Filed 3/1/22 In re G.M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Michael C. Kelley, Judge. Affirmed in part, conditionally reversed in part, and remanded with directions.

Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Principal Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

A.M. (mother) appeals from an order of the juvenile court terminating her parental rights concerning her child, G.M. On appeal, she challenges the order summarily denying her Welfare and Institutions Code[1] section 388 petition, which sought reinstatement of her family reunification services. We find no abuse of discretion, and thus affirm.

Additionally, mother contends the juvenile court erred by failing to comply with the requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) before terminating parental rights. We find that the juvenile court did not comply with ICWA requirements, and conditionally reverse the 366.26 order for the limited purpose of conducting further inquiry and, if necessary, sending out new ICWA notices.

BACKGROUND

1. Prior DCFS Cases

Mother was involved in two prior dependency cases on behalf of her one other child, I.M.[2] The juvenile court sustained the first section 300 petition in 2011, finding true its allegations that I.M. was at risk of harm due to mother placing him in a detrimental and endangering situation. The juvenile court sustained a second petition in 2015, finding true its allegations that I.M. was at risk of harm due to mother’s unresolved history of drug abuse and unresolved mental health issues. In the second case, mother did not comply with the juvenile court orders to complete a full drug and alcohol program, random drug testing, a 12-step program, an anger management program, parenting classes, a psychological assessment, individual counseling, and to obtain a sponsor. Specifically, mother started a drug treatment program, but left before completion. Ultimately, the juvenile court terminated jurisdiction over I.M., granting joint legal custody to mother and I.M.’s father, sole custody to I.M.’s father, and monitored visitation for mother.

2. Referral and Investigation

Three days after G.M.’s birth, the Department of Children and Family Services (Department) received a referral alleging mother tested positive for marijuana upon her admittance to the hospital to give birth. Additionally, the referral alleged mother admitted using edible marijuana throughout her pregnancy and methamphetamine in the beginning of her pregnancy.

The Department interviewed mother at the hospital the day after receiving the referral. Mother admitted she drank wine the day before she went into labor and acknowledged she had a three-year history of methamphetamine use. Mother further stated she no longer planned to use drugs or alcohol because she wanted to breastfeed G.M. and agreed to on demand drug testing.

The Department’s initial assessment revealed G.M. was positive for cannabinoids at the time of her birth. Additionally, mother’s first drug test for the Department revealed she was positive for alcohol. When confronted with the results, mother said she did not know how it was possible as she had not consumed any alcohol since the day before giving birth. Moreover, while mother stated she would complete a substance abuse treatment program, she subsequently missed her appointment with the program liaison. As a result of its assessment, in late February 2019, the Department requested a removal order from the juvenile court. After the juvenile court granted the removal order, the Department removed G.M. from the parents[3] and placed her in foster care.

3. Petition; Detention Hearing

A week after G.M. was removed from the parents, the Department filed a petition alleging jurisdiction over her pursuant to section 300, subdivisions (b) and (j). The petition alleged G.M. was positive for marijuana at the time of her birth (count b-1), that mother had a history of substance abuse and was under the influence marijuana and methamphetamine during her pregnancy with G.M. (count b-2 and j-1), and that mother knew father had a history of substance abuse, and failed to protect G.M. from him (count b-3).

At the detention hearing in March 2019, the juvenile court released G.M. to the parents with the condition they submit to regular drug and alcohol testing. Furthermore, the juvenile court ordered mother to complete the substance abuse treatment she was scheduled to begin. At the same hearing, the juvenile court reviewed the parents’ ICWA-020 form. When the juvenile court asked mother about her representation that she may have Indian ancestry, mother stated maternal grandmother might have more information regarding G.M.’s Indian heritage. Paternal grandmother was also present at the hearing and said she had “paperwork” on her Indian heritage at home and provided her phone number on the record. Accordingly, the juvenile court ordered the Department to investigate the parent’s claims of possible Indian heritage and to follow up with paternal grandmother to obtain any documents she might have.

