Opinion
F084584
02-14-2023
In re C.P., a Person Coming Under the Juvenile Court Law. v. S.P. et al., Defendants and Appellants. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Susan M. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant S.P. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant E.P. Forrest W. Hansen, County Counsel, and Ann Hanson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Merced County, No. 21JP-00007-A Donald J. Proietti, Judge.
Susan M. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant S.P.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant E.P.
Forrest W. Hansen, County Counsel, and Ann Hanson, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT[ *]
Appellants S.P. (mother) and E.P. (father) are the parents of the two-year-old child, C.P. (the child), who is the subject of a dependency case. Each parent challenges the juvenile court's orders issued at a contested selection and implementation hearing that resulted in their parental rights being terminated. Mother contends the juvenile court erred when it failed to apply the beneficial parent-child relationship exception to termination of parental rights, and father argues the court failed to correctly apply our Supreme Court's decision of In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).
Mother, joined by father, also argues that the court failed to comply with the duty to inquire under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We conditionally reverse the juvenile court's orders terminating parental rights and remand for proceedings to ensure ICWA compliance and otherwise affirm the juvenile court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Removal
In January 2021, the Merced County Human Services Agency (agency) received a referral alleging the child was at risk of harm due to the parents' history of substance abuse and homelessness. The child and mother tested negative for all substances at the time of the child's recent birth. Mother admitted to methamphetamine use throughout her pregnancy. She indicated she was able to remain sober after initiating behavioral health and recovery services in November 2020. Father acknowledged that sobriety was" 'still a struggle'" with his last use of methamphetamine claimed to be one month prior. In 2019, mother and father had a sibling of the child removed due to their substance abuse. The child was taken into protective custody by law enforcement, and the agency placed the child with her maternal great-aunt.
The agency filed a petition alleging the child was described by Welfare and Institutions Code section 300, subdivisions (b) and (j). The petition alleged that the child was at substantial risk of suffering serious physical harm as a result of mother and father's substance abuse. During the agency's initial inquiry of mother and father, both parents gave the agency no reason to believe the child was or may be an Indian child. The report prepared for the detention hearing indicated both parents denied having Indian ancestry. The juvenile court's previous finding that ICWA was not applicable from the sibling's dependency case in 2019 was also noted without any additional details. The agency was considering the child's paternal grandmother, maternal aunt, and paternal aunt for potential placement.
All further statutory references are to the Welfare and Institutions Code.
At the detention hearing held on February 2, 2021, mother and father appeared remotely for the proceedings. The parents were appointed the same counsel who were representing them in the sibling's case. The juvenile court took judicial notice of the sibling's case and noted that it previously found ICWA was not applicable on August 22, 2019, regarding the sibling. Mother and father were each asked if they learned any new information since they denied having Indian ancestry in the sibling's case. The parents both responded, "No." Father clarified further by stating, "I have no Indian blood, Your Honor." The juvenile court then found that ICWA did not apply. After the parties submitted the matter, the juvenile court ordered the child detained from the custody of mother and father, supervised visitation for the parents, and the setting of a combined jurisdiction and disposition hearing for February 25, 2021.
Jurisdiction and Disposition
The agency's jurisdiction report, filed on February 22, 2021, recommended that the juvenile court find the allegations in the petition true. A contested jurisdiction hearing was set for March 24, 2021, at the request of mother and father. A disposition report was filed on March 19, 2021, which recommended the child remain in out-of-home care with family reunification services provided to mother and father. The ICWA status section of the report noted the juvenile court's finding that ICWA was not applicable from the detention hearing without any additional information.
The child remained placed with her maternal great-aunt. The agency continued to assess the child's paternal grandmother, maternal aunt, and paternal aunt for potential placement. Both parents identified the paternal aunt as the individual they would prefer the child to live with if they were unable to reunify. Mother and father attended their supervised visits weekly, which were noted to be going well. The agency recommended that both parents be provided reunification services despite the application of section 361.5, subdivision (b)(10) based upon the previous termination of family reunification services for the child's sibling in November 2020.
