Opinion
B334036
11-14-2024
In re L.M. et al., Persons Coming Under the Juvenile Court Law. v. N.M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, Nos. 20CCJP05292A, 20CCJP05292B, 20CCJP05292C, 20CCJP05292D, 20CCJP05292E, 20CCJP05292F Daniel Zeke Zeidler, Judge. Conditionally reversed in part and remanded with directions.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
EGERTON, Acting P. J.
Mother appeals from the juvenile court's orders denying her Welfare and Institution Code section 388 petition as to her six children-L.M., S.M., R.L., K.M., St.M., and A.M.- and subsequent orders terminating her parental rights to S.M. and K.M. We consolidated mother's appeals.
Mother's sole contention on appeal is that the juvenile court erred in finding the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) was inapplicable to the children. Mother argues the juvenile court failed to ensure the Los Angeles County Department of Children and Family Services (DCFS) made a diligent further inquiry into the children's potential Indian heritage as required under ICWA and related California law (Welf. &Inst. Code, § 224 et seq.).We agree DCFS's inquiry was insufficient. In light of our high court's recent decision in In re Dezi C. (2024) 16 Cal.5th 1112 (Dezi C.), we therefore conditionally reverse 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 as to all six children.
Undesignated statutory references are to the Welfare and Institutions Code. Because ICWA uses the term "Indian," we do the same to refer to the statutory language, although we recognize other terms such as "Native American" are preferred. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1, disapproved on another ground in Dezi C., supra, 16 Cal.5th at p. 1152, fn. 18; see also Dezi C., at p. 1125, fn. 1.)
BACKGROUND
We limit our summary of facts to those necessary for resolution of the ICWA issue raised on appeal and to provide relevant context.
We therefore do not include facts relating to DCFS's inquiry into the children's potential American Indian ancestry on their paternal side. Mother claims no error as to that inquiry.
This appeal involves mother's six children L.M. (born June 2014), S.M. (born December 2015), R.L. (born December 2016), K.M. (born February 2018), St.M. (born December 2020), and A.M. (born November 2021). The family has a history of DCFS referrals and juvenile court intervention related to domestic violence between mother and the presumed father (father) of L.M. and S.M., who also is the alleged father of K.M., St.M., and A.M.
K.M. is referred to as C.L. in the record at times, but mother clarified the child is K.M.
L.M. and S.M. were declared dependents of the juvenile court in an earlier dependency proceeding in 2015. The court terminated its jurisdiction in 2017, awarding mother sole legal and physical custody of the children. DCFS's October 6, 2020 detention report in the current matter states the court found ICWA did not apply to L.M. or S.M. in November and December 2015, respectively.
DCFS again received a domestic violence referral regarding the family in August 2020. In October 2020, DCFS filed a section 300 petition on behalf of L.M., S.M., R.L., and K.M. alleging they were at risk of harm due to ongoing domestic violence between mother and father and mother's failure to protect the children. The family's whereabouts were unknown. At the initial hearing, the court issued protective custody warrants for the children and an arrest warrant for mother.
Mother made her first appearance on November 9, 2020.Mother's Parental Notification of Indian Status form (ICWA-020), filed November 6, 2020, checks the box that states, "One or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe(s)." "Paternal father" is typed in the space after "Name and relationship of ancestor(s)."
The parties and counsel appeared by Webex at this and subsequent hearings.
At the hearing, the court asked mother if she had any Indian ancestry in her background. Mother answered her "dad" -maternal grandfather-did. She was "pretty sure" he was a member of the Washoe Tribe in Northern California. Mother gave his first and last name, "Eddie [M.]." Mother last contacted him through Facebook as he did not have a phone. The court found there "may be [an] ICWA connection" in the case and ordered DCFS to send notices to the Washoe Tribe and all relevant federal agencies. The court's minute order states: "The Court is informed that there may be some Native American/ Indian heritage in the mother's background. The Department . . . is ordered to investigate said claim and notice all appropriate tribes."
DCFS's jurisdiction and disposition report, filed November 30, 2020, stated ICWA does or may apply. The report incorrectly noted that, "[o]n 11/09/2020, mother reported that a 'paternal father' of [L.M.] may have [N]ative American heritage."The investigating social worker (DI) was unable to reach mother to gather more information.
