Opinion
F085856
09-25-2023
In re A.Z., a Person Coming Under the Juvenile Court Law. v. E.Z., Defendant and Appellant. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,
Roni Keller, 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NOT TO BE PUBLISHED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 a judgment of the Superior Court of Stanislaus County. Super. Ct. No. JVDP-21-000182 Annette Rees, Judge.
Roni Keller, 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
E.Z. (Mother) appeals from the juvenile court's order terminating her parental rights to her daughter, now three-year-old A.Z., under Welfare and Institutions Code section 366.26. Mother's sole claim is that because Stanislaus County Community Services Agency (agency) failed to conduct a broad inquiry into whether A.Z. is or may be an Indian child in compliance with section 224.2, subdivision (b), the juvenile court erred when it found that the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)) did not apply, necessitating remand.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
A.Z.'s alleged father, Isaiah S., is not a party to this appeal.
Citing Robert F. and Ja.O., agency contends that because A.Z. was taken into protective custody by warrant under section 340, this is not an emergency proceeding under section 306 and, therefore, the broad duty of inquiry under section 224.2, subdivision (b), does not apply. (In re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.), review granted July 26, 2023, S279743; accord, In re Ja.O. (2023) 91 Cal.App.5th 672 (Ja.O.), review granted July 26, 2023, S280572.) We recently rejected this view, however, and agreed with Delila D. "that section 224.2, subdivision (b), applies to children who are taken into protective custody by warrant under section 340, subdivision (a) or (b), and delivered to a social worker under section 340, subdivision (c), because the social worker receives and maintains temporary custody of the child, pending investigation, pursuant to section 306, subdivision (a)(1)." (In re Jerry R. (Sept. 11, 2023, F085850) ____Cal.App.5th____, ____[2023 Cal.App. Lexis 697, *40] (Jerry R.), citing In re Delila D. (2023) 93 Cal.App.5th 953, 972 (Delila D.).)
Having found agency's position lacks merit, we further conclude, as in Jerry R., "that the juvenile court erred in finding the agency conducted a proper, adequate, and duly diligent inquiry, and that the error is prejudicial, which necessitates a conditional reversal of the court's finding that ICWA does not apply and a limited remand so that an inquiry that comports with section 224.2, subdivision (b), may be conducted." (Jerry R., supra, ___Cal.App.5th at p. ___[2023 Cal.App. Lexis 697, *3], citing In re K.H. (2022) 84 Cal.App.5th 566, 621 (K.H.); In re E.C. (2022) 85 Cal.App.5th 123, 157 (E.C.).)
We include only a limited factual summary given that the sole issue on appeal is Mother's ICWA claim.
I. Referral and Placement in Protective Custody
A.Z. was born in July 2020. Because Mother tested positive for THC and A.Z. tested positive for amphetamines, agency received a referral for general neglect that was subsequently deemed inconclusive. At that time, Mother denied any Indian ancestry and stated A.Z.'s father was unknown.
Agency received a second referral for general neglect on June 20, 2021, that was deemed unfounded.
Relevant to the initiation of this proceeding, agency received a referral on August 13, 2021, after Mother was found passed out in her motel room by a mandated reporting party. The reporting party had to shake Mother to rouse her. Law enforcement responded based on possible drug paraphernalia in the room and confiscated a bag of white powdery substance. A.Z. was not present and was reportedly with her grandmother at the time. Mother told law enforcement that she had a psychotic break from being trafficked, and that she did not have diapers for A.Z., but might have formula in her car.
Later that day, Mother went to the county's StanWORKs office. A.Z. was with Mother, and was dirty and wearing soiled clothing. Mother appeared to be under the influence of something, her wrists were injured consistent with cutting, and she had scabs consistent with drug use. Mother was upset, and reported being trafficked and sexually assaulted. She also reported she needed formula and had a limited supply of diapers and wipes.
Mother met with a social worker but while waiting for the social worker to obtain formula and diapers, she became irate and attempted to leave with A.Z. Law enforcement responded and A.Z. was taken into protective custody without a warrant based on exigent circumstances. Maternal grandmother was contacted, and after she and Mother completed a family agreement and agreed to participate in voluntary family maintenance services, A.Z. left with her.
