Opinion
B326764
11-29-2023
In re H.C., a Person Coming Under the Juvenile Court Law. v. Y.B. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant Y.B. Johanna R. Shargel, under appointment by the Court of Appeal for Defendant and Appellant J.C. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Nos. 20LJJP00803 20LJJP00803D, Donald A. Buddle, Jr., Judge. Conditionally affirmed and remanded with instructions.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant Y.B. Johanna R. Shargel, under appointment by the Court of Appeal for Defendant and Appellant J.C.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
COLLINS, J.
INTRODUCTION
Mother Y.B. and father J.C. appeal from the juvenile court's order terminating parental rights over their daughter, H., pursuant to Welfare and Institutions Code section 366.26.Mother contends the court erred in denying her request for a contested hearing on the application of the parental relationship exception to termination of parental rights. We conclude that the juvenile court did not abuse its discretion in finding that mother made an insufficient offer of proof and accordingly denying her request for a contested hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father argues that 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. Respondent, the Los Angeles County Department of Children and Family Services (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.
BACKGROUND
I. Detention and Petition
Mother and father have one child together, H., born in 2015. Mother also has three other children with father Eduardo G. (Eduardo): E. (born 2008), M. (born 2011), and I. (born 2013).The family came to the attention of DCFS on December 1, 2020, after mother was arrested at a motel for driving a stolen car and identify theft. The responding deputies from the Los Angeles County Sheriff's Department reported that mother had been staying in one room of the motel and her children were staying in another room. A deputy reported to DCFS that the children were alone in their hotel room and were hysterical when law enforcement arrived; he also reported that there were men in mother's room in possession of methamphetamines, and that the room was "absolutely disgusting." DCFS detained the children, placing H. with maternal grandmother (MGM) and the other three children with their father, Eduardo.
This appeal concerns only child H. Eduardo is not a party to this appeal. We include facts related to E., M., and I. only as relevant or helpful for background. Similarly, because father's appeal challenges only the court's ICWA inquiry, we limit our discussion of the facts as to him.
A DCFS children's social worker (CSW) spoke with the children; E., M., and I. reported that mother smoked "weed" and took other drugs, and often left them alone all night. The children told the CSW that they were afraid of the men who often spent time with mother in her motel room. H. (then age five) told the CSW that when they were in trouble, mother would smack them in the arm or on the butt, and mother would also punch E. in the arm or smack his cheek.
The CSW met with H. at maternal grandmother's home on December 15, 2020. H. reported being happy living with maternal grandmother. She stated that she missed her siblings but she was able to FaceTime with them. She stated that she sometimes spoke with mother over the phone but that mother lied a lot. The CSW reported that H. appeared happy, comfortable, and well bonded with maternal grandmother.
DCFS filed a dependency petition on December 17, 2020 on behalf of E., M., I., and H. under section 300, subdivisions (a), (b)(1), and (j). In counts a-1 and b-3, the petition alleged that mother physically abused E. by striking him with a closed fist. Counts a-2 and b-4 alleged that mother physically abused M., I., and H. by striking them with an open hand on the arm and buttocks. In count b-1, the petition alleged that mother had a history of substance abuse, including methamphetamine and marijuana. Count b-2 alleged that mother endangered the children by regularly leaving them alone at home for several hours a night without adult supervision. The petition further alleged that mother was arrested after illicit drugs and paraphernalia were found in her hotel room and vehicle, within access of the children, and that on a prior occasion, E. found methamphetamine in a bag. Count b-5 alleged that father had an extensive criminal history, including a conviction for domestic violence and a recent arrest for murder, which endangered H. Counts j-1 and j-2 alleged that the mother's physical abuse of the children endangered their siblings.
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)(A) 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, as defined in subdivision (a), (b), . . . and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."
DCFS also completed the Indian Child Inquiry Attachment on December 16, 2020, reporting as to each child that it had no reason to believe the child "is or may be an Indian child." In the detention report, DCFS reported that mother, father, and Eduardo all denied any Native American heritage. Mother and father also completed Parental Notification of Indian Status (ICWA-2020) forms denying any possible Native American heritage.
