Filed 8/12/22 In re Jade P. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Robin R. Kesler, Juvenile Court Referee. Conditionally affirmed and remanded with directions.

Robert McLauglin, under appointment by the Court of Appeal, for Defendant and Appellant Mark P.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant Jamie M.

Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.

__________________________

Jamie M. (Mother) and Mark P., Jr., (Father) appeal from the juvenile court’s order terminating their parental rights over 10-year-old Jade P., five-year-old Mark P. III (Mark), three-year-old James P., and two-year-old Ezekiel P. under Welfare and Institutions Code section 366.26.[1] The parents contend as to Ezekiel the juvenile court abused its discretion in finding the beneficial parental relationship exception to termination of parental rights did not apply. The parents do not challenge the findings as to the other children. The juvenile court did not abuse its discretion.

Further, the parents argue, the Department concedes, and we agree as to all four children the Los Angeles County Department of Children and Family Services (the Department) and the juvenile court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and related California law. The juvenile court erred in failing to ensure the Department complied with the inquiry and the notice provisions, and the error was prejudicial. We conditionally affirm and remand for the juvenile court and the Department to comply with the inquiry and notice provisions of ICWA and California law.

• FACTUAL AND PROCEDURAL BACKGROUND

1. 1. The Referral and Dependency Petitions

On January 13, 2017 the Department received a referral alleging Father engaged in domestic violence while he was drunk. Father held Mother in a chokehold and threw her over the back of the sofa to the floor in the presence of five-year-old Jade and seven-month-old Mark. Mother reported that during their four-year relationship, Father hit her 12 times and placed her in chokeholds during most of the incidents.

On February 14, 2017 the Department filed a dependency petition on behalf of Jade and Mark alleging Mother and Father had a history of engaging in physical altercations; Father abused alcohol; and Mother failed to protect the children by allowing Father to reside in the home. On June 5, 2017 the juvenile court sustained the petition under section 300, subdivision (b)(1), declared Jade and Mark dependents of the court, and placed them in Mother’s home.

After James was born in February 2018, the Department filed a dependency petition on behalf of James alleging Mother and Father had a history of engaging in physical altercations when Father was under the influence of alcohol; Jade and Mark were current dependents of the court; Mother allowed Father to have unmonitored visits with Jade and Mark in the family home in violation of court orders; Father failed to participate regularly in court-ordered domestic violence classes; and Father was previously convicted of inflicting corporal injury on a spouse or cohabitant. On April 30, 2018 the juvenile court sustained the allegations under section 300, subdivisions (b)(1) and (j).

On June 15, 2018 the Department removed Jade, Mark, and James from Mother’s home and placed them with the paternal grandparents. On June 18 the Department filed a supplemental petition (§ 387) on behalf of Jade and Mark, alleging Mother violated juvenile court orders by allowing Father to have unsupervised visitation with the children in the home.[2] On June 19 the juvenile court detained Jade, Mark, and James from Mother and continued their placement with the paternal grandparents. However, on June 29 the paternal grandparents stated they could not care for the children for personal reasons, and the children were placed in foster care.

After Ezekiel was born in January 2020, the Department placed him with his siblings in the same foster home. On February 3, 2020 the Department filed a petition on behalf of Ezekiel alleging, among other things, that Mother and Father had a history of engaging in physical altercations; Mother failed to protect Ezekiel and his siblings by allowing Father to reside in the home; Ezekiel’s siblings were current dependents of the court; and Father had a history of substance abuse and abused prescription medication, amphetamine, methamphetamine, opiates, codeine, marijuana, and alcohol.

1. 2. Visitation with Ezekiel Prior to the Disposition Hearing[3]

On March 10, 2020 the Department reported that since Ezekiel was placed in foster care, Mother had only two visits, and Father did not visit because of the limited availability of monitors. In April Mother and Father started having monitored virtual visits with Ezekiel, Mark, and James because of the COVID-19 pandemic. Mother and Father asked the children questions and said they loved them.^[4]

Mother and Father had monthly in-person visits with Mark, James, and Ezekiel at a park starting in July 2020. The parents also had two monitored virtual visits with the three boys each week in which the parents tried to engage in conversation with Mark and James and sang songs to the children. Mark and James often refused to participate in the virtual visits and said negative things to the parents during the visits.

Starting in September 2020 Mother and Father had three-hour in-person visits once a month with the three boys. The parents visited with Mark and James on one day, and with baby Ezekiel on another. The monitor reported that during one of the visits with Ezekiel, the parents fed him baby food and formula, burped him, and changed his diaper. The visit was appropriate and went well. On another visit Mother and Father greeted Ezekiel affectionately and brought age-appropriate toys and a stroller to the visit. The parents gently laid Ezekiel down and talked to him, and they engaged in positive and developmentally appropriate activities with the baby. They later placed Ezekiel in the stroller and took a walk around the park. Afterward, they placed Ezekiel on his stomach for “tummy time” and encouraged him to crawl. Father later clipped Ezekiel’s nails while talking to him in a soothing voice. The parents changed Ezekiel’s diaper twice. The monitor reported Ezekiel appeared happy and comfortable with Mother and Father during the visit.

