Opinion
C097195 C097292
06-14-2023
In re M.T. et al., Persons Coming Under the Juvenile Court Law. v. H.T., Defendant and Appellant. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, In re M.T. et al., Persons Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. V.P., Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. Nos. JV-2019-211-3, JV-2019-211-4)
EARL, J.
In these consolidated appeals, appellants V.P. (mother) and H.T. (father) (collectively, parents) appeal from the juvenile court's orders terminating parental rights and freeing minors M.T. and S.T. for adoption. (Welf. &Inst. Code, §§ 366.26, 395.)They contend the juvenile court erred in finding the minors adoptable. Parents also contend the juvenile court and the Yolo County Health and Human Services Agency (Agency) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) because the Agency did not inquire of extended relatives about possible Native American ancestry. We will conditionally affirm subject to full compliance with the ICWA on limited remand.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Agency filed a section 300 petition on behalf of minors M.T. (then age five) and S.T. (then age one month), as well as their two older siblings, on July 5, 2019, based on parents' substance abuse and domestic violence. The minors were detained in foster care. The juvenile court sustained the petition, adjudged the minors dependent children of the court, and ordered them removed from parental custody. Parents were offered reunification services.
The minors' older siblings are not subjects of this appeal.
Parents failed to reunify. Mother's reunification services were terminated at the 12-month review hearing in September 2020. The juvenile court terminated father's reunification services at the February 202118-month review hearing and set a section 366.26 hearing.
The Agency filed its section 366.26 report in May 2021, and filed addenda in June and July 2021, and January, May, June, and September 2022. In the January 2022 addendum, it was noted that the minors had experienced four different placements since entering care in July 2019. Neither minor was noted to have any medical or developmental issues. M.T. was doing well in school, maintained good behavior at school, and had many friends. S.T. was not of school age. M.T. was working with a therapist and a skills counselor who taught him breathing exercises and other coping techniques. M.T. continued to have cycles of increased noncompliant behavior and acting out in the days following parents' visits, behaviors that the care providers noticed were "greatly diminished" when visits were not occurring. The adoption assessment noted the visits affected his mental health and recommended decreasing, and making a plan to terminate, visits. S.T. did not show any concerning mental health signs or symptoms.
The minors, who had been in foster care for approximately three years, had been in their placement with the current caregivers for over a year, had adjusted well to the placement, and were attached to the caregivers. M.T.'s challenging behaviors were reported to have lessened in severity in his current placement, but he continued to act out after parental visits. M.T. consistently reported that he wished to remain in the home and be adopted by the current caregivers. The adoption assessment noted he appeared to enjoy substantial and positive emotional ties to the caregivers and the relationship met his needs.
S.T. appeared at ease with the caregivers, who he called "mommy" and "daddy," appeared to have developed a positive attachment to them and was showing separation anxiety when separated from his foster mother. The caretakers were aware that, even though S.T. was very young, he could experience grief and loss and were attentive to his needs. Like M.T., S.T. had developed a substantial and positive attachment to the caregivers.
The caregivers had built strong relationships with the minors and had continuously cared for their physical and mental health, and their emotional and developmental needs.
The preliminary evaluation showed the caregivers to be suitable and committed to adopting the minors.
The Agency filed its final addendum report on September 15, 2022. The Agency continued to recommend termination of parental rights and a permanent plan of adoption with the minors' current caregivers, where they had been placed since May 14, 2021. The Agency, however, reported that on August 3, 2022, there had been a behavior episode in which M.T. was reported to hit and kick the caregivers, and run away from them, and they had been unable to get him to calm down as they usually could. The caregivers called the social worker and were referred to the Family Urgent Response System (FURS). FURS went to the home, contacted M.T., and were eventually able to get him to calm down and take direction from the caregivers. This incident occurred three days after a visit with mother.
On August 9, 2022, there had been another behavior episode with M.T., during which he was reported to become defiant toward his foster mother when they were leaving a park following a football event. M.T. had not been permitted to participate in the event because he was grounded as a consequence of the August 3 incident. On this occasion, M.T. got out of the caregiver's car, kicked the caregiver, and would not return. The caregiver was unsure what to do because she could not leave S.T. unattended in the car, so she contacted law enforcement for assistance. Law enforcement was able to calm M.T. down and he got back in the car. There were no further incidents that day.
