Opinion
B319384
01-13-2023
In re E.J. et al., Persons Coming Under the Juvenile Court Law. v. L.G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Nos. 19CCJP01950B, 19CCJP01950D Stephen C. Marpet, Judge Pro Tempore of the Juvenile Court. Conditionally affirmed and remanded with directions.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
EGERTON, J.
Mother appeals from the juvenile court's orders terminating her parental rights to two of her four children, E.J. and K.H. Mother argues the juvenile court erred in failing to ensure the Los Angeles County Department of Children and Family Services (Department) made an adequate inquiry into the children's Indian status as required under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law (Welf. &Inst. Code, § 224 et seq.).[ Mother contends there was a reason to believe E.J. was an Indian child requiring further inquiry of the Choctaw tribe, the Bureau of Indian Affairs (BIA), and extended family members. We agree and thus conditionally affirm the court's orders terminating mother's parental rights and remand the matter for the limited purpose of ensuring compliance with ICWA and related California law.
Undesignated statutory references are to the Welfare and Institutions Code. Because ICWA uses the term "Indian," we do the same for consistency, although we recognize other terms are preferred. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
BACKGROUND
1. General facts
In March 2019, mother, who admitted to using crack cocaine, left then five-year-old E.J. and two-year-old K.H. home alone, along with their siblings, I.J., age six and E.H., age four. I.J. and E.H. are not subjects of this appeal. Mother was arrested under felony child endangerment charges, and the children were detained and placed in foster care. At the time, E.J.'s (and I.J.'s) presumed father Earl was incarcerated and serving a 25-year prison term. The whereabouts of K.H.'s (and E.H.'s) alleged father David were unknown and remained unknown throughout the proceedings. Neither father is a party to this appeal.
On May 20, 2019, the juvenile court sustained a petition alleging the four children were at risk of serious physical harm due to mother's history of and current substance abuse. The court removed the children from parents and granted mother reunification services with monitored visitation.
At the six-month review hearing in November 2019, the court continued reunification services for mother and set a 12-month review hearing. That hearing was continued several times due to the COVID-19 emergency and ultimately was held on October 27, 2020. On that date, after finding mother's progress in her case plan had "not been substantial," the court terminated her reunification services and set a section 366.26 hearing, which was continued several times.
On February 16, 2022, the court terminated mother's (and Earl's and David's) parental rights as to E.J. and K.H. and identified adoption as their permanent plan. The court named the couple with whom the children had been living since August 2021 as their prospective adoptive parents.
2. Facts relating to ICWA
The Department's social worker declared-in ICWA-010(A) Indian Child Inquiry Attachments filed with the petition-she made an Indian child inquiry of each child, and none had any known Indian ancestry. The detention report stated that, on March 25, 2019, mother denied she had American Indian ancestry. The Department had been unable to interview the children's fathers.
Mother checked the box, "I have no Indian ancestry as far as I know," in an unsigned ICWA-020 Parental Notification of Indian Status form, filed April 2, 2019. At her arraignment hearing on April 2, 2019, the juvenile court confirmed with mother, "[Y]ou indicated you have no American Indian heritage in your family's background as far as you know; is that correct?" Mother agreed. The juvenile court's minute orders state the ICWA-020 form is "signed and filed." Mother also gave paternal grandmother's (David's mother/K.H.'s grandmother) address to the court.
Earl appeared for the first time, in custody, on May 8, 2019. He signed and filed an ICWA-020 form denying he had Indian ancestry as far as he knew. Paternal grandmother and paternal great aunt (Earl's mother and her sister) also were present at the hearing. The following colloquy about Earl's Indian ancestry ensued:
Court: "And you've indicated, . . . you have no American Indian in your family's background as far as you know; is that correct?"
Father: "You can ask my mom. My mom's right here."
Court: "Do you know if you have any?"
Father: "They say. You know, I heard it before."
Court: "We got grandma here. Well, Ma'am, do you know if you have American Indian heritage in your family's background?"
PGM: "Yeah."
Court: "Which tribe or tribes, do you know?"
PGM: "I'm not --"
PGA: "Choctaw?"
Court: "Chippewa?"
PGA: "Something like that."
Court: "Do you know any relatives that might have any information about whether any of your relatives were living on a reservation or registered?"