The parents continued to have monitored virtual visits with Mark, James, and Ezekiel in September 2020. Both Mark and James refused to appear on video camera during most visits. Mark was adamant he did not want visits with his parents, and he acted out by physically harming James. The parents said they loved and missed the boys, and they tried to converse with Mark and James. The parents also sang nursery rhymes and asked Mark and James to sing along. Mark and James did not engage with the parents, but Ezekiel would listen to the songs. In the October and November 2020 virtual visits, Mother and Father appropriately engaged with Ezekiel by praising him, asking him to repeat some words, reading books, and singing nursery rhymes to him. In a visit on October 13, Ezekiel waved to the camera. When Mother asked Ezekiel to say certain words such as “‘dadda, momma,’” he mumbled a few words in response.

On October 15, 2020 Mother had a monitored two-hour in-person visit with Ezekiel in the park.[5] Mother held Ezekiel, told him she missed and loved him, changed his diaper, and sang to him while changing him. Mother then took out a few toys, and Ezekiel crawled to her and the toys. Mother read a book to Ezekiel before pushing him on the swing for a few minutes. Mother then carried Ezekiel to a shaded area because she did not want him to get sunburned. With prompting from Mother, Ezekiel was able to say “hi” and “bye” and to wave his hand. According to a Department report, “Ezekiel was very attentive and happy.”

1. 3. The Jurisdiction and Disposition Hearings for Ezekiel

On October 19, 2020 the juvenile court sustained the allegations in Ezekiel’s dependency petition under section 300, subdivisions (a), (b)(1), and (j). At the December 8, 2020 disposition hearing, the court declared Ezekiel a dependent of the court, removed him from the parents’ physical custody, and denied family reunification services for the parents under section 361.5, subdivision (b)(10).

1. 4. Visitation With Ezekiel After the Disposition Hearing

On December 22, 2020 Mother had a monitored visit with Mark, James, and Ezekiel at the park. Mother held Ezekiel while Mark and James ran around a fountain. Mother later placed Ezekiel in a stroller. Ezekiel “was quiet and looking around.”

From December 2020 to March 2021 Mother and Father continued to have virtual visits with the three boys. During the visits, the parents sang nursery rhymes to Ezekiel. The parents also had monthly visits with Ezekiel, although Father missed four out of 11 visits. The parents were appropriate during the visits, and the caregiver did not report any concerns regarding Ezekiel’s behavior after the visits. On August 10, 2021 the juvenile court ended the virtual visits but continued in-person visits.

In August 2021 the Department reported the parents had in-person visits with the three boys twice a month. The parents “showed their interest, eagerness, and concerns regarding visits.” However, Mark threw tantrums and physically harmed James when the caregiver made him attend the visits. Starting in September 2021 Mother and Father started having weekly visits in the park with James and Ezekiel (Mark refused to attend). Once Mark stopped having visits, his behavior improved, and he no longer showed “any aggression toward James.”

In December 2021 the caregiver reported that after Tuesday visits with the parents, James and Ezekiel “act[ed] out.” James began to harm Ezekiel after the visits, and he engaged in self-harm by picking and peeling the skin on his fingers. After a December 2 visit, James “choked Ezekiel while smiling.” The caregiver reported Ezekiel had “separation anxiety” as shown by the fact he would “wake[] up in the middle of the night” and cry “a lot” after his Tuesday visits with the parents. The Department recommended termination of parental rights for all four children.

1. 5. The Section 366.26 Report and Status Reports

The April 1, 2021 section 366.26 report stated one-year-old Ezekiel was “happy, physically healthy, sociable, and thriving well in the care of his current caregiver.” He resided in the foster home with Mark and James and had a strong bond with his brothers. Ezekiel received regional center services to address his speech and motor skill delays. His services included physical therapy, occupational therapy, speech therapy, and child development support. The caregiver was willing to provide a placement home for Ezekiel, but she did not want to adopt him.[6] In October 2021 the Department stated Y.R. and her partner Y.L. were committed to adopting the boys and were knowledgeable regarding their needs. The Department recommended termination of parental rights.

1. 6. The Selection and Implementation Hearing

At the December 6, 2021 selection and implementation hearing (§ 366.26), the juvenile court found by clear and convincing evidence the children were adoptable and no exception to termination of parental rights applied. The court cited in support of its finding “the acting out of the kids not only towards each other but [Ezekiel’s] waking up after a visit crying in the middle of the night.” The court explained, “While the parents are visiting and mom has been consistent, she still only occupies a monitored visitation and does not occupy at this point in time a parental role with her children. [¶] Again, these young kids five and ten year olds not wanting to visit with their parents and the acting out, after they have a visit, is not a parental role or a bond by these children with the parents. I agree that mom loves her kids. I would assume dad does, too. At this point in time, the court has to look at the long-term issues from the children as we are well passed family reunification services.” The court then terminated Mother’s and Father’s parental rights.