At the jurisdiction and disposition hearing held on March 23, 2021, mother and father withdrew their contest and submitted on the agency's recommendations. The juvenile court found the allegations in the petition true, ordered reunification services for mother and father, and set a six-month review hearing for September 9, 2021.
Family Reunification Period
The agency's six-month status review report, filed on September 15, 2021, recommended that both parents' family reunification services be terminated and a section 366.26 hearing be set. Both parents failed to address their substance abuse issues by testing positive for methamphetamine multiple times throughout the reunification period. Mother completed a parenting program, but she displayed inappropriate behaviors during her visits. The parents were also observed to be falling asleep during their visits with the child.
At a contested six-month review hearing held on November 9, 2021, mother and father were present via video. Counsel for each parent provided an offer of proof as to how they would each testify and requested that the juvenile court order continued reunification services. The court terminated mother and father's reunification services, and it set a section 366.26 hearing for March 3, 2022.
Section 366.26 Hearing
The agency's report prepared for the section 366.26 hearing, filed on April 6, 2022, recommended that the juvenile court terminate the parental rights of mother and father and order a permanent plan of adoption for the child. The ICWA status section of the report noted the juvenile court's prior finding that ICWA was not applicable from the detention hearing with no further information. The child remained placed in the home of the maternal great-aunt since her initial removal.
At one year of age, the child was meeting her developmental milestones with no medical concerns noted. The relative care providers were described as the only parents the child had known, and the child had developed a strong bond with the care providers. The maternal great-aunt's cousin also lived in the home and acted as another care provider for the child. The relative care providers both desired to provide the child and her sibling a secure environment where they are loved and cherished.
The agency detailed the dates that mother and father attended their weekly supervised visits with the child prior to the termination of their reunification services. The social worker noted that mother and father did appear affectionate and comforting to the child, and no missed visits were reported. However, there were also concerns that mother and father appeared under the influence at visits based upon their behaviors. Mother and father participated in a supervised visit each month after the section 366.26 hearing was set. There were no reported concerns at these visits, and the parents were active and engaging with the child. The report detailed the exceptions to termination set forth in section 366.26, subd. (c)(1), and it concluded that there were no factors precluding termination.
A contested section 366.26 hearing was held on May 10, 2022, after multiple continuances. Mother and father were both present in the courtroom for the hearing. Mother testified regarding her visits with the child, and she explained how she read books and made animal sounds with the child. She testified that she was trying to be a better person and learn from her mistakes. Mother believed it would be harmful to terminate her parental rights because she claimed the child instantly stops crying upon seeing her at visits.
Father testified that he attended every single visit and was never late. He brought books and snacks to share with the child during visits. Father believed there was a bond between him and the child because he comforted her when she was crying. He testified that he and the child were sad at the end of visits, but there was no change in her demeanor as she was carried away.
During closing arguments, counsel for the agency referenced the Supreme Court's decision in Caden C., supra, 11 Cal.5th at p. 614 in arguing that the parents failed to demonstrate that the child would be greatly harmed by the severance of the parent-child relationship. The child's counsel joined in the argument of agency's counsel. Counsel for mother and father each argued the beneficial parent-child relationship exception to termination of parental rights applied. (§ 366.26, subd. (c)(1)(B)(i).)
After hearing argument from all counsel, the juvenile court acknowledged that the parents had met the first prong of the beneficial parent-child relationship exception by regularly visiting and contacting the child. In considering the existence of a substantial, positive emotional attachment between the child and parents, the juvenile court acknowledged that the child no longer living with the parents could not be the sole criteria for declining to find such a relationship. It considered the fact that the child had not spent any significant portion of her life with the parents as only one of the factors for the second prong. The juvenile court also agreed that the evidence supported the existence of a positive relationship.
