Opinion
H050480
07-19-2023
In re L.W. et al., a Person Coming Under the Juvenile Court Law. v. T.W. et al., Defendants and Appellants. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. Nos. 21JU00018, 21JU00019)
LIE, J.
Appellants V.D. (mother) and T.W. (father) appeal from the juvenile court's order denying mother's Welfare and Institutions Code section 388 petition seeking reinstatement of reunification services and the order following a section 366.26 hearing terminating their parental rights to their two children, Le.W. and La.W. Both parents argue that the trial court abused its discretion in concluding that reinstating mother's reunification services would not be in the children's best interests and by determining that the parental-benefit exception to adoption did not apply as to mother. Both parents also argue that the juvenile court erroneously found that the Indian Child Welfare Act (ICWA) was inapplicable. We find merit only in the parents' arguments pertaining to the juvenile court's ICWA finding. We conditionally reverse the order terminating parental rights and remand for the limited purpose of compliance with ICWA. We affirm the juvenile court's order denying mother's section 388 petition.
Unspecified statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
A. The Petition and Events Leading to Removal
On February 2, 2021, the Santa Cruz County Human Services Department (Department) petitioned the juvenile court to take jurisdiction of Le.W. (son, born 2016) and La.W. (daughter, born 2017). The Department alleged that mother and father abused controlled substances, which "periodically render[e]d them incapable of providing appropriate care and supervision" for the children under section 300, subdivision (b)(1). Specifically, the parents had been arrested in January 2021 for child endangerment after they left the children in their car while using drugs and entrusted the children to strangers who were also under the influence.
On February 4, 2021, the juvenile court ordered the children detained and placed in the temporary care of the Department, subject to a minimum of three supervised visits per week for the parents.
B. The Jurisdiction/Disposition Report and Hearing
On February 23, 2021, the Department filed its jurisdiction/disposition report. According to the authoring social worker, when the parents were arrested in January 2021, law enforcement had responded after receiving a report that a child was crying inside a car without anyone present. When officers arrived, father was holding one of the children, who was wearing only "some type of underwear and a t-shirt" in the 46-degree Fahrenheit weather. The other child had pants, shoes, and a shirt, but officers found both children to be "severely under dressed" for the cold weather. Officers saw heroin and drug paraphernalia inside the car that were accessible to the children. Both parents appeared to be under the influence of "[central nervous system] depressant[s]."
The social worker further stated in the jurisdiction/disposition report that the children had been placed with a resource family and "cr[ied]" for their parents but were slowly adjusting. The children had been observed hitting and biting themselves, each other, and other people. Despite contrary reports from law enforcement and from family members who said they used drugs, both parents denied they had a substance abuse problem. Several relatives, including the paternal grandfather and two paternal aunts, T.H. and S.B., had come forward to request placement of the children. The children were temporarily placed with T.H. from February 5 to 17, 2021, when T.H. informed the social worker that she could not provide the care the children needed. The children were then placed with a resource family while the Department assessed S.B. and paternal uncle's home.
On March 16, 2021, the juvenile court found true the allegations of the section 300 petitions, ordered the children's removal from parental custody and adjudged both children dependents of the juvenile court. The juvenile court ordered reunification services and a minimum of two supervised visits a week for both parents.
C. The Events Before the Six-Month Review Hearing
On April 14, 2021, both parents were accepted into the Family Preservation Courtprogram, though both parents were later terminated from the program due to absences- mother was terminated from the program in July 2021 and father was terminated in August 2021.
According to the Department's website, "The Family Preservation Court (FPC) program is a voluntary, court-supervised, comprehensive treatment program for parents who have children involved in the dependency court system and Family and Children's Services (also known as Child Welfare)." (<https://www.santacruzhealth.org/HSAHome/HSADivisions/BehavioralHealth/Substanc eUseDisordersServices/FamilyPreservationCourt.aspx> [as of July 19, 2023], archived at: <http://perma.cc/3288-FK2X>.)
In August 2021, the Department filed its six-month review hearing report. In it, the Department recommended that Le.W. and La.W. remain dependents of the juvenile court and that both parents receive an additional six months of reunification services. According to the author, both parents were currently without a home and were primarily sleeping in their car. The parents had struggled to be consistent with their case plan. They had moved out of their sober living environment because things had become "weird" with the house manager. Father had lost his job, and he expressed that he was struggling to stay sober. Mother, during a meeting with the social worker, had exhibited signs of substance abuse, including looking off at random places in the room, displaying slow movement, and picking at her arm. The parents visited their children but did not engage in other case plan activities. However, both parents expressed a willingness to go into a residential treatment program.
The Department reported that the children had been placed with their paternal grandfather starting in April 2021. The children's paternal uncle (father's older brother) and his wife, paternal aunt S.B., helped the paternal grandfather with the children's care, and S.B. drove the children to visit their parents twice a week. The children had developed a close relationship with the couple and called S.B. their "aunt." S.B. drove the children to visits with their parents and usually took them to the beach before driving them back home. Le.W. had started kindergarten, and La.W. was being enrolled in preschool. In the parents' continuing supervised visits, the parents played with the children and demonstrated affection for them, and the children were sad when they had to leave. The social worker could see the love that the parents had for their children and the "deep love" that the children had for their parents. The social worker opined, however, that both parents had a "rough start" in regaining their sobriety, though both also expressed a desire to get sober and had made attempts to seek treatment.
The same month, the court-appointed special advocate (CASA) filed a report recommending that the children remain in their current placement while their parents worked on their case plan. The CASA opined that the children had a positive relationship with their parents, with whom they had bi-weekly visits but had also formed strong relationships with their paternal relatives.
At the six-month review hearing in September 2021, the juvenile court continued reunification services and supervised visits for both parents.
D. The Events Before the 12-Month Review Hearing
In February 2022, the social worker filed a 12-month review hearing report recommending that the parents receive an additional six months of reunification services. The social worker further recommended an interim review in two months to assess the parents' progress with their case plan.