Mother and Father timely appealed.[7]

• DISCUSSION

1. 1. The Juvenile Court Did Not Abuse Its Discretion in Finding the Beneficial Parental Relationship Exception Did Not Apply
      1. Governing law and standard of review

“At the section 366.26 hearing, the focus shifts away from family reunification and toward the selection and implementation of a permanent plan for the child.” (In re S.B. (2009) 46 Cal.4th 529, 532; accord, In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) “‘Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1).’” (In re B.D. (2021) 66 Cal.App.5th 1218, 1224-1225; accord, In re Celine R. (2003) 31 Cal.4th 45, 53 [“the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child”].)

Under section 366.26, subdivision (c)(1)(B)(i), “the parent may avoid termination of parental rights” if the parent establishes by a preponderance of the evidence “that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child. [Citations.] The language of this exception, along with its history and place in the larger dependency scheme, show that the exception applies in situations where a child cannot be in a parent’s custody but where severing the child’s relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child.” (Caden C., supra, 11 Cal.5th at pp. 629-630; accord, In re B.D., supra, 66 Cal.App.5th at p. 1225.)

A parent has regular visitation and contact when the parent “‘visit[s] consistently,’ taking into account ‘the extent permitted by court orders.’” (Caden C., supra, 11 Cal.5th at p. 632; accord, In re I.R. (2014) 226 Cal.App.4th 201, 212.) Whether “‘the child would benefit from continuing the relationship’” with his or her parent is shaped by factors “such as ‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs.’” (Caden C., at p. 632; accord, In re Katherine J. (2022) 75 Cal.App.5th 303, 317 (Katherine J.).) “‘If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,’ even considering the benefits of a new adoptive home, termination would ‘harm[]’ the child, the court should not terminate parental rights.” (Caden C., at p. 633; Katherine J., at p. 317.) “While application of the beneficial parental relationship exception rests on a variety of factual determinations properly reviewed for substantial evidence, the ultimate decision that termination would be harmful is subject to review for abuse of discretion.” (Caden C., at p. 630; accord, In re B.D., supra, 66 Cal.App.5th at p. 1225.)

1. 1. 2. The juvenile court did not abuse its discretion

Mother and Father contend the juvenile court abused its discretion in finding the beneficial parental relationship exception did not apply because the court considered Father’s failure to complete his case plan, Mother’s ongoing relationship with Father, and whether the parents occupied a parental role, which are improper under Caden C.[8] The Supreme Court in Caden C. did not bar juvenile courts from considering whether a parent occupies a “parental role” in deciding whether the beneficial parental relationship exception applies. Instead, the court explained that even where a parent continues to struggle with the problems that led to the dependency proceedings, the juvenile court’s inquiry as to whether the beneficial parental relationship exception applies should focus on whether those challenges interfere with the parent’s relationship with the child, whether the child has a substantial, positive emotional attachment to the parent, and whether loss of the relationship would be detrimental to the child. (Caden C., supra, 11 Cal.5th at p. 642; see In re D.M. (2021) 71 Cal.App.5th 261, 271-272 [reversing order terminating parental rights following Caden C. where juvenile court improperly found father did not occupy parental role solely because he failed to attend his children’s dental and medical appointments and to understand their medical needs]; In re J.D. (2020) 70 Cal.App.5th 833, 863-865, 870 [juvenile court improperly held beneficial parental relationship exception did not apply because mother’s positive relationship with child “did not ‘amount to a parental bond’” in light of mother’s failure to meet child’s daily needs]; In re B.D., supra, 66 Cal.App.5th at pp. 1229-1230 [reversing juvenile court’s order terminating parental rights, and ordering new hearing in light of Caden C. to determine whether juvenile court’s finding that parent did not serve in “parental role” was improperly based on parents’ ability to provide for the children’s daily needs and parents’ sobriety].)