The juvenile court concluded its ruling as follows:
"The issue or the element that I have the most difficulty with is, I shouldn't say difficulty with, but where I believe the parents have not succeeded in establishing the exception is the third element.
"Establishing evidence that terminating the attachment, the parental attachment between [father] and [m]other with [the child] would be detrimental or harmful to the child. And I have to balance that perceived or real harm against the benefit of the new adoptive home. And reviewing the social worker's report. I note that the-[child] is in placement in a happy, loving home with her sister, her sibling. The family is very supportive. There's extended family. The child appears to be well-bonded with that family. And why not? The child's been living with that family since almost birth.
"And I balance that against the evidence presented by the parents that it would be harmful. And that evidence is without a father in the child's life it would be detrimental not having a father role model. I don't believe that that concern outweighs the benefit to [the child] and her new adoptive home.
"For those reasons, the Court finds that the parental benefit exception does not apply."
The juvenile court concluded by adopting the agency's recommendation and terminated the parental rights of mother and father and selected a plan of adoption for the child.
DISCUSSION
I. Beneficial Parent-Child Relationship Exception
Both parents contend the juvenile court erred when it did not apply the beneficial parent-child relationship exception to adoption. Father asserts that the juvenile court failed to properly consider the factors set forth by our Supreme Court's decision in Caden C., supra, 11 Cal.5th 614. Mother argues that the juvenile court erred by dismissing the parents' claim that termination of parental rights would cause the child harm.
A. Legal Principles
At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption unless a statutory exception applies. (§ 366.26, subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship exception, which applies when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Id., subd. (c)(1)(B)(i).)
A parent claiming an exception to termination has the burden of proof to establish by a preponderance of evidence that the exception applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Thus, the parent must prove three elements in order to prevail under the beneficial parent-child relationship exception: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Caden C., supra, 11 Cal.5th at p. 631.)
The first element of the beneficial relationship determination asks the "straightforward" question of whether the parent visited consistently, considering the extent permitted by court orders. (Caden C., supra, 11 Cal.5th at p. 632.) The focus is on the best interest of the child as opposed to punishing or rewarding parents for good behavior in maintaining contact. (Ibid.)
The second element of the exception asks whether the child would benefit from continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 632.) The parent-child relationship "may be shaped by a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'" (Ibid., quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The juvenile court's focus should again be on the child, and it "must remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Caden C., at p. 632.)
When considering the third element, courts must determine "how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Caden C., supra, 11 Cal.5th at p. 633.) Potential negative effects from severance of the relationship might include "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression." (Ibid.) An adoptive home might provide a new source of stability that alleviates emotional instability and preoccupation leading to those problems, making the loss "not, at least on balance, detrimental." (Ibid.) Under this element, the court is again guided by the child's best interest, but in a "specific way: it decides whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.'" (Ibid.)
In Caden C., the court held "that because the parent continued to struggle with substance abuse and mental health issues and because of the risks of foster care and benefits of the potential adoptive home, no reasonable court could find the child's relationship with his parent outweighed the benefits of adoption." (Caden C., supra, 11 Cal.5th at pp. 625-626.) Rejecting that conclusion, our Supreme Court found "[t]he Court of Appeal did not explain how the parent's struggles related to the specific elements of the statutory exception: the importance of the child's relationship with the parent or the detriment of losing that relationship." (Id. at p. 626.) A parent's struggles with issues that led to dependency were determined to be relevant only to the extent they inform whether the child would "benefit from continuing the relationship and be harmed, on balance, by losing it." (Id. at p. 638.)
B. Standard of Review
Appellate courts review a juvenile court's ruling on the application of the beneficial parent-child relationship exception using a "hybrid" standard. (Caden C., supra, 11 Cal.5th at p. 641.) The substantial evidence standard applies to the first two elements of regular visitation and existence of a beneficial relationship. (Id. At pp. 639-640.) The juvenile court's decision as to the third element-whether termination of parental rights would be detrimental to the child-is reviewed for an abuse of discretion. (Id. at p. 640.) "Review for abuse of discretion is subtly different, focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (Id. at p. 641.)
