Opinion
F086029
09-05-2023
In re MARY C., a Person Coming Under the Juvenile Court Law. v. ARTHUR C., Defendant and Appellant. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,
Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County. Super. Ct. No. JVDP-22-000255 Annette Rees, Judge.
Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
K.C. (mother) and Arthur C. (father) are the parents of daughter Mary C. (born January 2006). Father appeals from the juvenile court's order denying his Welfare and Institutions Code section 388 petition following a disposition hearing. Father argues the juvenile court erred in summarily denying his section 388 petition. Additionally, he contends the Stanislaus County Community Services Agency, and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because extended family members were not asked about Mary's possible Indian ancestry. The agency disagrees on both points.
All further 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.)
We agree the juvenile court did not err in denying father's section 388 petition. However, consistent with our decisions in In re K.H. (2022) 84 Cal.App.5th 566 (K.H.) and In re E.C. (2022) 85 Cal.App.5th 123 (E.C.), we conclude "the [ICWA inquiry] error is prejudicial because neither the agency nor the court gathered information sufficient to ensure a reliable finding that ICWA does not apply and remanding for an adequate inquiry in the first instance is the only meaningful way to safeguard the rights at issue. ([In re A.R. (2021)] 11 Cal.5th [234,] 252-254 [(A.R.)].) Accordingly, we conditionally reverse the juvenile court's finding that ICWA does not apply and remand for further proceedings consistent with this opinion, as set forth herein." (K.H., at p. 591; accord, E.C., at pp. 157-158.) We affirm in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
This case was initiated in Merced County and was later transferred to Stanislaus County. Father was Mary's primary caretaker.
Petition
On August 11, 2022, the Merced County Human Services Agency (Merced County agency) filed a petition on behalf of then 16-year-old Mary pursuant to section 300, subdivisions (b)(1) (failure to protect) and (c) (serious emotional damage) alleging she and father were in two physical altercations and a verbal altercation within two days. During the altercations, Mary pushed father with her foot, father put Mary in a chokehold, and they wrestled on the sidewalk. The petition alleged father would engage in domestic violence with Mary's stepmother and had untreated mental health and substance abuse issues. He would abuse his prescription drugs, including Xanax, Percocet, and morphine. Mary also had mental health issues and had been previously admitted to a mental health facility due to suicidal ideations. She reported she would self-cut due to arguments she had with father and then it became a" 'habit.'" The petition further alleged there had been a prior child welfare investigation as a result of Mary overdosing on medication, but the investigation did not result in an open case. Mary reported that aside from being physically aggressive, father talked down to her and called her names. At the time of the referral, it appeared Mary had been living with her stepgrandfather and sometimes staying with father. Mary was detained and placed with a nonrelative extended family member.
The petition contained an Indian Child Inquiry Attachment (ICWA-010(A)) form, stating mother and father gave no reason to believe Mary was or could be an Indian child.
Detention
In regard to ICWA, the detention report stated mother and father denied having Indian ancestry. As to father, the report stated father had been placed on a "5150 hold" in June 2022. Mary reported father abused his prescription drugs. Her stepmother had to monitor the medications because he would forget he took them and would take a second dose, sometimes in combination with alcohol. Father reported that his oldest daughter had overdosed on laced Fentanyl in March 2022 and passed away. The Merced County agency concluded there was a substantial danger to Mary's physical health, or she was suffering several emotional damage and there was no reasonable means to protect her without removing her from parental custody. Mother suffered from mental illness and alcoholism, and was homeless. Father struggled with anger management and had untreated mental health issues. Both mother and father had failed to get proper help for Mary's ongoing mental health issues.
On August 12, 2022, the juvenile court held a detention hearing, but neither parent was present. The court reserved making an ICWA finding until the parents appeared in court. The court found a prima face case had been established and removed Mary from parental custody.
After the detention hearing, a social worker reached out to father and updated him as to the next hearing and set up a supervised visit. However, three days later, the social worker informed father that Mary did not want to visit with him. A second visit was scheduled, but Mary again did not want to attend, and the visit was cancelled.