Mother's ICWA-020 form, although dated November 9, was electronically filed on November 6. The form identifies "[p]aternal father" as mother's ancestor who is, or was, a member of a tribe.
The children were found, and the court recalled the warrants. In December 2020, a social worker went to both maternal aunt Christina's and maternal aunt Diana's homes to assess them for potential placement of the children. Diana withdrew her application. DCFS also was in touch with maternal grandmother, but she was not an appropriate placement option. DCFS placed L.M. and R.L. with maternal aunt Christina. S.M. and K.M. were placed with a foster parent. Mother gave birth to St.M. in December 2020.
DCFS's January 19, 2021 addendum report recommended the court find ICWA did not apply. The DI was able to interview mother over the telephone on January 7, 2021 about her possible Native American heritage, as well as the petition's allegations and mother's "social history." In a section entitled, "As to ICWA for Mother," DCFS reported mother said she believed she may have Native American heritage through maternal grandfather, Eddie M. Mother did not know if Eddie was his first name or a shortened version of Edward, Eduardo, or something similar. According to DCFS, mother also did not know maternal grandfather's "date of birth, place of birth, names of relatives etc." Mother did not understand why DCFS needed the information when she already had informed her attorney.
The DI explained she had to gather the information based on what mother had told her attorney about her possible heritage and "explained ICWA." Mother responded Eddie M. never lived on a reservation. When asked how she knew Eddie M. had Native American heritage, mother responded," '[B]ecause he was very proud.' "
DCFS included more information about mother's background in a separate section of the addendum report under the heading, "Relevant Social, Cultural, and Physical Factors." That section reports mother said she is the sixth of eight siblings, but "only two of her siblings share the same mother and father, the rest have different fathers." Mother described herself as "a 'daddy's girl.'" Maternal grandfather (presumably, Eddie M.) and grandmother separated when mother was eight years old. Mother said she went to live with maternal grandfather for a short period but returned to live with maternal grandmother. Maternal grandfather was involved in mother's life until she was 12, when she "went into the system." Mother no longer had contact with maternal grandfather. She said maternal uncle Edward "has a relationship" with him, however. Mother said she lived in Texas, where maternal aunt Melissa and her family are located, from about age 19 to age 20.
At a hearing on January 20, 2021, counsel for DCFS asked the court to make a no-ICWA finding for mother based on the information in the ICWA section of its recently filed addendum report. The court asked, "Any objection to that, counsel for mother?" The court then found ICWA does not apply to mother.
No response to the court's question is recorded in the reporter's transcript. All counsel appeared at the hearing through Webex.
DCFS took St.M. into protective custody on January 28, 2021. On February 1, 2021, it filed a section 300 petition on the child's behalf based on the same allegations in the siblings' petition. St.M. was placed in a foster home. In the ICWA-010(A) "Indian Child Inquiry" form attached to the petition, the social worker declared she had "no reason to believe the child is or may be an Indian child," after questioning mother and father about St.M.'s Indian status. DCFS's February 1, 2021 detention report as to St.M. states ICWA does not apply.
As parents' whereabouts were unknown when DCFS filed the October 2020 petition, the attached ICWA-010(A) forms for the four older children indicate the social worker had not made an "Indian child inquiry" and the children had "no known Indian ancestry."
Mother filed an ICWA-020 form for St.M. on February 2, 2021. She checked the box "[n]one of the above apply" indicating neither she nor St.M. were members of, or might be eligible for membership in, a federally recognized tribe, did not have an Indian identification card indicating membership in a tribe, and did not live on a reservation; mother's parents, grandparents, or other lineal ancestors were not, or had not been, members of a tribe; and the child was not a ward of a tribal court. At the February 4, 2021 detention hearing, the court found it had no reason to know St.M. was an Indian child. Mother did not appear-through Webex-until after the court already had made that finding based on her ICWA-020 form. The court thus did not question mother directly about her ICWA-020 response.
At the April 27, 2021 adjudication hearing, the juvenile court found that, based on DCFS's January 2021 addendum report, there was no information to support finding ICWA applied. The court stated: "No basis for such a finding. Very vague information as to ICWA connection. Nothing specific. No relatives available to gather further information. And no names of a tribe." The court found ICWA did not apply as to mother. The court then sustained the petitions, after striking certain counts, as to all five children. The juvenile court ordered the children removed from parental custody and granted parents reunification services.