According to the social worker, the parents were still currently homeless and were staying in hotels, with friends, or in their car, but they were awaiting clearance to move into a sober living environment. The parents had recently welcomed a baby boy, who was also a dependent of the juvenile court in a different case. The children were still in the care of their paternal grandfather, though they had also been staying a few nights a week with their paternal uncle and S.B. The paternal grandfather said that he wanted to "transition back into a grandpa role" and slowly shift the children to their paternal uncle and S.B.'s full-time care. The paternal uncle and S.B. were going through the "RFA licensing" process as they had agreed to have the parents' newborn in their care while the parents received reunification services, and the paternal uncle and S.B. were open to care for Le.W. and La.W. fulltime and to either pursue a legal guardianship or adoption.
The report summarized the parents' progress with their case plan. Admitting relapsed heroin use after June 2021, father reported that he resumed methadone treatment in October 2021 and tapered off his heroin use approximately a month and a half thereafter. Qualified for intensive out-patient services, father had participated in sessions three times a week for about a month but was later discharged due to his absences. He later reengaged in intensive outpatient treatment from October to mid-December but was dropped from the program after he was arrested in January 2022. Father had been seeing a therapist but stopped participating, and the referral for therapy was later closed.
Father's January 2022 arrest appears to be a result of his failure to appear in pending criminal cases; the Department's status review report indicates that in November 2021, father was arrested for multiple offenses including driving with a suspended license and possession of marijuana for sale.
Mother reported that she had been sober since December 2021. She tapered off her heroin use in October 2021, once she began methadone treatment and enrolled in intensive outpatient classes three to four times a week; she did not believe that she needed residential treatment. Mother was consistent in participating in outpatient services and had told the social worker that she did not want to use substances again. Mother was due to begin individual therapy, though she canceled her first appointment to meet with the social worker.
As for the parents' contact with the children, the social worker reported that the parents visited the children twice a week under supervision but struggled to arrive on time and occasionally missed some visits. During visits, the parents were loving and nurturing, and they would play a variety of games with their children.
According to the social worker, both parents had struggled to maintain their sobriety and had only been sober for approximately two months as of the date of the report. The Department had offered the parents detox and residential programs, but the parents' fears of leaving one another and experiencing withdrawal symptoms prevented them from utilizing the services. The parents had continued to use illegal substances well into December 2021. Father had been arrested because he was avoiding his probation officer and court hearings. He had also faced significant hurdles when he was erroneously discharged from a first methadone clinic, but he had overcome that challenge by locating and enrolling in treatment with another methadone clinic.
Later in February 2022, the CASA filed a report. The CASA opined that the children were doing well in their current placement and had benefited greatly from the consistency and stability provided by their caregivers, paternal uncle and S.B. The CASA recommended that the parents receive six more months of reunification services and that both children temporarily remain in their current placement.
At the end of February 2022, the Department filed a memo prepared by the social worker updating the juvenile court about the current family situation. According to the memo, since the Department's earlier recommendation for continued reunification services, the Department had received information that both parents had started using illegal substances again in January 2022. The social worker had met with the parents on February 23, 2022, and the parents had been "honest about their struggles and use of heroin and shared they had a really hard time not seeing their children during the month of January, and their pain caused them to 'lapse.'" The parents, however, stated that they had not used heroin since visiting their children four days earlier. Given the parents' substance abuse, the Department recommended that family reunification services be terminated as to both parents and that a section 366.26 hearing be set to determine the permanent plan for the children. The juvenile court set the matter for a contested 12-month review hearing.
On May 5, 2022, S.B. filed a caregiver information form indicating that there was new information about Le.W.'s emotional health. S.B. described that Le.W. had trouble adapting to the structure at school: he was disruptive, had trouble focusing, and exhibited explosive anger. La.W. did not exhibit similar behavior. Both children had told S.B. of having seen father punch holes in walls and throw things at mother and having seen both parents punch each other.
On May 11, 2022, the juvenile court held a contested hearing and settlement conference. At the hearing, the social worker and each parent testified. First, the social worker testified that the parents' visits with the children had initially gone well, but the parents started to show up late. To the social worker's knowledge, father was not in counseling. He was, however, participating in Sobriety Works and "ha[d] been doing well in his participation since late January" of that year. Mother had been in therapy since late January or early February and was also participating in Sobriety Works.
Mother testified that she was participating in intensive outpatient treatment through Sobriety Works and attended group counseling four days a week. She was also participating in methadone treatment. She had been sober since around January. Since February, she was visiting the children about once a week at the park.
Father testified that he had been sober starting around January. He was attending his substance abuse treatment plan four days a week and had been attending before January. According to father, both parents consistently visited the children, though they had some complications with transportation.
At the conclusion of the hearing, the juvenile court found that returning the children to the parents would create a substantial risk of detriment to their safety, protection, or physical and emotional well-being. The juvenile court further found that the parents had been offered and provided with reasonable services. Thereafter, the juvenile court terminated reunification services to both parents and set a section 366.26 hearing for determination of a permanent plan.
E. The Initial Section 366.26 Reports and the Section 388 Petitions
In August 2022, in preparation for the section 366.26 hearing initially set for September, the Department and the CASA filed reports and recommendations. According to the CASA, the children continued to have supervised visits with the parents, and during the CASA's visits with the children, the children often brought up their parents and commented on the visits, the gifts that they received from their parents, or that they missed their parents. The children, however, were also benefiting from the stability provided by their paternal uncle and S.B., which the CASA believed was "invaluable to their developmental and emotional needs." The CASA recommended that the children remain in their current placement and pursue either legal guardianship or adoption with their paternal uncle and S.B., and that the children continue visits with their parents and pursue individual and family therapy.
On August 11, 2022, the Department filed a section 366.26 hearing report recommending that the parents' rights be terminated and that a permanent plan of adoption be established for both children. According to the social worker, the parents' monthly supervised visits with the children generally went well and the parents and children showed love toward each other. However, the social worker described the visits as "interactions with a friend or extended family member" and that the parents' interactions with the children did not rise to the level where there was a "significant meaning and benefit to" the children. The children did not ask for more visitation or contact with their parents or say that they missed their parents, and after visits, the children reportedly moved on easily to the next activity and went about their day without any emotional or behavioral changes or concerns. Both parents promised to call the children and when they did not follow through, the children did not inquire about their parents or ask about the missed phone calls. The children did not ask to see their parents except when visits were arranged.