PGA: "My mother [paternal great grandmother] was. She was kicked out of the reservation."
Court: "Who was?"
PGA: "My mother."
Court: "Who are you, Ma'am?
PGA: "I'm his [Earl's] auntie. This is my sister."
The court asked for paternal great aunt's and grandmother's names, Stacey and Janet, respectively, and contact information. The court said the Department would contact them for "additional information about these tribes and the relatives that might have ICWA." At that point, however, the court found, "it's not an ICWA case as I have no reason to know." The Department was to inform the court after further investigation if it were necessary to notify any tribes. The court's corresponding minute order relating to E.J. states, "The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA. [¶] The Court is informed that there may be some Native American/Indian heritage in the father's background. The Department of Children and Family Services is ordered to investigate said claim."
On May 16, 2019, a social worker interviewed Earl while he was in local custody. The social worker asked Earl about his knowledge of possible Indian ancestry. He said he had no knowledge but suggested the Department contact his paternal great aunt Stacey. He also gave the social worker his parents' and grandparents' names and information "for the Indian Notices." The record does not indicate exactly what information he provided or that any notices were sent.
That same day, the social worker called paternal aunt Stacey. She did not know with what tribe her family had possible Indian ancestry. She said her mother (paternal great grandmother) lived on a reservation as a child until her family was forced to leave. Stacey had no enrollment information or other documentation. Paternal great grandmother is deceased. Stacey told the social worker there were no other living family members who would have any more information.
At the May 20, 2019 jurisdiction hearing, the Department's counsel informed the court that paternal great aunt and grandmother had no information about the name of the tribe for the paternal great grandmother who "supposedly" lived on an Indian reservation, and there was "[n]o way to inquire." The court then stated it would "find that it's not an ICWA case as I have no reason to know based on the updated information." The court's minute orders for both E.J. and K.H. note the court "finds that no ICWA exists in the case."
DISCUSSION
1. Applicable law and standard of review
Congress enacted ICWA" 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8; see 25 U.S.C. § 1902.) Both ICWA and state law define an" 'Indian child'" as "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); § 224.1, subd. (a) [adopting federal definition].)
"Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case. These requirements are sometimes collectively referred to as the duty of initial inquiry." (Benjamin M., supra, 70 Cal.App.5th at p. 741.) State law and federal regulations implementing ICWA require juvenile courts to ask all participants in a dependency case whether they know or have reason to know the child is an Indian child and to instruct the parties to inform the court "if they subsequently receive information that provides reason to know the child is an Indian child." (25 C.F.R. § 23.107(a) (2022); § 224.2, subds. (b), (c); Cal. Rules of Court, rule 5.481(a)(2).) The California Rules of Court also require juvenile courts to order the parents to complete an ICWA-020 form. (Rule 5.481(a)(2)(C).)
Under California law, the juvenile courts and the child protective agencies, "(but not parents)[, have] an 'affirmative and continuing duty to inquire' whether a child in the dependency proceeding 'is or may be an Indian child.'" (Benjamin M., supra, 70 Cal.App.5th at pp. 741-742, quoting § 224.2, subd. (a).) That duty to inquire "begins with [the] initial contact . . . and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child." (In re T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds. (a)-(c).) "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." (In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).)
As of January 1, 2019, whenever the Department takes a child into its temporary custody, its duty of initial 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." (§ 224.2, subd. (b); Benjamin M., supra, 70 Cal.App.5th at p. 742.) Extended family members include adults who are the child's "grandparent, aunt or uncle, brother or sister, brotherin-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); § 224.1, subd. (c) [adopting federal definition].)
If that initial inquiry gives the juvenile court or social worker a "reason to believe that an Indian child is involved in a proceeding," then the court or social worker must "make further inquiry regarding the possible Indian status of the child." (§ 224.2, subd. (e).) This further inquiry includes, but is not limited to: "1) interviewing the parents and extended family members to gather [the] . . . information [required to include in notices sent under section 224.3]; 2) contacting the [BIA] 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." (D.F., supra, 55 Cal.App.5th at pp. 566-567, fn. omitted; § 224.2, subd. (e)(2)(A)-(C); Cal. Rules of Court, rule 5.481(a)(4).) There is "reason to believe" a child involved in a proceeding is an Indian child whenever the court or social worker "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), amended by Stats. 2020, ch. 104, § 15, effective Sept. 18, 2020, italics added.)