The standard of review of a court's determination that a parent did not meet his or her burden to prove an exception to termination of parental rights is "whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Specifically, the question is "whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W., at p. 1528.)
C. Analysis
In the present case, the juvenile court determined that neither parent met their burden of proof as to the application of the beneficial parent-child relationship exception. The parties acknowledge the juvenile court's finding that mother and father visited regularly. However, the court did not find that there was sufficient evidence that maintaining the child's relationship with mother and father outweighed the benefits of adoption to establish the exception.
Mother contends that evidence was presented that would support a finding of the existence of a beneficial parent-child relationship between the child and mother. In support of this contention, mother cites to evidence that the child received "comfort, affection, love, stimulation and guidance" during visits with her parents. Mother claims the juvenile court erred by giving significant weight to the bond that the child formed with her relative care providers since her removal near birth. However, the child's bond with the relative caregivers is directly relevant in assessing the "benefit of placement in a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 633.)
Based on the present record, we cannot find that the evidence compels a finding of the exception as a matter of law. Mother's suggestion that there was evidence that would support a finding that such a beneficial parent-child relationship existed ignores the fact that it was her burden to prove the exception. Even if we were to accept that the child often enjoyed visits with both parents, such evidence is not enough to preserve parental rights. (See In re Derek W. (1999) 73 Cal.App.4th 823, 827 ["The parent must do more than demonstrate 'frequent and loving contact[,]' [citation] an emotional bond with the child, or that parent and child find their visits pleasant.") In sum, this is not a case in which "the undisputed facts established the existence of a beneficial parental … relationship." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
Finally, father cites to the cases of In re J.D. (2021) 70 Cal.App.5th 833 and In re M.G. (2022) 80 Cal.App.5th 836 (M.G.) in support of his contention that the juvenile court's orders must be reversed for improper consideration of certain factors.
In J.D., the appellate court concluded that it was unclear to what extent the juvenile court-there, acting before Caden C.-considered improper factors at the second step of analyzing the parent-child beneficial relationship exception, and it reversed and remanded for a new section 366.26 hearing in accordance with Caden C. (In re J.D., supra, 70 Cal.App.5th at pp. 865, 870.) Specifically, it observed that the juvenile court had appeared to improperly consider "the mere fact [that mother] had been unable to succeed in overcoming her parenting struggles," "the suitability of [the minor's] current placement," the minor's attachment to his current caregiver, and the court's determination that mother did not occupy a" 'parental'" role-all factors improper under Caden C. (J.D., at pp. 864-865.)
In M.G., the appellate court reversed an order terminating parental rights that was entered one week after Caden C. was published because the juvenile court relied on a bonding study that "offered minimal if any information about the nature of the child 's relationship with his parents in the context of their developmental disabilities" and improperly compared "the parents' ability to manage [the child's] medical and developmental needs" to the caregiver's ability to meet the child's needs. A bonding study was performed because the three-year-old child was nonverbal and developmentally disabled, and the study was intended to assess the child's bond with his developmentally disabled parents. (M.G., supra, 80 Cal.App.5th at pp. 850-851.)
The appellate court was concerned that the only evidence as to the emotional attachment the child had with the parents was the bonding study, which considered improper factors. (M.G., supra, 80 Cal.App.5th at p. 850.) The case was remanded for reconsideration of the juvenile court's finding that no emotional bond existed between the child and parents, however, the appellate court did not review the juvenile court's findings as to the third element regarding the balance of termination with the benefits of adoption. (Id. at pp. 851-852.)
