Filed 7/14/22 In re K.R. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from orders of the Superior Court of Los Angeles County, Robin R. Kesler, Judge Pro Tempore. Affirmed with directions.

Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant A.R.

Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant S.R.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly Emling, Deputy County Counsel, for Plaintiff and Respondent.

S.R. (Mother) and A.R. (Father) (collectively, the parents) appeal from the juvenile court’s orders terminating their parental rights to their children K.R. and L.R. The parents contend that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with its duty of inquiry to determine whether there is a reason to believe or know that the children are Indian children within the meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We conditionally affirm the orders with directions to ensure DCFS’s compliance with its applicable duties.

FACTUAL AND PROCEDURAL SUMMARY[1]

On February 9, 2017, DCFS filed a juvenile dependency petition concerning the children under section 300 of the Welfare and Institutions Code.[2] On the same day, the parents appeared in court at a detention hearing and filed Parental Notification of Indian Status forms (Judicial Council Forms, form ICWA-020 (rev. Jan. 1, 2008) (ICWA-020)). Mother checked a box next to the statement: “I have no Indian ancestry as far as I know.” Based on this form, the court found that there was no reason to know the children are Indian children “as to [Mother].”

Father indicated on his ICWA-020 form that he may have Indian ancestry. He provided the name of a tribe and the telephone number for the paternal grandfather. DCFS thereafter investigated Father’s claim of Indian heritage and notified certain tribes and the Bureau of Indian Affairs of the proceedings. Based on the responses and nonresponses from the notified tribes, the court concluded there was no reason to know the children were Indian children.[3]

At the conclusion of the detention hearing, the court detained the children from the parents and placed them in DCFS custody, which placed them in foster care. After jurisdiction and disposition hearings held in April and May 2017, the court found that the children are persons described in section 300, subdivisions (a) and (b)(1), and removed the children from the parents.

In April 2018, the children were returned to Mother’s custody with family maintenance services. In December 2018, the court detained the children from Mother and the children were again placed in foster care. In October 2019, DCFS placed the children with a maternal great‑cousin, whom DCFS eventually identified as a prospective adoptive parent. Thereafter, the court held periodic review hearings and other proceedings in the case until September 23, 2021, when the court held a hearing pursuant to section 366.26. At the conclusion of that hearing, the court terminated the parents’ parental rights.

Throughout the proceedings, DCFS had been in contact with several maternal relatives, including a maternal aunt, and three maternal great‑cousins. The record does not indicate that DCFS asked any maternal relatives questions to determine whether the children are or might be Indian children within the meaning of ICWA.

Mother and Father filed timely appeals.

DISCUSSION

When, as here, a child has been placed in temporary custody of a county welfare department, DCFS has “a duty to inquire whether that child is an Indian child” within the meaning of ICWA. (§ 224.2, subd. (b); In re Antonio R. (2022) 76 Cal.App.5th 421, 429; see 25 U.S.C. § 1903(4) [defining Indian child].) The inquiry 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 and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b); see Cal. Rules of Court, rule 5.481(a)(1).) The duty of inquiry is a “continuing duty” (§ 224.2, subd. (a)), and requires DCFS to provide to the court “a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child’s Indian status” (Cal. Rules of Court, rule 5.481(a)(5)).

Here, there is no evidence that DCFS ever asked any maternal relatives any questions to determine whether the children are or may be Indian children. The maternal aunt acted as a monitor for visits between Mother and the children and is an “extended family member,” as defined in ICWA. (See 25 U.S.C. § 1903(2).) Two of the maternal great-cousins, R.H. and Ka.F., shared their homes with the children during the course of the dependency proceedings and expressed concern for the children’s welfare and the willingness to cooperate with DCFS. The children were eventually placed with a third maternal great-cousin, Ki.F., who became the children’s prospective adoptive parent. These maternal great-cousins are thus “persons who have an interest in the child[ren]” and within the scope of DCFS’s duty of inquiry. (§ 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(1).) DCFS does not contend otherwise. Despite numerous contacts with these relatives, the record does not indicate a social worker or DCFS investigator ever asked any of them about possible tribal membership.

