Opinion
A165226
05-22-2023
In re the Marriage of MARIA and MICHAEL B. v. MICHAEL B., Appellant. MARIA B., Respondent,
NOT TO BE PUBLISHED
Order Filed Date: 6/14/23
(Solano County Super. Ct. No. FFL158381)
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on May 22, 2023, be modified as follows:
1. On page 19, the signature page, the names of the justices and their designations on opinion should be changed from Margulies, J. - We Concur: Humes, P. J., Bowen, J.*, to:
Margulies, Acting P. J.
We Concur: Banke, J., Bowen, J.*
*Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
There is no change in the judgment.
MARGULIES, ACTING P. J.
Michael B. (father) appeals a judgment declaring his children free from his custody and control under Family Code section 7825. He contends the trial court abused its discretion in terminating his parental rights because there was insufficient evidence of his parental unfitness based on his felony domestic violence convictions. Father also argues the judgment must be reversed because the trial court failed to comply with its initial inquiry duties under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). We reject father's claim regarding section 7825, but conclude we must conditionally reverse and remand for further ICWA proceedings.
All further statutory references are to the Family Code unless otherwise indicated.
I. BACKGROUND
A. Factual Background
Father and Maria B. (mother) began their relationship in 2011, when they were both 16 years old, and later married in 2014. They have two minor children, Mina and M.B.
In November 2020, mother and father were involved in an argument that resulted in father verbally and physically abusing mother. This incident was recorded and played in court. In the recording, father can be heard continuously berating mother, threatening her, and then slapping her. Mother reported the incident, and a misdemeanor complaint was filed against father the same month. Mother also obtained a criminal protective order against father the following month that prohibited father from, among other things, harassing, striking, threatening, assaulting, or molesting mother.
In early February 2021, father and mother had another argument which again ended in physical violence. During the argument, father kicked mother on her right hip and thigh area, leaving her leg numb and a dark bruise that remained for weeks. On February 11, 2021, father was convicted of misdemeanor false imprisonment (Pen. Code, § 236) for the November 2020 incident and placed on probation for three years.
Three days later, yet another domestic violence incident occurred. Father and mother were in a bedroom of the family home and began arguing. During the argument, father took mother's cell phone from her and hit her forcefully on the head with the edge of the phone. This left a noticeable lump on her forehead. Father then backed up and charged at mother. She fell backwards, and he landed on top of her on the bed. He straddled her, using his body weight and both his hands to hold her down. While he was on top of her, the upper half of her body slid off the bed so that her head was on the floor. He then grabbed her hair, dragged her, and began pounding her head on the floor. He put both his hands around her neck and began choking her, telling her "you're going to die, you're gonna die bitch." He choked her until she had trouble breathing. This left noticeable marks around her neck and shoulder area.
Father eventually stopped choking mother and got off her. She could not escape the house, however, because father would not let her leave. He started walking anywhere she would try to walk and kept her within arm's reach. He started closing the windows of the house. She was eventually able to escape by running out the back door of the house and across the street. Father chased her. She hid behind a tree and saw father get in his car. She then returned to the house to try to get her baby. M.B., who was approximately 20 months old at the time, had been in another room in the house during the entire incident. Mother did not find M.B. in the house because father had taken him.
Mother contacted the local police department to report the incident. Shortly thereafter, she received a temporary domestic violence restraining order against father. On April 14, 2021, father pled no contest to two felonies from the February 14, 2021 domestic violence incident, specifically for corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) and false imprisonment (id., § 236). He was sentenced to two years eight months in prison.
The temporary restraining order was renewed several times until mother obtained a five-year permanent restraining order against father in March 2022.
B. Procedural History
In May 2021, mother filed for divorce. A month later, she filed a petition to declare their two minor children free from father's parental custody and terminate his parental rights under section 7825. In September 2021, she submitted a request for judicial notice of father's criminal case files.
In February 2022, the trial court held a two-day bench trial following father's release from prison. Mother and father testified as witnesses. The court granted mother's request for judicial notice of father's criminal case files, and admitted video, photograph, and audio exhibits from both parties as well as the court-appointed investigator's report into evidence. In March 2022, the trial court issued a detailed statement of decision. The trial court found by clear and convincing evidence, based on the facts of the felony convictions that father sustained on April 14, 2021, that father was unfit to have future custody and control of the minors. The trial court stated its decision was supported by external factors, specifically father's long criminal history that has resulted in long periods of incarceration rendering father absent from the children's daily lives; a long history of domestic violence against mother; an increase, rather than a decrease, in criminal behavior; a lack of insight; refusal to take personal responsibility; and a lack of credibility. The court entered judgment and father timely appealed.