In April 2019, prior to the adjudication hearing, the juvenile court followed the Department’s recommendation to remove G.M. from the parents. The Department’s recommendation was triggered by mother’s failure to enroll in a substance abuse program and failure to complete all required drug tests. Mother was granted monitored visitation. The same month, the Department issued ICWA notices to the Bureau of Indian Affairs, the Ute Indian Tribes, and the Chickasaw Nation. The Department listed “unknown” for all identifying information for both maternal and paternal grandparents.

4. Jurisdiction/Disposition Hearing

At the adjudication hearing in June 2019, the juvenile court sustained the counts against mother alleging she had a history of substance abuse, was under the influence of marijuana and methamphetamine during her pregnancy with G.M., and that she knew father had a history of substance abuse and failed to protect G.M. from him. At the same hearing, the juvenile court again ordered the Department to contact paternal grandmother regarding her Indian heritage claim. Moreover, the juvenile court ordered the Department prepare a supplemental report regarding the Indian heritage investigation with details about the interviews, dates, and places of birth of the relatives as far back as could be ascertained.

At the subsequent disposition hearing in August 2019, the juvenile court ordered mother to participate in a substance abuse program with aftercare, drug testing, a 12-step program, a parenting course, and individual counseling to address case issues including substance abuse and protective parenting. Mother’s visits with G.M. remained monitored, three times per week for three hours per visit. Additionally, upon the Department's request, the juvenile court found ICWA did not apply.

5. 12 Month Review; Termination of Mother’s Reunification Services

At the 12-month review hearing in August 2020, the Department reported mother had missed 10 drug tests in a row. Mother claimed she could not test because of the COVID pandemic; however, the Department confirmed the testing sites remained operational. Additionally, mother had not yet started a 12-step program, did not complete a parenting program, and was not in compliance with her individual counseling requirements. Ultimately, the juvenile court terminated mother’s reunification services finding she only partially complied with her case plan.[4]

6. Mother’s Section 388 Petition

In June 2021, the day of the contested 366.26 hearing, mother filed a section 388 petition. Mother’s petition stated she was projected to graduate a substance abuse treatment program the following week and that she had been drug testing clean at the program’s facility. The petition included a letter from the treatment center stating she had tested clean three times. Moreover, the petition alleged mother was going to begin therapy sessions and was participating in NA/AA meetings. Finally, the petition included a partial copy of an attendance form showing mother went to three NA/AA meetings in May 2021. The juvenile court denied mother’s section 388 petition without setting it for a hearing finding mother’s circumstances were changing but had not changed.

DISCUSSION

1. Section 388 Petition

On appeal, mother contends the juvenile court abused its discretion by failing to conduct an evidentiary hearing on her section 388 petition. For the reasons that follow, we find no abuse of discretion.

1. 1. Legal Principles

Section 388 accords a parent the right to petition the juvenile court to modify any of its orders based upon changed circumstances or new evidence. (§ 388.) To obtain the requested modification, “the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child’s best interests. [Citation.]” (In re G.B. (2014) 227 Cal.App.4th 1147, 1157, italics omitted.)

The juvenile court must hold an evidentiary hearing on a section 388 petition only if the petitioner makes a prima facie showing that circumstances have changed since the prior court order and that the proposed change of court order will be in the child’s best interests. (Cal. Rules of Court, rule 5.570(a), (d), (e); In re G.B., supra, 227 Cal.App.4th at p. 1157.) While courts are to liberally construe section 388 petitions, “‘[t]he prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.’ [Citations.] The petition may not consist of ‘general, conclusory allegations,’” and should include declarations or other attachments demonstrating the showing to be made at an evidentiary hearing. (In re Samuel A. (2020) 55 Cal.App.5th 1, 7, (Samuel A.).) In other words, a prima facie case “is not made . . . if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing.” (In re G.B., supra, 227 Cal.App.4th at p. 1157; see ibid. [a “prima facie case is made if the allegations demonstrate that [the] two elements are supported by probable cause”].)