At the detention hearing on December 22, 2020, the court found a prima facie case for jurisdiction over the children under section 300. The court ordered H. to remain with maternal grandmother, with monitored visitation for mother and father. The court also found that it had no reason to know that H. was an Indian child under ICWA.
DCFS later reported that it asked MGM in May 2022 about possible Native American ancestry. MGM denied having any information or any knowledge that H. had any Native American ancestry. There is nothing in the record reflecting any additional inquiry by DCFS or the court as to ICWA.
DCFS filed a jurisdiction/disposition report on February 5, 2021. Mother spoke with a DCFS dependency investigator (DI) on February 2, 2021 and admitted hitting E. on several occasions, as well as spanking the children "when they are doing something wrong." She also acknowledged using methamphetamine and marijuana in the past but denied current use. Regarding the allegations that she left the children alone, mother stated that she would leave the younger children with E. briefly while she went to the store, but she "wouldn't disappear." She told the DI that she stayed in one motel room with her children and would let homeless men shower in the other room for money.
Father told DCFS that he had no concerns with mother's discipline of H. and did not know that mother was leaving the children alone at the motel. He stated that prior to dependency proceedings, mother had custody of H. during the week and he had her on weekends.
II. Adjudication and disposition
At the adjudication and disposition hearing on March 15, 2021, the court dismissed counts a-2, b-4, and j-2, alleging physical abuse of M., I., and H., as well as count a-1, alleging nonaccidental physical abuse of E. The court sustained counts b-1 (substance abuse), b-2 (endangerment), b-3 (physical abuse of E.), and j-1 (risk to siblings from abuse of E.) as to mother. The court found Eduardo non-offending and struck him from the petition. The court sustained count b-5 as to father regarding his criminal history. Accordingly, the court found jurisdiction over the children pursuant to section 300, subdivisions (b) and (j).
Turning to disposition, the court found by clear and convincing evidence that it was reasonable and necessary to remove all four children from mother and remove H. from father.
The court terminated jurisdiction as to E., M., and I., with a family law order awarding joint legal custody of the three children to mother and Eduardo, sole physical custody to Eduardo, and monitored visitation for mother. As to H., the court removed the child from both parents and ordered family reunification services with monitored visitation for mother and father. The court also ordered DCFS to "use best efforts to facilitate sibling visits."
Mother previously appealed the court's dispositional orders as to E., M., and I. A different panel of this court affirmed in a prior opinion, In re E.G. (Mar. 22, 2022, No. B311694) [nonpub. opn.].
III. Period of Review
In September 2021, DCFS reported that H. continued to be "stable and happy" with MGM and step-maternal grandfather.H. reported that she missed mother but did not want to live with her again; instead, she stated she wanted to go back and forth between mother and MGM. MGM told DCFS that mother was not doing well and was not taking advantage of her visitation rights. MGM stated that mother was angry at MGM and she feared monitoring mother's visits alone.
Although step-maternal grandfather lived with MGM and H. for most of the relevant time period, MGM ultimately decided to proceed as the only adoptive parent. Thus, the focus by DCFS and the juvenile court was primarily on assessing the relationship and bond between MGM and H.
DCFS also reported that mother was failing to submit to any drug testing, failing to consistently participate in programs, and refusing to take responsibility for her conduct that led to the children's removal. Mother also refused to participate in monthly visits with the CSW.
Father had not visited or called H. since March. Mother visited H. an average of once per week for about an hour, although she was allowed three weekly visits of three hours each and MGM had offered to monitor more often. MGM reported that mother was unable to stay focused on H. during visits, instead spending time on the phone or yelling at MGM and accusing MGM of wanting to take H. away. H. told the CSW that she missed mother and wanted to live with her and MGM. DCFS recommended terminating reunification services for both parents. DCFS subsequently changed its recommendation as to mother following a discussion with mother's case manager at her drug and alcohol treatment program. The case manager stated that mother had been participating consistently and was testing negative weekly. DCFS thus recommended continuing mother's family reunification services for another six months.