The cases cited by father are inapposite because the child's section 366.26 hearing was held in May 2022, almost two years after Caden C., so the juvenile court had the benefit of the Supreme Court's analysis, which was cited by the agency's counsel in closing argument. Furthermore, the court in this case did not refuse to apply the beneficial parent-child relationship exception based on an improper comparison concerning the relationship between the child and her parents and the relative care providers. In considering the beneficial parent-child relationship exception here, the court began by explaining its need to balance the harm from severing the parent-child relationship against the benefit of a new adoptive home for the child. After discussing the child's development of a bond with his relative care providers since shortly after her birth, the court concluded that the absence of a relationship with father did not outweigh the benefits that an adoptive home provided the child.
We do not find that, in making its determination, the juvenile court abused its discretion by relying on impermissible factors. The court's ruling on the exception did not consider the child's bond with her relative care providers without an assessment of her bond with the parents, and there is no indication that the court relied on the parents' lack of a primary attachment to bar the beneficial parent-child relationship exception. In fact, the court explicitly acknowledged that it could not consider the child's continued removal from the parents since near birth as its sole criteria.
Viewed in its context, the juvenile court considered the conflicting evidence on the third prong of the exception. On balance, it concluded that both parents failed to prove that maintaining the child's relationship with her parents was not as beneficial as the security provided to her through adoption. Under these circumstances, the court's ruling is entitled to a presumption of correctness, and remand is unwarranted. (Caden C., supra, 11 Cal.5th at p. 640.) Therefore, the court did not err in declining to apply the beneficial parent-child relationship exception, and its orders terminating mother and father's parental rights were proper on this point.
II. ICWA Inquiry
Mother and father also contend the juvenile court's finding that ICWA did not apply was not supported by sufficient evidence because the record does not include interviews conducted by the agency with all known extended family members.
A. Applicable Law
Congress enacted ICWA" 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture .…'" (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) Both ICWA and state law define an" 'Indian child'" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); § 224.1, subd. (a) [adopting federal definition].)
"Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case. These requirements are sometimes collectively referred to as the duty of initial inquiry." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741 (Benjamin M.).)
Federal regulations implementing ICWA require courts to ask participants in a dependency case whether they know or have reason to know the child is an Indian child and to instruct the parties to inform the court" 'if they subsequently receive information that provides reason to know the child is an Indian child.'" (Benjamin M., supra, 70 Cal.App.5th at p. 741.)
California law, however, "more broadly imposes on [the agency] and [the] juvenile court[] (but not parents) an 'affirmative and continuing duty to inquire' whether a child in the dependency proceeding 'is or may be an Indian child.'" (Benjamin M., supra, 70 Cal.App.5th at pp. 741-742, quoting § 224.2, subd. (a).) That duty to inquire "begins with [the] initial contact … and obligates the juvenile court and [the agency] to ask all relevant involved individuals whether the child may be an Indian child." (In re T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds. (a)-(c).)
Under the statute, when the agency takes a child into its temporary custody, its duty of initial inquiry "includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child .…" (§ 224.2, subd. (b).) Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers-or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
The juvenile court, in turn, at a party's first appearance, must ask "each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child" (§ 224.2, subd. (c)) and require each party to complete an ICWA-020 form (Cal. Rules of Court, rule 5.481(a)(2)(C)). "The parties are instructed to inform the court 'if they subsequently receive information that provides reason to know the child is an Indian child.' (25 C.F.R. § 23.107(a) (2020); § 224.2, subd. (c).)" (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
All further rule references are to the California Rules of Court.
If that initial inquiry gives the juvenile court or agency "reason to believe that an Indian child is involved," then their duty to "make further inquiry regarding the possible Indian status of the child" is triggered. (§ 224.2, subd. (e).) And, once there is 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); rule 5.481(c)(1); 25 U.S.C. § 1912(a).)
Additionally, the agency is required by the rules to document its inquiries. Rule 5.481(a)(5) provides, "The petitioner must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status, as well as evidence of how and when this information was provided to the relevant tribes. Whenever new information is received, that information must be expeditiously provided to the tribes."