On August 16, 2021, Mother spoke with a social worker by telephone. She reported recent methamphetamine use and occasional alcohol use. She identified Richard C. and Isaiah as A.Z.'s possible fathers, and she stated both refused to take a DNA test and were not involved in A.Z.'s life. Mother was uncooperative with agency's attempt to conduct a family maintenance assessment.
Mother initially identified Richard as Richard P. At the detention hearing, she clarified his last name is C. Given Richard's subsequent dismissal as a party to this action, all further references to alleged father are to Isaiah unless otherwise stated.
On August 18, 2021, Mother was again uncooperative with agency's attempt to conduct a family maintenance assessment.
On August 19, 2021, agency determined that court intervention was required given Mother's lack of insight into her substance abuse and mental health issues. Agency sought and was granted issuance of a protective custody warrant for A.Z.
On August 20, 2021, the warrant was executed, and A.Z. was taken into protective custody. (§ 340, subd. (b).)
II. Detention
On August 24, 2021, agency filed a detention report and a petition under section 300, subdivisions (b)(1) (failure to protect) and (g) (no provision for support). The petition included Judicial Council Forms, form ICWA 010(A), stating that Mother gave no reason to believe A.Z. is or may be an Indian child, and an ICWA-020 form filed on Mother's behalf stating that none of the Indian status categories applied. In the detention report, agency documented that Mother reported no Indian ancestry, and agency did not have contact information for alleged fathers Richard and Isaiah.
All further references to forms are to Judicial Council forms.
Beginning on August 25, 2021, the juvenile court held a detention hearing over two days. The court appointed counsel for Mother, and she denied the petition allegations. Mother stated A.Z. had a third possible father, whose identity was unknown. Agency was unable to contact Richard or Isaiah. The court found a prima facie showing had been made that A.Z. was a person described by section 300, and ordered her detained from Mother and placed in the temporary custody of agency.
III. Jurisdiction and Disposition
Agency filed a jurisdiction and disposition report on September 27, 2021. The report reflected that Mother reported no Indian ancestry.
On October 7, 2021, the court held a jurisdiction and disposition hearing. The court adopted the recommendations in agency's report, sustained the petition allegations, and found A.Z. as described by section 300, subdivisions (b)(1) and (g). Pursuant to section 361, subdivision (c)(1), the court found by clear and convincing evidence that there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of A.Z. if she was returned home, and there were no reasonable means by which her physical health could be protected without removing her from Mother's physical custody. Mother was granted reunification services. Alleged fathers Richard and Isaiah were denied reunification services under section 361.5, subdivision (a).
IV. Review Hearings
The court held a status review hearing on January 6, 2022. The court found that Mother was fully engaging in services and that ICWA did not apply.
Agency filed a six-month status review report on March 2, 2022, and the court held a six-month review hearing on March 17, 2022. The court found ICWA did not apply, found Mother's progress excellent, and continued reunification services with overnight visitation at Mother's home at agency's discretion. The court dismissed Richard as a party and set a 12-month review hearing.
On August 18, 2022, agency filed a 12-month status review report recommending that the court terminate reunification services and terminate Mother's parental rights, following Mother's relapse into alcohol and drug use, and her subsequent failure to follow through with services and recommendations.
On September 22, 2022, the court held a 12-month review hearing. The court found Mother's progress poor, terminated services, and set a section 366.26 selection and implementation hearing.
On October 28, 2022, alleged father Isaiah, who was incarcerated, filed a statement of parentage and motion for the appointment of counsel and a blood or DNA test. The juvenile court granted the motion on November 8, 2022, and appointed counsel on November 10, 2022.
V. Selection and Implementation Hearing
On January 3, 2023, agency filed a section 366.26 report recommending that the parental rights of Mother and anyone claiming to be A.Z.'s father be terminated, and that the court set a permanent plan of adoption for A.Z. with her current caregiver. Agency filed an addendum on January 31, 2023, reflecting Mother was arrested, charged with petty theft, and currently in custody. The addendum report also reflected contact with alleged father, who was incarcerated. Alleged father denied any Indian ancestry; reported that paternal grandfather is deceased; and provided contact information for paternal aunt. He identified paternal grandmother, but indicated she had difficulty with telephone conversations so agency should inquire to paternal aunt about Indian ancestry. Paternal aunt denied Indian ancestry and later informed agency that paternal grandmother also denied Indian ancestry.
