Opinion
E082139
01-17-2024
In re A.S., a Person Coming Under the Juvenile Court Law. v. M.S., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIJ1600526 Dorothy McLaughlin, Judge. Reversed and remanded with directions.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I.
INTRODUCTION
M.S. (Mother) appeals from the juvenile court's order terminating parental rights as to her two-year-old daughter A.S. Mother contends the juvenile court erred by failing to conduct any analysis under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), and In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) before finding the beneficial parental relationship exception to the termination of parental rights did not apply. Mother also argues that the juvenile court and the Riverside County Department of Public Social Services (DPSS) failed to comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related state law. DPSS's counsel agrees the juvenile court was provided with little information concerning Mother's visitations with A.S. and that DPSS failed to conduct a meaningful ICWA inquiry of all readily available maternal relatives. DPSS thus concedes the matter must be remanded. We also agree. Accordingly, we reverse and remand the matter with directions.
Father is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin J.).)
II.
FACTUAL AND PROCEDURAL BACKGROUND
Mother is the mother of six children. Mother lost custody of her five older children due to substance abuse. This case involves Mother's youngest child, A.S., who was eventually detained when she was four months old in April 2022 due to Mother's criminal history and her history with child protective services and substance abuse. Mother was on probation, participating in services, and testing negative for drugs.
A section 300 petition was filed on behalf of A.S. in February 2022. Father's whereabouts were unknown. A.S. remained in Mother's care. The social worker reported that ICWA may apply. Mother reported in January 2022 that neither she nor A.S. had Native American ancestry. Mother did not believe that Father had Indian ancestry.
On March 14, 2022, Mother filed a Judicial Council ICWA-020 Parental Notification of Indian Status form (ICWA-020) indicating she had no Native American ancestry.
The detention hearing was held on March 14, 2022. Mother was present. Father was not present. Mother's counsel noted that Mother had filed an ICWA-020 form and that she had no Native American heritage. The juvenile court noted "the denial of any Indian ancestry." The court maintained A.S. in Mother's custody and DPSS was ordered to provide services to Mother.
DPSS recommended that the allegations in the petition be found true and that A.S. remain in Mother's care on family maintenance services. DPSS noted that Father was not entitled to services as a non-custodial parent. As to ICWA, DPSS reported that ICWA does or may apply. On March 24, 2022, Mother denied Native American ancestry, but claimed Father had Native American ancestry through the Cherokee tribe. Father's whereabouts remained unknown. Mother did not provide any contact information or address for Father. She, however, provided the social worker with Father's family's contact information. The social worker spoke with Father's sister on March 24, 2022. Mother continued to participate in an outpatient substance abuse program and therapeutic services but needed housing assistance.
The juvenile court sustained the section 300 petition on April 13, 2022, and declared A.S. a dependent of the court. The court maintained A.S. in Mother's custody and provided her with family maintenance services. Father was denied services.
Unfortunately, eight days later on April 21, 2022, DPSS filed a section 387 petition to remove A.S. from Mother's custody as Mother had relapsed. Mother admitted to using methamphetamines on April 11, 2022, while continuing to participate in substance abuse treatment. Mother failed to appear for an on-demand drug test on April 13, 2022, and failed to contact the social worker on April 18, 2022, as requested. Mother continued to have unstable housing and was found living with her boyfriend's family. The boyfriend was previously on probation for multiple violent offenses. When the social worker contacted Mother at the boyfriend's address, both Mother and the boyfriend's relatives refused to allow the social worker access in the home to determine A.S.'s safety. A.S. was taken into protective custody via a warrant pursuant to section 340 with the assistance of law enforcement on April 19, 2022.
According to the Judicial Council ICWA-010(A) inquiry form attached to the section 387 petition, DPSS noted that an inquiry gave them reason to believe the child is or may be an Indian child and that the child is or may be a member of the Cherokee tribe. Father's whereabouts remained unknown, thus a statement from him regarding Indian ancestry was unavailable.