The court also found ICWA did not apply as to any father in the case.
A.M. was born in November 2021. DCFS filed a section 300 petition on behalf of A.M. based on the findings made on the petitions filed as to A.M.'s siblings. In the attached ICWA-010(A) form, a social worker declared he asked mother about A.M.'s Indian status and mother "gave me no reason to believe the child is or may be an Indian child." As with St.M., mother's ICWA-020 form for A.M. checks "[n]one of the above apply." The detention report also noted a social worker asked mother if A.M. had Native American ancestry and mother said "no." At the December 17, 2021 detention hearing, the court stated mother had "indicated in her ICWA notice that she has no American Indian in her family's background as far as she knows." The court's minute order states the court found it had no reason to know A.M. is an Indian child and did not order notice to any tribe or the BIA.
A different judicial officer presided over this hearing due to mother having filed a peremptory challenge. All of the children's cases then were reassigned to a new Department where the matter remained.
DCFS repeated the court's no-ICWA finding in its jurisdiction/disposition report for A.M., filed January 18, 2022. DCFS contacted maternal aunt Melissa in Texas about A.M.'s placement. She was not interested in providing placement at that time. On February 7, 2022, the court sustained the petition as to A.M. and removed the child from parental custody.
A.M. was placed with a foster parent in a medical placement. In 2023, A.M. joined St.M. in foster care parent Ms. Lee's home. L.M. and R.L. were moved from maternal aunt Christina's home to the home of foster parents Ricardo and Alma, although Christina remained involved with the children. S.M. and K.M. also had been removed from one foster home and placed with a new foster parent, Ms. M.
At a review hearing on May 2, 2022 concerning the continuation of mother's reunification services, the court questioned mother about her support system. Among others, mother stated, "And I have family members as my mother, she's a support system. My brother, my sisters, my brother's name is [sic] Eddie and Richard, Christina, Melissa, Deanna, and Jerica."
Based on the record, "Christina, Melissa, Deanna, and Jerica" are mother's sisters. "Deanna" is also spelled "Diana" and Deana" in the record.
The court held a 24-month review hearing on July 18, 2022. Mother, maternal grandmother, and a maternal step-aunt were present. The court continued the hearing and ordered DCFS to file a report including "all ICWA inquiries since the beginning of the case." The court then asked mother and the maternal relatives present if, to their knowledge, the children had "any Native American or American Indian blood or ancestry." Although their responses were inaudible, the court stated each had indicated "no."
On August 12, 2022, a social worker called maternal grandmother about the children's possible Indian ancestry. Maternal grandmother said mother's father does not have "any Indian ancestry." She told the social worker mother's half-siblings' father is "part Indian," but he is not mother's or maternal aunt Christina's biological father. According to maternal grandmother, mother had no "Indian blood." On August 16, 2022, the social worker mailed an "ICWA letter" to Christina asking her to contact DCFS if she had any information about whether any of the children were members or eligible for membership in a federally recognized tribe. DCFS would assume she had no information to provide if she didn't call.
On August 19, 2022, DCFS filed a last minute information for the court outlining the ICWA inquires it had made since the beginning of the case. The report notes the court made a no-ICWA finding in 2015 in L.M.'s and S.M.'s earlier dependency; mother reported a" 'paternal father'" may have Indian ancestry in her November 2020 ICWA-020 form but did not respond to the social worker's calls or text messages to clarify what she meant; in April 2021 the court found ICWA did not apply; maternal grandmother denied Indian ancestry on July 20, 2022, and, on August 12, 2022, reported her other children's father is part Indian, but he is not mother's biological father; maternal aunt Christina denied Indian ancestry "in their family" on August 12, 2022; the social worker mailed an ICWA letter to Christina; and, the social worker would mail an ICWA letter to maternal grandmother once she updated her mailing address.