As the Court of Appeal recently explained in Katherine J., supra, 75 Cal.App.5th at page 309, “Caden C. prohibits juvenile courts from finding against a beneficial relationship solely because a parent has failed to surmount the issues that initially brought the child into dependency care—a standard that few parents facing termination of parental rights could hope to meet.” (Accord, In re L.A.-O. (2021) 73 Cal.App.5th 197, 211-212 [reversing order terminating parental rights, and remanding for new section 366.26 hearing because “trial court’s terse ruling” that “the parents ‘ha[d] not acted in a parental role in a long time’” could erroneously mean the parents “were not capable of taking custody, or had not been good parents, or had not been providing necessary parental care”].) However, a finding the parent does not serve in a “‘parental role’” in the child’s life does not necessarily mean the juvenile court failed to consider the child’s substantial, positive emotional attachment to the parent as required by Caden C., supra, 11 Cal.5th at page 636 and section 366.26, subdivision (c)(1)(B)(1). (Katherine J., at pp. 309, 321-322 [affirming order terminating parental rights despite juvenile court’s finding father had not served in parental role in child’s life where father’s unresolved issues prevented him from maintaining strong, positive attachment with child, thereby diminishing benefits to child from relationship].)

In considering the parental beneficial relationship exception, the juvenile court found Mother and Father remained in their abusive relationship and had not occupied a parental role with the children. Although it is troubling that the juvenile court focused on the parents’ failure to resolve the issues that led to the dependency proceedings and did not explain what it meant by the parents not occupying a “parental role,” any error was harmless because Mother and Father failed to establish by a preponderance of the evidence that Ezekiel developed a substantial, positive emotional attachment with them during the limited monitored visits (initially monthly, then weekly starting in September 2021), as a result of which Ezekiel would benefit from continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 636; see In re Jesusa V. (2004) 32 Cal.4th 588, 624 [harmless error standard applies in dependency cases]; In re Malick T. (2022) 73 Cal.App.5th 1109, 1128 [same].)

Ezekiel was only one month old when he was detained from Mother and Father and placed with his caregiver in February 2020. For the next two years Ezekiel lived with his caregiver. During monthly in-person visits in 2020, Mother and Father were affectionate and appropriate with Ezekiel, and Ezekiel appeared happy and comfortable with his parents. Because of the COVID-19 pandemic, visits from March to July 2020 were limited to video calls. During the virtual calls, the parents sang nursery rhymes to Ezekiel and encouraged him to say words. Mother and Father started visiting with Ezekiel and his brothers on a monthly basis in the park in July 2020. The parents were appropriate during visits, and the caregiver did not report any concerns regarding Ezekiel’s behavior after the visits. In August 2021 the parents’ in-person visits with Ezekiel increased to twice a month, and in September to weekly visits (for the two months until the selection and implementation hearing). Although the record shows that Mother and Father were appropriate in their interaction with Ezekiel, playing with him, singing nursery rhymes to him, and telling him they loved him, the Department’s reports do not reflect Ezekiel’s bond with his parents, only stating that Ezekiel appeared happy and comfortable with Mother and Father.

In December 2021 the caregiver reported that after weekly visits with the parents, Ezekiel had separation anxiety as shown by the fact he would “wake[] up in the middle of the night” and cry “a lot.” Mother and Father contend Ezekiel cried at night after visits because he suffered separation anxiety from his attachment to them. Father also asserts Ezekiel’s behavior was “a reflection of the cumulative angst his brothers experienced” relating to the visits or from James physically harming Ezekiel after visits. But this is speculation by Father. The juvenile court, in finding Ezekiel’s nighttime crying after visits supported termination of parental rights, could have reasonably inferred that after the visits Ezekiel woke up in the middle of the night crying because he feared separation from his caregiver, who had cared for him since he was one month old. This is consistent with the December 3, 2021 last minute report from the Department, which likewise cited Ezekiel’s acting out and crying following visits with the parents in the same paragraph recommending the juvenile court terminate parental rights as to Ezekiel. In reviewing the juvenile court’s findings, we do not reweigh the evidence or resolve evidentiary conflicts. (Caden C., supra, 11 Cal.5th at p. 640; In re Eli B. (2022) 73 Cal.App.5th 1061, 1072.) Although the evidence shows Ezekiel enjoyed his visits with Mother and Father, the parents did not present evidence showing Ezekiel had a substantial positive emotional attachment to them. (Caden C., at p. 636; In re Katherine J., supra, 75 Cal.App.5th at p. 317.)

Moreover, Mother and Father did not meet their burden to show it would be detrimental to Ezekiel to sever his relationship with the parents.[9] At the time of the selection and implementation hearing Ezekiel was almost two years old, and he had been in foster care most of his young life. The prospective adoptive parents were committed to adopting Ezekiel and his brothers, Mark and James. Ezekiel had lived with Mark and James since he was one month old, and he had a strong bond with them. Further, the prospective adoptive parents were knowledgeable regarding Ezekiel’s needs. Ezekiel received regional center services to address his speech and motor skill delays, including physical therapy, occupational therapy, speech therapy, and child development support. The court did not abuse its discretion in impliedly finding the benefit and security provided by adoption outweighed the harm caused by the loss of his relationship with Mother and Father.[10] (Caden C., supra, 11 Cal.5th at p. 634; In re Katherine J., supra, 75 Cal.App.5th at p. 317.)