A.Z. was in an out-of-county resource family approved home with a maternal great-aunt.
On February 14, 2023, agency submitted additional information consisting of alleged father's DNA test results reflecting he is A.Z.'s biological father by a probability of 99.99 percent.
On February 15, 2023, the court held a contested hearing on selection and implementation under section 366.26. The court terminated the parental rights of Mother, alleged father and anyone claiming to be A.Z.'s father, set a permanent plan of adoption for A.Z. with her current caregiver, and set a postpermanency planning review hearing under section 366.3.
Mother filed a timely notice of appeal.
DISCUSSION
I. ICWA and Duty of Inquiry Under California Law
A. ICWA
As discussed in Jerry R., "ICWA was enacted in 1978 by Congress 'out of concern that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies." (92 Stat. 3069, 25 U.S.C. §1901(4). Congress found that many of these children were being "placed in non-Indian foster and adoptive homes and institutions," and that the States had contributed to the problem by "fail[ing] to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." §§1901(4), (5). This harmed not only Indian parents and children, but also Indian tribes. As Congress put it, "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." §1901(3).' (Haaland v. Brackeen (2023) ___ U.S.___, ___ [143 S.Ct. 1609, *1623] (Haaland); accord, Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32-36 (Holyfield); In re Isaiah W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.).)
"'[ICWA] thus aims to keep Indian children connected to Indian families. "Indian child" is defined broadly to include not only a child who is "a member of an Indian tribe," but also one who is "eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." §1903(4). If the Indian child lives on a reservation, ICWA grants the tribal court exclusive jurisdiction over all child custody proceedings, including adoptions and foster care proceedings. §1911(a). For other Indian children, state and tribal courts exercise concurrent jurisdiction, although the state court is sometimes required to transfer the case to tribal court. §1911(b). When a state court adjudicates the proceeding, ICWA governs from start to finish. That is true regardless of whether the proceeding is "involuntary" (one to which the parents do not consent) or "voluntary" (one to which they do).' (Haaland, supra, ___U.S. at p. ___ [143 S.Ct. 1609, *1623]; accord, Holyfield, supra, 490 U.S. at p. 36.)
"'Involuntary proceedings are subject to especially stringent safeguards. See 25 CFR §23.104 (2022); 81 Fed.Reg. 38832-38836 (2016). Any party who initiates an "involuntary proceeding" in state court to place an Indian child in foster care or terminate parental rights must "notify the parent or Indian custodian and the Indian child's tribe." §1912(a). The parent or custodian and tribe have the right to intervene in the proceedings; the right to request extra time to prepare for the proceedings; the right to "examine all reports or other documents filed with the court"; and, for indigent parents or custodians, the right to court-appointed counsel. §§1912(a), (b), (c). The party attempting to terminate parental rights or remove an Indian child from an unsafe environment must first "satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." §1912(d). Even then, the court cannot order a foster care placement unless it finds "by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." §1912(e). To terminate parental rights, the court must make the same finding "beyond a reasonable doubt." §1912(f).' (Haaland, supra, ___ U.S. at pp.___[143 S.Ct. 1609, *1623-1624].)
"ICWA sets the minimum standards, providing, 'In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard.' (25 U.S.C. § 1921; accord, § 224, subd. (d).) 'The minimum standards established by ICWA include the requirement of notice to Indian tribes in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights "where the court knows or has reason to know that an Indian child is involved."' (Isaiah W., supra, 1 Cal.5th at p. 8, quoting 25 U.S.C. § 1912(a).) 'ICWA's notice requirements serve two purposes. First, they facilitate a determination of whether the child is an Indian child under ICWA.' (Isaiah W., supra, at p. 8, citing 25 U.S.C. § 1903(4).) 'Second, ICWA notice ensures that an Indian tribe is aware of its right to intervene in or, where appropriate, exercise jurisdiction over a child custody proceeding involving an Indian child.' (Isaiah W., supra, at p. 8, citing 25 U.S.C. §§ 1911(a), (c), 1912(a).)