According to the report, the children were also "securely bonded and attached" to their paternal uncle and S.B., who were "clearly parental figures" to the children. The children interchangeably called S.B. "Mommy" and "Auntie [S.B.]." The social worker opined that the harm from severing the relationship between the children and their parents did not outweigh the benefits of the relationship the children had with their paternal uncle and S.B. The paternal uncle and S.B. had started caring for the children full time starting in March 2022, though they had regular sleepovers and extended time with the children since before the holidays in 2021. According to the social worker, the children looked to the paternal uncle and S.B. to meet their daily needs, and the paternal uncle and S.B. provided them with security, stability, safety, and permanency.
In September 2022, however, mother filed a section 388 petition requesting that the juvenile court vacate the section 366.26 hearing and reinstate reunification services to her. Mother alleged that she was continuing to address and maintain her sobriety, she had participated in an intensive outpatient program, and voluntarily participated in Family Treatment Court in Alameda County. She was now residing in a sober living environment, where she was being drug-tested and attending three NA/AA meetings per week. She was also working part time and was visiting with her children as much as allowed. In an attached letter, mother expressed that it was in her children's best interest to be reunified with their parents; she opined that it hurt the children to see their parents only once a month and the children constantly asked when they would be able to live with the parents.
Under section 388, a parent "or other person having an interest in a child" who is a dependent of the juvenile court can petition the juvenile court upon grounds of a "change of circumstance or new evidence" to "change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (§ 388, subd. (a)(1).)
Attached to mother's section 388 petition was a letter from a counselor at the intensive outpatient program she attended between October 21, 2022, until July 6, 2022. In the letter, the counselor wrote that mother exhibited a great deal of growth and appeared genuinely motivated, attending treatment regularly and participating fully in the treatment process. Also attached was a letter from mother's case manager at the Family Treatment Court, who wrote that she continued to make great progress and was attending outpatient treatment and was continuing to stay focused and motivated to meet her recovery goals. And finally, also attached was a letter from the program director at mother's recovery residence, which requires random testing and attendance at three to six NA/AA meetings or outpatient programs per week. According to the program director, mother had complied with all the rules and requirements while living at the residence and had a positive attitude toward her recovery.
On September 12, 2022, father likewise filed a section 388 petition, requesting that the juvenile court vacate the section 366.26. hearing and reinstate reunification services. According to a letter from the Office of Collaborative Court Services, father was participating in Alameda County Family Treatment Court since May 2022 and had attended treatment at least four times a week and tested negative for all substances every week.
The juvenile court continued the section 366.26 hearing to October and ordered both parents' section 388 petitions heard that same day.
F. The Reports Filed in Anticipation of the Combined Section 388/366.26 Hearing
On October 7, 2022, the CASA filed a memo describing her two visits since her August report. During both visits, the CASA noticed that the children, unlike in previous visits, did not mention their parents. La.W. had started calling S.B. "mommy" and enjoyed school. Although Le.W. had trouble transitioning back to school, his behavior had improved with "structure, consistency, and communication with [his] teacher." S.B. had arranged for Le.W. to be assessed for behavioral therapy. S.B. reported that since the children's last in-person visit with the parents in August, the parents had not been in much contact with the children. Visits were no longer scheduled, and the CASA had not had contact with the parents since the last court date despite having reached out to them.
On October 13, 2022, S.B. filed a caregiver information form reporting that the parents had not "reached out to be active participants in the children's lives," though they made weekly calls to the children and would chat with them about "things that a 6- and a 5-year-old are capable of talking about." The parents usually asked the children how they were doing, how school was, and would raise the children's expectations with talk of buying toys but show up to visits empty-handed. According to S.B., the parents had made "no effort in supporting the children's schooling." The parents had not asked about the children's behaviors and had not checked in to see how the children were adapting in their absence. Le.W. continued to struggle with some behavioral issues at school, which S.B. had discussed with the parents. The parents, however, did not talk to Le.W. about his behavior and did not follow up with S.B. about how Le.W. was doing.
On October 17, 2022, the Department filed an addendum report opposing the section 388 petitions and continuing to recommend termination of parental rights and a permanent plan of adoption for both children. The social worker acknowledged that the parents had engaged in services and were in the early stages of sobriety, but the children's needs for permanency and stability outweighed the possibility of future reunification. Although the children enjoyed their time with their parents, the social worker reported their relationship "still exists as a visiting relationship, and does not rise to the level of a parenting relationship." The social worker opined that visits were loving, but it was "best described from a child's perspective as interactions with a friend or extended family member."
That same day, father filed an attachment to his section 388 petition, which included a letter from the Alameda County Family Treatment Court indicating that he continued to attend treatment at least four times a week and had been testing negative for all substances.
G. The Combined Sections 388 and 366.26 Hearing
On October 19, 2022, the juvenile court held a combined hearing on the section 388 petitions and to select the permanent plan under section 366.26. The parents both testified at the hearing; the Department submitted on written reports.
Mother testified that she was participating in substance abuse treatment services, was in outpatient treatment, and was residing in a sober living environment. She was also participating in Family Treatment Court. She had recently started seeing a therapist as she had been unable to get an appointment before. She was visiting her children monthly, and the visits went well; she and the children "ha[d] a lot of fun," and the children said that they missed their parents. Le.W. sometimes had issues with school, and mother "tr[ied] to talk to him about that"; La.W. called her "[M]ommy."
Father testified that he was also living in a sober living environment, and he attended treatment at least four times a week. He had been on a waitlist for therapy and had finally secured a spot. He had monthly visitation with the children, and he played with the children during visits and asked them how they were doing. The children called him "Daddy."
After considering the parents' testimony and the reports submitted by the Department, the juvenile court noted that, absent evidence of any positive drug tests since May of that year, the parents may have been sober for about five months. The juvenile court, however, denied both section 388 petitions, reasoning in part that there were only "changing" circumstances, not "changed" circumstances warranting modification of its prior order terminating services, and that resuming reunification services now would not be in the children's best interests.
Moving on to the section 366.26 issues, the juvenile court found by clear and convincing evidence that the children were adoptable, and further determined that the beneficial-relationship exception to adoption did not apply. The juvenile court noted that the parents regularly visited the children, but the parents had not proven a substantial relationship with the children. The juvenile court found that contrary to the parents' testimony, there was evidence that suggested that the children had an "out of sight[,] out of mind" relationship with the parents. Moreover, the juvenile court determined that the benefits of a new adoptive family would not be outweighed by the detriment to losing the parental relationship.