The juvenile court may find ICWA does not apply to a child's proceeding if it finds the agency's duty of inquiry has been satisfied and there is no reason to know that child is an Indian child. (§ 224.2, subd. (i)(2); rule 5.481(b)(3)(A).) The juvenile court's finding that ICWA does not apply thus"' "implies that … social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry." [Citations.]'" (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.) Social workers have no duty under federal law to ask extended family members about possible tribal membership. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The error, if any, is an error of state law. (Ibid.)
B. Standard of Review
As recently set forth in our decision in In re K.H. (2022) 84 Cal.App.5th 566, 601 (K.H.), "[t]he juvenile court's finding that ICWA does not apply to the proceeding rests on two elemental determinations, 'subject to reversal based on sufficiency of the evidence.' (§ 224.2, subd. (i)(2).) The court must find there is 'no reason to know whether the child is an Indian child,' which is dependent upon whether any of the six circumstances set forth in subdivision (d) of section 224.2 apply. [Citation.] This inquiry is essentially factual and, therefore, is reviewed for substantial evidence. [Citations.] Under this standard, 'a reviewing court should "not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." [Citation.] The determinations should "be upheld if … 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 other evidence."' [Citations.] The standard recognizes that '[t]rial courts "generally are in a better position to evaluate and weigh the evidence" than appellate courts' [citation], and 'an appellate court should accept a trial court's factual findings if they are reasonable and supported by substantial evidence in the record' [citation]. '[I]f a court holds an evidentiary hearing, it may make credibility determinations, to which an appellate court would generally defer.'" (K.H., at p. 601.)
"The juvenile court must also find a 'proper and adequate further inquiry and due diligence .…' (§ 224.2, subd. (i)(2).) While we review the court's factual findings on the second element for substantial evidence as well, we agree with [In re] Ezequiel G. [(2022) 81 Cal.App.5th 984] that, consistent with the reasoning in Caden C.[, supra, 11 Cal.5th 614], a hybrid standard of review is appropriate. (Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1005.) The inquiry is ultimately discretionary because it requires the juvenile court to 'engage in a delicate balancing of' various factors in assessing whether the agency's inquiry was proper and adequate within the context of ICWA and California law, and whether the agency acted with due diligence." (K.H., supra, 84 Cal.App.5th at p. 601.)
" 'Review for abuse of discretion is subtly different [from review for substantial evidence], focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when"' "the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" [Citation.] But"' "[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court" '" [Citations.] [¶] While each standard here fits a distinct type of determination under review, the practical difference between the standards is not likely to be very pronounced.'" (K.H., supra, 84 Cal.App.5th at p. 602.)
"Review of the juvenile court's findings under the foregoing standards is deferential, but' "an appellate court [nevertheless] exercises its independent judgment to determine whether the facts satisfy the rule of law."' [Citations.] Where the material facts are undisputed, courts have applied independent review to determine whether ICWA's requirements were satisfied. [Citations.] In this case, because we are confronted with an undeveloped record, the outcome is the same irrespective of the standards of review applied." (K.H., supra, 84 Cal.App.5th at p. 602.)
C. Analysis
Pursuant to its duty under section 224.2, the juvenile court asked each parent whether they had any Indian heritage at the detention hearing held on February 2, 2021. Both parents denied having any Indian ancestry, and the juvenile court found ICWA was not applicable based upon the parents' denials of Indian ancestry. The duty of inquiry, however, did not end with asking the parents whether the child is or may be an Indian child. The agency was also required under section 224.2, subdivision (b) to ask extended family members. Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers-or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
There were at least three extended family members identified by the parents as potential placement options for the child prior to the detention hearing. Although the agency had the full names of these relatives and submitted referrals on their behalf to other counties for the resource family approval process, the agency either failed to interview them about Indian ancestry or did not document it. The child was also placed with a maternal great-aunt, who became a person with an interest in the child. (§ 224.2, subd. (b).) There is no evidence that the agency interviewed the maternal great-aunt about Indian ancestry over the several months the child was placed in her home. Under the circumstances, we conclude the agency did not fulfill its statutory duty of inquiry. (§ 224.2, subd. (b).) As a result, the juvenile court's finding that ICWA did not apply was not supported by substantial evidence that the agency conducted an adequate, proper, and duly diligent inquiry, and its contrary conclusion was an abuse of discretion.