Jurisdiction
On September 7, 2022, the juvenile court held a jurisdiction hearing where it found ICWA did not apply as to mother or father after minor's counsel conducted ICWA inquiries with them both. The hearing was continued.
The jurisdiction report stated ICWA did not apply because the juvenile court had found it inapplicable at a prior hearing. As to the allegations of untreated mental health issues, father reported he was suffering from depression due to the death of his older daughter. He said he had a history of posttraumatic stress disorder (PTSD), but was now medication compliant and had a "doctor's verification." Father stated that Mary's mental health problems were exacerbated by the death of her sister. Although father denied abusing his medication, he admitted he drank alcohol while taking medication and that his ex-wife had to help distribute his medications because he would forget to take them. He also acknowledged experiencing psychosis as a result of all the medications he was on.
On October 28, 2022, the Merced County agency filed a motion to transfer the case to Stanislaus County based on father's residence. The motion stated the Merced County Juvenile Court had found Mary was not an Indian child.
On November 2, 2022, the Merced County Juvenile Court held a jurisdiction hearing and found the allegations in the petition true.
On November 10, 2022, the Merced County Juvenile Court ordered the case transferred to Stanislaus County and in its transfer out orders, it checked the box stating ICWA did not apply.
On November 17, 2022, mother filled out a Parental Notification of Indian Status (ICWA-020) form stating none of the Indian ancestry questions applied to her.
On November 18, 2022, the Stanislaus County Juvenile Court held a transfer-in hearing and accepted the case, and set a disposition hearing. The court found ICWA did not apply.
Disposition
The disposition report prepared by the Stanislaus County Community Services Agency (agency) stated ICWA did not apply. To the side, the agency noted, "Did Merced do enough?" As for visitation, the report indicated Mary had "vacillated in her desire to visit with her father." Initially, she was open to a one-hour visit, but then reported she did not want to participate in visits with him. Then, in December 2022, Mary stated she was willing to visit with father at the agency and a visit was scheduled for that same month.
On January 10, 2023, the juvenile court held a disposition hearing. Mary's counsel informed the court that Mary liked visiting mother and father and wanted visits to continue. The court found ICWA did not apply. The court ordered Mary removed from mother and father, ordered the parents participate in reunification services including supervised visits, found father's progress had been none, and set a six-month review hearing. The court gave the agency discretion to liberalize visits for father. It stated:
"The [c]ourt is prepared to order discretion to the [a]gency to liberalize the supervision with dad ._ [¶] We did talk about counseling for your client, [father's counsel], and it does sound that he is already involved in anger management, and he's doing some personal counseling, including grief counseling. Unfortunately[,] that won't satisfy the case plan requirements, but I am heartened to hear that he is taking those steps. [¶] And, of course, there is no question that he loves his daughter, and I'm glad he is working toward that reunification and increased visitation."
Father's Section 388 Petition
On March 15, 2023, father filed a section 388 petition asking the juvenile court to change the dispositional order approving his case plan, which mandated supervised visits with discretion for the agency to liberalize visits, domestic violence classes, and the "obligation to sign a [release of information] for [his] medical treatment." Father alleged as new evidence, that he "provided a letter from his physician indicating he [was] on medication and seeing his doctor, [and was] in compliance with the treatment." The petition further alleged he had "been visiting regularly." As a result, father was requesting that the prior order approving his case plan for reunification services be changed. He was requesting "community or monitored visits," a domestic violence assessment instead of having to take domestic violence classes, and to submit a letter from his physician showing treatment compliance instead of having to sign a release of information. He stated that the proposed changes would be in Mary's best interest because the case was still in reunification and increasing visits would help the court assess the likelihood of return.
On March 17, 2023, the juvenile court summarily denied father's section 388 petition, stating that the request did not state new evidence or a change in circumstances.
On April 4, 2023, father filed a notice of appeal.