II. DISCUSSION
A. Parental Unfitness
The trial court entered judgment declaring father's two minor children free from his future custody and control under section 7825 based on his April 14, 2021 felony convictions for domestic violence and false imprisonment. Father contends the trial court abused its discretion because there was insufficient evidence of his parental unfitness based on the facts underlying his felony convictions.
Section 7800 et seq. governs proceedings to have a minor child declared free from a parent's custody and control. (§ 7802.) "A declaration of freedom from parental custody and control . . . terminates all parental rights and responsibilities with regard to the child." (§ 7803.)
A petition to terminate parental rights under section 7825 may be filed where both of the following requirements are met: (1) the child is one whose parent or parents are convicted of a felony, and (2) the facts of the crime of which the parent or parents were convicted are of such a nature so as to prove the unfitness of the parent or parents to have future custody and control of the child. (§ 7825, subd. (a).) In making its determination regarding unfitness, "the court may consider the parent's criminal record prior to the felony conviction to the extent that the criminal record demonstrates a pattern of behavior substantially related to the welfare of the child or the parent's ability to exercise custody and control regarding the child." (§ 7825, subd. (a)(2).) The court may also consider "other factors, such as an extensive criminal record, history of substance abuse, domestic violence, etc., which, in appropriate circumstances, can inform the court's evaluation of the facts underlying a felony conviction or convictions," though "they cannot themselves form the basis for termination." (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1542 (Baby Girl M.).)
The fundamental nature of parental rights requires clear and convincing evidence of the facts necessary to terminate such rights. (In re Angelia P. (1981) 28 Cal.3d 908, 919 (Angelia P.); In re Terry E. (1986) 180 Cal.App.3d 932, 949.) There must be a nexus between the court's finding of parental unfitness and the underlying facts of a parent's felony conviction. (Baby Girl M., supra, 135 Cal.App.4th at p. 1542.)
"The decision to terminate parental rights lies in the first instance within the discretion of the juvenile court and will not be disturbed on appeal absent an abuse of that discretion." (Baby Girl M., supra, 135 Cal.App.4th at p. 1536.) A court abuses its discretion when it exercises it in an arbitrary, capricious or patently absurd manner. (People v. Williams (2013) 58 Cal.4th 197, 270-271.) We review a court's factual findings under section 7825 for substantial evidence. (Angelia P., supra, 28 Cal.3d at pp. 924-925 [substantial evidence standard applied to Civ. Code, former § 232, subd. (a)(4), the predecessor to § 7825].) That is, we review the record in the light most favorable to the trial court's order to determine whether there is substantial evidence-evidence which is reasonable, credible, and of solid value-from which a reasonable trier of fact could find that termination of parental rights is appropriate based on the clear and convincing evidence standard. (Angelia P., at p. 924.)
Father asserts the trial court abused its discretion because there was insufficient evidence of a nexus between the facts of his felony convictions and the trial court's finding of parental unfitness. We disagree.
As detailed above and summarized by the trial court in its statement of decision, the facts underlying the February 14, 2021 domestic violence incident demonstrated a brutal and violent attack by father on mother while their 20-month-old son was present in the home. During an argument, father struck mother on the head with her cell phone, pinned her down on the bed, grabbed her by the hair, dragged her, repeatedly beat her head on the floor, and choked her until she had trouble breathing, telling her "you're going to die, you're gonna die bitch." The attack left noticeable marks on her neck and shoulder area. Even after releasing her, father prevented her from escaping his abuse by keeping her within arm's reach and closing the windows of the house. When she managed to escape, he chased her. After she hid, he drove away with their son.
As trial court explained in its statement of decision, father's behavior in February 2021 showed he has "very little regard for [mother's] wellbeing or safety and consequently, that of his children," and his behavior "directly correlate[s] with parenting skills that affect fitness." The court reasoned that the extent of mother's injuries and father's behavior right after the attack in preventing her from leaving spoke to the brutality of the physical attack and his disregard for mother. His actions further evidenced a "lack of emotional and anger management, a lack of care or concern for his children's other parent, [and a] lack of coping and co-parenting skills." Additionally, his "complete lack of remorse, and lack of acceptance of responsibility indicate a lack of self-awareness and [a lack of] awareness as to how domestic violence in the home can affect his children's development."