At an August 23, 2022 progress hearing, the court noted DCFS's report of its ICWA inquiries "indicates that in November of 2020, the mother said that the paternal father may have Indian ancestry. The D.I. couldn't reach her to clarify that. The father said he had no Indian ancestry. The maternal grandmother said no Indian ancestry. [¶] The maternal aunts and maternal uncles said the father was Indian, but he's not the father-their father was Indian, but he's not the father of this mother. The maternal aunt indicated no Indian ancestry. The paternal grandmother said she would ask relatives. Letters were sent to the paternal grandmother and the paternal aunt."The court then asked mother, "to your knowledge, do the children have any Native American or American Indian blood or ancestry?" Mother responded, "Um, no, um." The court continued its questioning, "And that's correct that your siblings have a different father than you, and that's the person who has Indian ancestry; is that correct?" Mother responded, "Yes."
Nothing in the record supports the court's statement that any maternal uncle ever said anything-or ever was asked- about Indian ancestry.
On September 6, 2022, the court convened pre-permanency and review hearings, as well as a hearing on DCFS's section 388 petition to terminate mother's reunification services as to A.M. The court asked mother if she had any new information about the children's potential Indian ancestry. Mother did not. Maternal grandmother and maternal great-aunt also were present at the hearing and did not volunteer any new information. The court terminated mother's reunification services as to all six children and scheduled a section 366.26 hearing.
In June 2023, mother filed a section 388 petition seeking return of the children, unmonitored visits, and/or reinstatement of reunification services. In its report responding to mother's petition, DCFS noted mother stated her support system consisted of her mother (maternal grandmother), her sisters Melissa and Diana (maternal aunts), and her brother Richard (maternal uncle). On November 20, 2023, after an evidentiary hearing, the court denied mother's petition. Mother appealed (case number B334036).
On February 13, 2024, the juvenile court held a section 366.26 hearing as to S.M. and K.M. The court found the children were adoptable and no exceptions to adoption applied and terminated mother's and father's parental rights as to the two children. Mother appealed (case number B336068). On mother's motion, we consolidated the appeals under case number B334036 for purposes of briefing, argument, and decision.
DISCUSSION
1. Applicable law and standard of review
ICWA was enacted" '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 ....'" (Dezi C., supra, 16 Cal.5th at pp. 1128-1129, quoting 25 U.S.C. § 1902.) "ICWA establishes minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes," but states may "establish[ ] higher standards." (Dezi C., at p. 1129.) An" 'Indian child'" is defined 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); former § 224.1, subd. (a) [adopting federal definition].)
During the pendency of this appeal section 224.1 was amended, effective September 27, 2024. (Stats. 2024, ch. 656, § 2.) We refer to the definitions in effect at the time. "Tribal membership criteria are set forth in tribal constitutions, articles of incorporation, or ordinances, and vary from tribe to tribe." (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1009 (Ezequiel G.), disapproved on another ground in Dezi C., supra, 16 Cal.5th at p. 1152, fn. 18.) A tribe's determination "that a child is or is not a member or citizen of, or eligible for membership or citizenship in, that tribe" is "conclusive." (§ 224.2, subd. (h).)
Under California law implementing ICWA, the juvenile court and DCFS "have 'an affirmative and continuing duty' in every dependency proceeding to determine whether ICWA applies by inquiring whether a child is or may be an Indian child." (Dezi C., supra, 16 Cal.5th at pp. 1131-1132, quoting § 224.2, subd. (a).) "The [D]epartment's duty arises when a report of abuse or neglect is made and/or when the county takes the child into its temporary custody." (In re Kenneth D. (2024) 16 Cal.5th 1087, 1099.) This 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)(2).) Extended family members include adults who are the 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(2); former § 224.1, subd. (c) [adopting federal definition].) And "on the first appearance upon a petition, 'the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child.'" (Kenneth D., at p. 1099, quoting § 224.2, subd. (c).)
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 . . . as soon as practicable." (§ 224.2, subd. (e).) "The required further inquiry includes (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs (BIA) and State Department of Social Services; and (3) contacting tribes the child may be affiliated with and anyone else that might have information regarding the child's membership or eligibility in a tribe." (Dezi C., supra, 16 Cal.5th at pp. 1132-1133; § 224.2, subd. (e)(2)(A)-(C).) "At this stage, contact with a tribe 'shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of [ICWA] notices,' and 'sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.'" (Dezi C., at p. 1133, quoting § 224.2, subd. (e)(2)(C).) 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 citizen, or may be eligible for membership or citizenship in an Indian tribe." (§ 224.2, subd. (e)(1), italics added.)