On April 22, 2022, Mother filed an ICWA-020 form stating that one or more of her relatives is or was a member of a Cherokee tribe.
The detention hearing on the section 387 petition was held on April 22, 2022. Mother and a maternal aunt were present for the hearing. Father was not present. Mother's counsel acknowledged that Mother had filed an ICWA-020 form and requested placement assessment of the maternal grandmother and a nonrelative extended family member, C.R. The juvenile court recalled the protective custody warrant, detained A.S. from Mother's custody, and provided Mother with supervised visits twice per week for one hour. The court adopted DPSS's proposed findings that ICWA may apply and that there was reason to know an Indian child is involved. DPSS was to provide notice to all identified tribes and the Bureau of Indian Affairs (BIA) and assess the maternal grandmother and the nonrelative for placement.
Father's whereabouts remained unknown and DPSS did not have any contact information for him. On May 5, 2022, the social worker spoke with Father's sister, paternal aunt P.T., who indicated their grandfather had Native American ancestry. The paternal aunt did not provide any further details. The paternal aunt requested placement of A.S., and on May 11, 2022, the child was placed in her care.
On May 27, 2022, the juvenile court found true the allegations in the section 387 petition and continued the matter for disposition to allow DPSS to complete a best interest analysis as to whether or not reunification services were in the child's best interest. The court also found that the ICWA may apply and noted DPSS's inquiry was ongoing.
During this hearing, Mother's parental rights to A.S.'s older half sibling were terminated.
DPSS recommended that reunification services be denied to Mother and that a section 366.26 hearing be set. Since May 2022, Mother had failed to maintain contact with DPSS and it was unknown whether she was participating in services. In addition, she failed to participate in an on-demand drug test, and it appeared that she failed to benefit from the services provided to her.
The contested dispositional hearing on the section 387 petition was held on July 12, 2022. Mother was not present. The juvenile court denied Mother reunification services pursuant to section 361.5, subdivision (b)(10), (11), and (13). Mother's supervised visits were reduced to once per month. The juvenile court noted that ICWA may apply.
On September 9, 2022, DPSS filed "Noticing Documentation" (notice) in regard to its informal "ICWA Further Inquiry Letter[s]" sent to the Cherokee tribes. The document included a copy of its email to the Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians asking whether A.S. was an Indian child. The email to the Cherokee tribes included an attachment with Mother's name and date of birth but indicated in the column for tribe name that it "Does Not Apply." The name C.R. was provided but with no associated information, like how she was related to A.S. The attachment also included Father's names and date of birth, as well as other paternal relative information for paternal aunt P.T., the paternal grandmother, and the paternal grandfather. On September 8, 2022, the Cherokee Nation responded via email indicating that neither parent nor A.S. were enrolled in the Cherokee Nation, A.S. was not an Indian child, and the tribe would not be intervening. DPSS's section 366.26 report recommended that the court find ICWA did not apply.
Father made his first appearance, in custody, before the juvenile court on November 2, 2022, and the court ordered Father to undergo a paternity test. On this same date, Father filed an ICWA-020 form indicating that he had Apache Indian heritage from Texas and Arizona. The juvenile court found that ICWA may apply and ordered DPSS to complete further inquiry pursuant to section 224.2, subdivision (e).
At a hearing on November 9, 2022, Mother, Father, paternal aunt P.T., and an adult paternal cousin were present. Father's trial counsel reminded the juvenile court that Father reported he may have Apache ancestry and that there was a pending ICWA issue.
The court thereafter inquired of Mother and the paternal relatives whether they had or were aware of any Native American ancestry. Mother responded, "Not on this side of the border. We're through Mexico." Paternal aunt P.T. and the paternal cousin stated that they were not aware of having any Native American ancestry. The court adopted the recommendations in DPSS's section 366.26 report that ICWA did not apply and continued the matter.