“Section 388 provides an ‘“escape mechanism”’ for parents facing termination of their parental rights by allowing the juvenile court to consider a legitimate change in the parent’s circumstances after reunification services have been terminated. [Citation.] This procedural mechanism, viewed in the context of the dependency scheme as a whole, provides the parent due process while accommodating the child’s right to stability and permanency. [Citation.] After reunification services have been terminated, it is presumed that continued out-of-home care is in the child’s best interests. [Citation.] Section 388 allows a parent to rebut that presumption by demonstrating changed circumstances that would warrant modification of a prior court order. [Citation.]” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)

We review the denial of a section 388 petition for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; Samuel A., supra, 55 Cal.App.5th at p. 7.)

1. 2. The Juvenile Court Did Not Abuse Its Discretion by Summarily Denying Mother’s Section 388 Petitions

Mother contends she made a prima facie showing of changed circumstances– namely, that she was projected to graduate a substance abuse treatment program and was testing drug-free. She asserts that the juvenile court therefore abused its discretion by summarily denying her section 388 petition.

We disagree. Mother had a lengthy history of substance abuse, as evidenced by her own statements, her positive drug test when she gave birth to G.M., her multiple missed drug tests, and her failure to enroll in an aftercare program after completion of her substance abuse program. Against this backdrop, mother relies on her projected completion of a drug program in June 2021 to demonstrate changed circumstances. But mother’s drug treatment lasted less than three months, and she provided evidence of only three drug tests. And, even as of June 2021—more than two years after G.M. was removed from her care—mother had failed to complete some elements of her case plan, including an aftercare program, obtaining a sponsor, psychological and psychiatric testing, and a 12-step program.

When a parent shows she is in the early stages of recovering from drug or alcohol addiction, juvenile courts typically find her circumstances to be “changing,” not “changed.” For example, in In re Cliffton B. (2000) 81 Cal.App.4th 415, 423–424, the court concluded that in light of the parent’s lengthy history of addiction, seven months of sobriety did not demonstrate changed circumstances. Similarly, in In re Ernesto R. (2014) 230 Cal.App.4th 219, 223, the court concluded that the parent’s recent sobriety “reflects ‘changing,’ not changed, circumstances.” (Ibid; See also in In re Casey D. (1999) 70 Cal.App.4th 38, 49, overruled on another ground in In re Caden C. (2021) 11 Cal. 5th 614, 636 [mother’s four months of sobriety did not demonstrate changed circumstances]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform.”].)

The present case is analogous to In re Cliffton B. and In re Ernesto R. Given mother’s long-term drug abuse, her completion of a two-month drug treatment program and three clean drug tests, while commendable, are not a sufficiently substantial change of circumstances to trigger an evidentiary hearing under section 388. The juvenile court did not err in so concluding.[5]

2. ICWA

1. Governing Legal Principles

“ICWA reflects ‘a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimal federal standards that a state court . . . must follow before removing an Indian child from his or her family.’ [Citation.] Both ICWA and the Welfare and Institutions Code define an ‘Indian child’ as ‘any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe, or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.’ (25 U.S.C. § 1903(4); § 224.1, subds. (a) and (b) [incorporating federal definitions].)” (In re D.F. (2020) 55 Cal.App.5th 558, 565, fn. omitted (D.F.).) ICWA applies “n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, [and a] party [is] seeking foster care placement of, or termination of parental rights to, an Indian child . . . .” (25 U.S.C. § 1912(a).)

“The juvenile court and [the Department] have ‘an affirmative and continuing duty to inquire whether a child for whom a Section 300 petition . . . may be or has been filed, is or may be an Indian child.’ [Citations.] This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.” ([i]D.F., supra, 55 Cal.App.5th at p. 566.)