Because the failure in this case concerned the agency's duty of initial inquiry, only state law is involved. "Where a violation is of only state law, we may not reverse unless we find that the error was prejudicial. (Cal. Const., art. VI, § 13 ['No judgment shall be set aside … unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice'].)" (Benjamin M., supra, 70 Cal.App.5th at p. 742.)
" '[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice' [citations], and California law generally interprets its constitutional miscarriage of justice requirement 'as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.'" (K.H., supra, 84 Cal.App.5th at pp. 606-607.)
However, in In re A.R. (2021) 11 Cal.5th 234, the Supreme Court "recognized that while we generally apply a Watson likelihood-of-success test to assess prejudice, a merits-based outcome-focused test is not always appropriate because it cannot always adequately measure the relevant harm. [Citation.] In other words, where the injury caused by the error is unrelated to an outcome on the merits, tethering the showing of prejudice to such an outcome misplaces the measure, at the expense of the rights the law in question was designed to protect." (K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
As we explained in K.H.," 'ICWA compliance presents a unique situation .…'" (K.H., supra, 84 Cal.App.5th at p. 608.) "ICWA is not directed at reaching, or protecting, a specific outcome on the merits." (Id. at p. 609.) Rather," '[t]he purpose of ICWA and related California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings' [citation], and an adequate initial inquiry facilitates the information gathering upon which the court's ICWA determination will rest." (K.H., at p. 608) Yet, "while the appealing party is usually a parent, parents do not bear the burden of gathering information in compliance with ICWA [citations], and parents may raise the claim of error for the first time on appeal." (Ibid.) Further, the ultimate determination whether a child is an Indian child rests with the tribe, not with a parent, the agency, or the juvenile court. (K.H., at p. 596.)
"[I]f the inquiry is inadequate at the outset, the likelihood that the opportunity to gather relevant information will present itself later in the proceeding declines precipitously." (K.H., supra, 84 Cal.App.5th at p. 609.) Thus, "the relevant injury under ICWA is not tied to whether the appealing parent can demonstrate to the juvenile court or a reviewing court a likelihood of success on the merits of whether a child is an Indian child [, under a standard Watson analysis]. The relevant rights under ICWA belong to Indian tribes and they have a statutory right to receive notice where an Indian child may be involved so that they may make that determination. It necessarily follows that [in the context of ICWA and consistent with A.R.,] the prejudice to those rights lies in the failure to gather and record the very information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required, and whether ICWA does or does not apply. Many cases do not proceed beyond the inquiry at the first stage in the compliance process and, therefore, ensuring adequacy and accuracy at this step is critical if the rights of the rights of tribes under ICWA and California law are to be meaningfully safeguarded, as was intended by Congress and our state Legislature." (Id. at p. 591.)
As we explained in K.H., "where 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." (K.H., supra, 84 Cal.App.5th at p. 610.) Here, the agency's inquiry, limited only to mother and father "fell well short of that required to gather the information needed to meaningfully safeguard the rights of the tribes, as intended under ICWA and California law." (Id. at p. 620.) "Where a record is silent or nearly silent with respect to an ICWA inquiry at the first step, a finding of harmlessness necessarily rests on speculation" and "is at odds with the statutory protections that ICWA and California law intend to afford Indian children and Indian tribes." (Id. at p. 611.) Therefore, the error is prejudicial.
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the agency to comply with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b) and (e), and rule 5.481(a)(5). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, the court shall reinstate its ICWA finding. In all other respects, the court's orders terminating mother and father's parental rights are affirmed.
[*] Before Detjen, Acting P. J., Meehan, J. and DeSantos, J.