A few days later, the social worker and adoption worker met with the caregivers regarding M.T.'s behavior. The caregivers noted M.T.'s behavioral outbursts had been essentially the same as his normal post-visit outbursts, only amplified. The foster mother revealed bruising on her arms from where M.T. had struck her and stated that this behavior could not continue, or she would give notice for M.T.'s removal. The social worker continued to discuss the matter with the foster mother and determined that the foster mother was expressing her frustration in making such statements and did not really wish to give notice for M.T.'s removal. The caregivers asked for a change in M.T.'s therapist to a male therapist, as sessions with the current therapist were not having an impact on the minor's behavior. M.T. began therapy with a new therapist in mid-August and the minor continued to meet with his support counselor. Wraparound services were also ordered to provide the caregivers with further support and to further stabilize M.T. The social worker also recommended the family be assigned a parent partner to assist the caregivers in managing M.T.'s behavior when it begins to escalate. It was, again, noted that the escalated behavior occurred following visits.
The social worker noted he had witnessed the patience of the caregivers in providing for the minors' needs and watched the loving relationship between the minors and caregivers grow. The Agency continued to recommend termination of parental rights, a plan of adoption, and reduction in visitation over two months, with a closure visit at the end of that period.
The section 366.26 hearing took place over three days in September and October 2022. By the time of the hearing, M.T. was nine years old and S.T. was three years old. The adoption specialist testified that, despite the August incidents, M.T.'s errant behavior had significantly decreased since his placement in the current caregivers' home. She had investigated the stability of the current placement after the August incidents and concluded that the caregivers did not lack commitment to providing permanency for both minors. The foster mother had clarified that the reason a 14-day notice was mentioned was because FURS had warned M.T. that if he could not regulate his behavior, the caregivers could give a 14-day notice to have him removed. The adoption specialist was also aware that the caretakers had considered a 14-day notice shortly after the initial placement of the minors because they had been under the mistaken impression that the case would be moving toward permanency and adoption right away; instead, the minors were still having weekly visits, which were resulting in M.T.'s post-visit behavior issues and which the foster mother was concerned would interfere with forming new bonds.
The foster mother had since secured additional counseling, and the foster parents were participating in counseling with M.T., a resource for which the caregivers were personally paying.
The social worker testified that M.T. tended to have difficult behaviors following visits, which usually involved defiance, not listening, and anger. The behavior improved after a few days and, after a few more days, returned to baseline. This behavior had been happening for a very long time. There had been no concerning incidents since the August 9, 2022 incident. The social worker believed the caregivers were committed to permanency based on the high level of dedication and patience they had demonstrated since the minors had entered their care. The caregivers had not expressed any frustration over M.T.'s behaviors since mid-August 2022.
The minors' foster mother also testified at the hearing. She described M.T.'s escalated behaviors as being similar to hyperventilating, wherein he breathes very heavily for hours and becomes increasingly angry. This change in temperament usually began within three days of a parental visit. The foster mother described the August 3, 2022 incident in which she called FURS for assistance in calming M.T. She described his behavior to include slamming doors, hitting the caregivers' bedroom door, ripping things off his walls, slamming his hand onto the desk, and trying to push the caregivers away. They tried to hug him and keep him safe. After this had gone on for several hours, the foster mother called the social worker. She was given the number for FURS, called them, and they were able to get him calm enough to go to bed. He picked up his room, apologized for ripping things up, and went to bed. It was an emotional incident for the foster mother.
M.T. was grounded as a consequence of this behavior, and was still grounded on August 9, when they went to the football field to turn in money they raised as part of a fundraiser. M.T. refused to leave after they turned in the money, began screaming, and ran off to the football field. The foster mother could not go after him because she had to stay with S.T., who remained in the vehicle, so she called the social worker. The social worker suggested she try calling FURS. FURS had a two-hour wait for assistance, so she called the police. The police officer talked to M.T. for about five or 10 minutes, telling him he could tell M.T. was a good kid and he wanted to see him out there playing football, not getting into trouble. M.T. returned to the foster mother, apologized for running away, and said he would not do it again. The foster mother said he did seem remorseful. The incidents in August 2022 were the only two times M.T. had walked away or run off.