DISCUSSION
I. Section 388 Petition
Father contends the juvenile court abused its discretion when it summarily denied his section 388 petition because he made a prima facie showing there had been a change of circumstances and the proposed order benefitted Mary. We disagree.
A. Legal Principles
"Section 388 accords a parent the right to petition the juvenile court for modification of any of its orders based upon changed circumstances or new evidence." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478, fn. omitted.) "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 interests of the child." (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) "The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.'" (Ibid.) "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. [Citation.]'" (Ibid.) "Furthermore, the petitioner must show changed, not changing, circumstances." (Ibid.)
"Section 388 ... gives the court two choices: (1) summarily deny the petition or (2) hold a hearing." (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) "[A] party 'need only make a prima facie showing to trigger the right to proceed by way of full hearing.' [Citation.] The prima facie showing is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.] The petition must be liberally construed in favor of its sufficiency." (In re J.P. (2014) 229 Cal.App.4th 108, 127.) "The court may consider factors such as the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner." (In re Mickel O., supra, 197 Cal.App.4th at p. 616.) "In assessing the best interests of the child, 'a primary consideration ... is the goal of assuring stability and continuity.'" (Ibid.)
"We review a summary denial of a hearing on a modification petition for abuse of discretion. [Citation.] Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
B. Analysis
In the present case, father's section 388 petition was summarily denied because he did not state new evidence or show a change of circumstances. As previously mentioned, father's petition listed as new evidence that he provided a letter from his physician indicating he was on medication and seeing his doctor, and was compliant with treatment. Additionally, he indicated he had been visiting Mary regularly. On appeal, father argues that the fact he is now visiting regularly is a change of circumstance because initially Mary had declined to participate in visits. Additionally, he claims the letter from his doctor showing medication and treatment compliance showed a change of circumstance because it showed he was now addressing his mental health problems which played a significant role in Mary's removal.
Father's claim that he was now visiting with Mary regularly was not new evidence. It is true that initially Mary declined to visit father, but at the disposition hearing, Mary's counsel informed the court that Mary "like[d] visiting mom and dad, and she want[ed] to continue with the visitation." Thus, at the time the juvenile court made its order, it was aware that father and Mary were now visiting.
Second, father's claim that he provided a letter from his physician showing he was treatment and medication compliant is nowhere in the record or attached to the petition. Neither does he specify who the letter was provided to nor provide details about his claim of being medication complaint. "To make a prima facie showing under section 388, the allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory." (In re Alayah J., supra, 9 Cal.App.5th at p. 478.) Additionally, again, this was not new evidence as the record shows father had been making claims of being medication complaint and having a "doctor's verification" since October 2022. However, father never provided such verification. But even if father could show he was medication compliant, such a change would only show changing circumstances, not changed. There were several other issues that father needed to address-such as substance abuse, domestic violence, anger management, and parenting skills-all of which were major factors contributing to Mary's removal. Because father did not satisfy the first prong, we do not address the second prong-whether father's request would be in Mary's best interest. Accordingly, we conclude that the juvenile court did not abuse its discretion in summarily denying father's section 388 petition.
II. ICWA
Father also argues the juvenile court and agency erred in finding ICWA inapplicable because the record is silent as to whether extended family members were inquired of. We agree.
A. Legal Principles
" 'ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation' [citations], in furtherance of 'federal policy" 'that, where possible, an Indian child should remain in the Indian community'"' [citations]. 'ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families' [citations], and '[w]hen ICWA applies, the Indian tribe has a right to intervene in or exercise jurisdiction over the proceeding.'" (K.H., supra, 84 Cal.App.5th 566, 594, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 138, fn. omitted.)
" 'In 2006, California adopted various procedural and substantive provisions of ICWA.' [Citations.] The Legislature's 'primary objective ... was to increase compliance with ICWA. California Indian Legal Services (CILS), a proponent of the bill, observed that courts and county agencies still had difficulty complying with ICWA 25 years after its enactment, and CILS believed codification of [ICWA's] requirements into state law would help alleviate the problem. [Citation.]'" (K.H., supra, 84 Cal.App.5th at p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138-139.)