Once the juvenile court or the Department has a "reason to know" an Indian child is involved, formal notice under ICWA must be given to the child's "parents or legal guardian, Indian custodian, if any, and the child's tribe." (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(c)(1); 25 U.S.C. § 1912(a).)
The juvenile court may find ICWA does not apply to a child's proceeding if it finds the Department's duty of inquiry has been satisfied and there is no reason to know that child is an Indian child. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule 5.481(b)(3)(A).) The juvenile court's finding that ICWA does not apply thus"' "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 Josiah T. (2021) 71 Cal.App.5th 388, 401 (Josiah T.).)
We generally review the juvenile court's ICWA findings for substantial evidence," 'which requires us to determine if reasonable, credible evidence of solid value supports' the court's ICWA finding." (In re Dezi C. (2022) 79 Cal.App.5th 769, 777 (Dezi C.), review granted Sept. 21, 2022, S275578; see also In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-1005 (Ezequiel G.), review den. Nov. 22, 2022, S276223 [reviewing juvenile court's finding that it had no reason to know a child is an Indian child for substantial evidence but reviewing decision that ICWA inquiry was adequate for abuse of discretion].)
2. Substantial evidence does not support the court's ICWA finding because the Department did not fulfill its duty of further inquiry
Mother contends paternal great aunt's statements at Earl's adjudication hearing gave the juvenile court and the Department a reason to believe E.J. is an Indian child, triggering the Department's duty to make further inquiry under section 224.2, subdivision (e). We agree.
Here, as required under section 224.2, subdivision (c), the juvenile court asked the participants present at the May 8, 2019 hearing-Earl, paternal great aunt, and paternal grandmother- about E.J.'s potential Indian status. Not only did both paternal relatives state there was American Indian ancestry in the family's background, but the court's inquiry of Stacey also revealed: the name of a relative through whom E.J. and her father possibly had Indian ancestry-paternal great grandmother; the name of a potential tribe-Choctaw;[ and the fact paternal great grandmother once had lived on a reservation but had been "kicked out."
It is unclear why the court suggested "Chippewa" as the family's possible tribal affiliation when Stacey responded, "Choctaw?"
That information "suggest[ed]" Earl or E.J. "may be eligible for membership in an Indian tribe," giving the court and the Department "a reason to believe"-but not a reason to know- "an Indian child [was] involved in [the] proceeding." (§ 224.2, subd. (e)(1).[ See, e.g., In re M.E. (2022) 79 Cal.App.5th 73, 77, 81 [mother's claim of Indian ancestry without naming a tribe but naming relatives with knowledge, and father's claim his great-grandfather was" 'full-blooded Cherokee' "-made at detention hearing-gave" 'reason to believe Indian children might be involved . . . and triggered the Department's duty to make further inquiry'" under § 224.2, subd. (e)]; In re I.F. (2022) 77 Cal.App.5th 152, 164-166 (I.F.) [identification of relative with alleged Indian ancestry in unknown tribe and the specific state where ancestry arose gave rise to a reason to believe an Indian child was involved as a matter of law, triggering statutory duty of further inquiry]); D.F., supra, 55 Cal.App.5th at p. 569 [mother's ICWA-020 form that did not identify a specific tribe but named the state of the possible tribe's location was "specific enough" to create reason to believe children were possibly Indian children].)
At this time, the Legislature had yet to clarify a "reason to believe" exists when information suggests either the parent or child is a member or "may be eligible for membership" in a tribe. Nevertheless, under the juvenile court's continuing duty to inquire, the February 16, 2022 orders terminating mother's parental rights-from which mother appeals-were premised on the juvenile court's implicit finding that the Department had complied with the current ICWA inquiry and notice provisions, and that there was no reason to know the children were Indian children. (In re A.M. (2020) 47 Cal.App.5th 303, 320-321 (AM.) [juvenile court had duty to determine whether children were Indian children based on facts and law that existed at time of § 366.26 hearing]; § 224.2, subd. (i)(2).)