The juvenile court accordingly terminated parental rights as to both parents. The juvenile court thereafter referred the case to the Consortium for Children to work on a postadoption contact agreement. Both parents timely appealed.
II. DISCUSSION
A. Denial of Mother's Section 388 Petition [ ]
We address only the denial of mother's section 388 petition, as father did not separately argue on appeal that the juvenile court erred in denying his section 388 petition. Father specifically joined and adopted mother's briefs to the extent those arguments inured to his benefit-in particular, the arguments pertaining to the termination of mother's parental rights, which we address, post.
The parents argue on appeal that the juvenile court erred in denying mother's section 388 petition seeking to reinstate reunification services. We conclude that the juvenile court did not abuse its discretion in denying mother's section 388 petition.
1. Legal Principles
Under section 388, a parent may petition to change or set aside a prior court order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1).) "The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interest of the child." (In re Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.).) That is, "[i]t is not enough for [the petitioner] to show just a genuine change of circumstances under the statute. The [petitioner] must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).)
"After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
The juvenile court has broad discretion to grant or deny a section 388 petition, and its "ruling should not be disturbed on appeal unless an abuse of discretion is clearly established." (Stephanie M., supra, 7 Cal.4th at p. 318.) We will not reverse the juvenile court's order unless it"' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" (Ibid.) We review the juvenile court's factual findings for substantial evidence. (In re J.M. (2020) 50 Cal.App.5th 833, 846 (J.M.).)
2. Analysis
The parents argue that the juvenile court erred by finding that mother's section 388 petition alleged only "changing" circumstances, as opposed to changed circumstances. The parents point to evidence in the record that by the time of the hearing, mother had enrolled in an intensive outpatient program, was attending Sobriety Works, was participating in Family Treatment Court, and was then residing in a sober living environment.
We agree that the record reflects that mother had made progress in her case plan. And in fact, the juvenile court acknowledged that, at the time of the section 366.26 hearing, there was a "five-month process of relative success by both parents." However, despite mother's commendable efforts, the juvenile court reasonably concluded that the circumstances were still changing in light of her history of relapses and difficulty maintaining her sobriety through the dependency process. (In re Justice P. (2004) 123 Cal.App.4th 181, 189 [in ruling on section 388 petition, a juvenile court may consider the entire factual and procedural history of the case].) The parents argue that mother did not have a long-standing history of relapsing, but her five-month period of recent sobriety stood in contrast to her history of substance abuse- the children were removed in February 2021 due to the parents' substance abuse, and mother had admitted using heroin on and off during the early stages of the dependency proceedings, though she later represented that she had been sober starting in December 2021. But she subsequently disclosed that she had relapsed in January 2022. And prior to this recent period of sobriety, mother had been previously terminated from programs such as Family Preservation Court due to nonparticipation and had, in the past, been inconsistent with her case plan.
Based on the foregoing, the juvenile court did not abuse its discretion in determining that mother's circumstances were still in flux. (See J.M., supra, 50 Cal.App.5th at p. 846; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [juvenile court did not abuse discretion in denying section 388 petition based on absence of changed circumstance when recent efforts at rehabilitation were only three months old]; In re Clifton B. (2000) 81 Cal.App.4th 415, 423 [juvenile court did not abuse discretion given parents long history of addiction, despite seven months of sobriety].) And as a result, the juvenile court's decision did not exceed the bounds of reason. (See Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Moreover, even if we assume that mother met her burden to demonstrate a substantial change in circumstance, she has not met her additional burden to show that reunification services would be in the children's best interests. (See Mickel O., supra, 197 Cal.App.4th at p. 615.) Although mother was generally consistent in visiting the children and the children largely enjoyed visits, she brought her section 388 petition after reunification services had already been terminated. At this juncture, the focus necessarily shifted to the children's need for permanency and stability, and "there is a rebuttable presumption that continued foster care is in the best interests of the child." (Stephanie M., supra, 7 Cal.4th at p. 317.) It was then mother's burden to establish how her proposed modification "[would] advance the child[ren]'s need for permanency and stability." (In re J.C. (2014) 226 Cal.App.4th 503, 527 (J.C.).)
Both Le.W. and La.W. had been found to be within the juvenile court's jurisdiction because of their parents' substance abuse. Since being dependents of the court, nearly 20 months have passed-from February 2021 to October 2022. And during that time period, mother went through periods of sobriety and periods of relapse where she was inconsistent with her case plan, was terminated from services, and was unresponsive. Although her current period of sobriety is a positive step, the children were also doing well with their placement with their paternal uncle and S.B., who were supporting their needs. The juvenile court thus did not err in determining that restarting reunification services would not be in the children's best interests of permanency and stability, as doing so would only serve to delay the children's adoption. Nor was it unreasonable for the juvenile court to be impliedly skeptical of the possibility of the children's successful reunification with their mother and the children, given her previous struggles with sobriety. And here, the children's "best interests are not to further delay permanency and stability in favor of rewarding [m]other for her hard work and efforts to reunify." (See J.C., supra, 226 Cal.App.4th at p. 527 .)
The parents argue that we should apply the factors set forth in Kimberly F., supra, 56 Cal.App.4th 519 to determine whether reunification services would be in the children's best interests. The factors outlined in Kimberly F. include: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Id. at p. 532.) Assuming that the Kimberly F. factors apply, mother has not demonstrated that granting her section 388 petition would be in the children's best interests when considering the pertinent factors. The problems leading to the dependency were serious and not merely situational, as were the unsanitary living conditions the mother in Kimberly F. had remedied (Kimberly F., supra, 56 Cal.App.4th at pp. 526-527)-the parents' substance abuse issues led to the children's neglect. Here, mother also struggled with maintaining her sobriety throughout the reunification period. Although it is undisputed that her visits with the children were pleasant, the social worker described mother's interaction with the children as a "visiting" relationship, more akin to a friend or extended family member. On the other hand, the children had a close relationship and bond with their caretakers, paternal uncle and S.B. Furthermore, the juvenile court could have reasonably concluded that the problems that led to the dependency had not been ameliorated to a great degree given the parents' history of relapse, despite mother's positive strides in the months leading up to the hearing.
