Opinion
B325903
10-10-2023
In re B.C., a Person Coming Under the Juvenile Court Law. v. J.C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Katie Curtis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Nos. 19CCJP02499, 19CCJP02499A, Marguerite D. Downing, Judge. Conditionally affirmed in part, remanded with instructions.
Katie Curtis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
COLLINS, ACTING P.J.
Father J.C. appeals from the juvenile court's order terminating parental rights over his son, B.C., following a hearing pursuant to Welfare and Institutions Code section 366.26. Father, who was incarcerated during most of the dependency proceedings, argues that the trial court erred in terminating his rights without his presence. He also contends that he did not receive proper notice of the continued section 366.26 hearing or the related reports filed by the Los Angeles County Department of Children and Family Services (DCFS). Respondent DCFS contends that father forfeited his claims of error or, alternatively, that any error was harmless. We agree with DCFS that father forfeited his claims by failing to raise them below. Even absent forfeiture, we conclude that any error was harmless.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father also contends the juvenile court's finding that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) did not apply was erroneous because it was predicated upon a defective ICWA inquiry. DCFS agrees, as do we, that the legal requirements imposed under ICWA were not satisfied.
Accordingly, we remand the matter solely to ensure compliance with ICWA and related state statutes. The remainder of the order is conditionally affirmed.
On appeal, father raises procedural challenges to the section 366.26 hearing and to the court's findings regarding ICWA. We therefore provide a limited review of the factual and procedural background as relevant to these issues.
I. Petition
B.C. was born in April 2019 to father and mother, L.R. On April 19, 2019, when B.C. was less than two weeks old, DCFS detained the child and filed a dependency petition under section 300, subdivisions (a), (b)(1), and (j). The petition alleged that mother had a history of engaging in violent physical altercations with a male companion, that B.C.'s half-siblings were prior juvenile dependents, and that two of his half-siblings were receiving permanent placement services due to mother's history of domestic violence. The petition also alleged that mother had a history of substance abuse and was a current abuser of methamphetamine and amphetamine, including during her pregnancy with B.C. The petition alleged that father failed to protect B.C. from mother's substance abuse.
Section 300 states, in relevant part, "A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶](a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent ...[¶] (b)(1) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of ... [¶][t]he failure or inability of the child's parent ... to adequately supervise or protect the child....[¶](j) The child's sibling has been abused or neglected."
None of mother's other children are at issue in this appeal. Mother died in March 2022 and is not a party to the appeal.
B.C. was detained from mother and placed in the home of foster parents Mr. and Mrs. J. Mother identified father as B.C.'s father but stated that he was currently out of state, not reachable by phone, and she had no other means to contact him.
In the Indian Child Inquiry Attachment (ICWA-010(A)), DCFS checked the box indicating that B.C. "has no known Indian ancestry." In mother's Parental Notification of Indian Status form (ICWA-020), completed in April 2019, she checked the box stating, "I may have Indian ancestry." Mother also provided the name and phone number for maternal great-grandmother, maternal aunt, and maternal cousin, but did not know the names of relevant tribes or bands.
At the April 22, 2019 detention hearing, the court found a prima facie case for jurisdiction over B.C. under section 300. The court ordered monitored visitation for mother. The court also directed DCFS to pursue mother's report of possible Native American ancestry.
II. Adjudication and disposition
DCFS filed a jurisdiction/disposition report on May 13, 2019. B.C. remained with Mr. and Mrs. J. DCFS reported that father was incarcerated at Pitchess Detention Center in Castaic, California as of April 12, with a projected release date of June 9, 2019. DCFS also detailed the "extensive criminal records" for both mother and father. Regarding mother's report of possible Native American ancestry, DCFS reported that it was "in the process of gathering more information" from maternal greatgrandmother.
DCFS filed a first amended petition on May 22, 2019. The petition added count b-3, alleging that father had a criminal history including convictions in 2006 for infliction of corporal injury on a spouse or cohabitant, 2008 for burglary, 2010 for driving under the influence and possession of a controlled substance in prison, and that currently father was incarcerated due to a parole violation. The amended petition stated that B.C. had no known Indian ancestry.