The Department thus "was obligated under section 224.2, subdivision (e), and rule 5.481(a)(4), to 'make further inquiry regarding the possible Indian status of [E.J.]' and to 'make that inquiry as soon as practicable.'" (In re Rylei S. (2022) 81 Cal.App.5th 309, 319.) As we said, that duty required the Department to interview "extended family members to develop specific biographical information," contact the BIA, and informally" '[c]ontact[ ] 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.'" (Ibid., citing § 224.2, subd. (e)(2)(A)-(C).) And, that informal contact with the tribe must have included" 'sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination.'" (Rylei S., at p. 319.)
The Department interviewed Earl and Stacey, but did not, as we discuss below, attempt to gather all the information required under the statute. Nor did the Department ever contact the BIA nor attempt informal contact with the Choctaw tribe, as required under section 224.2, subdivision (e)(2)(B) and (C). It thus undisputedly failed to satisfy its statutory duty of further inquiry. (See In re K.T. (2022) 76 Cal.App.5th 732, 744 [department "does not discharge [its] duty of further inquiry until [it] make[s] a 'meaningful effort' to locate and interview extended family members and to contact [the] BIA and the tribes" (italics added)].)
Nevertheless, the Department appears to contend its interview of Stacey about a week after the May 8, 2019 hearing was part of its duty of initial inquiry under section 224.2, subdivision (b). The Department argues the juvenile court reasonably could find Stacey's statements to the social worker did not suggest E.J. may be eligible for membership in an Indian tribe and thus its duty of further inquiry never was triggered. The Department notes Stacey could not tell the social worker with which tribe the family had possible ancestry, and it asserts the fact paternal great grandmother's family was forced to leave the reservation "indicated their side of the family was not part of the (unknown) tribe that lived on that reservation."
The Sixth District rejected a similar argument in I.F. where the department construed its entire inquiry as coming within its initial duty of inquiry under section 224.2, subdivision (b). (I.F., supra, 77 Cal.App.5th at pp.165-166.) The department there argued its duty of further inquiry never was triggered (despite having asked the court to find the social worker had conducted a diligent further inquiry) because" 'the vague information provided by family' did not create a reason to believe" the children were Indian children. (Id. at p. 165.)
The reviewing court first concluded the mother's statement a relative told her she had Indian ancestry through paternal grandfather, coupled with the maternal grandfather's statement his father said the family had American Indian ancestry in Minnesota, established a reason to believe the children were Indian children as a matter of law. (I.F., supra, 77 Cal.App.5th at pp. 164-166.) The court then explained, "The duty of further inquiry was triggered when the social worker had reason to believe [the child] was an Indian child. Once triggered, the statutory scheme does not contemplate that continued inquiry under section 224.2, subdivision (b) would negate reason to believe." (Id. at p. 165.) "The proper focus is therefore not on a continuing initial inquiry under subdivision (b), as the [d]epartment urges, but on the adequacy and results of further inquiry under subdivision (e)." (Id. at p. 166.)
Here, it was the juvenile court's inquiry of the participants at Earl's first appearance that gave rise to a reason to believe E.J. may be an Indian child. Indeed, the court directed the Department to investigate. The social worker's further inquiry of Earl and Stacey thus was "necessary to help the . . . social worker . . . determine whether there is a reason to know a child is an Indian child." (§ 224.2, subd. (e)(2), italics added.)
Stacey's subsequent uncertainty as to the specific tribe through which the family claimed ancestry, or the details of paternal great grandmother's ejection from the reservation, might ultimately have led the Department-after completing its further inquiry-to determine E.J. is not an Indian child as defined under ICWA. Those facts did not, however, eliminate the social worker's duty under section 224.2, subdivision (e)(2) to (A) gather information from E.J.'s paternal family members, such as paternal great grandmother's maiden or former name, birthplace, and birth date, (B) contact the BIA "for assistance in identifying the names and contact information of the tribes in which [E.J.] may be a member, or eligible for membership in," and (C) informally contact the Choctaw tribe. (§§ 224.2, subd. (e)(2)(A)-(C), 224.3, subd. (a)(5).)