The foster mother had since signed up for online trauma courses, found M.T. an art therapist, and changed counselors. The foster mother testified that they have stated numerous times that they do not want to have M.T. removed from the home. They want to find him a counselor that helps him-a "solution"-and they are willing to try any suggestions but "have no interest in giving notice." She testified the subject of giving notice came as a result of the FURS representative having explained that M.T. is old enough and smart enough to understand that one has to follow rules and if one does not follow rules, one cannot stay in somebody's house. The FURS representative had this conversation with M.T. and the caregivers. The adoption workers subsequently informed the caregivers that they disagreed with making such statements to M.T. The caregivers agreed that it might be hurtful and emphasized that they themselves had not made any such statements to M.T. Instead, they had talked to him about the home being a "safe" place, about how much they love him and care about him, and the different ways of showing him love. She testified she made the remarks about having to give notice if the violent behavior continued in part out of frustration, and in part because she misinterpreted from the conversation with FURS that they were supposed to give notice if M.T would not follow rules. She testified that she had no hesitancy and was fully committed to providing permanency to both minors.
At the conclusion of the hearing, parents' counsel argued the minors were a sibling set and the Agency had not shown M.T. was likely to be adopted. Minors' counsel argued the Agency had met its burden, noting the current caregivers were an approved adoptive home and had expressed that they intended to adopt the minors.
The juvenile court found, by clear and convincing evidence, that the minors were likely to be adopted by their current caregivers within a reasonable time. The court noted the foster mother had repeatedly affirmed under oath that she was committed to providing permanency to both minors. The court noted the caregivers had the minors in their care for almost 15 months and had "clearly, unequivocally, repeatedly stated they do intend to adopt, are aware of the issues, particularly for [M.T.], and have made their intentions clear." The court stated it weighed the credibility of the foster mother, and social worker, and found their testimony persuasive and convincing.
Finding no applicable exceptions to adoption, the juvenile court terminated parental rights and ordered adoption as the permanent plan.
We provide additional facts, including facts relating to ICWA compliance, in our discussion of the issues.
DISCUSSION
I
Adoptability
Parents contend the orders terminating parental rights must be reversed because the minors are a sibling set and as such there was insufficient evidence to support the juvenile court's finding that they were adoptable. We disagree.
A. The Law
"If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." (§ 366.26, subd. (c)(1).) "Although a finding of adoptability must be supported by clear and convincing evidence, it [i.e., the determination that it is likely the child will be adopted within a reasonable time] is nevertheless a low threshold." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) On review,"' "we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]" [Citations.] We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]' (In re Gregory A. [(2005) 126 Cal.App.4th 1554,] 1561-1562.)" (In re J.W. (2018) 26 Cal.App.5th 263, 267.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.)
There is a difference between a child who is found to be generally adoptable, and a child who is found to be specifically adoptable. "The question of adoptability posed at a section 366.26 hearing usually focuses on whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption. (See, e.g., In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)" (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) It follows then that the suitability of the prospective adoptive parent is not an issue when the child is generally adoptable, but it may be placed in issue when the child is specifically adoptable. That is the case before us here.
B. Analysis
Parents argue that the minors are an established sibling set and M.T.'s emotional and behavioral challenges render both minors not adoptable. Challenging the finding that the minors are nonetheless likely to be adopted by their current caregivers, they argue the juvenile court erred in finding the caretakers able to meet M.T.'s needs.
Father contends the caretakers were inexperienced caregivers and thus ill-equipped to meet M.T.'s behavioral needs. The caretakers' previous experience in foster parenting or their initial confusion about the procedures is, at best, only marginally relevant to their ability to meet the minors' needs. There is no requirement that a caretaker have former experience, even for a behaviorally challenged child, to be able to meet that child's needs. Moreover, by the time of the section 366.26 hearing, the caretakers had been caring for the minors for 15 months and could hardly be said to be "novice foster parents." M.T.'s behavior had required they seek out changes to his counseling and seek further assistance from services, which they readily did. While M.T.'s behavior remained challenging, it had, despite the two August 2022 incidents, improved under the foster parents' care.