1. 2. The Juvenile Court and the Department Failed To Comply with ICWA and Related California Law
      1. ICWA inquiry, notice, and findings

At the detention hearing for Jade and Mark on February 14, 2017, Mother filed a parental notification of Indian status form, on which she checked the box stating, “I may have Indian ancestry” and wrote “Cherokee—Mississippi.” The juvenile court reviewed the form and stated, “Mom indicates she may be a member of the Cherokee Nation in Mississippi.” Mother responded, “I may not be. It is generations ago.” The court asked, “What makes you believe you might be Cherokee?” Mother answered, “Well, my dad’s grandmother was Cherokee.” The court queried, “Okay. Do you know if they had an enrollment number or participated in any tribal events?” Mother replied, “I am not sure.” The court stated, “Okay. Let’s do this. Let me have the Department send notice to the Cherokee Nation in Mississippi, in an abundance of caution, the Bureau of Indian Affairs, and so on.” The February 14 minute order stated that the court ordered the Department to “investigate Mother’s claim of Native American heritage by interviewing the parents and any known relatives to obtain all possible information concerning this claim”; “prepare the appropriate form(s) (e.g. JV-135); and include all available information”; and “give notice to any applicable tribe and their designated agent.”

On March 20, 2017 a social worker interviewed Mother about her Indian ancestry. Mother stated she may have Cherokee ancestry, but she was not aware of any family members who were enrolled or registered as members of a tribe. Mother said she did not want the Department to contact other family members about the family’s Indian ancestry because she did not want them to know about the dependency case.

On March 22, 2017 the Department sent ICWA notices in advance of Jade’s and Mark’s jurisdiction hearings to the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians in Oklahoma (Keetoowah Band), the Secretary of Interior, and the Bureau of Indian Affairs by certified mail based on information provided by Mother. The ICWA notices did not include Father’s place of birth or any information about the paternal grandparents or the paternal great-grandparents.[11] The ICWA notices listed the maternal grandparents’ names, date and place of birth, and date and place of death (for maternal grandfather), but not their current or former addresses. The ICWA notices provided the maiden and married names of maternal great-grandmother Lillie D. along with her date and place of birth, and the name of the maternal great-grandfather James F. with his date and place of death. However, the ICWA notices identified the other maternal great-grandmother only as Dorothy D. or Dorothea R. and they provided no information on the other maternal great-grandfather.

On April 3, 2017 Father first appeared in the dependency proceedings and filed a parental notification of Indian status form for Jade and Mark, on which he checked the box stating, “I have no Indian ancestry as far as I know.” At the April 3, 2017 hearing, the juvenile court found ICWA did not apply as to Father. The court continued the matter for the Department to submit the tribes’ responses to the ICWA notices.

On June 5, 2017 the Department filed the tribes’ responses and recommended the juvenile court find ICWA did not apply. In two March 27, 2017 letters, the Keetoowah Band stated the tribe had conducted a search of its enrollment records using the information supplied by the Department, and Jade and Mark were not “descendants from anyone on the Keetoowah Roll.” In two April 5, 2017 letters, the Eastern Band of Cherokee Indians responded that Mark and Jade were not registered or eligible to register as a member of the tribe based on the Department’s information.

In a May 24, 2017 letter, the Cherokee Nation stated, “In order to verify Cherokee heritage and comply with your request we need additional information as follows: [¶] maternal great-grandmother, Dorothy [D.’s] maiden name, middle name and date of birth. [¶] We need dates of birth for everyone involved, their relationship to the child or children in question, and maiden names of all females listed. . . . [¶] You may not have access to complete family information, however, we are asking you to diligently search to the best of your ability and supply us with as much information as possible. Please respond in writing with any and all additional information. We also require a response from you if you are unable to find additional information so we can relay to you the proper response to your inquiry.” (Capitalization omitted.) The letter stated further that the Department should inform the Cherokee Nation “if no further information is available.” The June 5, 2017 last minute information for the court indicated the social worker “completed” this task on May 31, 2017, which we read to mean the social worker informed the tribe it had no additional information.

On June 5, 2017 the juvenile court found ICWA did not apply as to Mark and Jade. The court stated, “[A]t this time enough time has lapsed, and there have been no responses from any tribes, indicating that these children are eligible for enrollment. And therefore, I am finding that the Indian Child Welfare Act has been complied with and does not apply to this case.”

On February 20, 2018 Mother and Father filed parental notification of Indian status forms for James, on which they checked the box stating, “I have no Indian ancestry as far as I know.” Mother and Father filed similar forms as to Ezekiel on February 4 and March 10, 2020, respectively, in which they checked the box stating, “I have no Indian ancestry as far as I know.”