In any event, we cannot say Stacey's later uncertainty about the specific tribe with which her family may have been affiliated "negated" the reason to believe E.J. is an Indian child. Although Stacey told the Department she did not know which tribe the family's potential ancestry stemmed from, she neither retracted her earlier statement to the court that it might be the Choctaw tribe nor equivocated on her assertion that her mother had lived on a reservation. Stacey did not know with what tribe her mother had possible affiliation, but, based on her response to the court's questions, she at least believed it might be the Choctaw tribe. (Cf. Josiah T., supra, 71 Cal.App.5th at p. 405 [rejecting the Department's contention that paternal grandmother's later denial of Indian ancestry meant it had no duty to investigate the child's possible Cherokee heritage based on grandmother's earlier disclosure of Cherokee ancestry, explaining, "a mere change in reporting, without more, is not an automatic ICWA free pass"].)
Moreover, as mother notes, had the Department asked, it may have learned the state or geographic area where paternal great grandmother had lived when on the reservation- information that could have led it to identify specific tribes with which paternal great grandmother may have been affiliated. (See D.F., supra, 55 Cal.App.5th at pp. 569-570 [Department satisfied duty of further inquiry by contacting the BIA and 21 tribes in New Mexico when parent claimed possible Indian ancestry through an" 'unknown tribe. . . from New Mexico' "]; I.F., supra, 77 Cal.App.5th at p. 166 [remanding for department to comply with further inquiry duty by gathering biographical information about relative with claimed Indian ancestry in unknown tribe and then to provide that information to the BIA and the federally recognized tribes in Minnesota-the state identified as the place of the family's ancestry]; see also Josiah T., supra, 71 Cal.App.5th at p. 405 [" '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].' "].)
Second, the Department assumes paternal great grandmother's family was not part of the reservation's tribe because the family was forced to leave. Nothing in the record indicates the reason the family was forced to leave, however. The record thus does not support that assumption.
Finally, relying on In re Austin J. (2020) 47 Cal.App.5th 870 (Austin J.), the Department argues, "Indian ancestry, without more, does not mean that either the child or the parent is eligible for membership in a specific tribe." We do not disagree. (Ezequiel G., supra, 81 Cal.App.5th at p. 1009 ["an Indian child is one with a tribal affiliation, not merely Indian ancestry"].) Proof of eligibility for membership, however, is not the standard at this stage of the inquiry. (See § 224.2, subds. (d)(1), (e)(1) [information suggesting membership or eligibility for membership in a tribe to establish a "reason to believe" an Indian child is involved includes, but is not limited to, "information that indicates, but does not establish," a child is an Indian child (italics added)].)[
Specifically, section 224.2, subdivision (e)(1) provides: "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 enumerated
Moreover, Austin J. was decided before the Legislature clarified a "reason to believe" exists where there is information "suggesting" the parent or child "may be eligible" for membership in a tribe. There, Division One of this court held a mother's and her extended family member's statements that the mother "may have" Cherokee ancestry did not establish a reason to believe her children were Indian children. (Austin J., supra, 47 Cal.App.5th at p. 888.) The court explained, "Information about a tribal connection that 'is too vague, attenuated and speculative' will not support a 'reason to believe the children might be Indian children.'" (Ibid.) The court concluded, "Indian ancestry, without more, does not provide a reason to believe that a child is a member of a tribe or is the biological child of a member"- the test for determining if a child is an "Indian child." (Id. at pp. 888-889.)
In reaching this conclusion, the court noted the Legislature had removed the language," 'information suggesting the child is a member of a tribe or eligible for membership in a tribe,' from the list of circumstances that provided one with a 'reason to know' a child is an Indian child" and had not added that language to the "newly created 'reason to believe' standard for further inquiry." (Austin J., supra, 47 Cal.App.5th at p. 889.) The court specifically declined to incorporate this language into the standard in reaching its decision. (Ibid.) in paragraphs (1) to (6), inclusive, of subdivision (d)." Subdivision (d), paragraph (1) states there is a reason to know a child is an Indian child if "a member of the child's extended family informs the court that the child is an Indian child."
As the Legislature subsequently did add that language to the" 'reason to believe' standard," we find the court's reasoning in Austin J. inapplicable to paternal great aunt's statements about her mother's potential Indian ancestry. (See In re S.R. (2021) 64 Cal.App.5th 303, 316-317 [disagreeing with Austin J.'s "narrow reading of the kind of information sufficient to trigger the duty of further inquiry," and explaining amended § 224.2, subd. (e) "confirms the 'reason to believe' standard requiring further inquiry should be broadly interpreted"]; see also I.F., supra, 77 Cal.App.5th at p. 163 [explaining courts' broad construction of "reason to believe standard"]; ibid. [noting," '[s]ynonyms for the term ["]suggest["] include "imply," "hint," "intimate" and "insinuate" '" (quoting Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255, 258, italics omitted ["referring to the phrase 'information which suggests that the child is an Indian child' in ICWA guidelines"])].)