Parents also challenge the caretakers' commitment to providing permanency for these minors. This was, of course, a matter of contention for the juvenile court, which it expressly resolved by finding the foster mother credible in her testimony that she was committed to providing permanency. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. (In re R.C. (2008) 169 Cal.App.4th 486, 491.)
Next, parents contend that the minors' prior failed placements and M.T.'s continued behavioral struggles establish that these caretakers will be unable to meet the minors' needs. While parents blame M.T.'s emotional needs for each of the previous placement failures, the record reveals other factors, not likely to recur after termination of parental rights, were at play. For the first year after his detention, M.T. was described as "easy-going," and it was not until the lockdowns related to COVID-19 that his aggressive behavior began. His caregiver had noted that he had no other children to play with and needed more space to play than was available.
The caregivers at M.T.'s second placement did not see any aggressive behavior from M.T. until (three months into the placement) M.T. witnessed father and an older brother engage in a physical altercation during an unsupervised visit. After witnessing this incident, M.T. became aggressive and would scream and hit others, including his brother, and make threats. This resulted in the caregivers giving notice shortly thereafter, in December 2020.
M.T.'s behavior in his third placement did not become aggressive until after four or five months when M.T., who had hoped to be adopted by these caregivers, learned they were not going to adopt him and take him to Texas when they moved. It was observed that M.T.'s aggressive behavior appeared to escalate "when he knows his placement is unstable."
This observation was affirmed by M.T.'s behavior in his current placement. Although it was reported M.T. continued to struggle with his behavior after parental visits, the particularly escalated behavior occurred several weeks before the section 366.26 hearing-the hearing that would determine whether he would be able to remain in his current placement. M.T. was reported to understand the concept of adoption and he wanted to be adopted by his current caregivers. This was, perhaps, a time of particular instability for M.T.
Additionally, the August 3, 2022 incident, which precipitated the August 9, 2022 incident, occurred three days after a visit with mother. The caregivers had previously reported cycles of poor behavior that occurred following visitation: afterwards, he would become increasingly stubborn, argumentative, and noncompliant. The caregivers continuously noted that when visits were not occurring these behaviors were greatly diminished.
The prospect that M.T. may have some continuing behavioral problems does not foreclose a finding of adoptability. (See In re Jennilee T. (1992) 3 Cal.App.4th 212, 224225.) While the current caregivers have found M.T.'s behavior to be challenging, especially following parental visits, they met each challenge willingly and appropriately. The caregivers sought counseling through a private provider and obtained a new therapist and a skills counselor to work with M.T. on coping skills and de-escalation techniques. They requested additional help, and wraparound services were put into place to help stabilize M.T., and the foster mother signed up for trauma courses through the foster care college. She also addressed M.T.'s instability by talking to him about how much they loved him. She spent her free time with him, reading to him and hugging him, telling him she loved him, and planning surprises for him. The caregivers signed M.T. up for football, basketball, baseball, and soccer, which seemed to greatly benefit him. And the caregivers remain committed to providing permanence for both minors.
In sum, the caregivers had cared for the minors for 15 months and were said to have built strong emotional relationships with the minors and provided for their mental, emotional, and developmental needs. They are committed to providing permanency, there were no legal impediments to their adoption of the minors, and there was substantial evidence they were capable of meeting the minors' needs. We find substantial evidence supports the trial court's finding, by the clear and convincing standard, that the minors were likely to be adopted within a reasonable period of time and therefore, specifically adoptable.
II
ICWA Compliance
Parents contend the Agency and juvenile court failed to comply with their initial duty of inquiry under section 224.2, subdivision (b). We agree that limited remanded is required.
A. ICWA Facts
Mother appeared and was appointed counsel at the July 8, 2019 detention hearing. At that time, mother's counsel volunteered the following information upon appointment: "I've discussed ICWA, she doesn't have any Indian heritage that she's aware of." Mother completed an ICWA-020 form on July 8 (filed July 11, 2019) checking the box that she had no known Native American ancestry. The juvenile court made no further inquiry of mother about the ICWA or possible Native American ancestry, nor did anyone ask mother about relatives.