The continued hearing was held on December 9, 2022. The parents, paternal aunt P.T., the paternal grandmother, and a maternal cousin were present. On this same date, Father filed an ICWA-020 form stating that he had Apache Indian heritage through Oklahoma and Arizona. During the proceedings, the paternal grandmother reported that her family had "Apache blood" through her father. The maternal cousin reported that her family did not have Native American ancestry. The court made no further finding or order about the applicability of ICWA. However, the court's minute order for the proceedings reflects that the juvenile court asked each participant if they knew whether the child was an Indian child and determined that there was no new information to suggest that ICWA applied. DPSS's counsel noted that Father's paternity test revealed that he was the biological father of A.S. No parties objected as to paternity and the court found Father to be the biological father of A.S.
Mother reportedly completed a probation drug test on January 23, 2023, and tested negative for all substances. She was, however, under the influence of alcohol at the time of the test. Mother intended to move in with the maternal grandmother who lived in Tulare County. On January 24, 2023, Mother was arrested for disorderly and lewd conduct.
DPSS filed another notice on January 27, 2023, with a copy of the updated January 25, 2023, email sent to the Cherokee Nation and Tonto Apache Indian Tribe. The email contained an attachment with paternal relative information which included the information that their family may have Apache Indian heritage. Also submitted were receipts for a mailing sent on January 25, 2023, to the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, BIA, Apache Tribe of Oklahoma, Fort Sill Apache Tribe, Jicarilla Apache Nation, San Carlos Apache Tribe, Tonto Apache Tribe of Arizona, Yavapai Apache Nation, Mescalero Apache Tribe, and White Mountain Apache, which appeared to include the attachment with paternal relative information. Mother's reported heritage with the Cherokee tribe was not mentioned and the information noted that no Indian tribe applied. Further, no maternal relatives were identified, other than C.R., whose relation to Mother was not specified. The only new information included in the relative information attachment was the addition of possible Apache Indian heritage on Father's side of the family.
On March 10, 2023, DPSS filed a third notice to provide copies of response letters received from the United Keetoowah Band of Cherokee Indians and the White Mountain Apache Tribe. The letters indicated that neither Father nor A.S. was a member of the tribe or eligible for enrollment.
At a hearing on March 13, 2023, paternal aunt P.T. and a paternal uncle were present. In response to the court's further ICWA inquiry, the paternal aunt reported that she was not aware her family had Native American heritage and that she had no new information to provide. Paternal uncle R.A. stated that he was not aware that his family had any Native American ancestry, however there was "hearsay" that his grandfather A.M. had Apache Indian heritage plus heritage with another Indian tribe that he could not recall the name of. The court ordered DPSS to follow up on this information.
DPSS submitted a fourth notice on May 19, 2023, which included letters from the Cherokee Nation and the Mescalero Apache Tribe reporting that A.S. was not eligible for enrollment.
At a hearing on June 12, 2023, paternal aunt P.T. and the paternal uncle were present, and the juvenile court again inquired as to their Native American ancestry. The paternal aunt informed the court that there was talk about her family having Native American ancestry, but nothing was ever "verified" over the last few court dates. The court asked her if it was fair to say that as far as she knew there was no Native American ancestry in her background, and she replied, "That's fair to say." The paternal uncle responded, "No," when asked if he was aware of Native American ancestry in his background.
On September 1, 2023, Mother filed a section 388 petition requesting reunification services with liberalizations to placement. She claimed that she had maintained her sobriety for a substantial amount of time, was employed, and was regularly visiting A.S.
By the section 366.26 hearing, A.S. remained with her paternal aunt P.T. (the prospective adoptive parent), who was committed to adopting her and providing her with stability. A.S. was healthy, developmentally on target, happy, and bonded to the paternal aunt and her children. Mother had supervised visits with A.S. with no concerns. Mother was appropriate and on time for monthly visits.
The section 366.26 hearing was held on September 11, 2023. At that time, the court also heard Mother's section 388 petition. Mother, the paternal aunt, and a maternal aunt were present. Father was not present. Mother's counsel asked that the matter be continued because some of Mother's visits had been scheduled during court proceedings and she had been entitled to make-up visits. The court denied the request. Following argument concerning the section 388 petition, the court denied Mother's section 388 petition.