1. 1. 2. ICWA inquiry and notice requirements

ICWA provides as to dependency proceedings, “where the court knows or has reason to know that an Indian child is involved, the party seeking . . . termination of parental rights to . . . an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 5; In re Antonio R. (2022) 76 Cal.App.5th 421, 428 (Antonio R.); In re T.G. (2020) 58 Cal.App.5th 275, 288.) California law also requires notice to the Indian tribe and the parent, legal guardian, or Indian custodian if the court or the Department “knows or has reason to know” the proceeding concerns an Indian child. (§ 224.3, subd. (a); see Antonio R., at p. 429; In re T.G., at p. 288; Cal. Rules of Court, rule 5.481(c)(1) [notice is required “f it is known or there is reason to know an Indian child is involved in a proceeding listed in rule 5.480,” which includes dependency cases filed under section 300].) The notice requirement is at the heart of ICWA because it “enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding.” ([i]In re Isaiah W., at p. 5; accord, Antonio R., at p. 428; In re T.G., at p. 288; see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3, subd. (d).)

The juvenile court and the Department “have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; In re H.V. (2022) 75 Cal.App.5th 433, 437.) “The duty to inquire begins with initial contact (§ 224.2, subd. (a)) and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child. (§ 224.2, subds. (a)-(c)).” (In re T.G., supra, 58 Cal.App.5th at p. 290; accord, In re J.C. (2022) 77 Cal.App.5th 70, 77; In re H.V., at p. 437.)

Section 224.2, subdivision (b), effective January 1, 2019, imposes on the Department a duty to inquire whether a child in the Department’s temporary custody is an Indian child, which “nquiry 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 . . . .” (See Cal. Rules of Court, rule 5.481(a)(1) [the Department “must ask . . . extended family members . . . whether the child is or may be an Indian child”]; [i]In re D.F. (2020) 55 Cal.App.5th 558, 566; In re Y.W. (2021) 70 Cal.App.5th 542, 551-552.) Under ICWA, the term “extended family member” is “defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin or stepparent.” (25 U.S.C. § 1903(2); see Welf. & Inst. Code, § 224.1, subd. (c) [“As used in connection with an Indian child custody proceeding, the terms ‘extended family member’ and ‘parent’ shall be defined as provided in Section 1903 of the federal Indian Child Welfare Act.”].)

“The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents’ families.” (Antonio R., supra, 76 Cal.App.5th at p. 430; see In re K.R. (2018) 20 Cal.App.5th 701, 706 [“The court and the agency must act upon information received from any source, not just the parent [citations], and the parent’s failure to object in the juvenile court to deficiencies in the investigation or noticing does not preclude the parent from raising the issue for the first time on appeal . . . .”].)

“In addition, section 224.2, subdivision (e), imposes a duty of further inquiry regarding the possible Indian status of the child ‘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 there is reason to know that the child is an Indian child.’” ([i]In re Rylei S. (July 18, 2022, B316877) __ Cal.App.5th __ [2022 Cal.App. LEXIS 627, *8]; accord, In re J.C., supra, 77 Cal.App.5th at p. 78, see Cal. Rules of Court, rule 5.481(a)(4).) Further inquiry includes, but is not limited to, “interviewing, as soon as practicable, extended family members to gather the biographical information required by section 224.3, subdivision (a)(5), to be included in ICWA notices, contacting the Bureau of Indian Affairs and 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.’” (Rylei, at *8, quoting § 224.2, subd. (e)(2).)

1. 1. 3. The juvenile court failed to ensure the Department satisfied its duty of inquiry

Mother and Father contend the Department should have inquired of the paternal extended relatives, including the paternal grandparents and paternal aunt London K. regarding the children’s possible Indian ancestry. The Department does not contend otherwise, instead stating it “does not oppose a conditional affirmance of the order terminating mother’s and father’s parental rights and remand to the juvenile court for ICWA compliance, specifically to further inquire of available relatives and provide the requested information to the Cherokee Nation.”

We agree with Mother and Father that the Department failed to satisfy its initial duty of inquiry under section 224.2, subdivision (b), as to Father. Notwithstanding Father’s denial of Indian ancestry, section 224.2, subdivision (b), obligated the Department to inquire of extended family members as to the children’s possible Indian ancestry. (Antonio R., supra, 76 Cal.App.5th at p. 431 [“By requiring the Department to inquire of a child’s extended family members as to the child’s possible Indian ancestry, the Legislature determined that inquiry of the parents alone is not sufficient.”]; see In re Y.W., supra, 70 Cal.App.5th at p. 556 [“the point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child” is “to obtain information the parent may not have”].) Information relevant to the children’s possible Indian ancestry was readily obtainable from paternal aunt London, as to whom the court ordered the Department to initiate an evaluation for placement pursuant to the Interstate Compact for the Placement of Children, and the paternal grandparents, with whom Jade, Mark, and James were placed from June 15 to 29, 2018.