Some courts have questioned the applicability of the factors set forth in Kimberly F. in post-reunification proceedings. In J.C., supra, 226 Cal.App.4th 503, the Fourth District noted that the Kimberly F. factors "do not take into account the Supreme Court's analysis in Stephanie M., applicable after reunification efforts have been terminated." (J.C., supra, at p. 527.) In Stephanie M., the California Supreme Court concluded that post-reunification, the focus is on the children's need for permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.)
Accordingly, the juvenile court could have reasonably concluded that on balance, the Kimberly F. factors did not weigh in favor of granting the section 388 petition. As we may not reverse the juvenile court's decision on a section 388 petition unless its decision exceeds the bound of reason or is patently absurd, and because we cannot substitute our decision for that of the juvenile court, we must affirm the juvenile court's order under these circumstances. (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
B. The Beneficial-Relationship Exception to Adoption
Next, the parents argue that the juvenile court erred by determining that the beneficial-relationship exception to adoption was inapplicable as to mother. But the parents have not demonstrated an abuse of discretion on this record.
We note that father joins in mother's arguments on appeal, but he does not argue (nor does mother) that the juvenile court erred in concluding that the beneficial-relationship exception was inapplicable as it pertains to him.
1. Legal Principles
When the juvenile court cannot safely return a child to their parents' custody within the statutory time permitted for the parents to remedy the conditions that initially justified the children's removal, the juvenile court is required to set a hearing under section 366.26. (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) At the section 366.26 hearing, the goal is" 'to select and implement a permanent plan for the child.'" (Caden C., supra, at p. 630.) "[T]he question before the court [at a section 366.26 hearing] is decidedly not whether the parent may resume custody of the child." (Ibid.) By this stage, reunification services for the parents have already been terminated, "and the assumption is that the problems that led to the court taking jurisdiction have not been resolved." (Ibid.)
The statutory preference at a section 366.26 hearing is for adoption: if the court finds by clear and convincing evidence that the child is likely to be adopted, then the court shall terminate parental rights to allow for adoption. (Caden C., supra, 11 Cal.5th at p. 630; § 366.26, subd. (c)(1).) If, however, a parent is able to show that termination would be detrimental under one of the statutorily enumerated "compelling reasons," then the court should decline to terminate parental rights and select a different permanent plan. (Caden C., supra, at pp. 630-631; § 366.26, subds. (c)(1)(B) &(c)(4).)
One such compelling reason is the existence of a beneficial relationship (§ 366.26, subd. (b)(1)(B)(i)), where the parent shows, by a preponderance of the evidence: "(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 focus of the exception is the child; it is "not a contest of who would be the better custodial caregiver." (Id. at p. 634.) In assessing benefit under the second element, the juvenile court determines whether 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." (Id. at p. at p. 636.) In evaluating detriment under the third element, the "question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home." (Id. at p. 634.)
We review the juvenile court's findings on the first two elements of the beneficial-relationship exception, and any factual findings in support of its determination on the third, for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) When the first two elements are met, we review the court's ultimate determination on the third element for an abuse of discretion. (Ibid.)
2. Analysis
Here, the Department conceded, and the juvenile court impliedly agreed, that mother met the first element of the beneficial-relationship exception but not the second or the third. The parents argue that in assessing the second element, the juvenile court erroneously considered evidence that the parents were not the ones meeting the children's daily needs. The parents also argue that the juvenile court addressed the third element in a cursory manner and failed to take into consideration the long-term effect on the children should mother's parental rights be severed.
We conclude that on this record, substantial evidence supports the juvenile court's determination as to the second element-that mother and the children did not have a beneficial relationship. The frequency, duration, and quality of mother's interactions with her children were permissible considerations when assessing whether the children had a sufficient attachment to her. (See Caden C., supra, 11 Cal.5th at p. 632.) The juvenile court observed that the parents had "nice" visits with the children, but after visits concluded, there was evidence that the children had no further discussion about the parents with their caretakers, reflecting that the children were not emotionally impacted by being separated from their parents. It is appropriate for the juvenile court to consider "how children feel about, interact with, look to, or talk about their parents." (Ibid.)
Moreover, the juvenile court's factual finding on this point was supported by the evidence-according to the social worker, mother's visits with the children were loving, but the visits were "best described from a child's perspective as interactions with a friend or extended family member." The social worker also reported that the children did not ask for more visitation or contact with their parents, or say that they miss their parents, and after visits, the children reportedly moved on easily to the next activity and went about their day without any emotional or behavioral changes or concerns.
Mother points to the juvenile court's statement that the children had "special needs that required special nurturing [and] support," and that the parents, though they visited monthly, had a "discontinuity or a complete failure to meet those needs." Based on this language, mother asserts that the juvenile court in evaluating the maternal relationship erroneously considered whether she could assume responsibility for her children's dayto-day care.
We acknowledge that the second of the juvenile court's comments gives the impression of faulting the parents for their inability to provide for their children's needs for "daily interaction," even though the parents were permitted only supervised visits. In context, however, it does not appear that the juvenile court improperly based its decision on whether mother was presently able to be a primary caretaker. (In re D.M. (2021) 71 Cal.App.5th 261, 270 ["Caden C. made clear the beneficial relationship exception is not focused on a parent's ability to care for a child"].) The juvenile court is entitled to consider whether the child would benefit from continuing the parental relationship-and the relationship, in part, is shaped by factors such as" 'the child's particular needs.'" (Caden C., supra, 11 Cal.5th at p. 632.) The juvenile court, in making its findings, expressly noted that it had admitted into evidence the caregiver information form filed by S.B. in October 2022, where S.B. had reported that she had informed the parents about Le.W.'s struggles with his behavioral issues. Although mother testified to the contrary, S.B. reported the parents had not discussed Le.W.'s behavioral issues with him and had not further inquired with S.B. about how Le.W. was doing. The juvenile court impliedly credited S.B.'s representations, and we do not resolve evidentiary conflict or reevaluate the credibility of witnesses. (Caden C., supra, at p. 640.) In this case, Le.W.'s particular needs included support for his behavioral issues, which, according to S.B., mother did not appear to discuss or even acknowledge with Le.W.
Moreover, we conclude that the trial court did not abuse its discretion on the third element, whether the termination of parental rights would be detrimental to the child. The parents argue that there was uncontroverted evidence that the interaction between the children and the parents was warm, loving, and nurturing, but the juvenile court instead focused on the stability and security the children had received with their caregivers, which they characterize as "far too myopic" under Caden C.