During the proceedings, the juvenile court asked Mother if she was aware whether she had any Native American ancestry in her background. She responded, "Not on this side of the border, no." The court also inquired of Mother's aunt, J.M., if she had Native American ancestry, and she stated that she did on her father's side in Alaska but was unsure with which tribe he was affiliated. An unidentified paternal aunt (presumably paternal aunt P.T.) reported that she was not aware that her family had any Native American ancestry. An unidentified paternal stepbrother stated that he was not aware that his family had Native American ancestry. The juvenile court ordered the Department to "follow up with any further inquiry about the ICWA information that was provided today's date about Alaska Native" which was provided by the maternal aunt.
The court then proceeded to the section 366.26 hearing. Mother's counsel urged the juvenile court to consider the parental beneficial relationship exception under section 366.26, subdivision (c)(1)(B)(i), as Mother shared a bond with A.S. and had maintained regular visitation with her, and thus requested legal guardianship. Finding A.S. to be adoptable, the court found that no exceptions applied and terminated parental rights. Mother timely appealed.
III.
DISCUSSION
A. Parental Beneficial Relationship Exception
Mother contends the juvenile court erred by failing to conduct any analysis under section 366.26, subdivision (c)(1)(B)(i), and Caden C., supra, 11 Cal.5th 614 before finding the beneficial parental relationship exception to the termination of parental rights did not apply. Specifically, she asserts no analysis of her visits and relationship with A.S. was made, and thus requests the order terminating parental rights be reversed.
DPSS does not concede that the beneficial relationship exception applies to Mother's case but acknowledges DPSS provided the juvenile court with "little substantive information regarding Mother's visits" with A.S., and the court did not address the substance or quality of Mother's visits at the 366.26 hearing. DPSS thus agrees the order terminating parental rights should be reversed and the matter remanded for the juvenile court to conduct a new hearing pursuant to section 366.26.
"At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for a dependent child." (In re C.P. (2023) 91 Cal.App.5th 145, 153; § 366.26, subd. (b) [At a hearing under section 366.26, court must select and implement a permanent plan for a dependent child, with the express purpose of providing the child a "stable, permanent" home.].) "In order of preference the choices are: (1) terminate parental rights and order that the child be placed for adoption . . .; (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care." (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) "If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans." (In re Collin E. (2018) 25 Cal.App.5th 647, 663 (Collin E.).) Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1).)
"If the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)." (Collin E., supra, 25 Cal.App.5th at p. 663.) The statutory exceptions to the termination of parental rights and adoption "merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (Celine R., supra, 31 Cal.4th at p. 53, italics omitted.)
The dependency statutes embody a presumptive rule that, after reunification efforts have failed, parental rights must be terminated in order to free a child for adoption. (Caden C., supra, 11 Cal.5th at pp. 630-631.) The statutes, however, provide an exception where "'[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).)" (Caden C., at p. 631.) "[I]n assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child's relationship with the parent outweighs the benefit to the child of placement in a new adoptive home." (Id. at p. 632, italics omitted.) Throughout the analysis, "the focus is on the best interests of the child." (Ibid.)
"As summarized in Caden C., 'the parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show 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 the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption.'" (In re J.D. (2021) 70 Cal.App.5th 833, 852 (J.D.), quoting Caden C., supra, 11 Cal.5th at pp. 636-637.) Section 366.26 does not require a juvenile court to make express factual findings in determining that the parental benefit exception does not apply. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156; see Cal. Rules of Court, rule 5.725(d).)
In J.D., supra, 70 Cal.App.5th 833, the Court of Appeal 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 reversed and remanded for a new section 366.26 hearing in accordance with Caden C. (J.D., at pp. 865, 870.) The court in particular observed that the juvenile court had appeared to improperly consider "the mere fact [that the 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.)