The remedy on appeal for a social welfare agency’s failure to comply with the duty of initial inquiry is unsettled. (See, e.g., In re Dezi C. (2022) 79 Cal.App.5th 769, 779 [failure to comply with duty of initial inquiry is harmless unless the record, together with any proffer by the appellant, suggests a reason to believe that the child may be Indian children]; In re A.R. (2022) 77 Cal.App.5th 197, 207 [reversal is required “in all cases where ICWA requirements have been ignored”]; In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.) [reversal required when “the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child”]; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [in the absence of a representation by the appellant of Indian heritage, “there can be no prejudice and no miscarriage of justice requiring reversal”].)

This division of this court has generally evaluated this issue to determine whether, if further inquiry is required after remand, “ ‘the probability of obtaining meaningful information is reasonable in the context of ICWA.’ ” (In re Darian R. (2022) 75 Cal.App.5th 502, 509, quoting Benjamin M., supra, 70 Cal.App.5th at p. 744.) In making this determination, we have rejected “a wooden approach to prejudice” (In re A.C.(2022) 75 Cal.App.5th 1009, 1017 (A.C.)) and refused to require further inquiry when, based upon the particular circumstances revealed by the record, it is apparent “that additional information would not have been meaningful to the inquiry” (Benjamin M., supra, 70 Cal.App.5th at p. 743; see, e.g., In re S.S. (2022) 75 Cal.App.5th 575, 582 [failure to inquire of the child’s maternal grandmother was harmless where the maternal grandmother was in contact with the social worker and had a strong incentive to bring to the court’s attention facts suggesting the child is an Indian child].)

Here, our record does not disclose any facts suggesting that the information obtainable from the maternal aunt and maternal great‑cousins would not have been meaningful to the ICWA inquiry. Although Mother indicated in her ICWA-020 form that she had no information suggesting the children are or may be Indian children, the filing of that form, without more, is insufficient to render the failure to ask extended family members harmless. (See In re Y.W. (2021) 70 Cal.App.5th 542, 554.) We cannot, therefore, conclude that DCFS’s failure to inquire of the maternal relatives available to DCFS is harmless.

When, as here, the failure to conduct an adequate inquiry is not harmless, we will ordinarily conditionally affirm the challenged order with directions to ensure the agency’s compliance with ICWA and related law. (See, e.g., In re J.C. (2022) 77 Cal.App.5th 70, 84; In re Antonio R., supra, 76 Cal.App.5th at pp. 436−437 & fn. 11; A.C., supra, 75 Cal.App.5th at p. 1018.) We do so here.

DISPOSITION

The orders made at the section 366.26 hearing are conditionally affirmed. Upon remand, with respect to Mother, the juvenile court shall direct DCFS to comply with its duties of inquiry under section 224.2 and to make the report to the court required by rule 5.481(a)(5) of the California Rules of Court as soon as practicable. If the juvenile court finds the children are Indian children, it shall vacate its section 366.26 orders and proceed in accordance with ICWA and related California law. If the court determines that the children are not Indian children, the order terminating parental rights shall remain in effect.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.

[1] Because the only issues on appeal are whether DCFS failed to comply with its duty of inquiry under section 224.2 and, if so, what remedy is appropriate, we focus on the facts and procedural history relevant to that issue.

[2] Subsequent unspecified statutory references are to the Welfare and Institutions Code.

[3] Neither parent challenges the adequacy of DCFS’s actions concerning Father’s side of the family or the correctness of the court’s finding that, with respect to the paternal side of the family, there is no reason to know the children are Indian children. We are thus concerned only with DCFS’s inquiry, or lack thereof, with respect to the maternal side of the family.