Opinion
F086686
11-29-2023
In re R.D., Jr., a Person Coming Under the Juvenile Court Law. v. L.D. et al., Defendants and Appellants. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant L.D. S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant R.D. Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County, No. JVDP-22-000223 Annette Rees, Judge.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant L.D.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant R.D.
Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
L.D. (mother) and R.D. (father) are the parents of son R.D., Jr. (born September 2022). Father and mother appeal from the juvenile court's order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26. They contend the Stanislaus County Community Services Agency (agency) and the 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 pertinent biographical information for relatives was not gathered and notices sent to the tribes contained incomplete information. The agency disagrees.
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.)
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 agree with the parents and conclude "the 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.)
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue on appeal concerns ICWA, we restrict our facts to those bearing on that issue or helpful for clarity.
Petition and Detention
On September 20, 2022, the agency filed a petition on behalf of R.D., Jr. pursuant to section 300, subdivisions (b)(1) and (j) shortly after he was born. R.D., Jr. had been born during the pendency of a dependency action involving his siblings. A separate dependency case was filed on his behalf.
In its detention report, the agency stated it was unknown whether ICWA applied and noted that in the siblings' dependency case, both parents reported Cherokee and Blackfeet ancestry. As a result, the agency had sent Notice of Child Custody Proceeding for Indian Child (ICWA-030) forms on behalf of the siblings to the Cherokee tribes, the Blackfeet tribe, and the Bureau of Indian Affairs (BIA). No tribe had intervened or sent notice indicating the siblings were members or eligible for membership in a tribe.
In the present case, prior to the detention hearing, mother and father each filed a Parental Notification of Indian Status (ICWA-020) form stating one or more of their parents, grandparents, or other lineal ancestors is or was a member of the Blackfeet and Cherokee tribes.
On September 21, 2022, the juvenile court held a detention hearing in which both mother and father appeared. The court made ICWA inquiries and found ICWA could apply, found a prima facie case had been established, and ordered R.D., Jr. detained.
Jurisdiction and Disposition
In its jurisdiction and disposition report, the agency recommended the allegations in an amended petition be found true, R.D., Jr. be adjudged a dependent of the juvenile court and removed from parental custody, the parents be denied reunification services, and a section 366.26 hearing be set. As to ICWA, the report stated it was unknown whether ICWA applied. Both parents reported Cherokee and Blackfeet ancestry in the current case and in the siblings' case, but no tribe had intervened. In the current case, the agency had attempted to reach out to family identified through the Youth Connections family database for ICWA purposes. The agency successfully made contact with maternal grandmother who claimed Cherokee ancestry, but said she was not an enrolled member and could not provide names of any family members who were possibly enrolled. Maternal grandmother could not explain why mother had reported she had Blackfeet ancestry. Thereafter, the agency emailed all three federally recognized Cherokee tribes and the Blackfeet tribe, asking them to confirm the parents' ancestry claims. The Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, and the Blackfeet tribe asked the agency to mail a certified letter with their inquiry, which the agency subsequently did.
An addendum report stated the agency received letters from the United Keetoowah Band of Cherokee Indians and the Eastern Band of Cherokee Indians, stating R.D., Jr. was not a member or eligible for membership in the tribes. No other tribe had responded. Additionally, in the siblings' case, no tribe had intervened. The agency, therefore, recommended ICWA be found inapplicable.
On December 20, 2022, the juvenile court held a jurisdiction hearing and found the allegations in an amended petition true and found ICWA could apply. The disposition hearing was set for contest.
On January 13, 2023, the agency sent ICWA-030 notices to the BIA, the Blackfeet tribe, and the three Cherokee tribes on behalf of R.D., Jr. The notice contained the names of the parents, maternal and paternal grandparents, one set of maternal great-grandparents, and one set of paternal great-grandparents. However, a lot of their information was listed as "unknown." Additionally, the notice included the names of one maternal uncle, one maternal aunt, one maternal great-uncle, one paternal great-aunt, and three maternal great-aunts.