"The sharing of information with tribes at this inquiry stage is distinct from formal ICWA notice, which requires a 'reason to know'-rather than a 'reason to believe'-that the child is an Indian child." (Dezi C., supra, 16 Cal.5th at p. 1133; see also In re K.T. (2022) 76 Cal.App.5th 732, 743 [duty of further inquiry "applies even if the information suggesting a child may have an affiliation with a tribe 'isn't strong enough to trigger the notice requirement' "].) Once the juvenile court or DCFS 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); 25 U.S.C. § 1912(a).)
The juvenile court may find ICWA does not apply to a child's proceeding if it finds DCFS's "inquiry and due diligence were 'proper and adequate,' and the resulting record provided no reason to know the child is an Indian child." (Dezi C., supra, 16 Cal.5th at p. 1134; § 224.2, subd. (i)(2).) 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 factual finding that ICWA does not apply for substantial evidence. (§ 224.2, subd. (i)(2) [juvenile court's finding that ICWA does not apply to the proceedings is "subject to reversal based on sufficiency of the evidence"]; see also Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1005 [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]; Dezi C., supra, 16 Cal.5th at pp. 1134, 1141 [declining to decide what standard of review applies but noting that if "a juvenile court's findings that an inquiry was adequate and proper and ICWA does not apply are found to be supported by sufficient evidence and record documentation as required by California law [citation], there is no error"].)
2. Substantial evidence does not support the court's ICWA finding because DCFS did not fulfill its continuing duty of inquiry
Mother contends the court's ICWA finding cannot stand because DCFS failed to satisfy its duty of further inquiry after mother gave a reason to believe the children may be Indian children. Mother argues DCFS should have contacted, or attempted to contact, maternal grandfather and maternal uncle Edward, and also should have contacted the Washoe Tribe, the BIA, and the State Department of Social Services, as required under section 224.2, subdivision (e)(2).
At mother's first appearance on November 9, 2020, mother told the court she had Native American ancestry in her background: she was "pretty sure" her "dad"-Eddie M.-was a member of the Washoe Tribe in Northern California. The juvenile court found "there may be [an] ICWA connection in this case" and ordered DCFS "to send notice to the Washoe Tribe and all relevant federal agencies." DCFS never did so.
As mother notes, the Washoe Tribe of Nevada and California is a federally recognized tribe. (See 89 Fed.Reg. 944-02, 946 (Jan. 8, 2024).)
Rather, on questioning mother further in January 2021 -as reflected in DCFS's January 19, 2021 addendum report- DCFS recommended the court find ICWA did not apply. It is unclear how-at this juncture-DCFS reached that conclusion. Mother's statement that maternal grandfather Eddie M. had a connection to the Washoe Tribe suggested she or her children may be eligible for membership in the tribe, giving the court and DCFS a "reason to believe" an Indian child was involved in the proceedings. (§ 224.2, subd. (e)(1).) DCFS thus had a duty to "make further inquiry regarding the possible Indian status" of the children and to "make that inquiry as soon as practicable." (§ 224.2, subd. (e).) To satisfy its duty, DCFS had to: contact extended family members, the BIA and State Department of Social Services, and the Washoe Tribe. (§ 224.2, subd. (e)(2)(A)-(C); Dezi C., supra, 16 Cal.5th at pp. 1132-1133.)
Mother gave the court and DCFS Eddie M.'s complete last name.
DCFS immediately attempted further inquiry of mother about her claimed ancestry, but she did not respond to the DI's messages. Weeks after mother gave birth to St.M. in December 2020, she finally returned a social worker's calls about St.M. on December 29, 2020. That same day, mother both met with the social worker outside her home and participated in a follow-up interview by phone. Based on DCFS's summary of that meeting and phone call, the social worker did not ask mother for more information about Eddie M.'s Washoe Tribe ancestry, however.