In addition to the facts underlying his convictions, the trial court appropriately looked to father's testimony regarding his extensive criminal history to inform its decision regarding parental unfitness. As defendant concedes, in making its determination regarding unfitness, the court may consider "other factors, such as an extensive criminal record, history of substance abuse, domestic violence, etc., which, in appropriate circumstances, can inform the court's evaluation of the facts underlying a felony conviction or convictions," even though they "cannot themselves form the basis for termination." (Baby Girl M., supra, 135 Cal.App.4th at p. 1542.) That is exactly what happened here. After noting that outside factors can only inform the evaluation of the facts underlying the felony convictions, the court explained how father's testimony regarding his extensive criminal record revealed a pattern of denying responsibility and minimizing his role in criminal activity. The court noted father's explanations of his own role in the various criminal activities for which he sustained convictions were not credible, and he was clearly omitting facts. The court found his testimony "questionable and an effort to deflect responsibility."
Father had several felony convictions prior to the domestic violence felonies at issue: In 2019, he was convicted of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)); in 2017, he was convicted of possession of an assault weapon (id., § 30605, subd. (a)); and in 2014, he was convicted of carrying a loaded firearm in a public place and carrying a loaded firearm by a nonregistered owner (id., § 25850, subds. (a) & (c)(6)).
Though not discussed by the parties or the trial court in its statement of decision, we note section 7825 was amended after Baby Girl M. and now expressly allows the trial court to consider a parent's prior criminal record "to the extent it demonstrates a pattern of behavior substantially related to the welfare of the child or the parent's ability to exercise custody and control regarding the child." (§ 7825, subd. (a)(2); Stats. 2006, ch. 806, § 5.)
The court further considered "the extensive history of Domestic Violence perpetrated on [mother] by [father], the fact the minors were exposed to domestic violence and acts of abuse against the family pet, a small Chihuahua." Citing father's three physical assaults on mother on November 24, 2020 and February 6 and 11, 2021, including the most recent assaults while he was on probation for the November 2020 incident, the trial court found father lacked credibility and was "intentionally evasive and dishonest" in his testimony about the abuse. Specifically, the court found father's "complete lack of remorse[] and lack of acceptance of responsibility indicate a lack of self-awareness and [a lack of] awareness as to how domestic violence can affect his children's development." The court further noted father had shown "he is unable to manage his emotions and anger, his coping skill[s] are lacking and he resorts to violence to manage his relationship with the mother of his children." Further, he had repeatedly perpetrated acts of domestic violence on mother, despite having already sustained criminal consequences and a loss of liberty. The trial court observed that his "complete disregard for the value of [mother] as a person is indicative of the danger that he poses to her."
The court observed that father acknowledged in his testimony that his children had witnessed acts of domestic violence and mother testified that father had assaulted the Chihuahua.
Contrary to father's suggestion that the trial court merely relied on the existence of his felony convictions, the record reveals the trial court carefully examined the underlying facts of the felony convictions, concluding they supported a finding of unfitness because they demonstrated father's lack of concern for the safety and well-being of mother and the children, lack of emotional and anger management, coparenting, and coping skills, and lack of awareness about how his violent actions impact his children's development. Further, the trial court appropriately relied on other factors, including father's testimony regarding his criminal history and extensive and recent history of domestic violence to inform its findings that he had shown a pattern of failing to accept responsibility for his behavior, denying or minimizing his role in the abuse, and failing to appreciate how his acts of domestic violence affect his children's development. On this record, ample evidence supported the trial court's thoughtful and well-reasoned decision that the facts of his felony convictions demonstrated father's parental unfitness.
In asserting the trial court in this case abused its discretion, father relies principally on Baby Girl M., wherein the appellate court reversed a finding of parental unfitness because the trial court improperly based its determination on factors outside the facts underlying the father's felony convictions. (Baby Girl M., supra, 135 Cal.App.4th at pp. 1531-1532.) These outside factors were the existence of his felony convictions, an extensive misdemeanor record, and the court's finding that he had not adequately addressed the problems which led to his criminality. (Id. at p. 1531.)