" 'In 2016, new federal regulations were adopted concerning ICWA compliance. [Citation.] Following the enactment of the federal regulations, California made conforming amendments to its statutes, including portions of the Welfare and Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those changes became effective January 1, 2019 ._' [Citation.] Subsequently, the Legislature amended section 224.2, subdivision (e), to define 'reason to believe,' effective September 18, 2020." (K.H., supra, 84 Cal.App.5th at pp. 595-596, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 139.)
1. Summary of Duties of Inquiry and Notice
"[W]hether a child is a member, or is eligible for membership, in a particular tribe is a determination that rests exclusively with the tribe, and neither the agency nor the court plays any role in making that determination. [Citations.]' "Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case." '" (K.H., supra, 84 Cal.App.5th at p. 596; accord, E.C., supra, 85 Cal.App.5th at pp. 139-140.)
"In California, section 224.2 'codifies and elaborates on ICWA's requirements of notice to a child's parents or legal guardian, Indian custodian, and Indian tribe, and to the [Bureau of Indian Affairs].'" (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California law imposes "an affirmative and continuing duty [on the court and the county welfare agency] to inquire whether a child for whom a petition under [s]ection 300, ... may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a).)
"The [state law] duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).) "If a child is placed into the temporary custody of a county welfare [agency] pursuant to [s]ection 306 . . . the county welfare [agency] . . . has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) Additionally, "[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (§ 224.2, subd. (c).)
"If the initial inquiry provides 'reason to believe' that an Indian child is involved in a proceeding-that is, if the court or social worker 'has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe'-then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable." (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) "Further inquiry 'includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.'" (Ezequiel G., at p. 999.)
"If there is 'reason to know' a child is an Indian child, the agency shall provide notice to the relevant tribes and agencies in accordance with section 224.3, subdivision (a)(5)." (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2, subd. (f).) "There is 'reason to know' a child is an Indian child if any one of six statutory criteria is met-i.e., if the court is advised that the child 'is an Indian child,' the child's or parent's residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)
County welfare agencies "must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status, as well as evidence of how and when this information was provided to the relevant tribes. Whenever new information is received, that information must be expeditiously provided to the tribes." (Cal. Rules of Court, rule 5.481(a)(5).)
All further references to rules are to the California Rules of Court.
B. Standard of Review
"The juvenile court's finding that ICWA does not apply to the proceeding rests on two elemental determinations, 'subject to reversal based on sufficiency of the evidence.'" (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, 85 Cal.App.5th at pp. 142-143.) First, "[t]he court must find there is 'no reason to know whether the child is an Indian child,' which is dependent upon whether any of the six circumstances set forth in subdivision (d) of section 224.2 apply." (K.H., at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, at p. 143.) Second, "[t]he juvenile court must ... find a 'proper and adequate further inquiry and due diligence ...." (Ibid.)
Under the substantial evidence standard," 'a reviewing court should "not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." [Citation.] The determinations should "be upheld if . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence."' [Citations.] The standard recognizes that '[t]rial courts "generally are in a better position to evaluate and weigh the evidence" than appellate courts' [citation], and 'an appellate court should accept a trial court's factual findings if they are reasonable and supported by substantial evidence in the record' [citation]. '[I]f a court holds an evidentiary hearing, it may make credibility determinations, to which an appellate court would generally defer.'" (K.H., supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, 85 Cal.App.5th at p. 143.)
The juvenile court's finding on the second element, however, "is ultimately discretionary because it requires the juvenile court to 'engage in a delicate balancing of' various factors in assessing whether the agency's inquiry was proper and adequate within the context of ICWA and California law, and whether the agency acted with due diligence." (K.H., supra, 84 Cal.App.5th at p. 601, quoting Caden C. (2021) 11 Cal.5th 614, 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1005.) Therefore, we employ a hybrid standard and review the court's determination for substantial evidence and abuse of discretion. (K.H., at p. 601; accord, E.C., at pp. 143-144; Ezequiel G., at pp. 1004-1005.)