"To facilitate notice in appropriate cases, federal law provides, 'State courts must ask each participant in an emergency or voluntary or involuntary child custody proceeding whether the participant knows or has reason to know that the child is an
Indian child. The inquiry is made at the commencement of the proceeding and all responses should be on the record. State courts must instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.' (25 C.F.R. § 23.107(a) (2023).) California law requires more and, relevant to the issue raised here, imposes on counties a broad duty of inquiry into whether a child placed in the temporary custody of the county is or may be an Indian child. (§ 224.2, subd. (b).)" (Jerry R., supra, ___Cal.App.5th at pp. ___[2023 Cal.App. Lexis 697, *7-11, fn. omitted.)
B. Duty of Inquiry Under California Law
"In 2006, 'persistent noncompliance with ICWA led [our state] Legislature ... to "incorporate[] ICWA's requirements into California statutory law."' (In re Abbigail A. (2016) 1 Cal.5th 83, 91, quoting In re W.B. (2012) 55 Cal.4th 30, 52 (W.B.).) '"In 2016, new federal regulations were adopted concerning ICWA compliance."' (K.H., supra, 84 Cal.App.5th at p. 595, quoting In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.) [citing 81 Fed.Reg. 38864 (June 14, 2016), revising 25 C.F.R. § 23 (2019)].) Prior to that time, 'neither ICWA itself nor the implementing federal regulations in effect ... imposed a duty on courts or child protective agencies to inquire whether a child involved in a dependency proceeding was an Indian child.' (In re T.G. (2020) 58 Cal.App.5th 275, 289 (T.G.), citing In re A.B. (2008) 164 Cal.App.4th 832, 838 &In re H.B. (2008) 161 Cal.App.4th 115, 120.) '[F]ederal regulations governing ICWA . . . now require an ICWA inquiry be made at the inception of dependency proceedings, as well as at all proceedings that "may culminate" in foster care placement or termination of parental rights.' (In re Rylei S. (2022) 81 Cal.App.5th 309, 323, fn. 11, citing 25 C.F.R. §§ 23.2(2), 23.107(a) (2022) &In re Austin J. (2020) 47 Cal.App.5th 870, 883.)
"Subsequently, the California Legislature enacted Assembly Bill No. 3176,effective January 1, 2019, which '"made conforming amendments to its statutes, including portions of the Welfare and Institutions Code related to ICWA notice and inquiry requirements."' (K.H., supra, 84 Cal.App.5th at p. 595, quoting D.S., supra, 46 Cal.App.5th at p. 1048 [citing Assem. Bill 3176 &In re A.W. (2019) 38 Cal.App.5th 655, 662, fn. 3].) In relevant part, Assembly Bill 3176 repealed former sections 224.2, pertaining to notice, and 224.3, pertaining to inquiry, and reenacted them in different form. (Stats. 2018, ch. 833, §§ 4-7.) Section 224.3 now governs notice and section 224.2 inquiry.
"Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (Assembly Bill 3176 or Assem. Bill 3176)." (Jerry R., supra, ___Cal.App.5th at p., ___fn. 11 [2023 Cal.App. Lexis 697, *12].)
"Section 224.2 was subsequently amended by Assembly Bill No. 686 (2019-2020 Reg. Sess.), effective January 1, 2020; Assembly Bill No. 2944 (2019-2020 Reg. Sess.), effective September 18, 2020; and Assembly Bill No. 2960 (2021-2022 Reg. Sess.), effective January 1, 2023. Those amendments did not affect subdivision (b) of section 224.2, however." (Jerry R., supra, ___Cal.App.5th at p.___, fn. 12 [2023 Cal.App. Lexis 697, *12].)
"Now, as then, California law expressly recognizes 'There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members or citizens of, or are eligible for membership or citizenship in, an Indian tribe. The state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) and other applicable state and federal law, designed to prevent the child's involuntary out-of-home placement and, whenever that placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child's tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child's tribe and tribal community.' (§ 224, subd. (a)(1).) Assembly Bill 3176 revised and recast the duties of inquiry and notice, in accordance with federal law, and, relevant to inquiry, 'revise[d] the specific steps a social worker, probation officer, or court is required to take in making an inquiry of a child's possible status as an Indian child.' (Legis. Counsel's Dig., Assem. Bill 3176, Stats. 2018, ch. 833, p. 1.)