Similarly in In re B.D. (2021) 66 Cal.App.5th 1218, 1222 (B.D.), our colleagues in Division One reversed an order made before Caden C. finding that the parent-child beneficial relationship exception did not apply and remanded for a new section 366.26 hearing in light of Caden C. (B.D., at p. 1231.) The B.D. court concluded that the juvenile court had "considered improper factors at the second step of the analysis" (id. at p. 1230), because it "relied heavily, if not exclusively, on the fact that the parents had not completed their reunification plans and were unable to care for the children based on their long-term and continued substance abuse" (id. at p. 1228) and found "concerning" the juvenile court's references to "the paternal grandmother providing for the children's daily needs [and] whether the parents occupied a 'parental role' or whether a 'parental relationship' existed," because it was unclear to what extent the court had relied on these improper considerations in evaluating the second part of the test. (Id. at p. 1231.)
In this case, the record is insufficient to show whether Mother qualified for the beneficial parental relationship exception. The record is devoid of Mother's visits and relationship with A.S. or the quality of her visits with A.S. In addition, the juvenile court failed to conduct any analysis under Caden C., and simply stated "none of the exceptions contained in . . . [s]ection 366.26[, subdivision] (c)(1) (A and/or B) are applicable in this case." Accordingly, we agree with the parties, and reverse the order terminating parental rights and remand the matter to the juvenile court to conduct a new hearing pursuant to section 366.26. DPSS is directed to provide information about the frequency and quality of Mother's visits with A.S.
B. ICWA
Mother also argues that the juvenile court and DPSS failed to comply with the ICWA and related state law by failing to interview all readily available maternal relatives and failing to include maternal information to the informal inquiries made to the tribes. DPSS concedes and agrees to a "conditional reversal and remand for the limited purpose of ensuring that a proper inquiry pursuant to the ICWA and related California statutes is accomplished."
"ICWA establishes minimum federal standards that a state court must follow before removing Indian children from their families. [Citation.] California law implementing ICWA also imposes requirements to protect the rights of Indian children, their families, and their tribes." (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky R.); §§ 224-224.6; see In re Abbigail A. (2016) 1 Cal.5th 83, 91 ["persistent noncompliance with ICWA led the Legislature in 2006 to 'incorporate[ ] ICWA's requirements into California statutory law'"].) "An Indian child is any unmarried person under 18 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); see § 224.1, subd. (b).)" (Ricky R., at p. 678.)
Typically, it "is not self-evident whether a child is an Indian child," so "both federal and state law mandate certain inquiries to be made in each case." (Benjamin M., supra, 70 Cal.App.5th at p. 741.) "'"'Federal regulations implementing ICWA . . . require that state courts "ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child." [Citation.] The court must also "instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child."'"' [Citations.] 'State law, however, more broadly 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 J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.).)
Under California law, the juvenile court and county child welfare department have "an affirmative and continuing duty to inquire" whether a child subject to a section 300 petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.); Ricky R., supra, 82 Cal.App.5th at p. 678; In re Isaiah W. (2016) 1 Cal.5th 1, 14 ["juvenile court has an affirmative and continuing duty in all dependency proceedings to inquire into a child's Indian status"].) "This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (D.F., at p. 566.)
The juvenile court must inquire at each party's first appearance, whether any participant in the proceeding "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) Part of the initial inquiry also includes requiring each party to complete an ICWA-020, Parental Notification of Indian Status form. (Cal. Rules of Court, rule 5.481(a)(2)(C).) In addition, when an agency takes a child into temporary custody, the agency must ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child," and the reporting party 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).)
When the initial inquiry gives the juvenile court or the department "reason to believe that an Indian child is involved" (§ 224.2, subd. (e)), the court and social worker must conduct further inquiry to "determine whether there is reason to know a child is an Indian child." (§ 224.2, subd. (e)(2); see In re J.S. (2021) 62 Cal.App.5th 678, 686.) The department "does not discharge their duty of further inquiry until they make a 'meaningful effort' to locate and interview extended family members and to contact BIA and the tribes." (In re K.T. (2022) 76 Cal.App.5th 732, 744 (K.T.).) At this stage, contact with a tribe "shall, at a minimum," include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of ICWA notice, and "sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case." (§ 224.2, subd. (e)(2)(C).)