" 'Review for abuse of discretion is subtly different [from review for substantial evidence], focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when"' "the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" [Citation.] But"' "[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court[.]" '" [Citations.] [¶] While each standard here fits a distinct type of determination under review, the practical difference between the standards is not likely to be very pronounced.'" (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 Cal.App.5th at pp. 143-144.)
"Review of the juvenile court's findings under the foregoing standards is deferential, but' "an appellate court [nevertheless] exercises its independent judgment to determine whether the facts satisfy the rule of law."' [Citations.] Where the material facts are undisputed, courts have applied independent review to determine whether ICWA's requirements were satisfied." (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 Cal.App.5th at p. 144.)
C. Analysis
1. Summary of ICWA Inquiry and Notice
In the present case, mother and father both denied having Indian ancestry when inquired of by the Merced County agency. However, the record reflects that only mother and father were asked about Indian ancestry. At the jurisdiction hearing, the Merced County Juvenile Court found ICWA did not apply. Thereafter, the case was transferred to the Stanislaus County Juvenile Court where the court adopted the Merced County Juvenile Court's ICWA finding, even though the record contained very limited ICWA information. The record shows that the agency was in contact with Mary's paternal first cousin and her stepmother, but there is no indication that inquiry was made with them. Neither did the Stanislaus County Juvenile Court conduct its own inquiry even though it was noted in the disposition report that the Merced County agency may not have done enough regarding ICWA.
The record also shows the agency was in contact with paternal stepgrandfather who Mary was placed with and the husband of Mary's maternal first cousin. These individuals do not qualify as extended family members within the meaning of ICWA. (25 U.S.C. § 1903(2); § 224.1, subd. (c) [an extended family member is "a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent"].) However, paternal stepgrandfather would likely qualify as someone who has an interest in Mary since he had placement of her since early in the proceedings, and inquiry would be required of him. (§ 224.2, subd. (b).)
In K.H. and E.C., we addressed ICWA error at the inquiry stage. There, we explained our decision not to follow the approaches articulated by other appellate courts for determining whether ICWA error requires reversal and concluded that the Supreme Court's decision in A.R. supplies the appropriate framework for assessing prejudice in this context. (K.H., supra, 84 Cal.App.5th at pp. 607-608, citing A.R., supra, 11 Cal.5th at pp. 252-254; accord, E.C., supra, 85 Cal.App.5th at p. 152.) Applying the standards we articulated in K.H. and E.C., as we discuss below, we agree with father and conclude the agency's error is prejudicial and remand for the agency to conduct a proper, adequate, and duly diligent inquiry is necessary.
2. The Agency and Juvenile Court Erred
As previously mentioned, when "a child is placed into the temporary custody of a county welfare [agency] . . ., the county welfare [agency] ... has a duty to inquire whether [the] child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) Extended family members include adult 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).)
Here, the agency inquired only of mother and father, which fell short of complying with the plain language of section 224.2, subdivision (b). "[T]he law demands more than merely inquiring of [m]other and [f]ather" (K.H., supra, 84 Cal.App.5th at p. 620, citing In re Antonio R. (2022) 76 Cal.App.5th 421, 431; accord, In re M.M. (2022) 81 Cal.App.5th 61, 74, review granted Oct. 12, 2022, S276099 (dis. opn. of Wiley, J.)). There may be cases in which there is no one else to ask, but if that is so, the record must be developed to reflect that fact and supported by documentation. (Rule 5.481(a)(5).) "On a well-developed record, the court has relatively broad discretion [in such cases] to determine [that] the agency's inquiry was proper, adequate, and duly diligent on the specific facts of the case." (K.H., at p. 589; accord, E.C., supra, 85 Cal.App.5th at p. 157.) Accordingly, the juvenile court's finding that ICWA did not apply was not supported by substantial evidence, and its contrary conclusion was an abuse of discretion. (§ 224.2, subd. (i)(2).)