On May 23, 2019, the court continued the adjudication hearing to allow father to appear. Noting that father remained in custody, the court ordered DCFS to prepare and submit a Los Angeles County jail in/out order for father's attendance at the continued date.
In a last-minute information in May 2019, DCFS reported that father stated he wanted custody of B.C. upon his release and wanted to be an active parent in his life. Father stated he was previously homeless but planned to stay with an uncle when released from jail.
At the next hearing on May 28, 2019, father, who was still in custody, was present. The court found father was the presumed father of B.C. and ordered monitored visitation for him. The court advised father that the address he provided to the court would be used for all mailing purposes. The court also told father that while he was in custody, "we'll ensure you get to court," but once released it was his responsibility to appear.
Father completed a Parental Notification of Indian Status form the same day. He checked the box stating that he had "no Indian ancestry as far as I know." At the hearing, the court found based on the responses by mother and father that it had no reason to know that B.C. was an Indian child under ICWA. No further update was provided regarding mother's report of possible Native American ancestry or DCFS's efforts to follow-up.
Father, who was no longer in custody, appeared at the adjudication hearing on June 12, 2019. The court amended the petition, as relevant here, to strike the allegation in count b-1 regarding father's failure to protect from mother's substance abuse. Mother pled no contest to the petition as amended. The court declared B.C. a dependent under section 300, sustained counts b-1, b-3, and j-2 regarding mother's substance abuse, and dismissed counts a-1, b-2, and j-1 regarding mother's domestic violence. The court also concluded that removal from father (the non-custodial parent) was necessary, finding that father had not engaged with DCFS, had not shown he had appropriate housing, and had not made efforts to ameliorate the issues causing B.C.'s detention. The court ordered reunification services and monitored visitation for mother and father.
III. Period of Review
DCFS reported in November 2019 that father was living with his uncle. Father had one visit with B.C. on November 1 that went well. DCFS reported that B.C. was developmentally on target and doing well with Mr. and Mrs. J. At the review hearing in December 2019, the court found that father had made no progress in services. The court continued reunification services. The court also noted that father had been released from custody. Father was not present for most of the hearing but appeared as it was concluding.
In a May 2020 status review report, DCFS stated that B.C. was thriving in his placement with Mr. and Mrs. J., developmentally on target, and bonded to the family. However, Mrs. J. reported that B.C. had started showing aggressive behaviors such as head-butting, hitting, scratching, and biting and was awaiting a referral to mental health services. DCFS also reported that father was arrested on December 10, 2019 and incarcerated until March 25, 2020. Father participated in a drug rehabilitation program and individual counseling while incarcerated, but after his release he had failed to submit to drug testing twice. Father participated in some video visitation with B.C. in March and April 2020, but the visits were inconsistent. Father did not initiate or request any visits, and on multiple occasions, Mrs. J. texted father to schedule a call but received no response. DCFS concluded that the prognosis for a successful reunification between father and B.C. was poor and the risk to B.C. from reunification was high; DCFS therefore recommended terminating family reunification services.
The court continued the next review hearing from May 2020 to March 2021 due to the COVID-19 pandemic. In DCFS's February 2021 status review report, Mrs. J. reported that B.C. had started mental health services, which had improved his aggressive behaviors. B.C. was also participating in speech therapy due to possible speech delays. B.C. continued to develop a positive attachment to Mr. and Mrs. J. and appeared relaxed in their presence. Mr. and Mrs. J. expressed a desire to adopt B.C. if he did not reunify with his parents.
DCFS reported that father had been incarcerated in Los Angeles County Men's Central Jail since June 2020. In August 2020, father was convicted of corporal injury to a spouse/cohabitant (mother) and sentenced to three years in state prison. As a result, father had not had any further visitation with B.C. When father spoke with a social worker in February 2021, he stated that he was innocent of the latest charges and mother was lying. He had not participated in any other court-ordered services.
Father was not present at the March 2021 hearing. The court noted that father had stopped participating in his case plan months before his latest incarceration. The court concluded that mother's and father's progress in their case plans had not been substantial, and terminated reunification services. The court set the matter for a section 366.26 permanency planning hearing on July 8, 2021. The court clerk served father with notice of entry of the court's minute order by mail at his designated mailing address on East Seventh Street. DCFS personally served father with notice of the July 8, 2021 section 366.26 hearing at the Men's Central Jail on April 28, 2021.