Finally, if the further inquiry "'"'results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.'"'" (J.C., supra, 77 Cal.App.5th at p. 78; accord, Ricky R., supra, 82 Cal.App.5th at p. 679 ["The duty to provide notice arises only if [the agency] or the court 'knows or has reason to know that an Indian child is involved.'"]; 25 U.S.C. § 1912(a); § 224.3, subd. (a).) Federal regulations define the grounds for reason to know that an Indian child is involved (25 C.F.R. § 23.107(c)(1)-(6)), and state law conforms to that definition (§ 224.2, subd. (d)(1)-(6)).
"Notice enables the tribes 'to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction over, the matter.'" (Ricky R., supra, 82 Cal.App.5th at p. 679.) The notice must include enough information for the tribe to "conduct a meaningful review of its records to determine the child's eligibility for membership" (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576), including the identifying information for the child's biological parents, grandparents, and great-grandparents, to the extent known (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; § 224.3, subd. (a)(5)(C)).
"The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.]" (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.) "'"If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence."'" (J.C., supra, 77 Cal.App.5th at p. 78.) A juvenile court finding that ICWA is inapplicable generally implies that the department and court have fulfilled their duty to inquire. (See In re Austin J. (2020) 47 Cal.App.5th 870, 885 [A finding that "ICWA does not apply" implies social workers and 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."].) We review ICWA findings for substantial evidence, but "where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied." (In re D.S. (2020) 46 Cal.App.5th 1041, 1051; see In re A.M. (2020) 47 Cal.App.5th 303, 314.)
Here, we agree with Mother that DPSS failed to complete their duty of further inquiry by failing to gather all maternal family information required under sections 224.2, subdivision (e)(2)(A), and 224.3, subdivision (a)(5). Mother's claim she had Indian ancestry with the Cherokee tribe and the maternal great-aunt J.M.'s information that the child's maternal great-grandfather had Native American ancestry "through Alaska" was sufficient to establish a reason to believe A.S. may be an Indian child, thus triggering the duty to conduct further inquiry. (§ 224.2, subd. (e); K.T., supra, 76 Cal.App.5th at pp. 743-744 [the mother's statements of Blackfeet and Cherokee heritage and the father's assertions of Blackfeet, Cherokee, and/or Choctaw heritage was sufficient to require further inquiry]; In re Josiah T. (2021) 71 Cal.App.5th 388, 404 [the paternal grandmother's claim she had Cherokee ancestry triggered further inquiry]; In re T.G. (2020) 58 Cal.App.5th 275, 292 [the mother's ICWA-020 form indicating Cherokee ancestry on her maternal side and possible Indian ancestry of an unknown tribe through her paternal grandfather required further inquiry].) DPSS concedes that they did not investigate the maternal great-aunt's information. The record also shows that DPSS failed to inquire of the maternal grandmother. In addition, although DPSS had informally noticed the tribes claimed by the paternal family, the notices were incomplete or missing information. DPSS also did not contact the BIA or the State Department of Social Services for assistance in identifying the tribe(s) in which the child may be eligible for membership through the maternal great-grandfather. (§ 224.2, subd. (e)(2)(B).)
Thus, we vacate the juvenile court's implied finding that ICWA does not apply, reverse the order terminating parental rights, and remand for compliance with ICWA and related California law.
IV.
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded for the juvenile court to conduct a new section 366.26 hearing consistent with Caden C., supra, 11 Cal.5th 614, and the views expressed in this opinion. The matter is also remanded to the juvenile court for full compliance with the inquiry and notice provisions of the ICWA and related California law. On remand, the juvenile court shall order DPSS to provide information about the frequency and quality of Mother's visits with A.S and comply with the inquiry and notice provisions of the ICWA and related California law.
We concur: McKINSTER Acting P. J., MILLER J.