The juvenile court must determine whether the ICWA applies to the proceedings. (In re E.W. (2009) 170 Cal.App.4th 396, 403 (E.W.).) “On appeal, we review the juvenile court’s ICWA findings for substantial evidence. [Citations.] But where the facts are undisputed, we independently determine whether ICWA’s requirements have been satisfied. [Citation.]” (In re D.S. (2020) 46 Cal.App.5th 1041, 1051, fn. omitted.)

1. 1. 1. Initial Duty to Inquire

The Department’s initial duty of inquiry at the beginning of a child welfare proceeding includes “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).) The court must inquire at each party’s first appearance, whether any participant in the proceeding “knows or has reason to know that the child is an Indian child.” (§ 224.2, subd. (c).) Part of the initial inquiry includes requiring each party to complete the ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(2)(C).)

1. 1. 2. Duty of Further Inquiry

When there is “reason to believe that an Indian child is involved in a proceeding,” further inquiry is required. (§224.2, subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.) Effective September 18, 2020, section 224.2, subdivision (e)(1), explains that “reason to believe” exists “whenever 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.” Further inquiry may include interviewing parents and extended family members to obtain information such as the names of the child’s “biological parents, grandparents, and great-grandparents, . . . 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.” (§ 224.2, subd. (e)(2)(A); 224.3, subd. (a)(5)(C); Cal. Rules of Court, rule 5.481(a)(4)(A).) The agency engaging in further inquiry may also need to contact the Bureau of Indian Affairs, the State Department of Social Services, and any tribes the child may be affiliated with, and anyone else, that might have information regarding the child’s membership or eligibility in a tribe. (§ 224.2, subds. (e)(2)(B) & (e)(2)(C); Cal. Rules of Court, rule 5.481(a)(4)(B)&(C).)

1. 1. 3. Notice

If the Department’s further inquiry efforts result in information that would give the court or the Department “reason to know” that the child is an Indian child under ICWA, then the relevant tribes must be given notice of the proceedings. (25 U.S.C. § 1912, subd. (a); §224.3, subd. (a); §224.2, subd. (d) [describing circumstances where there is “reason to know” a child is an Indian child].) “[N]otice pursuant to ICWA must be sent to the pertinent tribe(s) via registered or certified mail. [Citation.] The notice must contain sufficient information to enable the tribe to ‘conduct a meaningful review of its records to determine the child’s eligibility for membership.’ [Citation.] The required information includes the names, birth dates, birthplaces, and tribal enrollment information of the parents and other direct lineal ancestors of the child, such as grandparents. [Citation.]” (D.F., supra, 55 Cal.App.5th at p. 568.)

2. The Department Failed to Conduct an Adequate Inquiry into G.M.’s Possible Indian Ancestry

Mother contends the juvenile court erred in finding ICWA did not apply. Specifically, she contends: (1) the Department failed to satisfy its duties of initial and further inquiry because it did not ask maternal or paternal grandmothers about their knowledge of G.M.’s possible Indian ancestry; (2) the Department failed to satisfy its duties of initial and further inquiry because it did not follow up with maternal or paternal grandmothers regarding possible Indian ancestry; and (3) the Department provided inadequate ICWA notice to the Ute and Chicksaw tribes.

1. 1. Initial Inquiry

We first address mother’s contention that the juvenile court and the Department failed to satisfy ICWA’s “initial inquiry” requirement because it failed to follow up with maternal and paternal grandmothers about the child’s possible Indian ancestry. As discussed ante, section 224.2, subdivisions (a), (b), and (c), impose an initial duty of inquiry upon DCFS and the juvenile court to ask all relevant involved persons whether the child may be an Indian child. (§ 224.2, subs. (a)–(c).)

In the case before us, the juvenile court conducted its initial inquiry into whether G.M. is an Indian child during mother’s and father’s first appearance at the March 2019 initial petition hearing. At that hearing, the juvenile court reviewed the ICWA-020 forms submitted by each parent. Moreover, the juvenile court ordered the Department to follow up with maternal and paternal grandmothers. The juvenile court, therefore, met ICWA’s initial inquiry requirements. (In re T.G., supra, 58 Cal.App.5th at p. 293 [finding the juvenile court “fulfilled its initial obligation to ask about” “possible Indian ancestry” when mother was asked about her Indian ancestry at the detention hearing and filed an ICWA-020 form at that time].)