IV. Termination
DCFS filed a section 366.26 report on June 21, 2021. DCFS reported that B.C. continued to receive speech therapy and mental health services, with the cooperation of Mr. and Mrs. J. B.C. continued to "grow and thrive" with Mr. and Mrs. J., who were committed to adopting the child. Father remained incarcerated and had not had any visitation. In a last-minute information filed July 8, DCFS reported that it mailed a copy of the section 366.26 report to father in the Men's Central Jail on July 7, 2021.
At the hearing on July 8, 2021, DCFS reported that it had personally served father with notice of the hearing in April. The court found that notice to father was appropriate, but continued the hearing to October 5, 2021 for appropriate notice to mother. The court also ordered DCFS to submit a county in/out order for father for the next hearing.
In an August 2021 status review report, DCFS reported that B.C. was awaiting assessment for fetal alcohol syndrome and autism spectrum disorder. Mr. and Mrs. J. continued to be committed to adopting B.C. but expressed concern about B.C.'s aggressive behaviors and wanted him to have the appropriate assessments.
DCFS served father with notice of the October 5, 2021 hearing by mail at Pelican Bay State Prison on September 21, 2021. According to DCFS, at that time the relevant inmate information websites showed that father was housed at Pelican Bay.
At the October 5, 2021 permanency planning hearing, the court noted that father had not been brought to court. The court continued the hearing to January 26, 2022 for proper notice to mother but again found that notice to father was proper. The court ordered DCFS to submit a county in/out order for father for the next hearing.
DCFS served notice of the January 2022 hearing to father at Pitchess Detention Center and Pelican Bay state prison by mail on December 9, 2021. In a last-minute information, DCFS informed the court that it submitted an in/out order for father on January 4, 2022.
In an addendum report, DCFS stated that the case was adoption ready and B.C. continued to thrive with Mr. and Mrs. J., who remained committed to adopting him. Father was not present at the January 26, 2022 permanency planning hearing. Father's counsel stated that he had not had any contact with father. He had confirmed from the online inmate locator that father had been released in 2021, but stated that "at this point, I don't really know where my client is." The court found notice proper as to both parents but found good cause to continue the hearing to April 20, 2022. The court also asked DCFS to prepare a due diligence report on father.
Father, who had been released from custody in December 2021, was arrested again in February 2022. In February 2022, DCFS reported that B.C.'s aggressive behaviors had decreased and his verbal expression had increased. At the hearing on April 20, 2022, DCFS informed the court that mother had died the month before and it was attempting to obtain her death certificate. The court continued the matter for permanency planning to July 20, 2022.
DCFS filed a county in/out order on July 19, 2022 for father for the July 20, 2022 hearing. DCFS purportedly sent a notice of hearing for the July 20 hearing to father at Pitchess Detention Center. DCFS also submitted a declaration of due diligence dated July 8, 2022 regarding father, stating that DCFS had searched the county inmate information center website for father but was unable to locate him. The website listed father's arrest date as February 2, 2022 and stated that father was housed at the North County Correctional Facility.
The record does not contain a proof of service for this notice.
Father was not present at the hearing on July 20, 2022. DCFS had not yet obtained mother's death certificate, so the court continued the permanency planning hearing to October 18, 2022. The court ordered "father to be transported to court from his place of incarceration" for the next hearing.
DCFS submitted a county in/out order for father on August 9, 2022 for the October 18 hearing. In an August 2022 status report, DCFS stated that it mailed notice of the hearing to father on July 27. DCFS also reported that B.C. was provisionally diagnosed with fetal alcohol syndrome and was provided with an individualized education plan. Mr. and Mrs. J. told DCFS that B.C.'s display of aggressive behaviors, tantrums, and defiance persisted and required constant supervision. Despite these challenges, DCFS reported that the family continued to provide a loving and nurturing home for B.C. and remained committed to adoption.
On October 18, 2022, the court continued the hearing to October 25 for father to be transported to court from his place of incarceration and ordered DCFS to prepare an in/out order. DCFS submitted an in/out order for father on October 18 for the October 25 hearing.