As we have repeatedly held, “Where the Department fails to discharge its initial duty of inquiry under ICWA and related California law, and the juvenile court finds ICWA does not apply notwithstanding the lack of an adequate inquiry, the error is in most circumstances . . . prejudicial and reversible.” (Antonio R., supra, 76 Cal.App.5th at p. 435; accord, In re J.C., supra, 77 Cal.App.5th at pp. 80-81; see In re Y.W., supra, 70 Cal.App.5th at p. 556 [“A parent . . . does not need to assert he or she has Indian ancestry to show a child protective agency’s failure to make an appropriate inquiry under ICWA and related law is prejudicial.”]; see In re E.V. (2022) 80 Cal.App.5th 691, 698 [“[W]e reject county counsel’s argument Father must show prejudice from the lack of initial inquiry. Father’s failure to make affirmative representation about possible Indian heritage does not render the error harmless.”]; but see In re Dezi C. (2022) 79 Cal.App.5th 769, 779 [“[A]n agency’s failure to conduct a proper initial inquiry into a dependent child’s American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court’s ICWA finding.”].)

Further, Mother stated she may have Cherokee ancestry on her a parental notification of Indian status form for Jade and Mark. At the February 14, 2017 detention hearing for Jade and Mark, the juvenile court ordered the Department to “investigate Mother’s claim of Native American heritage by interviewing the parents and any known relatives to obtain all possible information concerning this claim.” The social workers were in contact with maternal grandmother Cassandra M. (in June 2018, November 2018, and April 2020), maternal uncle Chris M. (in June 2018), maternal step-grandmother Rema M. (in August 2018),[12] maternal great-grandmother Lillie D. (in November 2018), and maternal uncle Sean M. (in April 2020). But notwithstanding the juvenile court’s February 14 order, the Department did not ask any maternal relatives about the children’s possible Cherokee ancestry. Given the court and the Department had “reason to believe” the children were Indian children, the Department was required to make a further inquiry under section 224.2, subdivision (e). And the court failed to ensure the Department satisfied its duty of further inquiry by contacting the maternal relatives.

The juvenile court therefore erred in finding ICWA did not apply to the proceedings because the Department failed to satisfy its duty of inquiry under section 224.2, subdivisions (b) and (e), and the court failed to ensure the Department complied with the inquiry provisions. (In re J.C., supra, 77 Cal.App.5th at p. 74 [“the court’s finding ICWA did not apply” was not supported by substantial evidence where the court “failed to ensure the Department fulfilled its duty of inquiry under section 224.2, subdivision (b)”]; Antonio R., supra, 76 Cal.App.5th at p. 432 [court’s finding ICWA did not apply was erroneous where Department failed to inquire of child’s extended family members about possible Indian ancestry, and court failed to ensure Department satisfied its duty of initial inquiry].)

1. 1. 4. The Department did not provide proper notice to the Cherokee Tribes

The Department also failed to send complete ICWA notices to the Cherokee Nation, the Eastern Band of Cherokee Indians, and the Keetoowah Band. The ICWA notices omitted Father’s place of birth and the current and former addresses for the maternal grandparents and maternal great-grandmother Lillie D. The ICWA notices identified the other maternal great-grandmother as Dorothy D. or Dorothea R. but gave no additional information about her. The notices identified one maternal great-grandfather as James F. but listed only the date and place of death for him. Moreover, the notices did not provide any information about the other maternal great-grandfather, the paternal grandparents, the paternal great-grandparents, or any other relatives.

This essential background information was required by federal regulations and California law. “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.’” ([i]In re Y.W., supra, 70 Cal.App.5th at pp. 556-557; accord, In re E.H. (2018) 26 Cal.App.5th 1058, 1069; see 25 C.F.R. §§ 23.11(a) & 23.111(d)(1)-(3) (2022).) Further, “[s]ection 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.’” (In re Y.W., at p. 557; see In re T.G., supra, 58 Cal.App.5th at p. 294, fn. 18.)

“‘ICWA notice requirements are strictly construed’ [citation] 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 Y.W., supra, 70 Cal.App.5th at pp. 556-557; accord, In re J.S. (2021) 62 Cal.App.5th 678, 688.) The ICWA notices’ omission of essential background information pertaining to Jade, Mark, James, and Ezekiel’s maternal and paternal relatives was prejudicial error. (See In re Y.W., supra, 70 Cal.App.5th at p. 558 [“We cannot say the Cherokee tribes would have made the same determination [the children] were not Indian children had the Department fulfilled its obligations under ICWA and related California law and mailed notices with more complete information.”]; In re E.H., supra, 26 Cal.App.5th at p. 1074 [social service agency’s failure to comply with ICWA and related California law was prejudicial error because “the Agency’s failure to include accurate information about [maternal grandmother’s] father in its ICWA Notice may have altered the tribe’s determination as to whether E.H. was an Indian child”].)