We thus cannot conclude paternal great grandmother's having lived on a reservation-even though she was forced to leave-and her daughter's belief that her mother's heritage could be through the Choctaw tribe is not information suggestive of E.J.'s eligibility for membership in a tribe necessitating further investigation. Because it is undisputed the Department did not complete its further inquiry as required by section 224.2, subdivision (e)(2)(A)-(C), the juvenile court erred in implicitly finding the Department made a "proper and adequate further inquiry" into E.J.'s potential Indian ancestry. The court's finding that ICWA did not apply in turn was based on insufficient information and thus substantial evidence does not support it. (§ 224.2, subd. (i)(2) [before court may find ICWA does not apply, it first must find social worker conducted a "proper and adequate further inquiry and due diligence as required in this section . . . and there is no reason to know whether the child is an Indian child"].)
3. The Department's failure to fulfill its duty of further inquiry requires remand
As discussed, the Department failed to complete its further inquiry as required by the statute. Relying on Dezi C., the Department notes that if we conclude the juvenile court erred in finding the Department conducted an adequate ICWA inquiry, "we will return the case to the juvenile court only if the error was prejudicial-that is, if 'the record contains information suggesting a reason to believe that the child may be an "Indian child" within the meaning of . . . ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding.'" (Quoting Dezi C., supra, 79 Cal.App.5th at p. 779.) The court in Dezi C., however, limited its "reason to believe" standard of prejudice to "an agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage." (Ibid., italics added.) That standard thus would not seem to apply to the Department's failure to conduct a proper further inquiry.
Moreover, as we discussed, the record established a reason to believe E.J. may be an Indian child. In any event, because we conclude further inquiry on remand would not be futile, the Department's failure to complete its further inquiry necessarily "was prejudicial to the juvenile court's ICWA finding," under any standard. (Dezi C., supra, 79 Cal.App.5th at p. 779; see I.F., supra, 77 Cal.App.5th at pp. 165-166 ["California law requires that further inquiry be undertaken by the social worker [citation], and only after that further inquiry has concluded may the court find that ICWA does not apply to the proceedings."].)
Under section 224.2, subdivision (e)(2)(A), the Department's duty of further inquiry included gathering from extended family members, among other things, "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents . . . including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death . . . and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C).) Although the Department stated Earl gave the social worker paternal great grandparents' and grandparents' "names and information," only paternal great grandmother's and paternal grandmother's names are included in the record.
Nothing in the record indicates the Department "gather[ed] the [other] information required" under section 224.3, subdivision (a), paragraph (5) as required under section 224.2, subdivision (e). Presumably, Stacey and/or paternal grandmother, both of whom the Department was in contact with in late 2021, would know at least their mother's date of birth, if not also her birthplace, place of death, or other identifying information, if asked on remand. And, as we discussed, upon further questioning of Stacey and, if necessary, paternal grandmother, the Department may be able to learn the state or geographic area where paternal great grandmother lived while on the reservation, enabling it to narrow down the possible tribes with which the family may have been affiliated, including whether the Choctaw tribe was one of them.
The Department of course is not required to" 'cast about' for investigative leads" in making its ICWA inquiry. (A.M., supra, 47 Cal.App.5th at p. 323.) But, here, relatives are available who could have more information to give if the Department asks the questions. And because the Department never contacted the BIA for "assistance in identifying . . . tribes" (§ 224.2, subd. (e)(2)(B)), or informally contacted the Choctaw tribe, we do not know what information about paternal great grandmother's tribal status, and E.G.'s eligibility for membership in a tribe, they-or another tribe-would have provided the Department had the Department asked for the above information from paternal relatives and shared it with them. (See, e.g., § 224.2, subd. (h) ["Information that the child is not enrolled, or is not eligible for enrollment in, the tribe is not determinative of the child's membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom."].)