Baby Girl M., however, is distinguishable, and if anything, that case supports the trial court's decision here. First, the trial court in Baby Girl M. made its determination of parental unfitness based on the mere existence of the father's felony convictions; "the court never mentioned any underlying fact in its oral or written orders granting the . . . petition." (Baby Girl M., supra, 135 Cal.App.4th at p. 1543.) Here, by contrast, the trial court expressly based its decision on an extensive discussion of the facts underlying the domestic violence convictions rather than the mere existence of the convictions themselves.
Second, in Baby Girl M., the facts underlying the father's prior felony convictions for attempted burglary, possession of methamphetamine, and burglary could not support a termination of parental rights because they did not contain any "direct indicators of parental unfitness." (Baby Girl M., supra, 135 Cal.App.4th at pp. 1543-1544.) Specifically, the appellate court observed that "unlike all of the cases previously upholding the termination of parental rights based on a felony conviction, the facts of the felonies on which [the father] was convicted . . . show no indications of violence, lewd behavior, use of the family home, harm to family members, involvement or victimization of minors, or other direct indicators of parental unfitness." (Id. at p. 1544.) In this case, unlike in Baby Girl M., the facts underlying the father's domestic violence convictions involved multiple "direct indicators" of unfitness including violence, physical harm to a family member (mother), and use of the family home while the couple's 20-month-old child was present.
Father asserts cursorily that his felony convictions do not contain direct indicators of parental unfitness like the felonies involved in the cases of In re Mark V. (1986) 177 Cal.App.3d 754, 756 (father fatally stabbed mother while their children were asleep in the residence), In re Arthur C. (1985) 176 Cal.App.3d 442, 444 (father stabbed mother of his children 17 times in the neck, chest, abdomen, back, and extremities), and In re Sarah H. (1980) 106 Cal.App.3d 326, 328 (father beat mother to death in their children's presence). He argues the Legislature clearly intended section 7825 to apply only in "cases of egregious crimes of intrafamily violence." Nothing in the statute or surrounding case law, however, defines the crimes required for a finding of parental unfitness, and Michael cites no authority that the crime must involve murder or a similarly serious crime to support a finding of unfitness under section 7825. Indeed, in Adoption of D. S. C. (1979) 93 Cal.App.3d 14, the trial court found parental unfitness where no intrafamily violence occurred. (Adoption of D. S. C., at pp. 19-20.) Thus, it is not required that the underlying facts of a parent's felony conviction involve extreme intrafamily violence to find parental unfitness. In any event, as we have previously explained and the trial court here concluded, the facts underlying father's convictions do reflect severe intrafamily violence. As the trial court so aptly stated, "[T]he fact that [mother] did not die does not prevent this Court from finding that [father's] behavior was egregious. The fact pattern here does demonstrate unfitness."
Father attempts to differentiate his case from Adoption of D. S. C., where the trial court terminated parental rights where there was no intrafamily violence. (Adoption of D. S. C., supra, 93 Cal.App.3d at pp. 1920.) There, the termination was based on several felony convictions of armed burglary the father committed together with his 17-year-old wife and illegal possession of a firearm while on parole. (Id. at p. 25.) In upholding the termination, the appellate court determined the evidence was sufficient to show future parental unfitness because it showed the parent had a propensity to commit violent crime and would not hesitate to involve family members of a tender age in crime. (Ibid.) Father argues that unlike Adoption of D. S. C., his two felony domestic violence convictions were insufficient for a finding of parental unfitness, but he fails to explain why. The facts of the underlying felonies in this case were much more egregious than those in Adoption of D. S. C. because they involved the father's direct perpetration of violence on the mother of his children.
Father also contends that the trial court's findings that he "was not credible" and that he "lacked awareness, or remorsefulness" fail to satisfy the nexus requirement and cannot themselves form the basis for the termination of his parental rights. But as we have already discussed, the trial court did not base its termination decision on those factors. Rather, from his testimony about his previous convictions and multiple incidents of domestic violence, the court found father had a pattern of denying knowledge or responsibility, was intentionally evasive and dishonest, and lacked credibility. These findings informed and supported the finding of parental unfitness based on his lack of parenting skills and danger to his family as demonstrated by the February 2021 felonies. Thus, the court properly considered outside factors, specifically father's testimony regarding his prior criminal history, and more specifically, his extensive and recent history of escalating domestic violence, to inform its decision that the facts underlying his felony convictions demonstrated parental unfitness.