Yet the stability provided by the caregivers is appropriately considered by the juvenile court. When evaluating the third element, the juvenile court is required to weigh whether the harm from terminating mother's parental rights outweighs the" 'security and the sense of belonging a new family would confer.'" (Caden C., supra, 11 Cal.5th at p. 633.) And here, the potential benefit of adoption with the paternal uncle and S.B. were high-there was ample evidence that the children were doing well with in their placement. S.B. had set up an assessment for Le.W. for therapy that would provide behavioral interventions. According to the social worker, the children were "securely bonded and attached" to their paternal uncle and S.B., who are "clearly parental figures" to the children. The children also interchangeably called S.B. "[m]ommy." "The juvenile court was entitled to rely on the opinions" and impressions of the social worker when exercising its discretion on the third element. (In re A.L. (2022) 73 Cal.App.5th 1131, 1159 (A.L.).)
Thus, in light of the bond between the children and their caregivers, and with a focus on the children's well-being, the juvenile court in this case did not abuse its discretion by determining that the negatives from terminating the parental relationship would not be outweighed by the benefits of a new, adoptive home. (See Caden C., supra, 11 Cal.5th at p. 636.) The existence of the beneficial-relationship exception "demands something more than the incidental benefit a child gains from any amount of positive contact with [his or] her natural parent." (In re Katherine J. (2022) 75 Cal.App.5th 303, 318.) Moreover, a parent must demonstrate something "more than frequent and loving contact." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
And finally, to the extent the parents argue that the juvenile court did not articulate a sufficient basis to conclude that the beneficial-relationship exception did not apply, "the juvenile court was not required to state its findings in concluding that the . . . exception did not apply." (A.L., supra, 73 Cal.App.5th at p. 1161.) As in A.L., nothing in the court's remarks at the hearing suggests they were intended to be exhaustive. (Ibid.)
C. ICWA
Finally, the parents argue that the juvenile court erred in determining without sufficient inquiry that ICWA did not apply to the proceedings. In particular, father argues that the Department failed to ask some of the children's extended family members about their possible Indian ancestry. We conclude that the juvenile court erred by relying on an inadequate initial inquiry and the error was not harmless.
1. Additional Background on the Department's ICWA Inquiry
At the outset of the dependency proceeding, father initially told a social worker that his mother might have Indian ancestry, although he added that "no one is really sure." In the February 2021 initial hearing report, a different social worker reported that when asked about possible Indian ancestry, father said to ask the paternal grandfather as there may be Indian ancestry on that side of the family. Although the paternal grandfather reportedly told a social worker "there was no ICWA," he also disclosed that he had been" 'adopted by [his] step-father as a child.' "
Mother initially said that she was "not certain about ICWA" and reported that she may have Indian ancestry in Texas, but she "had no details about what tribe." When asked by the Department, the maternal grandmother reported no Indian ancestry "on the maternal side of the family."
At the prima facie hearing that same month, father's counsel represented that "according to [father], he does not have any American Indian ancestry." Mother's counsel noted that "[r]egarding the Indian Child Welfare Act," the mother advised that "she does not have Native American ancestry," and that there are "several relatives available for placement on . . . [the] maternal side." The juvenile court asked both parents specifically whether it was correct that they, or their family members, were not members of an Indian tribe or eligible for membership in an Indian tribe, and both parents answered yes. The juvenile court then found: "Based on [the parents'] indication that they have . . . no Indian heritage[,] the Court finds that there is no reason to know or believe the child is . . . an Indian child and that ICWA does not apply in this matter as to mother and father."
In February 2021, On March 9, 2021, mother filed an ICWA-020 form indicating that she "may be a member of, or eligible for membership in, a federal recognized Indian tribe" and that "[t]he child may be a member of, or eligible for membership in, a federally recognized Indian tribe." For the names of the tribes, mother wrote "[n]ot known." According to a report prepared later by the Department, mother had said that her ancestry was on her mother's side, but she did not know what tribe she could be connected to.
At the dispositional hearing on March 16, 2021, where both parents were present, the juvenile court addressed mother's ICWA-020 form. The juvenile court asked mother what she knew about her Indian ancestry, and she responded: "I did an Ancestry DNA test and it came back that I was Mexican and that I could be from-Native American. But, yeah, it didn't indicate what tribe or anything like that. So, yeah, I really have no idea." The juvenile court asked if the DNA test gave her a percentage, and mother responded: "It did, but I don't remember the percentages. I think I'm most likely not Native American but, like there is a chance. I wouldn't know what tribe and I don't know any family was in any tribe." She stated that she had never heard any member of her family discuss Indian ancestry in the past, and the only reason she suspected that she may have Indian ancestry was from the DNA testing. After the Department indicated that a social worker had previously spoken with the maternal grandmother, the juvenile court determined that its prior order finding ICWA inapplicable would stand.
There is nothing in the record to indicate that the Department made any inquiries of the maternal grandfather, with whom the parents had been residing with until shortly before the commencement of the dependency proceedings, or of paternal aunts T.H. and S.B. or the paternal uncle.
2. Legal Principles
"Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement, usually in non-Indian homes. [Citation.] ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes. [Citations.]" (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).) Under ICWA and California law, the Department and the juvenile court are required to take certain steps to determine whether a child is an Indian child, defined as "any unmarried person who is under the age of 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. (b).) In 2006, California adopted various procedural and substantive provisions of ICWA, and in 2016, new federal regulations were adopted concerning ICWA compliance. (D.S., supra, at p. 1048.) California has since amended its statutes, which became effective January 1, 2019. (Ibid.) Both the Department and the juvenile court have an "affirmative and continuing duty" to determine whether ICWA applies, which commences upon initial contact. (§ 224.2, subd. (a).) There are three distinct duties regarding ICWA in dependency proceedings-the initial duty of inquiry, the duty of further inquiry, and the duty of notice to the tribes. (In re H.V. (2022) 75 Cal.App.5th 433, 437 (H.V.).)
"If a child is an Indian child, one path is tribal jurisdiction. At the tribe's request, the state court must transfer proceedings to tribal court unless there is good cause not to do so or a parent objects." (In re Oscar H. (2022) 84 Cal.App.5th 933, 939.) "Another path is tribal intervention in state court," during which the tribe will "get[] a say"-the Department "must integrate tribal input into the child's case plan and seek active tribal involvement to develop the child's permanent plan." (Ibid.) A tribe can also become involved outside of formal intervention; the juvenile court can permit someone affiliated with the tribe to address the court and submit written reports and recommendations. (Ibid.)