The August 2019 jurisdiction/disposition report reflects the social worker had interviewed the then alleged father who said he did not have any Indian ancestry. Based on this inquiry (along with mother's ICWA-020 form), the Agency requested the juvenile court find the minors were not Indian children. Also included in the jurisdiction/disposition report was information that mother had said she wanted to move to Oklahoma with her "cousin." She provided the social worker with the cousin's name, but mother did not have contact information for her. Mother reported she was born in Texas in 1982 and moved to California in 2006. Mother said she had no support from family. She "does not have a relationship with her family as they consider her the 'black sheep' of the family." However, mother did indicate that she had siblings. It appears the social worker inquired about possible maternal relatives for placement purposes but did not note any effort to identify or contact relatives for ICWA purposes. Mother also informed the social worker that the paternal grandfather lived in Los Angeles, and that father had sisters and a brother. At the time of the report, paternity had not yet been established.
Father made his first appearance and was appointed counsel at an August 19, 2019 hearing. The juvenile court did not ask him about possible Native American ancestry at the hearing. The jurisdiction/disposition hearing took place on August 26, 2019. Both parents were present with counsel. The written orders for this hearing indicate the juvenile court found the ICWA does not apply, but the court did not inquire of either parent about possible Native American ancestry or mention the ICWA at the hearing.
Father's paternity was established on March 10, 2020, at the six-month review hearing. Although father was present with counsel at the hearing, the juvenile court did not ask father about possible Native American ancestry. Unlike mother's counsel, father's counsel made no representations about possible heritage and there is no ICWA-020 form on file for father.
In the December 2020 six-month review hearing report, the social worker noted she had discussed relative placement options with the paternal aunt, A.T., but did not indicate she asked about possible Native American ancestry.
Thereafter, the Agency revisited ICWA inquiry. In an addendum to the section 366.26 report, filed May 13, 2022, the social worker provided the following update to the ICWA inquiries: "The undersigned has made inquiries into Native American ancestry to determine whether the mother has new information about Native American ancestry. On May 4, 2022, the undersigned asked the mother whether she had Native American ancestry via text message. The mother indicated that she did not have Native American ancestry. The undersigned asked if there was a relative that he could contact to find out more information that is not known by the mother. The mother stated that there was not a relative that the social worker could talk to. The mother asked the undersigned social worker how she would find out about Native American ancestry. The undersigned stated that people usually find out from family members. The mother asked about other ways, and the undersigned stated that he was unaware of any other ways to determine Native American ancestry."
In a subsequent addendum to the section 366.26 report, filed June 23, 2022, the social worker provided the following update to the ICWA inquiries: "The undersigned has made inquiries into Native American ancestry to determine whether the father has any new information about Native American ancestry. On or about May 12, 2022, the undersigned met with the father in person and asked him about any Native American ancestry. The father stated that he did not have any Native American ancestry in the United States. The father stated that he may have Aztec heritage, the undersigned asked the father about any family members who the undersigned could contact to discuss any Native American ancestry. The father did not identify anybody. On June 21, 2022, the undersigned followed up with the father's attorney to determine whether the father has any knowledge of familial membership in the Aztec tribe and to have the father complete and sign forms ICWA 020."
B. ICWA Law and Application
As this court has explained:" 'The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. [Citations.] A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." [Citation.]' (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an' "Indian child"' as a child who 'is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.' (25 U.S.C. § 1903(4).) The juvenile court and the social services department have an affirmative and continuing duty, beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)" (In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056.)
"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See §224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child]; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) Additionally, the juvenile court is obligated to inquire at the first appearance whether anyone "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) We review claims of inadequate inquiry into a child's Native American ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
Parents cite section 224.2, subdivision (b), which imposes a more extensive duty to inquire about Indian ancestry if a child is placed in the temporary custody of a welfare department (§ 306) or probation department (§ 307): "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 ...." (§ 224.2, subd. (b).) We note that, at no time did the juvenile court make any direct inquiry of either parent about possible Native American ancestry. (See § 224.2, subd. (c).)