Finally, father also suggests the trial court abused its discretion because other evidence in the record shows he was a good parent who established a substantial relationship with Mina. He submitted photo and video exhibits as evidence, and testified to spending time with Mina and engaging in activities with her such as building a tent, taking her to the skateboard park, out-of-town trips, getting her a dog, parasailing, buying her video games, and paying for her to go to ballet school. Mother also testified that father provided financial support for the family.
On appeal, however, we do not reweigh evidence, make credibility findings, or resolve conflicts in the evidence; we assess whether substantial evidence supports the trial court's findings. (In re E.M. (2014) 228 Cal.App.4th 828, 839.) Therefore, even if we could reasonably find some evidence supporting father's position, it would not affect our ultimate conclusion. (In re Travis C. (2017) 13 Cal.App.5th 1219, 1225 [" 'The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed [the] other evidence.' "].)
In sum, there was sufficient evidence under the clear and convincing standard to support the court's finding of father's parental unfitness. The trial court appropriately relied on the facts of the underlying convictions in making its determination. The court also appropriately considered how father's testimony about his prior convictions and prior incidents of domestic violence, particularly his inability to accept responsibility and appreciate the impact of domestic violence on his children, informed its decision that he was unfit to have future custody and control of his children. The trial court did not abuse its discretion in finding parental unfitness as there was a reasonable, considered basis for the decision.
B. ICWA
Father contends the order to terminate his parental rights must be reversed because the trial court failed to comply with its initial inquiry duties under ICWA. We agree.
"ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family." (In re T.G. (2020) 58 Cal.App.5th 275, 287.) An" 'Indian child'" is a child who "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).) In addition to federal law, California law implements ICWA. (In re Isaiah W. (2016) 1 Cal.5th 1, 9.)
In the context of a petition to free a minor from a parent's custody and care, the court, petitioner, and court-appointed investigator have an affirmative and continuing duty to inquire whether the child is, or might be, an Indian child. (§§ 177, 7820; Cal. Rules of Court, rule 5.481(a)(1); Welf. &Inst. Code, § 224.2, subd. (a); see Adoption of M.R. (2022) 84 Cal.App.5th 537, 541.) An" 'Indian child custody proceeding'" for purposes of the Family Code includes a proceeding for purposes of declaring the Indian child free from the custody and control of a parent. (§ 170, subd. (c); see § 180, subds. (a) &(b) [incorporating ICWA notice provisions in Indian child custody proceedings].)
The "duty to inquire begins with the initial contact" and obligates the court to ask all relevant involved individuals, including "the child, parents, legal guardian, Indian custodian, extended family members, [and any] others who have an interest in the child . . . whether the child is, or may be, an Indian child." (Welf. &Inst. Code § 224.2, subds. (a)-(b); In re T.G., supra, 58 Cal.App.5th at p. 290.)
The record in this case is devoid of any inquiry by the trial court or court-appointed investigator as to father's Indian ancestry and no express ICWA findings were made by the trial court at any point. With respect to the children's Indian ancestry, the record only shows (1) the court-appointed investigator noted that mandated ICWA forms were not filed with mother's petition; (2) the investigator deferred to the court to determine if mother satisfied the ICWA inquiry and notice requirements; and (3) mother subsequently completed the "Parental Notification of Indian Status" form (Judicial Council form ICWA-020) stating that the children have no Indian ancestry. Father asserts that the court should have inquired of him and the minors' paternal grandmother, whom the record indicates played a role in the family's life and thus would have been an available source of information about Indian ancestry. Father contends the error requires reversal; mother asserts it was harmless and urges us to affirm.
Appellate courts are currently divided as to what standard to apply to determine whether an ICWA inquiry error is harmless, and the issue is currently pending before our Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769, 777 (Dezi C.), review granted Sept. 21, 2022, S275578.) Courts have held that (1) deficient initial inquiry is reversible per se (In re Y.W. (2021) 70 Cal.App.5th 542, 556; but see In re K.H. (2022) 84 Cal.App.5th 566, 617-618 [characterizing these cases as "involving] records so undeveloped that the inadequacy of the inquiry is readily apparent and there simply is no basis on which to find substantial evidence would support a contrary conclusion"]); (2) deficient inquiry requires reversal "where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child was an Indian child" (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.)); (3) deficient inquiry is harmless unless the record contains information suggesting a "reason to believe" a child is an Indian child (Dezi C., at p. 779); and (4) deficient inquiry is harmless unless the record below demonstrates an affirmative assertion of Indian heritage or an appellant makes an offer of proof or other affirmative assertion of Indian heritage on appeal (In re A.C. (2021) 65 Cal.App.5th 1060, 1069).