"Assembly Bill 3176 only effected minor technical changes to section 224, subdivision (a)(1)." (Jerry R., supra, ___Cal.App.5th at p.___, fn. 13 [2023 Cal.App. Lexis 697, *13].)
"As this court summarized in K.H., '"[n]otice to Indian tribes is central to effectuating ICWA's purpose ._" (In re T.G. (2020) 58 Cal.App.5th 275, 288 (T.G.), citing Isaiah W., supra, [1 Cal.5th] at p. 8.) However, it is typically "not self-evident whether a child is an Indian child" (Benjamin M., supra, 70 Cal.App.5th at p. 741), and "the question of membership is determined by the tribes, not the courts or child protective agencies" (T.G., supra, at p. 294). To ensure notice in cases in which it is known or there is reason to know an Indian child is involved (25 U.S.C. § 1912(a); Welf. &Inst. Code, § 224.3, subd. (a)), the law imposes an affirmative and ongoing duty to inquire whether a child subject to dependency proceedings is or may be an Indian child (§ 224.2, subd. (a))' (K.H., supra, 84 Cal.App.5th at p. 588), and following the passage of Assembly Bill 3176, 'agencies now have a broader duty of inquiry and a duty of documentation' (K.H., supra, at p. 588, fn. omitted, citing § 224.2, subd. (b) &[California Rules of Court,] rule 5.481(a)(5))." (Jerry R., supra, ___Cal.App.5th at p.___ [2023 Cal.App. Lexis 697, *11-14].)
All further references to rules are to the California Rules of Court.
II. Broad Duty of Inquiry and Children Taken Into Protective Custody By Warrant
Mother's claim of error by the juvenile court is premised on agency's failure to discharge its broad duty of inquiry under section 224.2, subdivision (b). Citing Robert F. and Ja.O., agency takes the position that because A.Z. was taken into protective custody via a warrant under section 340, subdivision (b), this was not an emergency removal under section 306 and the broad duty to inquire of extended family members and others under section 224.2, subdivision (b), did not apply. (Robert F., supra, 90 Cal.App.5th at pp. 500-501, review granted; accord, Ja.O., supra, 91 Cal.App.5th at p. 680, review granted.) Therefore, agency reasons, the juvenile court's finding is supported by substantial evidence and it did not abuse its discretion in finding ICWA does not apply.
As previously stated, in Jerry. R., we addressed the split of authority that has developed on this issue, the resolution of which is now pending review before the California Supreme Court. (Jerry R., supra,___ Cal.App.5th___ [2023 Cal.App. Lexis 697, *2-3, 28-40].) We declined to follow Robert F. and Ja.O. and instead agreed with the view articulated in Delila D. (Jerry R., supra, at p. ___[2023 Cal.App. Lexis 697, *2].) As we explained, "to facilitate the identification of children who are or may be Indian children, federal law mandates an inquiry at the commencement of an emergency proceeding or child custody proceeding. (25 C.F.R. § 23.107(a) (2023); see 25 U.S.C. § 1903(1) [defining child custody proceeding]; 25 C.F.R. § 23.2 (2023) [defining child custody proceeding and emergency proceeding].) In furtherance of ICWA's objectives and standards, California law imposes an affirmative and continuing duty to inquire on the court and county when a section 300 petition has been filed (§ 224.2, subd. (a)), a broad duty to inquire on the county when a child has been placed into the county's temporary custody under section 306 (§ 224.2, subd. (b)), and a duty on the juvenile court to inquire at the first appearance of each party (id., subd. (c)). This inquiry facilitates the identification of children who are or may be Indian children, and, when properly undertaken, provides the evidentiary basis upon which the juvenile court may determine that ICWA does or does not apply. (Id., subds. (e), (i)(2)[; §] 224.3; K.H, supra, 84 Cal.App.5th at pp. 608, 619.) '[R]emedial statutes are to be construed broadly to accomplish their purpose' (K.H., supra, at p. 602, citing Pulliam v. HNL Automotive Inc. (2022) 13 Cal.5th 127, 137; accord, Delila D., supra, 93 Cal.App.5th at p. 974), and the broad inquiry under section 224.2, subdivision (b), is integral to determining whether the child is or may be an Indian child so that ICWA's notice requirements may be effectuated when necessary and the juvenile court has sufficient information upon which to make the determination whether ICWA does or does not apply." (Jerry R., supra, Cal.App.5th at p.___ [2023 Cal.App. Lexis 697, *25-26].)