On appeal, the parents argue that the Department failed to satisfy its first duty of initial inquiry. Courts have recognized that characterizing this duty as an "initial" duty can be somewhat misleading-"[a]lthough commonly referred to as the 'initial duty of inquiry,' it 'begins with the initial contact' (§ 224.2, subd. (a)) and continues throughout the dependency proceedings." (In re J.C. (2022) 77 Cal.App.5th 70, 77; In re K.H. (2022) 84 Cal.App.5th 566, 597, fn. 10 (K.H.).)
Under the initial duty of inquiry, once a child is placed into the temporary custody of a county welfare department under section 306, the social services agency "has the duty to inquire whether that child is an Indian child." (§ 224.2, subd. (b).) "Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (Ibid.) An" 'extended family member" includes a child's "grandparent, aunt or uncle, brother or sister, brotherin-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.'" (25 U.S.C. § 1903(2); § 224.1, subd. (c).) It is not the parents' burden to develop information about whether a child may have Indian ancestry; the burden is on the Department and the juvenile court. (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 785.)
We note that that in In re Robert F. (2023) 90 Cal.App.5th 492, the Fourth District held that if a social services agency does not take custody of a child under section 306, then the agency's duty of initial inquiry as to extended family members under section 224.2, subdivision (b) is not triggered. (Robert F., supra, at p. 504.) Here, the record is unclear as to whether the Department took temporary custody over the children specifically under section 306, and the parties do not raise this issue on appeal. We assume for purposes of this appeal that the children were taken into custody under section 306 and that section 224.2, subdivision (b) is applicable.
If, however, the juvenile court finds that "proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child," the juvenile court can make a finding that ICWA is inapplicable, subject to reversal based on sufficiency of the evidence. (§ 224.2, subd. (i)(2).)
This court has previously held that we review a juvenile court's ICWA findings for substantial evidence, and if the facts are undisputed, we independently review whether ICWA's requirements have been satisfied. (In re I.F. (2022) 77 Cal.App.5th 152, 162-163.)
Division Three of the Second District Court of Appeal, however, recently held that errors with the Department's initial ICWA inquiry should be reviewed under a hybrid substantial evidence and abuse of discretion standard. (In re Ezequiel G. (2022) 81 Cal.App.5th 984 (Ezequiel G.).) Ezequiel G. observed that the first element to a juvenile court's finding that ICWA does not apply-whether there is reason to know whether the child is an Indian child-is "fundamentally a factual determination" that should be reviewed for substantial evidence. (Id. at p. 1004; see Caden C., supra, 11 Cal.5th at pp. 639-640.) Yet Ezequiel G. held that the second element-whether a "proper and further inquiry and due diligence as required in this section have been conducted" (§ 224.2, subd. (i)(2))-requires the juvenile court to" 'engage in a delicate balancing' [citation] to assess whether an ICWA inquiry was appropriate and sufficient in light of the facts of a particular case"-a quintessentially discretionary function that should be reviewed for an abuse of discretion. (Ezequiel G., supra, at p. 1005; K.H., supra, 84 Cal.App.5th at p. 589 [adopting Ezequiel G.'s hybrid standard of review]; In re E.C. (2022) 85 Cal.App.5th 123, 143 [same].)
3. Analysis
Based on the record, we conclude that under either the substantial evidence standard of review or the hybrid standard of review articulated in Ezequiel G., the juvenile court erred in its finding that ICWA was inapplicable.
We acknowledge that the parents asserted in open court that they had no known Indian ancestry. (But see In re Y.W. (2021) 70 Cal.App.5th 542 (Y.W.) [parents may not know their possible relationship with or connection to an Indian tribe]; In re S.R. (2021) 64 Cal.App.5th 303, 314 [tribal affiliations are easily lost].) Moreover, the Department inquired of two extended relatives, the maternal grandmother and paternal grandfather, who both stated that they had no Indian ancestry. Although mother later indicated in her ICWA-020 form that she may have Indian ancestry, she indicated the only reason for her supposition was an "Ancestry[.com] DNA test" that said that she was "Mexican and that [she] could be from-Native American." She confirmed that she had never heard any member of the family discuss Indian ancestry in the past, and the only reason she suspected that she might have Indian ancestry was from the DNA testing she had completed.
We note that the materiality of such DNA testing on the issue of tribal membership is questionable, and some courts have held that such testing has "little usefulness" in determining whether a child is an Indian child as described under ICWA. (See In re J.S. (2021) 62 Cal.App.5th 678, 689 [noting that" 'Native American'" as used on websites like ancestry.com has a wide-ranging definition-"[a]ccording to [ancestry.com's website], the 'Native American Ethnicity' group includes 'ethnic origins' from North America and South America, '[s]tretching from Alaska to the tip of Argentina' "].)
There is, however, evidence that the Department failed to adequately inquire as to father's ancestry. Father later directed the Department to ask the paternal grandfather, who in turn indicated there was "no ICWA," but the Department's notes are silent as to whether the paternal grandfather's disclaimer of Indian ancestry related only to his own side of the family or if it extended also to what paternal grandfather knew of paternal grandmother's side of the family. Nothing in the Department's notes indicates that father was asked about why he directed the Department to ask paternal grandfather about possible Indian ancestry as opposed to the paternal grandmother, or whether father's initial statement regarding his mother's ancestry was otherwise mistaken. And here, the Department had access to a number of paternal relatives who could plausibly have shed light on whether father could claim eligibility for tribal membership through paternal grandmother-T.H., or the paternal uncle (father's older brother), or paternal grandfather. (See 25 U.S.C. § 1903(2) ["extended family member" includes aunt, uncle, and grandparents]; § 224. 2, subd. (b).) Accordingly, given father's initial statement that his mother might have Indian ancestry, this case is distinguishable from recent cases like Ezequiel G., supra, 81 Cal.App.5th 984, 1015 and In re E.W. (2023) 91 Cal.App.5th 34, where courts have found the parents' unequivocal denial of ancestry sufficient to support a finding of no reason to know that a dependent child is eligible for tribal membership.