As other courts have noted, there are multiple problems with cases at both ends of this spectrum. On one hand, a rule favoring automatic reversal potentially encourages parental gamesmanship, frustrates prompt resolution of dependency cases, and ignores the constitutional requirement that a miscarriage of justice be shown. (See, e.g., Dezi C., supra, 79 Cal.App.5th at pp. 784-785; In re Y.M. (2022) 82 Cal.App.5th 901, 912-913.) On the other hand, a presumptive affirmance rule requiring a parent to demonstrate evidence in the record or make an offer of proof on appeal regarding possible Indian heritage inappropriately shifts the statutory burden of inquiry to parents rather than agencies and courts, disregards the interests of Indian tribes, and routinizes the consideration of new evidence on appeal, which is generally disfavored. (See, e.g., In re K.H., supra, 84 Cal.App.5th at pp. 612614; In re Y.M., at pp. 913-915.) We find these arguments persuasive and, accordingly, do not apply either a rule of automatic reversal or presumptive affirmance.
We need not choose among the remaining approaches, however, because under any of them, we conclude the failure to inquire at all about father's Indian ancestry or make any ICWA findings requires us to remand. The initial ICWA inquiry regarding father and his extended family was not just insufficient-it was nonexistent. "[W]here the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost because there has not been adequate inquiry and due diligence, reversal for correction is generally the only effective safeguard." (In re K.H., supra, 84 Cal.App.5th at p. 610.) The trial court never asked father about his or his family's possible Indian ancestry at any court proceeding, and father never completed Judicial Council form ICWA-020. Father was clearly available, and it is possible the minors' paternal grandmother or other relatives would have been able to provide information to the court or investigator. Their responses would have borne meaningful information, regardless of the outcome of their inquiry. (Benjamin M., supra, 70 Cal.App.5th at pp. 744-745.) The error also would not be harmless under the approach taken in Dezi C., which stated that "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 a child may be an 'Indian child' within the meaning of ICWA .... [A] reviewing court would have 'reason to believe' further inquiry might lead to a different result . . . if the record indicates that the agency never inquired into one of the two parents' heritage at all." (Dezi C., supra, 79 Cal.App.5th at p. 779, fn. omitted, italics added.) On this record, there is simply insufficient evidence for us to conclude the failure to conduct a proper inquiry was harmless.
Moreover, as father notes in his reply brief, considerations regarding permanency and stability that are often at issue in dependency proceedings are not as great a concern in this case because the children are already placed with their mother. (Cf. In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1001 [reversals for further ICWA inquiries after termination of parental rights "[a]t best, . . . significantly delay entry of final judgments releasing children for adoption; at worst, they may result in potential adoptive parents deciding not to adopt"]; In re S.H. (2022) 82 Cal.App.5th 166, 179 [sharing same concerns identified in Ezequiel G.].)
"[R]equiring an adequate initial inquiry be conducted and documented in the record should not translate into an exhaustive inquiry to ensure '[n]o stone is left unturned.'" (In re K.H., supra, 84 Cal.App.5th at p. 603.) We conclude, however, it would not be unduly burdensome for the trial court and court-appointed investigator to conduct a minimum inquiry of father and father's relatives.
III. DISPOSITION
The trial court's judgment is conditionally reversed, and the matter is remanded to the trial court to comply with the inquiry and documentation provisions set forth in Welfare and Institutions Code section 224.2 and California Rules of Court, rule 5.481 as to father's family. If after the initial inquiry the trial court finds ICWA applies, the court shall proceed in compliance with ICWA and related California law. If the court finds, instead, that ICWA does not apply, its judgment shall be reinstated. In all other respects, we affirm the trial court's judgment declaring the minors free of the custody and control of their father.
WE CONCUR: HUMES, P. J., BOWEN, J. [*]
[*] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.