At the hearing on October 25, father's counsel was present but father was not. The court stated on the record that father was ordered to be transported for the hearing but "the deputy has indicated that [father] refused to come out." Father's counsel told the court that she had not been able to speak with father and had no direction from him. She requested a continuance to reach out to father. The court agreed to briefly continue the matter, "in an abundance of caution," to allow counsel the opportunity to speak to father. However, the court stated it was "not ordering [father] out again." Thus, the court continued the hearing to November 15, 2022 but did not order father to be transported from jail.
DCFS sent notice of the November 15, 2022 hearing by mail to father at Men's Central Jail and at two addresses in Palmdale on November 10, 2022.
At the November 15, 2022 hearing, father's counsel was present but father was not. Father's counsel informed the court that father would not be joining the hearing. She stated that her office had scheduled two calls with father at his facility in an attempt to speak with him regarding the hearing. Father did not participate in either call, but his counsel was not told whether his absence was due to an issue at the facility or father's refusal. She then requested a continuance of the hearing due to father's absence. The court denied the request, noting that "we have continued this matter a couple of times for [father] to participate without ... more information."
The court proceeded with the hearing. During argument, father's counsel reiterated that she had no direction, "I'm unclear as to my client's position. I would be objecting to termination of his parental rights today." The court found that the required notice had been given. The court also found by clear and convincing evidence that B.C. was adoptable, that father had not maintained regular visitation with B.C., had not established a bond with the child, and that adoption was in B.C.'s best interests. Having found that no exceptions to adoption applied, the court terminated father's parental rights. The court designated Mr. and Mrs. J. as the prospective adoptive parents.
Father timely appealed the court's November 15, 2022 order terminating his parental rights.
DISCUSSION
I. Notice to Father of Section 366.26 Proceedings
Father contends that his statutory rights were violated when the court terminated his parental rights during the final section 366.26 hearing in November 2022, without allowing him to be present. He also contends that this error was compounded by further statutory violations, namely DCFS's failure to serve him with notice of four of the continued hearing dates or serve him with a copy of its section 366.26 report. DCFS counters that father has forfeited these arguments by failing to raise them below. We agree. Even if we assumed the error, however, we also agree with DCFS that any such error was harmless.
The "goal at the section 366.26 hearing is 'specifically ... to select and implement a permanent plan for the child.'" (In re Caden C. (2021) 11 Cal.5th 614, 630.) Section 366.26's express purpose is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) Thus, once the juvenile court finds the child is adoptable, "the court must order adoption and its necessary consequence, termination of parental rights," unless a parent can demonstrate one of the exceptions set forth in section 366.26 applies. (In re Celine R. (2003) 31 Cal.4th 45, 53; see also § 366.26, subd. (c)(1); In re Caden C., supra, 11 Cal.5th at p. 625.)
Penal Code section 2625, subdivision (d) allows a parent to attend certain dependency proceedings in person if desired. Specifically, the statute provides that a section 366.26 proceeding "may not be held ... without the physical presence of the prisoner or the prisoner's attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or a designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding." (Pen. Code, § 2625, subd. (d).)
Additionally, section 294 requires DCFS to give notice to parents of all section 366.26 hearings, including personal service of the initial notice of hearing. (§ 294, subd. (f)(3).) Once the court has found the initial notice was proper, "subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address, ... by electronic service ..., or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing." (§ 294, subd. (d).) DCFS must also prepare an assessment in advance of a section 366.26 hearing and must provide a copy to each parent at least 10 calendar days before the hearing. (§ 366.21, subd. (i); Cal. Rules of Court, rule 5.725(c).)
Here, father contends that the court erred in conducting the November 2022 hearing without transporting him to court, and without a knowing and express waiver as required under Penal Code section 2625. He further argues that DCFS violated statutory requirements by failing to serve him with notice of the continued section 366.26 hearings on April 20, July 20, October 18, and October 25, 2022, and by failing to provide its section 366.26 reports to father.