On January 19, 2023, the agency filed an ICWA compliance report stating it was unknown if ICWA applied. It reiterated the ICWA information listed in prior reports.
On January 20, 2023, the agency sent another ICWA-030 notice to the same tribes and the BIA. The notice contained identical familial information as the first notice, but had an updated disposition hearing date.
On January 24, 2023, the juvenile court held a disposition hearing, but it was continued so that ICWA noticing could perfect.
On February 15, 2023, the Cherokee Nation sent a letter stating R.D., Jr. was not an Indian child within the meaning of ICWA. As previously mentioned, the two other Cherokee tribes had already responded stating R.D., Jr. was not an Indian child.
On March 20, 2023, the agency sent another ICWA-030 notice to the Blackfeet tribe. Again, the notice contained the same familial information as the prior two notices.
On March 21, 2023, the juvenile court held a disposition hearing, but it continued the hearing again for ICWA noticing purposes.
On April 7, 2023, the agency filed an ICWA compliance report recommending ICWA be found inapplicable as it had received a letter from the Blackfeet Nation stating R.D., Jr. was not an Indian child within the meaning of ICWA. This was the last tribe that the agency was awaiting a response from.
On April 13, 2023, the juvenile court held a disposition hearing where it found ICWA inapplicable. R.D., Jr. was adjudged a dependent of the court and removed from parental custody, the parents were denied reunification services, and a section 366.26 hearing was set.
Section 366.26 and ICWA Motion
On July 26, 2023, the agency filed a motion for determination of ICWA applicability, stating it had received responses from all the tribes it noticed, stating R.D., Jr. was not an Indian child within the meaning of ICWA.
In its section 366.26 report, the agency recommended parental rights be terminated and that adoption be selected as R.D., Jr.'s permanent plan. As for ICWA, the report stated the agency had completed further inquiry and there was no reason to know R.D., Jr. was an Indian child. The agency recommended ICWA be found inapplicable. The agency also filed an ICWA compliance report where it made the same recommendation.
In its ICWA compliance report, the agency stated that prior to filing its ICWA motion, it had spoken to several relatives, including maternal uncle Ryan S., maternal grandmother, paternal grandmother, paternal aunt Monica T., and paternal great-grandmother Mary E. Maternal grandmother claimed Cherokee ancestry through maternal great-grandmother L.L.G. She also provided three additional names of maternal family members- I.D.M., Lucy P.C., and Matthew C.M. These relatives appear to be maternal great-grandparents or great-great-grandparents, but it is not entirely clear as the agency's notation is confusing. Two of the individuals were L.L.G.'s parents. Maternal grandmother did not know if anyone in the family was an enrolled member or had lived on a reservation. To her knowledge, no one had received supportive services from a reservation.
On August 8, 2023, at the section 366.26 hearing, the juvenile court found the agency had complied with ICWA and found ICWA did not apply. The court terminated parental rights and selected a permanent plan of adoption.
On August 8, 2023, father and mother filed notices of appeal.
DISCUSSION
I. ICWA
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., at p. 143.) Second, "[t]he juvenile court must ... find a 'proper and adequate further inquiry and due diligence ...." (K.H., at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.)
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 In re 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, both mother and father claimed Indian ancestry with the Cherokee and Blackfeet tribes from the outset of the case. After conducting its own inquiry at the detention hearing, the juvenile court found ICWA could apply. Thereafter, the agency reported it tried to reach out to family members located through the Youth Connections search, but only successfully made contact with maternal grandmother who claimed Cherokee ancestry. She reported she was not an enrolled member and could not provide the name of any family member who could be enrolled, nor could she explain why mother had claimed Blackfeet ancestry. Afterwards, the agency emailed the three federally recognized Cherokee tribes and the Blackfeet tribe to verify the parents' ancestry claims. Two Cherokee tribes and the Blackfeet tribe responded, asking the agency to mail a certified letter with their inquiry, which the agency did. We note the emails and letters are not in the record, so it is unknown what information the agency provided the tribes. The jurisdiction and disposition report had attached minute orders from the siblings' dependency case showing the court found ICWA inapplicable in those proceedings. It also attached the jurisdiction and disposition report from the siblings' case in which the agency reported it had sent ICWA-030 notices to the Cherokee and Blackfeet tribes and the BIA, but no tribe had intervened or sent notice that the siblings were members or eligible for membership.