1. 2. Further Inquiry

We agree, however, with mother’s second contention that the Department was duty-bound to make a further inquiry into the child’s Indian heritage, and failed to so inquire. Specifically, mother contends the Department erred by failing to contact paternal and maternal grandmothers as it had contact information for both.

Relying on In re Austin J. (2020) 47 Cal.App.5th 870, the Department argues the information provided by mother “did not support any reason to believe” G.M. was an Indian child to trigger further inquiry. Austin J., however, is distinguishable in several respects. Our colleagues in Division One decided Austin J. before section 224.2 was amended to include a definition of “‘reason to believe.’” (Austin J., supra, 47 Cal.App.5th at p. 883; see In re S.R. (2021) 64 Cal.App.5th 303, 317 (S.R.) [the new provision to section 224.2 “forecloses the narrow interpretation of what constitutes reason to believe advanced by the court in Austin J.”].) We apply the current version of section 224.2 to this case. (In re Isaiah W., supra, 1 Cal.5th 1, 11. (Isaiah W.) Austin J. is also factually distinguishable. In Austin J., mother informed the Department she may have Indian heritage and claimed maternal aunt might have additional information. (Austin J., supra, 47 Cal.App.5th at p. 878.) There, the Department contacted maternal aunt the same day it received the information from mother. (Ibid.) Here, the Department admits it did not contact maternal or paternal grandmothers to inquire about their Indian ancestry at any point throughout the case.

The Department has an obligation under its duty of further inquiry to contact “any other person that may reasonably be expected to have information regarding the child's membership status or eligibility.” (§ 224.2, subd. (e)(2)(B); see In re K.R. (2018) 20 Cal.App.5th 701, 709 [“a social services agency has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status”].) Here, mother and father both stated paternal and maternal grandmothers had information regarding possible Indian ancestry. Those statements caused the juvenile court to order the Department to conduct a further inquiry into the parent’s claims. The record shows the Department was in contact with maternal grandmother to arrange visits with G.M. and later to consider her as a possible placement. Moreover, the record shows the Department had access to paternal grandmother as she provided her phone number on the record at the initial petition hearing. There is, however, no evidence that anyone asked either relative for any additional information about possible Indian heritage. This absence of any effort to gather information stands in contrast to other cases where reviewing courts found the duty of further inquiry satisfied because the record contained evidence of a meaningful inquiry into the possibility that a minor was an Indian child. (See, e.g., D.F., supra, 55 Cal.App.5th at pp. 569-570 [agency’s “repeated efforts to gather information concerning maternal ancestry,” including interviewing grandparents and other family members, provided substantial evidence of further inquiry]; In re D.S., supra, 46 Cal.App.5th at pp. 1046-1047, 1052-1054 [agency detailed the efforts by minor’s aunt (who was also minor’s caregiver) to determine whether there was any chance of tribal membership, and contacted multiple tribes with no success in determining minor’s eligibility for tribal membership].)

Acknowledging that the Department “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), we still conclude that without any evidence that the Department asked maternal or paternal grandmother for any information relevant to the parent’s claims of Indian heritage, the court erred in finding ICWA inapplicable.

Anticipating our conclusion, the Department contends its failure to further inquire into the child’s Indian heritage constitutes harmless error. While it is true that noncompliance with the ICWA may be found harmless in cases in which the efforts to comply with the duty of inquiry are borne out by the appellate record, the Department here admits the record is silent as to its efforts. The case before us thus presents no basis for a finding of harmless error. (See In re N.G. (2018) 27 Cal.App.5th 474, 485 [court will find prejudicial error when the record is silent on efforts to comply with the ICWA, as the court “simply cannot know whether [the Department] would have discovered information sufficient” to determine whether the child is an Indian child]; accord, In re A.C. (2021) 65 Cal.App.5th 1060, 1070 [“we cannot know for certain whether the error did or did not prevent it from discovering Indian ancestry”]; see also In re Mary G. (2007) 151 Cal.App.4th 184, 212 [“In re Rebecca R. does not hold that on appeal a parent must produce evidence—as a prerequisite to reversal for ICWA notice deficiencies—that the child is a member of an Indian tribe or eligible for membership in a tribe. Indeed, a parent does not have to make that showing at the juvenile court to trigger the ICWA notice provisions. Rather, that is a determination the noticed tribes make.”].)