DCFS asserts that father forfeited these contentions because he failed to raise them below. We agree. A reviewing court "ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court." (In re S.B. (2004) 32 Cal.4th 1287, 1293, citations omitted; see also In re S.M. (2004) 118 Cal.App.4th 1108, 1121, fn. 9 [forfeiture applies "when a party complains on appeal about an action the court could have corrected had the issue been raised below." This rule applies to dependency matters. (See In re S.B., supra, 32 Cal.4th at p. 1293; see also In re Dakota S. (2000) 85 Cal.App.4th 494, 502; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886.) While we may use our discretion to reach the merits despite a forfeiture, our Supreme Court has cautioned that such discretion "should be exercised rarely and only in cases presenting an important legal issue." (In re S.B., supra, 32 Cal.4th at p. 1293.) Further, we must use "special care" in dependency cases, because "these proceedings involve the wellbeing of children," thus "considerations such as permanency and stability are of paramount importance." (Ibid., citing § 366.26.)
The section 366.26 hearing in this matter was originally set for July 8, 2021. Father does not dispute that he received the proper notice for that date. The hearing was continued seven times, until it was ultimately held on November 15, 2022. At no time during that intervening year and four months did father or his counsel object to father's absence at any hearing, to the court's finding that notice to father was proper, or to DCFS's alleged failure to send him its review reports. Father did not appear for any section 366.26 hearing, even in January 2022, when the record indicates he was not incarcerated and had received proper notice of the hearing. Then, at the penultimate hearing on October 25, 2022, the court was informed that father refused to attend. Notably, father's counsel did not object when the court responded that it would not order father to be transported to the continued hearing.
Father's contention that he did not receive a single review report is not supported by the record. He concedes that DCFS mailed him a report before the July 8, 2021 hearing, but notes that it was served only one day prior, thus he would not have received it in time [for what? Or is there a statutory minimum?]. Father nevertheless would have received the report well in advance of the continued hearing dates, including DCFS's assessment of B.C.'s adoptability by Mr. and Mrs. J. and recommendation to terminate father's parental rights.
Father contends that his counsel sufficiently objected at the November 15, 2022 hearing when she stated she had no direction from father and requested a further continuance due to his absence. We disagree. Although father's counsel requested a continuance because father was absent, she explained that the basis for her request was that she had no direction from father as to how to proceed. She did not object that the hearing was proceeding without father or that father had not given up his right to attend. This discussion by father's counsel was insufficient to preserve father's ability to object that he was entitled to be present at the hearing. (See In re Daniel B. (2014) 231 Cal.App.4th 663, 672 ["'General objections are insufficient to preserve issues for review. [Citation.] The objection must state the ground or grounds upon which the objection is based.'"].)
Even if we reached the merits of father's arguments, we would nevertheless affirm. We note that DCFS does not dispute that error occurred, specifically that father was not transported to the November 2022 section 366.26 hearing and that there is no evidence in the record that he was served with notice for several of the continued hearing dates in 2022 or with DCFS's review reports. Instead, DCFS contends that any error was harmless.
We apply a harmless error analysis "when a prisoner is involuntarily absent from a dependency proceeding." (In re Jesusa V. (2004) 32 Cal.4th 588, 625 (Jesusa V.) [finding harmless error where father was denied the right to be present at hearing under Penal Code section 2625].) "At least two California Supreme Court cases have applied the Watson standard-which requires the appellant to show a reasonable probability of a more favorable outcome-even to constitutional errors in dependency cases." (In re Al.J. (2019) 44 Cal.App.5th 652, 665-666, citing Jesusa V., supra, 32 Cal.4th at p. 625; In re Celine R., supra, 31 Cal.4th at pp. 59-60.) However, some courts have applied a "harmless beyond a reasonable doubt" standard to assess prejudice from defective notices. (See In re J.H. (2007) 158 Cal.App.4th 174, 183; In re Justice P. (2004) 123 Cal.App.4th 181, 193 [due process violations in dependency proceedings have been held to the harmless beyond a reasonable doubt standard of prejudice].)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
We reject father's request that we find structural error because "the effects of the error are simply too hard to measure." (In re Christopher L. (2022) 12 Cal.5th 1063, 1077, citing Weaver v. Massachusetts (2017) 582 U.S. 286, 295. Indeed, in Christopher L., supra, 12 Cal.5th at p. 1082, our Supreme Court declined to find structural error where the father was denied the right to counsel and the right to be present at a combined jurisdiction and disposition hearing.