On this record, we cannot say the Department's further inquiry would have been futile. Accordingly, because the juvenile court did not have complete information when it impliedly reaffirmed its no ICWA finding upon terminating mother's parental rights, we must remand the matter for the juvenile court to determine-after the Department has completed and reported the results of its further inquiry-whether ICWA applies.
4. The Department's inquiry of mother's potential Indian ancestry
Mother also contends the Department failed to fulfill its initial duty of inquiry under section 224.2, subdivision (b) when it did not ask maternal extended family members about mother's potential Indian ancestry, specifically the maternal great aunt Veronica H. with whom the children had been temporarily placed at the beginning of the dependency. Mother also notes that, after 2020, the Department had contact with other maternal relatives but did not ask them about potential Indian ancestry.[ Mother asks that, if we remand the matter for further inquiry of E.J.'s paternal relatives, the BIA, and the Choctaw tribes, we also "order the juvenile court to ensure inquiry of the maternal great aunt at a minimum."
It is not clear from the record whether the Department in fact had contact with these relatives. A status review report filed in May 2020 notes the social worker spoke with mother in April 2020 about her thoughts about placing I.J.-who had to be moved-with a family member named William or an unnamed relative from Hemet. Mother said she was okay with William but said nothing about the other relative. In any event, those relatives are not mentioned anywhere else in the record, nor is there any indication of their relationship to mother and whether either fell within the definition of "extended family member," that either would have had information about mother's or her children's potential Indian status, or that mother gave the Department their contact information. Mother thus has not shown the Department's failure to contact them constituted error. (See A.M., supra, 47 Cal.App.5th at p. 323 [social workers are not required to cast about for investigative leads to satisfy the duty of inquiry].)
The Department does not contend its admitted failure to ask Veronica H.-with whom social workers had contact- about mother's potential Indian status was not error. Rather, the Department contends "this alleged inquiry error" was not prejudicial-under the standard announced in Dezi C.-because the record does not contain information suggesting a reason to believe the children may be Indian children through mother's side of the family. (See Dezi C., supra, 79 Cal.App.5th at p. 779.) Mother in turn does not argue we should not follow the standard of prejudice articulated in Dezi C. Rather, she contends the facts here are sufficiently distinguishable from those in Ezequiel G., where a majority of the court followed Dezi C. (Ezequiel G., supra, 81 Cal.App.5th at p. 1014), to warrant remand.
As we discussed, the court in Dezi C. concluded "an agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding." (Dezi C., supra, 79 Cal.App.5th at p. 779.) The court also explained that "a reviewing court would have 'reason to believe' further inquiry might lead to a different result if the record indicates that someone reported possible American Indian heritage and the agency never followed up on that information; if the record indicates that the agency never inquired into one of the two parents' heritage at all . . .; or if the record indicates that one or both of the parents is adopted and hence their self-reporting of 'no heritage' may not be fully informed." (Ibid.) As mother does not advocate that we apply a different standard of prejudice, we follow the above principles to determine if the failure to ask Veronica H. about the children's Indian status was prejudicial.
As the Department notes, mother repeatedly denied having Indian ancestry: when she first spoke with social workers in March 2019; when she completed an ICWA-020 form indicating she had no Indian ancestry as far as she knew;[ and when the juvenile court asked her at her arraignment hearing. Nor does mother assert on appeal that she has possible Indian ancestry or is a member of, or eligible for membership in, a tribe. And, although the Department had repeated contact with Veronica H. during this proceeding-all four children lived with her for a few months from after the detention hearing until September 2019 when the children were placed in a foster home, and she apparently monitored some visits in 2020-nothing in the record suggests Veronica H. ever claimed Indian ancestry on her own.
Mother did not sign her ICWA-020 form, however.
Mother contends the Department's failure to ask Veronica H. about Indian ancestry on mother's side of the family nevertheless was prejudicial. She argues that, in contrast to Ezequiel G., there is no evidence in the record showing mother is close to her relatives or even where her parents are now. In Ezequiel G., a majority of this court found the juvenile court did not abuse its discretion, or, alternatively, did not commit prejudicial error, in finding the Department's inquiry efforts under section 224.2, subdivision (b) were appropriate where social workers did not ask extended family members about the children's potential Indian status after parents denied having Indian ancestry. (Ezequiel G., supra, 81 Cal.App.5th at pp. 996997, 1014-1015.) Like mother here, the parents in Ezequiel G. "unequivocally denied Indian ancestry." (Id. at p. 1015.) The parents in Ezequiel G., however, "appear[ed] to have been in contact with their extended families" so that "the possibility that they might unknowingly be members of a tribe" was "trivially small." (Ibid.) They did not otherwise present evidence in the record to support an inference that they "might unknowingly be members of an Indian tribe." (Ibid.)