Mother returned the DI's call a little over a week later, on January 7, 2021. The DI interviewed mother about her Native American heritage during that call, presumably to gather information to share with the Washoe Tribe under section 224.2, subdivision (e)(2)(C). Mother was unsure if "Eddie" was her father's given first name or a nickname and did not know his "date of birth, place of birth, names of relatives etc." The only new information mother gave DCFS about Eddie M. during her January 2021 interview was that she knew he never lived on a reservation, and" 'he was very proud'" of his heritage. As the DI explained to mother, however, a person still "may be eligible for tribal enrollment based on their ancestry" despite not living on a reservation. Yet, after interviewing mother, DCFS apparently decided there no longer was a reason to believe the children may be Indian children.
Significantly, DCFS had not asked maternal relatives for any information about Eddie M., despite having been in contact with maternal grandmother since August 2020 and maternal aunts Christina and Diana since December 2020. And mother in fact gave DCFS the name of a relative who may have had more information about Eddie M. or his contact details. DCFS's report notes mother said Eddie M. "has a relationship with maternal uncle Edward." Nothing in the report-or anywhere else in the record for that matter-indicates DCFS asked mother, or the available maternal relatives, for maternal uncle Edward's contact information or that anyone attempted to reach him.
By January 2021, therefore, DCFS knew the name of the relative through whom mother claimed Indian ancestry,the specific tribe with which the relative was affiliated, and the name of another family member who might have more information about the relative with potential Indian ancestry. That information did not give DCFS a "reason to know" the children were Indian children requiring formal notice, but it was sufficiently specific to give "a reason to believe" they were, requiring DCFS to continue the process of further inquiry under section 224.2, subdivision (e). (See Josiah T., supra, 71 Cal.App.5th at p. 404 [paternal grandmother's "representation that she had Cherokee ancestry through her grandmother was specific enough to trigger the duty of further inquiry" as it "created a 'reason to believe'" the child possibly is an Indian child; the fact she provided no further information about her grandmother did not absolve DCFS of its duty of further inquiry]; see also, 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'" requiring further inquiry]; 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 Indian children were involved as a matter of law, triggering statutory duty of further inquiry]; In re D.F. (2020) 55 Cal.App.5th 558, 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].)
Even if Eddie M.'s full first name was not certain, DCFS could have included the three names mother gave the DI-Eddie, Edward, and Eduardo-in any communication with the BIA or Washoe Tribe.
It seems DCFS forgot mother had named the Washoe Tribe. Indeed, DCFS never mentioned the Washoe Tribe in any of the reports it filed during these proceedings. The court, in turn, followed DCFS's recommendation and found ICWA did not apply as to mother at the April 27, 2021 adjudication hearing. At that hearing, DCFS's counsel noted mother had filed, on February 2, 2021, an ICWA-020 form indicating she did not have Native American heritage. Counsel said mother "did later state at the detention hearing that she does have Native American heritage." Counsel did not, however, mention mother's earlier statement on November 9, 2020, that her "dad" was affiliated with the Washoe Tribe. Counsel asked the court to make a no-ICWA finding based on DCFS's January 2021 addendum report's statement that mother said "there are no relatives that would be able to provide [DCFS] with more information." The court read the "As to ICWA for Mother" section of the report and found DCFS's investigation revealed there was "no information upon which to find that ICWA applies in this matter." The court described the information mother provided-as summarized in the report-as "[v]ery vague . . . as to the ICWA connection" with "[n]othing specific," and stated there were no available relatives to gather further information, and "no names of a tribe."
But the court did not have the complete picture. As discussed, the report includes-albeit in a section not called to the court's attention-mother's statement that maternal uncle had a relationship with Eddie M. And, critically, the report leaves out what arguably was the most important piece of information then-that mother said Eddie M. could be a member of the Washoe Tribe. As DCFS also had not contacted the BIA or Washoe Tribe since having been ordered to do so in November 2020, the court's April 2021 finding that ICWA did not apply was premature. (I.F., supra, 77 Cal.App.5th at pp. 165-166 ["California law requires that further inquiry be undertaken by the social worker (§ 224.2, subd. (e)), and only after that further inquiry has concluded may the court find that ICWA does not apply to the proceedings."].)