At the six-month review hearing in October 2021, the court found that mother was in partial compliance with her case plan. The court continued mother's reunification services and ordered DCFS to provide mother with a written visitation schedule and to assist her with obtaining visitation monitors. The court terminated father's reunification services.
DCFS filed a status review report in February 2022, reporting that H., now six years old, continued to be stable and happy in MGM's home. Mother continued to participate in her substance abuse program and reported testing weekly at the program. However, she had not submitted to any drug testing by DCFS and DCFS could not verify mother's reported participation in individual therapy.
As to visitation, mother rebuffed attempts by the CSW to create a regular visitation schedule. MGM reported mother was not consistent with visitation and needed redirection during visits because she would whisper things to H. and promise that H. would return to mother soon. H. told the CSW that mother's visits were "good" but that mother did not visit often. At the 12-month review hearing in March 2022, the court found that mother had partially complied with her case plan and continued services.
In a June 2022 status report, H. continued to report feeling happy and comfortable living with MGM. H. was doing well in school and had weekly sessions with the school counselor. Mother had enrolled in a parenting program and individual therapy, although she was terminated from the latter after two months for failing to attend sessions. Mother tested negative for drugs once in January 2022 but had not submitted to any testing since then.
DCFS reported that mother now had a visitation plan with two hour visits every Saturday, resulting in her visiting H. more consistently. According to MGM, the visits were of fair quality and mother made an effort to engage with H., but she often did not engage in activities that H. liked, such as actively playing together. MGM also reported that often she had to redirect mother from making promises to H. regarding returning to live with mother and from talking to H. about case-related issues. One visit ended early after mother and MGM got into an argument.
On May 19, 2022, mother told the CSW that maternal stepgrandfather had moved out of MGM's home and another man was living there with MGM. DCFS confirmed this information with MGM, who stated that the man, Juan L., had been renting a room from her. Because of his criminal record, DCFS informed MGM that Juan could not live in the house with H. MGM agreed to have him move out, but was upset with the situation. Later that month, MGM stated that she no longer wanted to monitor mother's visits. Mother told the CSW that she did not have anyone else to monitor visits and could not visit during business hours due to her work schedule. The CSW assured mother that she would continue to have visits with H. and that DCFS would explore other options for monitors.
H. told DCFS in June 2022 that the visits with mother were "good" and she liked spending time with mother. She stated that mother promised H. she would return to live with mother soon, but H. knew that was not true because mother did not have a home. H. continued to have frequent visits with her halfsiblings when the children visited MGM.
At a status hearing on June 28, 2022, at the request of counsel for DCFS, the court admonished mother through her counsel not to discuss the case with H. or to make any promises to the child. The court had issued the same admonishment at the beginning of the case. The court continued the 18-month review hearing at mother's request to set the matter for contest.
In a last-minute information filed July 28, 2022, DCFS reported that mother's attendance at her parenting class was inconsistent. Mother failed to submit to drug testing on multiple dates in June and July and had not had any in person visits with H. since June. Mother stated that she wanted MGM to continue to monitor visits so that mother could have the flexibility to see H. on weekends. The CSW offered to monitor visits during the week, but mother stated she preferred to find her own monitor and identified one individual. As of the time of the report, the CSW was attempting to coordinate with that individual, as well as two other possible monitors mother suggested.
Mother complained to the CSW on August 9, 2022 that she had not seen H. in a long time. The CSW explained that mother's proposed visitation monitors were ineligible due to criminal history and active DCFS cases. The CSW agreed to monitor a visit that day. Upon arrival, H. greeted mother with a hug. The visit lasted an hour and H. appeared comfortable and happy playing with mother. After the visit, H. said she was happy to see mother but did not want to live with her.
At the 18-month review hearing on August 12, 2022, the court found mother had not made substantial progress with her case plan. The court terminated mother's reunification services and set the matter for a permanency planning hearing.