Mother and father's ICWA-020 stated they had Indian ancestry with the Cherokee and "Blackfoot" tribes which the agency construed as claiming ancestry with the Blackfeet tribe.
Prior to the disposition hearing, the agency sent ICWA-030 notices to the three Cherokee tribes, the Blackfeet tribe, and the BIA on three separate occasions. The notices contained identical limited familial information, often indicating that information was unknown. All tribes responded that R.D., Jr. was not an Indian child within the meaning of ICWA. At the disposition hearing, the juvenile court found ICWA inapplicable, bypassed mother and father for reunification services, and set a section 366.26 hearing. However, prior to the section 366.26 hearing, the agency spoke with some relatives regarding ICWA. These relatives included maternal uncle Ryan, maternal grandmother, paternal grandmother, paternal aunt Monica, and paternal great-grandmother Mary. Maternal grandmother again claimed Cherokee ancestry and provided the names of additional maternal great-grandparents (I.D.M., Lucy P.C., and Matthew C.M.). Maternal grandmother stated the Indian ancestry was through those relatives. It is unclear whether these relatives were maternal great-grandparents or great-great-grandparents, as the agency's notation is confusing. After receiving the new information, the agency failed to send new ICWA-030 notices to the tribes. The former notices did not contain any such names. It also appears that some of the relatives identified on the Youth Connections search report were not listed in the notices. Nevertheless, the agency subsequently filed a motion for determination of ICWA, recommending ICWA be found inapplicable. At the section 366.26 hearing, the juvenile court found the agency complied with section 224.2 and found ICWA did not apply.
The parents contend ICWA error occurred because pertinent biographical data was not gathered for the grandparents and great-grandparents, and the tribes were not provided with all available information so that they could make eligibility determinations. The agency disagrees. 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 the parents 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, "[i]f the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (§ 224.2, subd (e), italics added.) There is reason to believe a child in a dependency action is an Indian child when "the court, social worker, or probation officer 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." (§ 224.2, subd. (e)(1), italics added; see also rule 5.481(a)(4).) The statute specifies, "Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d)." (§ 224.2, subd. (e)(1), italics added.) Here, there was reason to believe R.D., Jr. was an Indian child because the parents claimed Cherokee and Blackfeet ancestry and maternal grandmother claimed Cherokee ancestry.
"When there is reason to believe the child is an Indian child, further inquiry is necessary to help ... determine whether there is reason to know a child is an Indian child. Further inquiry includes, but is not limited to . . .: [¶] (A) Interviewing the parents . . . and extended family members to gather the information required in [section 224.3, subdivision (a)(5)]." (§ 224.2, subd. (e)(2)(A), italics added.) Notice shall include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C).) Moreover, "[w]henever new information is received, that information must be expeditiously provided to the tribes." (Rule 5.481(a)(5).) In the present case, maternal grandmother provided the names of maternal great-grandparents or great-great-grandparents (as previously mentioned, the generation of the grandparents is unclear), but these names were never provided to the tribes. These relatives were identified as having Cherokee ancestry; thus, the information was particularly important.
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. 152153.) 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 [R.D., Jr.]' 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).)'" (E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 84 Cal.App.5th at p. 621.)
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the 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 court's order is affirmed.
[*] Before Hill, P. J., Levy, J. and Detjen, J.