"For purposes of applying section 224.2, subdivision (b), the child may be taken into temporary custody by a social worker without a warrant due to exigent circumstances (§ 306, subd. (a)(2)), received into temporary custody by a social worker after being taken into temporary custody by a peace officer without a warrant due to exigent circumstances (§§ 305, 305.6, 306, subd. (a)(1)), or received into temporary custody by a social worker after being taken into protective custody by warrant because the harm or risk of harm fell short of the exigency required to justify a warrantless removal (§§ 340, subds. (a)-(b), 306, subd. (a)(1)). (Delila D., supra, 93 Cal.App.5th at pp. 971-972.) Whether initially taken into custody by social worker or peace officer, with or without a warrant, temporary custody of the child is with the county welfare department, triggering the need to inquire whether the child is an Indian child under section 224.2 (§ 306, subd. (b)), and the duty to investigate (§ 309, subd. (a))." (Jerry R., supra, ___Cal.App.5th at p. ___[2023 Cal.App. Lexis 697, *41-42].)
Accordingly, because A.Z. was received into the temporary custody of a social worker under section 306, subdivision (a)(1), the duty of inquiry under section 224.2, subdivision (b), applies in this case, and we turn to the merits of Mother's claim.
III. Mother's ICWA Claim
A. 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 p. 142; Adoption of M.R (2002) 84 Cal.App.5th 537, 542; rule 5.482(c).) 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., supra, at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, at p. 143; rule 5.482(c)(1).) Second, '[t]he juvenile court must ... find a "proper and adequate further inquiry and due diligence ...."' (K.H., supra, at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, at p. 143; rule 5.482(c)(1).)
"The juvenile court's finding on the second element 'requires the ... court to "engage in a delicate balancing of' various factors in assessing whether the . inquiry was proper and adequate within the context of ICWA and California law, and whether . [there was] due diligence.' (K.H., supra, 84 Cal.App.5th at p. 601, quoting In re Caden C. (2021) 11 Cal.5th 614, 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-1005.) Therefore, we employ a hybrid standard and review the court's determination for substantial evidence and abuse of discretion. (K.H., supra, at p. 589; accord, E.C., supra, at p. 143; In re Ezequiel G., supra, at p. 1003.)' (Jerry R., supra, ___Cal.App.5th at p. ___[2023 Cal.App. Lexis 697, *42-43].)
B. Error
Mother claims there was no documented inquiry of any maternal relatives, despite agency having contact with several maternal family members. (§ 224.2, subd. (i)(2); rules 5.481(a)(5), 5.482(c).) Agency's response is limited to its position that section 224.2, subdivision (b), does not apply in this case, which we have rejected. (Jerry R., supra,___ Cal.App.5th at p.___ [2023 Cal.App. Lexis 697, *2].)
Because agency had initial contact with alleged father Isaiah at a later point in this proceeding, after further development of the law in this area, it conducted a more thorough inquiry of paternal relatives. Isaiah, his mother, and his sister reported they had no Indian ancestry, and Isaiah's father is deceased; and Mother does not claim the inquiry of paternal relatives was deficient. Under these combined circumstances, it is unnecessary for us to express any view on the matter.