IV. Termination
DCFS filed a section 366.26 report in November 2022, reporting that MGM and step-maternal grandfather had ended their separation, recommitted to each other, and step-maternal grandfather had moved back in with MGM and H. MGM confirmed to DCFS her commitment to adopt H. H. told the CSW that she loved her grandparents, enjoyed living with them, and wanted them to adopt her.
As for visitation, MGM reported on September 27, 2022 that mother had not visited H. since the visit in August. Mother would "randomly" call to inquire about visits but would never set a date. MGM stated that H. appeared happy even without visits with mother. H. said that she had not seen mother since the August visit, but mother occasionally called her. H. told the CSW that she would be happy to live with MGM permanently, but asked the CSW if she could still visit and talk with mother. The CSW assured H. that mother could still have communication with her.
Mother inquired about visitation in October 2022, and the CSW reminded mother to contact paternal grandfather, who had agreed to serve as a monitor. The CSW also offered to monitor a visit during the week. Mother stated that she could not accommodate others' schedules for visitation because of her programs and work. A few weeks later, MGM reported that mother asked to meet, so she arranged to meet mother at a restaurant with other relatives. When mother arrived, she "made a big scene [and] started to cry and tell their relatives about the case and that the MGM was adopting [H.]." MGM reported that H. had nightmares for two days following this incident. Maternal grandfather also told the CSW that he was willing to monitor visits but mother had not contacted him. H. also told the CSW about the restaurant incident, reporting that mother read a letter H. had written about being happy because she was going to be adopted by MGM. Mother started to cry after reading the letter; H. said she felt badly but she was scared to live with mother and was happy to be adopted by MGM.
This is likely intended to refer to paternal grandfather, who was an approved visitation monitor.
DCFS reported that mother never fully took advantage of her court-ordered visitation and recently mother's contact with H. had become sporadic. Although DCFS described the quality of mother's visits as "fair," it noted that at times mother did not fully engage with H. and their bond appeared to be limited. DCFS concluded that despite receiving over 23 months of reunification services, mother had been unable to alleviate the issues that brought the family to the attention of DCFS and there was no indication she had the ability to resume care of H. DCFS recommended continuing the matter to complete the adoption assessment. On December 8, 2022, DCFS reported that there were no further impediments to adoption. DCFS therefore recommended terminating parental rights and proceeding with adoption planning.
In advance of the permanency planning hearing, mother submitted letters showing that she was receiving mental health services and taking parenting classes. Mother also filed a section 388 petition on December 12, 2022, seeking to change the court's August 2022 order terminating her family reunification services. She identified as new information that she had successfully completed a 26-week outpatient program, where she "learned much and continues to maintain her sobriety." Mother also stated that she had made "ample progress with both her parenting and I/C courses," she had a job, she was "trying her best to amend the past troubles that she has brought upon herself and H[.]," and was "willing to do what is needed to be reunited" with H. She requested that the court reinstate her reunification services or, alternatively, grant unmonitored visits. Mother stated that the requested order would be better for H. because her bond with H. was "strong," she deeply loved H., and was making "the needed adjustments to amend these problem[s]." She further stated that it was in the best interest of H. and mother "to be reunited to strengthen this bond they share with one another."
At the permanency planning hearing on December 12, 2022, the court first addressed mother's section 388 petition. Counsel for H. urged the court to deny the petition without an evidentiary hearing, arguing that mother had not demonstrated changed circumstances with respect to her drug testing or visitation. Counsel for DCFS agreed, stating that mother had enrolled in new programs but had not completed any, and had not addressed the concerns regarding her substance use. The court summarily denied mother's section 388 petition and request for an evidentiary hearing. The court found that mother's request did not state new evidence or a change of circumstances, or that the change would be in H.'s best interest.
Turning to permanency planning, both mother's and father's counsel objected to termination of parental rights. Mother's counsel requested a contested hearing regarding the application of the parental benefit exception. He argued that mother had been "visiting as consistently as she has been allowed to" and mother believed DCFS and MGM were trying to "sabotage her ability to visit" H. He also noted that mother spoke with H. every day by phone.