Mother reported early in the case that father had sisters and a brother, and that father had a grandfather who lived in Los Angeles. She also reported she had a cousin, whose name she provided the social worker, who lived in Oklahoma. The Agency also knew of and had substantial contact with the paternal aunt, A.T. Yet, despite this information, and its knowledge of mother's functional estrangement from her family, the Agency relied solely upon parents' representations that they did not have Native American ancestry. It reported no efforts to contact or inquire of any of parents' relatives on the subject.
The Agency does not dispute parents' claim that it made no inquiry of any extended family members or that its inquiry extended no further than parents but argues that "both parents denied any [Native American] ancestry early in the case and again in May 2022, and both denied that there were any other relatives that the Agency could contact for more information. There is no evidence in the record to indicate that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." Thus, it argues, even if it was required to interview extended family in this case, any error is harmless. (In re Dezi C. (2022) 79 Cal.App.5th 769, 779782, review granted Sept. 21, 2022, S275578; see also In re G.A., supra, 81 Cal.App.5th at p. 360, review granted.)
The facts of this case are unlike those in In re G.A. wherein the social services agency was unable to contact or identify extended family members from whom it could conduct an ICWA inquiry. Here, parents had identified other family members, and the Agency had contact with one of them, but the record does not show they made any effort to contact relatives or inquire of the paternal aunt, with whom they were in contact. While the Agency "is not required to 'cast about' for information or pursue unproductive investigative leads" (In re D.S., supra 46 Cal.App.5th at p. 1053), it is required to include in its reports a discussion of what efforts it undertook to locate and interview family members who might have pertinent information and, "[i]n the absence of an appellate record affirmatively showing the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court's finding that proper and adequate ICWA notices were given or that ICWA did not apply." (In re N.G. (2018) 27 Cal.App.5th 474, 484; accord, In re K.R. (2018) 20 Cal.App.5th 701, 709.) Here, the record makes no such affirmative showing with regard to the paternal aunt or any other identified relatives.
Deficiencies in ICWA inquiry and notice are reviewed for harmless error. Those deficiencies "may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child." (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) However, error is not presumed. It is parents' obligation to present a record that affirmatively demonstrates error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.) Parents have done so here. If we conclude the juvenile court did not comply with the ICWA provisions, we "reverse only if the error is prejudicial." (In re A.L. (2015) 243 Cal.App.4th 628, 639.) Given the state of the record, we cannot say with certainty that there was no prejudice to any relevant tribes.
The Agency either did not take sufficient affirmative steps to investigate the minors' possible Indian ancestry or did not document its efforts to do so, and the juvenile court failed to ensure that an adequate investigation had been conducted. In the absence of evidence of the Agency's efforts to fulfill its continuing duty of inquiry, we cannot say the failure of ICWA compliance was harmless. We agree with the parties that the Agency was required to make additional efforts to inquire about possible Native American ancestry from parents' identified relatives and that remand is necessary for the Agency to inquire further. (See § 224.2, subd. (b); see also In re Y.W. (2021) 70 Cal.App.5th 542, 554; In re A.C. (2022) 75 Cal.App.5th 1009, 1016-1018.) Accordingly, we will conditionally affirm the juvenile court's orders terminating parental rights and remand the case to the juvenile court for further proceedings to address compliance with the inquiry and notice provisions of the ICWA and entry of new orders regarding the applicability of the ICWA.
DISPOSITION
The juvenile court's orders terminating parental rights are conditionally affirmed and the matter is remanded to the juvenile court for limited proceedings to determine compliance with the ICWA consistent with this opinion. If, at the conclusion of those proceedings, no tribe indicates the minors are Indian children within the meaning of the ICWA, then the juvenile court shall make the appropriate ICWA finding and reinstate the orders terminating parental rights. If the juvenile court finds, after proper inquiry and notice, that the ICWA applies, the juvenile court shall hold such further proceedings as are appropriate, including a new section 366.26 hearing.
We concur: ROBIE, Acting P. J., KRAUSE, J.