denial "when there is a conflict in the evidence and no supporting information"; "a mere change in reporting, without more, is not an automatic ICWA free pass." (In re Josiah T., supra, 71 Cal.App.5th at p. 405; see id. at pp. 404-406 [paternal grandmother's statement she had Cherokee ancestry triggered the Department's duty of further inquiry, which was not extinguished by her subsequent denial of Indian heritage in the absence of "any specifics regarding the inquiry"; "[w]ithout further information about what was asked and what was said, we cannot agree the singlesentence, unexplained denial . . . extinguished [the Department's] reason to believe Josiah T. may be an Indian child"]; see also In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1167-1168 [concluding there was duty of further inquiry after the child's father filled out a form indicating the child's paternal grandfather was a member of a Cherokee tribe; although the social worker subsequently interviewed the father and reported that the father stated he did not have Indian heritage, the social worker's representation in the Department's report did not provide specifics regarding the inquiry the social worker made of the father as to his Indian heritage].)
Moreover, although the juvenile court, at the August 19, 2020 detention hearing, ordered the Department to investigate the paternal claim of Indian heritage, it did not order the Department to further inquire into the maternal claim as soon as practicable even though the Department's detention report specifically stated Flemisha in July 2020 had "confirmed there is Indian Ancestry linked to the Cherokee Tribe" and Flemisha had not yet made her unexplained inconsistent September 2020 statement to the social worker denying Indian heritage. Rather, in determining on August 19 that it did not have reason to know ICWA applied as to Flemisha and failing to require additional investigation as to any maternal Indian heritage, the court referred solely to the responses in Flemisha's August 2020 ICWA-020 form indicating there was no maternal Indian ancestry. That form was unsigned and provided no explanation for the inconsistency with Flemisha's prior representation on the issue. Although the lack of Flemisha's signature on the ICWA-020 form may not have invalidated the document (In re Gabriel G., supra, 206 Cal.App.4th at p. 1167), neither can we conclude that the unsigned form nullified Flemisha's earlier confirmation of Cherokee ancestry. On this record, the Department's duty of further inquiry had not been extinguished, and the court thus erred in failing to ensure it had been satisfied. (See generally In re Josiah T., supra, 71 Cal.App.5th at pp. 404-406; In re Gabriel G., at pp. 1167-1168.)
Flemisha contends the Department's failure to comply with its inquiry duties and the juvenile court's failure to ensure such compliance were prejudicial and requests that the matter be remanded for proper inquiry in compliance with section 224.2. The Department acknowledges the juvenile court's order terminating parental rights should be conditionally affirmed and the matter remanded for proper inquiry regarding Flemisha's claim of Cherokee ancestry, including interviews by the Department of available extended maternal relatives about the family's possible Indian ancestry and tribal membership.
We agree the errors here were prejudicial and require the matter be remanded. As this Division stated in In re Rylei, supra, 81 Cal.App.5th 309, when, as here, "the errors were the Department's nearly complete failure to make the additional inquiries of extended family members . . . required by section 224.2, subdivision (b) (and, in this case, the inquiries under section 224.2, subdivision (e), as well)," the "missing information was, at the very least, likely to be meaningful in determining whether the children involved were Indian children-whether the information ultimately showed they were or established they were not." (In re Rylei, at p. 324.) "Because we do not know what we do not know, nothing more in the way of prejudice need be shown." (Ibid.; but see, e.g., In re K.H. (2022) 84 Cal.App.5th 566, 588-589, 611-618 [summarizing multiple different approaches by appellate courts for assessing prejudice for failure to conduct adequate inquiry under ICWA and related California law and explaining that the Supreme Court, which has granted review in a case setting forth one of those approaches (In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578), will resolve the issue in due course].) Proper and adequate inquiry-including under section 224.2, subdivision (b), and further inquiry under section 224.2, subdivision (e)-is required on remand.
DISPOSITION
The July 25, 2023 order terminating parental rights is conditionally affirmed. The cause is remanded to the juvenile court for full compliance with the inquiry and notice provisions of ICWA and related California law and for further proceedings not inconsistent with this opinion.
We concur: FEUER, Acting P. J., MARTINEZ, J.
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.