H.'s counsel argued that mother had not presented proof of the parental benefit exception. She noted that mother had opportunities for visitation with other monitors, but mother had "not made any efforts to pursue visitation other than if the maternal grandmother allows it." Counsel for DCFS similarly argued that mother had not had consistent visitation, or met the other factors required for the parental benefit exception.
The court found by clear and convincing evidence that H. was adoptable. The court found mother's offer of proof insufficient and denied her request for a contested hearing. The court further found that the parental benefit exception did not apply, as mother and father had not maintained regular visitation with H. and had not established a bond with the child. The court found that any benefit to H. from her relationship with mother and father was outweighed by the benefits she would receive through adoption and that adoption was in H.'s best interests, and that it would be detrimental to H. to return her to her parents. The court indicated that it had considered H.'s wishes and the best interest of the child. The court accordingly terminated parental rights for mother and father. The court set adoption as the permanent plan and designated MGM as the prospective adoptive parent.
Mother and father timely appealed.
DISCUSSION
I. Contested Hearing
Mother contends the juvenile court erred by refusing her request for a contested hearing in her attempt to establish the parental benefit exception. The court found mother had not established the exception and accordingly terminated her parental rights pursuant to section 366.36. We find the court did not abuse its discretion in denying mother's request.
Each parent joins in the other's arguments, without adding any substantive contentions.
A. Legal Principles
1. Parental Benefit Exception
The express purpose of section 366.26 is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) If the juvenile court ends reunification services, adoption is the legislative preference. (§ 366.26, subd. (b)(1); see also In re Celine R. (2003) 31 Cal.4th 45, 53 ["'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.'"].) 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., supra, 31 Cal.4th at p. 53; see also § 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 625 (Caden C.).)
The specified circumstances in section 366.26, subdivision (c)(1)(B) are "exceptions to the general rule that the court must choose adoption where possible." (In re Celine R., supra, 31 Cal.4th at p. 53.) They "merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (Ibid., emphasis in original; see also In re A.L. (2022) 73 Cal.App.5th 1131, 1150.)
The parental benefit exception, asserted by mother here, permits the selection of another permanent plan if a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) In order to establish the exception, a parent must prove three elements: (1) "regular visitation and contact with the child, taking into account the extent of visitation permitted"; (2) that "the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship"; and (3) that terminating the parent-child attachment "would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.) In making this detriment determination, the juvenile court does "not look to whether the parent can provide a home for the child," and "is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)." (Id. at p. 634.)
The burden is on the parent asserting the parental benefit exception to produce evidence establishing that exception. (In re Breanna S. (2017) 8 Cal.App.5th 636, 646, overruled on other grounds by Caden C., supra, 11 Cal.5th at p. 637, fn. 6.) "The court's decision a parent has not satisfied this burden may be based on any or all of the [three] component determinations- whether the parent has maintained regular visitation, whether a beneficial parental relationship exists, and whether the existence of that relationship constitutes 'a compelling reason for determining that termination would be detrimental to the child.' [Citations.]" (Id. at pp. 646-647; see also In re A.G. (2020) 58 Cal.App.5th 973, 995.)
2. Offer of Proof
A parent's right to a contested evidentiary hearing to establish an exception under section 366.26 is not automatic. "The juvenile court may, in its discretion and consistent with due process, condition a contested hearing concerning the parental benefit exception upon a parent's submission of an offer of proof." (In re A.G., supra, 58 Cal.App.5th at p. 982, citing In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122 (Tamika T.).)