1. 3. Notice

Finally, we agree with mother’s third contention that the Department provided inadequate ICWA notice to the Ute and Chickasaw tribes. The notices the Department sent to the Chickasaw and Ute tribes omitted essential background information about paternal and maternal grandmothers that federal regulations and related California law require. “Federal regulations implementing ICWA provide that the notice must include, in addition to information about the child and the child’s parents, ‘f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents.’ (25 C.F.R. § 23.111(d)(1)–(3) (2021); see 25 C.F.R. § 23.11(a) (2021); [i]In re E.H. (2018) 26 Cal.App.5th 1058, 1069; In re Breanna S., [(2017) 8 Cal.App.5th 636,] 651, fn. 8.) Section 224.3, subdivision (a)(5)(C), requires ICWA notices to 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.’ (See In re T.G., supra, 58 Cal.App.5th at p. 294.)” (In re Y.W. (2021) 70 Cal.App.5th 542, 556-557.)

“‘ICWA notice requirements are strictly construed’ (In re J.M. (2012) 206 Cal.App.4th 375, 380) and ‘“must include enough information for the tribe to ‘conduct a meaningful review of its records to determine the child’s eligibility for membership.’”’ (In re J.S., [62 Cal.App.5th 678,] 688; see In re Breanna S., supra, 8 Cal.App.5th at p. 653 [‘vigilance in ensuring strict compliance with federal ICWA notice requirements is necessary’]; In re A.G. (2012) 204 Cal.App.4th 1390, 1397 [‘[b]ecause of their critical importance, ICWA’s notice requirements are strictly construed’].)” (In re Y.W., supra, 70 Cal. App. 5th at p. 557.)

As noted above, here the notices contained no information for any of the grandparents. For all grandparents, the Department listed “unknown” for name, address, former address, birthdate, birthplace, and tribal membership. The Department had contact information for both grandmothers as they were involved in the case, yet it provided none of their information on the notices. “These omissions violated federal and state law. (See 25 C.F.R. §§ 23.11(a), 23.111(d)(1)–(3) (2021); § 224.3, subd. (a)(5)(C); In re E.H., supra, 26 Cal.App.5th at p. 1069 [‘“it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors’”’]; In re Louis S. (2004) 117 Cal.App.4th 622, 630 [‘The burden is on the [a]gency to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the [Bureau of Indian Affairs].’].)” (In re Y.W., supra, 70 Cal.App.5th at p. 557.)

It is unfortunate that after over three years of dependency G.M.’s permanency must be delayed to ensure adequate compliance with ICWA. However, the decision whether she is an Indian child is made by the tribe, not by the juvenile court or by the Department. (Isaiah W., supra, 1 Cal.5th at p. 15.)

DISPOSITION

The order denying mother’s section 388 petition is affirmed. The section 366.26 order is conditionally reversed. The matter is remanded to the juvenile court for full compliance with the inquiry provisions of the ICWA and for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

WILLHITE, Acting P.J.

MICON, J.*

[1] Unless otherwise specified, all further undesignated statutory references are to the Welfare and Institutions Code.

[2] I.M. is not a subject of this appeal.

[3] Father is not a party to this appeal.

[4] The juvenile court terminated father’s reunification services in February 2020.

[5] Because mother did not demonstrate a prima facie case of changed circumstances, we need not consider whether the proposed change of court orders was in the child’s best interests.

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.