Paternal grandfather referred to paternal aunt T.H. as his "step-daughter," but we observe that without more, it is unclear as to whether T.H. and father are biologically related through paternal grandmother. ICWA, however, includes an "aunt" in its definition of an extended family member (25 U.S.C. § 1903(2)) and makes no distinction between a biologically related aunt or an aunt by marriage.
Given the Department's failure to conduct any inquiry as to father's maternal relatives with whom the Department was nonetheless in contact, we conclude that under the particular circumstances of this case, the Department did not fulfill its obligation of initial inquiry. (See, e.g., In re Antonio R. (2022) 76 Cal.App.5th 421, 431 [agency failed in initial ICWA inquiry when it did not ask extended family members about Native American ancestry, relying on parents' and paternal great-grandmother's denials]; In re Y.M. (2022) 82 Cal.App.5th 901, 909-910 (Y.M.) [initial ICWA inquiry deficient when agency relied only on parents' denials and failed to ask any extended family members including paternal grandmother and paternal grandfather about Native American ancestry]; K.H., supra, 84 Cal.App.5th at pp. 605-606 [initial inquiry deficient when it did not extend further than the child's parents]; H.V., supra, 75 Cal.App.5th at p. 438 [the Department only spoke with mother about child's possible Indian ancestry].)
4. Prejudice
If the Department has not satisfied its initial duty of inquiry under ICWA, we must conditionally reverse and remand unless the error is harmless. When "the deficiency lies with an agency's duty of initial inquiry and a juvenile court's related finding of 'proper and adequate further inquiry and due diligence' (§ 224.2, subd. (i)(2)), the error is one of state law [citation]." (K.H., supra, 84 Cal.App.5th at p. 606; In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.).) As the error is one of state law, we may not reverse unless we find the error prejudicial. (Cal. Const., art. VI, § 13.)
Presently, there is a "wide and varied split of authority among the Courts of Appeal regarding the proper standard to apply in determining the prejudicial effect of an agency's failure to comply with its section 224.2, subdivision (b) duty of initial inquiry." (Y.M., supra, 82 Cal.App.5th 901, 911.) And the issue is presently pending before the California Supreme Court in In re Dezi C. (2022) 79 Cal.App.5th 769 (Dezi C.), review granted September 21, 2022, S275578.
The standards range from one of presumptive affirmance (that if the initial inquiry is deficient, any error is harmless unless the parent comes forward on appeal with a proffer as to why further inquiry would lead to a different finding under ICWA (In re A.C. (2021) 65 Cal.App.5th 1060, 1065)) to presumptive reversal (where ICWA error in the initial inquiry stage is, in essence, reversible per se because a deficiency with the initial inquiry renders it impossible to meaningfully evaluate prejudice (In re J.C. (2022) 77 Cal.App.5th 70, 80; In re A.R. (2022) 77 Cal.App.5th 197, 207; In re E.V. (2022) 80 Cal.App.5th 691, 698; In re G.H. (2022) 84 Cal.App.5th 15, 32; Y.W., supra, 70 Cal.App.5th at p. 556)).
There are also intermediate standards. In Benjamin M., the Fourth District articulated a standard of "readily obtainable information"-error is reversible "where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Benjamin M., supra, 70 Cal.App.5th 735, 744.) And in Dezi C., the Second District articulated a standard where reversal is required only when "the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding." (Dezi C., supra, 79 Cal.App.5th at p. 779, review granted; accord, Ezequiel G., supra, 81 Cal.App.5th at p. 1014.)
We decline to follow the presumptive affirmance standard. "Requiring a parent to prove that the missing information would have demonstrated "reason to believe" [a child is an Indian child] would effectively impose a duty on that parent to search for evidence that the Legislature has imposed on only the agency." (Benjamin M., supra, 70 Cal.App.5th at p. 743.) And if we apply either of the middle-ground standards under Benjamin M. or the more deferential Dezi C., reversal is nonetheless required here.
First, under the standard articulated in Benjamin M., any error in this case was prejudicial because there was "readily obtainable information that was likely to bear meaningfully upon whether" the children were Indian children. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Here, no one disputes that the paternal aunts-T.H. and S.B.- and the paternal uncle were all readily available, and the Department could have easily contacted them to ask whether they had Indian ancestry or if they knew whether Le.W. or La.W. did. Likewise, the Department could have asked the paternal grandfather if he knew whether the paternal grandmother had Indian ancestry. Information that may bear meaningfully on the issue of whether the children are Indian children "does not require 'proof of an actual outcome (that the parent may actually have Indian heritage).' [Citation.] The missing information need only be relevant to the ICWA inquiry, 'whatever the outcome will be.'" (In re Ricky R. (2022) 82 Cal.App.5th 671, 679 (Ricky R.).) The failure to inquire as to these extended relatives was therefore prejudicial. (See In re D.B. (2022) 87 Cal.App.5th 239, 245 [failure to contact paternal grandmother and great-grandmother about Indian ancestry was prejudicial under Benjamin M.]; see also Ricky R., supra, 82 Cal.App.5th at pp. 679-680 [failure to inquire with extended relatives was prejudicial under Benjamin M.].)
And under Dezi C., there is "reason to believe" that the children were Indian children, such that further inquiry was prejudicial. (Dezi C., supra, 79 Cal.App.5th at p. 779, review granted.) In Dezi C., the Second District noted in part that "a reviewing court would have 'reason to believe' further inquiry might lead to a different result if the record indicates that someone reported possible American Indian heritage and the agency never followed up on that information." (Id. at p. 779.) And here, that is precisely what happened-father reported possible Indian heritage on his mother's side but there is no indication that the agency ever conducted any follow-up as to that side of his family.
For these reasons, we are unable to deem the Department's failure of inquiry harmless on this record.
III. DISPOSITION
The juvenile court's order denying mother's section 388 petition is affirmed. The juvenile court's order terminating mother's and father's parental rights is conditionally reversed, and the matter is remanded to the juvenile court for the limited purpose of ensuring compliance with ICWA. After the Department complies with the inquiry provisions of ICWA, if the juvenile court determines that the requirements of ICWA have been met, the court shall reinstate its order terminating mother's and father's parental rights. If, however, the juvenile court determines that further action is required to satisfy ICWA requirements, it shall conduct proceedings accordingly.
WE CONCUR: GREENWOOD, P.J., GROVER, J.