The offer of proof serves to "clearly identify the contested issue(s) so [the court] can determine whether a parent's representation is sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses." (Tamika T., supra, 97 Cal.App.4th at p. 1122.) Thus, a proper offer of proof must "'set forth the actual evidence to be produced'" and the "'"substance, purpose, and relevance of the ... evidence."'" (In re A.G., supra, 58 Cal.App.5th at p. 997, quoting Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 329.) A "vague and nebulous" offer of proof as to what testimony would be elicited from the witness is not sufficient. (In re A.G., supra, 58 Cal.App.5th at p. 997, quoting People v. Sperl (1976) 54 Cal.App.3d 640, 657; see also In re Earl L. (2004) 121 Cal.App.4th 1050, 1053 [due process "does not require a court to hold a contested hearing if it is not convinced the parent will present relevant evidence on the issue he or she seeks to contest"].) In the context of the parental benefit exception to adoption, a parent's offer of proof must provide specific evidence of the first two components of the exception, namely, regular visitation and the existence of a beneficial parent-child relationship. (In re A.G., supra, 58 Cal.App.5th at p. 1006.)
We review the denial of a contested hearing by the juvenile court following an offer of proof for abuse of discretion. (In re A.G., supra, 58 Cal.App.5th at p. 1003, citing In re Grace P. (2017) 8 Cal.App.5th 605, 611.) The test for abuse of discretion is whether the trial court exceeded the bounds of reason, which warrants a very high degree of deference to the decision of the juvenile court. (In re J.N. (2006) 138 Cal.App.4th 450, 459.)
B. Analysis
Mother contends that the court erred by finding her offer of proof insufficient to warrant a contested hearing prior to terminating her parental rights. We conclude the juvenile court did not abuse its discretion in denying mother's request for a hearing.
Mother acknowledges that the juvenile court was entitled to require an offer of proof. However, she argues that she met her burden when she satisfactorily identified the evidence she would use to meet the parental benefit exception. Specifically, she points to her proffered testimony that she "speaks telephonically with H[.] on a daily basis, they say prayers together, and she tells H[.] 'good night.'"
The juvenile court found that mother's cursory offer of proof was insufficient. This was not an abuse of discretion. Mother's offer of proof contained no evidence to counter the showing by DCFS that she had not maintained consistent visitation with H., at times not visiting for months, and further failed to take advantage of the extent of visitation offered. Similarly, mother's testimony that she said prayers with H. and told her good night was insufficient evidence of a beneficial parent-child relationship to warrant a full hearing. Mother offered no further evidence regarding her visits with H. or their bond. As such, it was not an abuse of discretion for the court to find that mother failed to provide specific evidence to support her offer of proof. (Tamika T., supra, 97 Cal.App.4th at p. 1124 [offer of proof "must be specific, setting forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued"].)
Mother's reliance on In re A.G., supra, 58 Cal.App.5th at p. 1006 does not assist her. There, the mother submitted a written offer of proof identifying nine witnesses and outlining their proposed testimony, including several witnesses who would testify regarding the mother's close relationship and continuous contact with the child. (Id. at p. 990.) Here, by contrast, mother offered no specific evidence regarding her visitation with H. or the presence of a substantial bond between them. As such, the court did not err in denying mother's request for a contested hearing.
We do not reach mother's additional argument that the juvenile court's error was prejudicial.
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 H.'s possible Native American heritage. DCFS concedes that further inquiry into H.'s ancestry is necessary.
"In any given case, ICWA applies or not depending on whether the child who is the subject of the custody proceeding is an Indian child." (In re Abbigail A. (2016) 1 Cal.5th 83, 90.) Both ICWA and state statutory law define an "Indian child" as a child who is either a member of an Indian tribe or 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); accord, § 224.1, subds. (a)-(b).)
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.'" (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742; see § 224.2, subd. (a).) 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.)
Father contends that DCFS failed to fulfill its duty of initial inquiry required by ICWA and related state law. DCFS concedes its inquiry efforts as to H.'s heritage were insufficient, and we agree.
The record reflects that DCFS spoke only to mother, father, and MGM about H.'s possible Indian ancestry. 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 accordingly remand the matter for DCFS and the juvenile court to conduct further investigation into H.'s possible Native American ancestry through mother or father.
DISPOSITION
The order terminating mother's and 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.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: CURREY, P.J. ZUKIN, J.