As DCFS argues, however, "[w]hile it initially appeared that the children may have some Native heritage in their background, it became apparent upon further inquiry, that the man mother considered her 'dad' (Eddie M.) was not biologically related to mother, but was the biological father of two of her half-siblings." Unquestionably, DCFS did not question maternal relatives as soon as practicable as section 224.2 requires. (§ 224.2, subd. (e).) Nevertheless, we agree the juvenile court reasonably could find based on substantial evidence that- in the end-DCFS made an adequate inquiry that ruled out mother's claim of Indian ancestry through Eddie M. The August 12, 2022 entry in DCFS's delivered service log for A.M. documents maternal grandmother's statements about mother's lack of Indian ancestry. The entry states: "MGM [meaning maternal grandmother] reported [mother's] father does not have any [I]ndian ancestry. MGM reported her other children's father is part [I]ndian but that he is not [mother's] or Christina's father. MGM reported she and [mother] do not have any Indian blood in them." Although maternal grandmother did not identify her other children's father by name, we can infer DCFS clarified she meant Eddie M.-the man mother had identified as her "dad" who had Washoe heritage. Moreover, the juvenile court directly asked mother if the report was correct-that it was her half-siblings' father, not her father, who had Indian ancestry. Mother agreed.
Mother relies on Josiah T., where a different division of this court found "DCFS was required to engage in further inquiry" when the paternal grandmother-who had claimed Cherokee ancestry at the outset of the case-denied Indian ancestry when asked by a different social worker seven months later. (Josiah T., supra, 71 Cal.App.5th at pp. 397, 399, 404405.) As is the case here, DCFS had not contacted the BIA or Cherokee tribes and had delayed asking other relatives about the children's possible Indian ancestry. (Id. at p. 405.) DCFS's report, however, merely stated the paternal grandmother said she did not have Native American heritage. (Id. at p. 406.) The reviewing court concluded that, without further information about what the social worker asked or whether the social worker made any effort to clarify paternal grandmother's contradictory claims, the paternal grandmother's denial was insufficient to "extinguish[ ] DCFS's reason to believe [the child] may be an Indian child." (Ibid.)
Here, in contrast, DCFS and the juvenile court ultimately clarified mother's contradictory claims of Indian ancestry. Based on maternal grandmother's explanation, we reasonably can infer mother denied Indian ancestry-after claiming possible ancestry-because she had learned Eddie M. was not her biological father. There no longer was a need, therefore, for DCFS to try to contact Eddie M., maternal uncle Edward for information about Eddie M., or the Washoe Tribe. Accordingly, we conclude DCFS's further inquiry into the children's potential Washoe ancestry through Eddie M. was adequate despite its delay and similar failure to contact the Washoe Tribe and the BIA.
We disagree, however, that the juvenile court reasonably could find DCFS made an adequate inquiry of the children's possible Indian ancestry through mother's biological, paternal heritage. Mother, maternal grandmother, and maternal aunt Christina all denied Indian ancestry. Based on the record, however, mother was mistaken about-and may not have known -the identity of her biological father. Her denial of Indian ancestry, therefore, was not necessarily fully informed. (See, e.g., H.A. v. Superior Court (2024) 101 Cal.App.5th 956, 963 (H.A.) [parents' denials insufficient to support no ICWA finding where mother had entered foster care system at age 12 and there was "little in the record" to support finding father was "aware of his family background"; thus, parents "may not have been fully informed as to possible Native American ancestry"].) Maternal grandmother said mother's biological father did not have Indian ancestry, but DCFS did not document what the social worker asked her about mother's biological father. We thus do not know if maternal grandmother identified the biological maternal grandfather, said he was deceased or unknown, or even if DCFS asked for his identity. The extent of maternal grandmother's relationship with mother's biological father also is unknown.
Moreover, as far as we can tell, none of DCFS's reports after its January 2021 addendum report mentions Eddie M. Thus, the court-a different judicial officer than the one who would have reviewed the January 2021 report at the time of its filing-likely was unaware mother did not necessarily know the identity of her biological father or his heritage. In short, the record is too undeveloped to support finding DCFS's inquiry of maternal grandmother was sufficient to determine there was no reason to believe mother had Indian ancestry on her paternal side. (See Dezi C., supra, 16 Cal. 5th at pp. 1131, 1136-1137, 1141 [emphasizing the child welfare agency's duty to document its inquiries and that the court's ICWA findings be supported by "record documentation"].)