Although the Keetoowah Band and the Eastern Band of Cherokee Indians determined Mark and Jade were not registered or eligible to register as members of the tribe, this was based on the incomplete information in the ICWA notices. And the Cherokee Nation requested more information about maternal great-grandmother Dorothy D., including her “maiden name, middle name, and date of birth,” but the social worker responded that the Department had no additional information, without making any effort to obtain further information from Mother, Father, and the extended family members with whom the Department had contact.

DISPOSITION

The order terminating Mother’s and Father’s parental rights is conditionally affirmed. We remand to the juvenile court for the Department and the court to comply with the inquiry and notice provisions of ICWA and related California law, including inquiry of the paternal grandparents, the maternal grandmother, the maternal step-grandmother, the maternal uncles, Chris M. and Sean M., the paternal aunt London K., and any other reasonably available extended family members; to follow up on any information the Department may obtain about the children’s possible Indian ancestry; and to send new ICWA notices to the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians in Oklahoma that include complete biographical information for Mother, Father, the maternal and paternal grandparents, and the maternal and paternal great-grandparents. If the court finds Jade, Mark, James, and Ezekiel are Indian children, it shall conduct a new

section 366.26 hearing, as well as all further proceedings, in compliance with ICWA and related California law.

If not, the court’s original section 366.26 orders will remain in effect.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

[1] Further undesignated statutory references are to the Welfare and Institutions Code.

[2] On August 14, 2018 the Department filed a first amended petition on behalf of James, adding an allegation that Mother allowed Father to have unsupervised visits with James in the family home. On August 29, 2018 the juvenile court sustained the allegations in the supplemental petition as to Jade and Mark and the August 14 amended petition (deemed a subsequent petition) as to James.

[3] Because Mother and Father only challenge the juvenile court’s finding that the beneficial parental relationship exception did not apply to Ezekiel, we focus principally on the parents’ visitation with him.

[4] Jade refused to visit with Mother and Father. The parents therefore had weekly virtual therapeutic visits with Jade starting in July 2020.

[5] Mother reported Father was unable to attend the October 15 visit because he was feeling sick.

[6] The selection and implementation hearing was continued several times, from April 12 to December 6, 2021, at the Department’s request to enable the Department to identify a parent to adopt Ezekiel and for adoptive planning to take place.

[7] Mother’s notice of appeal also identified the December 6, 2021 orders denying her section 388 petitions in which she sought reinstatement of family reunification services as to her four children. However, Mother does not challenge the denial of her section 388 petitions in her appellate briefing, thereby forfeiting her challenge. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on appeal deemed waived]; Eck v. City of Los Angeles (2019) 41 Cal.App.5th 141, 146 [appellant forfeited or abandoned issue not raised in appellate briefs]; Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill Extension Construction Authority (2018) 19 Cal.App.5th 1127, 1136 [same].)

[8] It is undisputed the parents had regular visits with Ezekiel.

[9] Although it would have been a better practice for the juvenile court to state its findings on the record why termination of parental rights would not be detrimental to Ezekiel, which would assist the parties and this court on appeal, the juvenile court was not required to make such findings. As the Court of Appeal explained in In re A.L. (2022) 73 Cal.App.5th 1131, 1156, “[W]e infer from section 366.26, subdivision (c)(1)(D)—under which the juvenile court is required to ‘state its reasons in writing or on the record’ when it makes a finding that termination of parental rights would be detrimental to the child—that the court is not required to make findings when it concludes that parental rights termination would not be detrimental.” (Accord, In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109 [evidence in the record describing the nature of parents’ visitation and the child’s reaction supported an implied finding the parents failed to establish the beneficial parental relationship exception].) The California Rules of Court do not impose any additional requirement that the juvenile court make findings on the record when finding termination of parental rights would not be detrimental to the child. (See Cal. Rules of Court, rule 5.725(d).)

[10] In his reply brief, Father cites to In re M.G. (2022) 80 Cal.App.5th 836, 850-851 in which Division Eight of this District reversed an order terminating parental rights because the juvenile court relied on a bonding study that “offered minimal if any information about the nature of the child’s relationship with his parents in the context of their developmental disabilities” and improperly compared “the parents’ ability to manage the child’s medical and developmental needs” to the caregiver’s ability to meet the child’s needs. Unlike M.G., the juvenile court did not compare the parents to the caregivers in determining the beneficial parental relationship exception. Further, the Court of Appeal in M.G. was concerned that the only evidence as to the emotional attachment the child had with the parents was the bonding study, which considered improper factors. (Id. at p. 850.) Here, we have a record reflecting the caregivers’ and social workers’ observations during two years of visitation between Ezekiel and his parents.

[11] The ICWA notices stated, “Father did not respond to a notice and did not return a voicemail message left on 03/20/17. Father did not provide any information to DCFS.”

[12] The maternal grandfather passed away in October 2016.