Regardless of which standard is applicable, we conclude that there was no prejudicial error. At the time his parental rights were terminated in November 2022, the case had been pending for over three and a half years. During that time, father had been in and out of custody multiple times, had only visited B.C. in person once, and had only sporadic virtual visitation, with none since April 2020. He had made almost no progress with his case plan, with the court finding that he had long since stopped complying, even when out of custody. Moreover, DCFS consistently reported that B.C. was doing well with Mr. and Mrs. J., with whom he had lived since he was only a few weeks old. Mr. and Mrs. J. also remained committed to adopting B.C. and ensured that he was receiving services to address his behavioral and physical issues. In contrast, other than telling the court he wanted custody of B.C. early in the case, there is no evidence in the record that father made any plans for how he would care for B.C. or any attempts to bond with the child. In short, father has not demonstrated that he suffered any prejudice from his absence at the section 366.26 hearing.
Father contends that if he had attended the hearing, he could have assisted his counsel in challenging DCFS's finding that B.C. was adoptable. But father was represented throughout the proceedings by counsel, and neither father nor his counsel ever raised any objection regarding B.C.'s adoption by Mr. and Mrs. J. or to DCFS's recommendations in the section 366.26 report. Moreover, given the evidence here, we find no basis for father's suggestion that the court might have reached another conclusion and refused to establish adoption as the permanent plan if father had been present. Thus, we conclude that any error was harmless.
II. ICWA Inquiry
Father argues that the court's finding that ICWA did not apply is invalid due to DCFS's failure to discharge its duty of inquiry into B.C.'s possible Native American heritage. DCFS concedes that further inquiry into B.C.'s possible Native American ancestry is necessary.
A. Requirements
State law "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" as defined by ICWA and state statutes. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742; see § 224.2, subd. (a); see also 25 U.S.C. § 1903(4); § 224.1, subds. (a)-(b).) The duty of inquiry "includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) If this initial inquiry creates a "reason to believe" a child is an Indian child, DCFS is required to "make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (§ 224.2, subd. (e); In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) The juvenile court may find that a child is not an Indian child if the agency's "proper and adequate" inquiry and due diligence reveals no "reason to know" the child is an Indian child. (§ 224.2, subd. (i)(2); In re D.S., supra, 46 Cal.App.5th at p. 1050.)
"We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence." (In re H.V. (2022) 75 Cal.App.5th 433, 438; see also In re D.S., supra, 46 Cal.App.5th at p. 1051; § 224.2, subd. (i)(2).) If an inquiry is inadequate, we "must assess whether it is reasonably probable that the juvenile court would have made the same ICWA finding had the inquiry been done properly." (Dezi C. (2022) 79 Cal.App.5th 769, 776.) "If so, the error is harmless and we should affirm; otherwise, we must send it back for the Department to conduct a more comprehensive inquiry." (Ibid.)
B. Analysis
Father contends that DCFS failed to fulfill its duty of initial inquiry required by ICWA and related state law. DCFS concedes its inquiry into B.C.'s heritage were insufficient, and we agree.
The record reflects that DCFS spoke only to mother and father about B.C.'s possible Indian ancestry, despite mother's identification of possible ancestry through maternal greatgrandmother and the court's order for further investigation. The duty of inquiry required that DCFS interview, among others, extended family members and others with an interest in the child. (§ 224.2, subd. (b).) DCFS further concedes that its inquiry error was prejudicial. We agree and accordingly remand the matter for DCFS and the juvenile court to conduct further investigation into B.C.'s potential Native American ancestry.
DISPOSITION
The order terminating father's parental rights is conditionally affirmed. The matter is remanded with instructions to DCFS and the juvenile court to conduct further ICWA inquiry as soon as practicable. If that inquiry reveals evidence of Native American heritage, then DCFS and the court must comply with the additional ICWA requirements, including, if applicable, the notice requirements of section 224.3. If it does not, then the order shall stand.
We concur: MORI, J., ZUKIN, J.