"The law does not require the court or the agency '"to cast about" for investigative leads' (In re A.M. (2020) 47 Cal.App.5th 303, 323), but as we explained in K.H., 'the law demands more than merely inquiring of [Mother]' (K.H., supra, 84 Cal.App.5th at p. 620). Although complying with the duty of inquiry and documentation under ICWA is unlikely to 'prove onerous' in most cases (ibid.), in no event may we interpret the law to relieve the court or the agency of complying with the plain directives imposed by statute and rule (K.H., supra, at p. 620; see § 224.2; rules 5.480-5.482). There may be cases in which there is no one else to ask beyond the parents, but, if that is so, the record must be developed to reflect that fact and supported by documentation. (Rule 5.481(a)(5).) Properly developed and documented, 'the court has relatively broad discretion to determine [that] the ... inquiry was proper, adequate, and duly diligent on the specific facts of the case.' (K.H., supra, at p. 589; accord, E.C., supra, 85 Cal.App.5th at p. 157.)" (Jerry R., supra, ___Cal.App.5th at p.___ [2023 Cal.App. Lexis 697, *44-45].)
On A.Z.'s maternal side, there is no indication agency asked anyone other than Mother about possible Indian ancestry. Absent documentation reflecting there was no one else to ask (rule 5.481(a)(5)), this is patently insufficient to comply with section 224.2, subdivision (b). (Jerry R., supra___ Cal.App.5th at p. ___[2023 Cal.App. Lexis 697, *45-46, citing K.H., supra, 84 Cal.App.5th at p. 605.)
C. Prejudice
Notwithstanding Mother's argument to the contrary, she is entitled to relief "only if the error complained of is prejudicial. As we explained in K.H., under California law, '"[n]o judgment shall be set aside ... 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.) '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" (In re Celine R. (2003) 31 Cal.4th 45, 60, citing [People v.] Watson [1956] 46 Cal.2d [818,] 836; accord, In re Christopher L. (2022) 12 Cal.5th 1063, 1073 (Christopher L.); [In re] A.R. [(2021)] 11 Cal.5th [234,] 252).' (K.H., supra, at p. 607; accord, E.C., supra, at p. 152.)
Mother cites to In re J.W. for the proposition that prejudice need not be shown, but rather than holding prejudice is not required, the majority, with one justice dissenting, found the error with the agency's ICWA inquiry was not prejudicial and affirmed the juvenile court. (In re J.W. (2022) 81 Cal.App.5th 384, 390-391.) In any event, we continue to adhere to our analysis of prejudicial error as set forth in Jerry R., E.C., and K.H. (Jerry R., supra, Cal.App.5th at pp. ___[2023 Cal.App. Lexis 697, *47-50], E.C., supra, 85 Cal.App.5th at pp. 151-155; K.H., supra, 84 Cal.App.5th at pp. 606-611.)
"Courts 'generally apply a Watson likelihood-of-success test to assess prejudice, [but] a merits-based outcome-focused test is not always appropriate because it cannot always adequately measure the relevant harm.' (K.H., supra, 84 Cal.App.5th at p. 609, citing In re A.R. (2021) 11 Cal.5th 234, 252-253 (A.R.); accord, E.C. supra, 85 Cal.App.5th at pp. 153-154.) '[W]here 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, at p. 609, citing A.R., supra, at p. 252; accord, E.C., supra, at p. 154.)
"'"ICWA compliance presents a unique situation"' (K.H., supra, 84 Cal.App.5th at p. 608, quoting In re K.R. (2018) 20 Cal.App.5th 701, 708; accord, E.C., supra, 85 Cal.App.5th at p. 152), because 'ICWA is not directed at reaching, or protecting, a specific outcome on the merits' (K.H., supra, at p. 609; accord, E.C., supra, 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" ([In re] N.G. [(2018) 27 Cal.App.5th 474,] 484, citing In re K.R., supra, at p. 708), and an adequate ... inquiry facilitates the information gathering upon which the court's ICWA determination will rest.' (K.H., supra, at p. 608; accord, E.C., supra, at pp. 152-153.) Here, the appealing part[y is Mother] and [she does] not bear the burden of complying with ICWA requirements. (Rule 5.481(a); see K.H., supra, at p. 608; E.C., supra, at p. 153.) Further, the ultimate determination whether a child is an Indian child rests with the tribe. (K.H., supra, at p. 596; accord, E.C., supra, at pp. 139-140.)