3. Prejudice
"Where, as here, the deficiency lies with the agency's duty of [_] 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 ([In re] Benjamin M., supra, 70 Cal.App.5th at p. 742). Under the California Constitution, '[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, 85 Cal.App.5th at p. 151.)
" '[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice' [citations], and California law generally interprets its constitutional miscarriage of justice requirement 'as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.'" (K.H., supra, 84 Cal.App.5th at pp. 606-607; accord, E.C., supra, 85 Cal.App.5th at pp. 151-152.)
However, in A.R., the Supreme Court "recognized that while we generally apply a Watson likelihood-of-success test to assess prejudice, a merits-based outcome-focused test is not always appropriate because it cannot always adequately measure the relevant harm. [Citation.] In other words, where the injury caused by the error is unrelated to an outcome on the merits, tethering the showing of prejudice to such an outcome misplaces the measure, at the expense of the rights the law in question was designed to protect." (K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
People v. Watson (1956) 46 Cal.2d 818, 836.
As we explained in K.H., " 'ICWA compliance presents a unique situation ._'" (K.H., supra, 84 Cal.App.5th at p. 608.) "ICWA is not directed at reaching, or protecting, a specific outcome on the merits." (Id. at p. 609; accord, E.C., supra, 85 Cal.App.5th at p. 154.) Rather," '[t]he purpose of ICWA and related California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings' [citation], and an adequate initial inquiry facilitates the information gathering upon which the court's ICWA determination will rest." (K.H., at p. 608; accord, E.C., at pp. 152-153.) Yet, "while the appealing party is usually a parent, parents do not bear the burden of gathering information in compliance with ICWA [citations], and parents may raise the claim of error for the first time on appeal." (K.H., at p. 608; accord, E.C., at p. 153.) Further, the ultimate determination whether a child is an Indian child rests with the tribe, not with a parent, the agency, or the juvenile court. (K.H., at p. 590; accord, E.C., at pp. 139-140.) "[W]here the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost because there has not been adequate inquiry and due diligence, reversal for correction is generally the only effective safeguard." (K.H., at p. 610, citing A.R., supra, 11 Cal.5th at pp. 252-254; accord, E.C., at p. 155.)
Here, the agency's inquiry," 'fell well short of that required to gather the information needed to meaningfully safeguard the rights of the tribes, as intended under ICWA and California law'" (E.C., supra, 85 Cal.App.5th at p. 156, quoting K.H., supra, 84 Cal.App.5th at p. 620), and "[a] finding of harmlessness on this record would necessarily require speculation and 'is at odds with the statutory protections that ICWA and California law intend to afford Indian children and Indian tribes.'" (E.C., at p. 155, quoting K.H., at p. 611.) Therefore, the error is prejudicial and reversal is required.
Accordingly, the juvenile court's finding that ICWA does not apply is conditionally reversed and the matter is remanded. The court is instructed to ensure the agency conducts" 'a proper, adequate, and duly diligent inquiry under section 224.2, subdivision[s] (b) [and (e)], and document its inquiry in the record in compliance with rule 5.481(a)(5).'" (E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 84 Cal.App.5th at p. 621.)" 'This should not be interpreted as requiring an exhaustive search for and questioning of every living relative of [Mary]' but '[w]e leave that determination for the juvenile court in the first instance because it is better positioned to evaluate the evidence provided by the [agency]. So long as the court ensures the inquiry is reasonable and of sufficient reach to accomplish the legislative purpose underlying ICWA and related California law, the court will have an adequate factual foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)'" (Ibid.)
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the agency to comply with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b) and (e), and rule 5.481(a)(5). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the juvenile court's order is affirmed.
[*]Before Levy, Acting P. J., Meehan, J. and DeSantos, J.