DCFS's" 'inquiry obligation is "not an absolute duty to ascertain or refute Native American ancestry." '" (Josiah T., supra, 71 Cal.App.5th at p. 405; Dezi C., supra, 16 Cal. 5th at p. 1143.) Given the uncertainty of mother's paternal heritage, however, DCFS had a continuing duty to make reasonable efforts to interview available maternal relatives who might have relevant information and to document what efforts it undertook. (California Rules of Court, rule 5.481(a); see H.A., supra, 101 Cal.App.5th at p. 966.) As it did not document what inquiries it made about mother's biological father, we conclude the juvenile court could not reasonably find DCFS's inquiry of the children's possible Indian ancestry was adequate. Accordingly, substantial evidence does not support the court's finding that ICWA did not apply.
In Dezi C., our high court held that "when an initial Cal-ICWA inquiry is inadequate, conditional reversal is warranted in order to develop the record and cure the inadequacy." (Dezi C., supra, 16 Cal.5th at p. 1145.) Even if we were to characterize DCFS as having made a deficient further-as opposed to initial-inquiry, we see no reason why that directive would not also apply here. Accordingly, we conditionally reverse the orders terminating parental rights as to S.M. and K.M. and remand the matter for the juvenile court to determine-after DCFS has completed and reported the results of its further inquiry-whether ICWA applies.
On remand, DCFS must promptly make additional inquiry and documentation efforts, consistent with its duties (Dezi C., supra, 16 Cal.5th at p. 1137), as to the children's possible Indian ancestry through mother's biological father. On this record, one available maternal relative who might have relevant information about mother's biological father is maternal grandmother. DCFS might learn from maternal grandmother the name and contact information of the maternal grandfather, whether he is deceased or even known, and whether another relative would have information relevant to its inquiry.
Without more information, we do not know whether any of mother's siblings-and who might be a full sibling-are likely to have relevant information about mother's biological father's Indian ancestry.
DCFS's additional inquiry may reveal no reason to believe the children have Indian ancestry through their biological maternal grandfather. If it does, however, DCFS then must comply with section 224.2, subdivision (e), including by contacting any identified federally recognized tribes. If DCFS's inquiry leads it to have 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.
After DCFS has completed its inquiry, the juvenile court shall hold a hearing "to determine whether, in light of the outcome of the inquiry as documented, ICWA applies. If the juvenile court determines the inquiry is proper, adequate, and duly diligent and concludes that ICWA does not apply, any inquiry error is cured," and the orders terminating parental rights will be reinstated. (Dezi C., supra, 16 Cal.5th at pp. 11371138.) If the juvenile court determines there is a reason to know the children are Indian children, "the tribe has been notified [citations], and the tribe determines the child is a member or citizen, or eligible for membership or citizenship, of an Indian tribe [citations], ICWA applies," and the orders terminating parental rights "must be reversed." (Id. at p. 1138.)
The above inquiries-and if applicable, notices-and findings also apply to L.M., R.L., St.M., and A.M. These children's cases are ongoing. The juvenile court, therefore, will be able to affirm or change its earlier ICWA findings as to them on remand. Accordingly, reversal of the court's orders denying mother's section 388 petitions is unnecessary. Mother does not ask us to reverse these orders in any event.
DISPOSITION
The juvenile court's orders terminating parental rights to S.M. and K.M. are conditionally reversed. We affirm the orders denying mother's section 388 petitions. We remand the matter-as to all six children-to the juvenile court to ensure DCFS complies with the inquiry and-if applicable- notice provisions of sections 224.2 and 224.3, and properly documents its efforts, as described in this opinion. If the juvenile court finds DCFS has conducted a proper and adequate inquiry and determines ICWA does not apply, then it shall reinstate the orders terminating mother's parental rights. If the juvenile court determines ICWA applies, then it shall proceed in conformity with ICWA and California implementing provisions. (See 25 U.S.C. § 1912, subd. (a); §§ 224.2, subd. (i)(1), 224.3, 224.4.) The court's ICWA findings relating to mother's Native American heritage also will apply to L.M., R.L., St.M., and A.M.
The remittitur shall issue immediately if the parties stipulate to its immediate issuance under rule 8.272(c)(1) of the California Rules of Court.
We concur: ADAMS, J. HANASONO, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.