"As we recognized in K.H., 'the duty of inquiry is a continuing one (§ 224.2, subd. (a)[; rule 5.481(a)], ... [but] if the inquiry is inadequate at the outset, the likelihood that the opportunity to gather relevant information will present itself later in the proceeding declines precipitously.' (K.H., supra, 84 Cal.App.5th at p. 609; accord, E.C., supra, 85 Cal.App.5th at p. 154.) 'The relevant rights under ICWA belong to Indian tribes and they have a statutory right to receive notice where an Indian child may be involved so that they may make that determination. It necessarily follows that [in the context of ICWA and consistent with A.R.,] the prejudice to those rights lies in the failure to gather and record the very information the [lower] court needs to ensure accuracy in determining whether further inquiry or notice is required, and whether ICWA does or does not apply.' (K.H., supra, at p. 591; accord, E.C., supra, at p. 154.) '[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., supra, at p. 610, citing A.R., supra, 11 Cal.5th at pp. 252-254; accord, E.C., supra, at p. 155.)" (Jerry R., supra, ___Cal.App.5th at p.___ [2023 Cal.App. Lexis 697, *47-49.)
In this case, the inquiry on A.Z.'s maternal side extended only to Mother, and the record reflects there are several maternal relatives available to ask, including extended family members maternal grandmother, maternal grandfather and maternal aunt, and a relative who has an interest in A.Z., maternal great-aunt. (§ 224.2, subd. (b); see 25 U.S.C. § 1903(2) [defining extended family member].) "Under these circumstances, an inquiry limited only to ... Mother 'fell ... short of that required to gather the information needed to meaningfully safeguard the rights of the tribes, as intended under ICWA and California law, and remand for correction is required.' (K.H., supra, 84 Cal.App.5th at p. 620, citing A.R., supra, 11 Cal.5th at pp. 252-253; accord, E.C., supra, 85 Cal.App.5th at p. 156.) '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., supra, at p. 155, quoting K.H., supra, at p. 611.)
We recognize A.Z. was placed with a maternal great-relative who plans to adopt her. However, given the almost complete noncompliance with the statutory mandate and undeveloped record in this case, deeming the error harmless because A.Z. is likely to be adopted by a distant family member would require sheer speculation. (See 25 U.S.C. §§ 1903(2), 1911, 1915.) As we stated in K.H., "[w]e are cognizant of the concern expressed over the breadth of the duty of inquiry and the burden imposed on agencies and juvenile courts given that few children will ultimately be members of or eligible for membership in a federally recognized tribe. This concern, however, must be directed to policymakers; '"[c]ourts do not sit as super-legislatures to determine the wisdom, desirability or propriety of statutes enacted by the Legislature."'" (K.H., supra, 84 Cal.App.5th at p. 591, fn. 6, quoting In re J.C. (2017) 13 Cal.App.5th 1201, 1207.) The solution is for agency to ensure substantial compliance with the statute, which, as agency counsel recognizes, it attempted to do with respect to alleged father given his later appearance in the proceedings.
"Children have a critical interest in stability and permanency, which is undermined by unnecessary delay (In re Christopher L. (2022) 12 Cal.5th 1063, 1081; A.R., supra, 11 Cal.5th at p. 249), and we recognize that courts and social services agencies are laboring under a tremendous burden (K.H., supra, 84 Cal.App.5th at p. 619). For all involved, the most efficient and 'least burdensome option is simply to ensure that an adequate initial inquiry is made .......' (Ibid.) We also reiterate that our decisions in K.H. and E.C. should not be interpreted as requiring the juvenile court to ensure 'an exhaustive search for and questioning of every living relative of [A.Z.]' (K.H., supra, at p. 621; accord, E.C., supra, 85 Cal.5th at p. 157.) '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.' (K.H., supra, at p. 621, citing § 224.2, subd. (i)(2); accord, E.C., supra, at p. 157; rule 5.482(c).)" (Jerry R., supra, ___Cal.App.5th at p. ___[2023 Cal.App. Lexis 697, *49-51].)
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the court for the limited purpose of ensuring compliance with the inquiry and documentation provisions set forth in section 224.2 and rule 5.481. If, after determining that an adequate inquiry was made, the court finds that ICWA applies, the court shall proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, the court shall reinstate its ICWA finding.
[*] Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.