That is not exactly the case here. True, mother had some contact with her biological parents. The record indicates that, during an earlier proceeding around 2016, mother told a social worker that her own mother (maternal grandmother) and stepfather raised her. She also apparently lived with maternal grandmother in 2012 when she gave birth to the children's older sibling I.J. and considered maternal grandmother a "source of support" at that time. Mother did not establish a relationship with her biological father, who was in and out of jail while she was growing up, until she was an adult.
In contrast to Ezequiel G., however, the record here indicates mother's self-reporting of no Indian ancestry "may not be fully informed." (Dezi C., supra, 79 Cal.App.5th at p. 779 .) During the earlier dependency proceeding, mother told a social worker "she was part of the foster care system as a child," apparently because maternal grandmother was unable to protect mother and her siblings from sexual abuse due to maternal grandmother's "drug problem." The record does not state for how long mother remained in foster care. Also absent from the record is any indication that mother-or the Department- was in touch with maternal grandmother or grandfather during this proceeding. As "a foster care product"-for an undisclosed period-we can infer mother "may not know her cultural heritage," but "her biological relatives may have that information." (In re A.C. (2022) 75 Cal.App.5th 1009, 1012-1013, 1017 [failure to question maternal relatives with whom children had been placed was prejudicial despite mother's denial of Indian ancestry where mother had been in foster care "[f]or an undisclosed period prior to her 18th birthday"].) As mother's parents do not appear to be present, mother's aunt, Veronica H., was the most likely relative to know if Indian ancestry exists in mother's family.
As we already are remanding the matter for the Department to comply with its duty of further inquiry as to E.J.'s Indian status on her father's side of the family, we find it appropriate for the Department, on remand, to ask Veronica H. if she has knowledge of any American Indian heritage on mother's side of the family.
5. We conditionally affirm the juvenile court's orders and remand for the limited purpose of ICWA compliance
As there is no reason to know either child here is an Indian child, we conditionally affirm the court's orders terminating parental rights subject to compliance with ICWA and related California law.
On remand, the juvenile court must promptly direct the Department to make reasonable efforts (1) to interview Veronica H. about possible Indian ancestry on mother's side of the family and to comply with its duty of further inquiry if that information gives it a reason to believe E.J. and/or K.H. are Indian children; and (2) to interview paternal great aunt Stacey and, if necessary, paternal grandmother to gather the required information under sections 224.2, subdivision (e)(2)(A) and 224.3, subdivision (a)(5), and to ask about the state and/or geographic area where paternal great grandmother lived when on the reservation. After gathering the required information from the paternal relatives, the Department must contact the BIA as required by section 224.2, subdivision (e)(2)(B) and contact the Choctaw tribe, and/or any other federally recognized tribes it identifies from its inquiry, to share the information required by section 224.2, subdivision (e)(2)(C). If the Department's further inquiry gives it a reason to know an Indian child is involved, it must provide notice to the pertinent tribes or, if no tribe is identified, to the BIA as set forth in sections 224.2, subdivision (f) and 224.3. We remind the Department that the above inquiries, and if applicable, notices, apply to I.J. and E.H., as well. We encourage the Department to report any applicable findings to the juvenile court in those children's cases in accordance with California Rules of Court, rule 5.481(a)(5).
DISPOSITION
The juvenile court's orders terminating parental rights to E.J. and K.H. are conditionally affirmed. We remand the matter for the juvenile court to ensure the Department complies with section 224.2 and, if applicable, the notice provisions of ICWA and related California law, as described in this opinion. If, on remand, the juvenile court determines ICWA applies, it shall conduct a new section 366.26 hearing and further proceedings consistent with ICWA and related California law. If the court determines ICWA does not apply, the orders terminating mother's parental rights will remain in effect.
We concur: LAVIN, Acting P. J. RICHARDSON (ANNE K.), J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.