Filed 8/10/22 In re T.L. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Elizabeth Egan, Judge.

Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

N.L. (father) appeals from the denial of his request to modify orders previously issued on behalf of two of his minor children, T.L. and S.L., pursuant to section 388 of the Welfare and Institutions Code.[1] Dependency jurisdiction was taken over T.L. and S.L. in March 2021 based on section 300 findings that their mother (mother) had unresolved substance abuse issues and father failed to adequately supervise and protect them. In a section 388 petition, father asked the court to return T.L. and S.L. to his custody or provide him with family reunification services. He alleged, in the months leading up to the section 366.26 hearing, mother actively participated in an inpatient substance abuse treatment program and the parents agreed to remain apart if necessary to facilitate father’s reunification with T.L. and S.L. The Fresno County Department of Social Services (department) also reported the children were difficult to place, and the department had been unable to locate a permanent home for T.L. and S.L. for several months. The court denied father’s petition. On appeal, father challenges the denial of his petition and asserts the matter must be remanded for further proceedings in compliance with the Indian Child Welfare Act.

We conclude the juvenile court and the department failed to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law. We otherwise conditionally affirm the court’s order but remand for the limited purpose of ensuring compliance with the ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND

1. T.L. and S.L. are removed from the home.

The department filed a juvenile dependency petition in December 2020 on behalf of T.L. and S.L. and the children were ultimately removed from mother and father’s home. The dependency petition alleged mother had a substance abuse problem that negatively affected her ability to care for her children. It noted mother had 10 children previously removed from her care in the past due to her ongoing substance abuse problem, and mother had failed to reunify with any of her children. It further alleged father had failed to provide T.L. and S.L. with “adequate care, supervision and protection” despite father having received family reunification services in the past, including but not limited to, parenting, substance abuse and mental health services. The petition noted maternal grandmother reportedly pulled one‑year-old S.L. from his walker and threw him on the ground, the house “had a foul odor and was dirty with trash everywhere,” and, on December 18, 2020, mother tested positive for cocaine. It further noted father’s parental rights had been terminated with regard to two other children he had with mother years earlier and the conditions that led to the department’s intervention in that instance had not been ameliorated. The petition asserted the children, T.L. and S.L., had special needs, were of young and tender years, and required a safe and sober care provider at all times. The Indian Child Inquiry Attachment form (ICWA‑010(A)) attached to the petition stated the assigned social worker completed inquiry by asking the children, children’s parents, and other required and available persons about the children’s Indian status, specifically noting mother and father were questioned, and the inquiry gave no reason to believe the children are or may be Indian children.

At a hearing held on December 23, 2020, mother’s attorney represented mother had enrolled herself in “Rescue the Children,” an 18-month program with 12 months inpatient and then six months aftercare. Father’s attorney requested services and an opportunity for father to reunify with the children, stating, “he was working and did not know the instant [sic] happened between minors and the maternal grandmother”; his last child protection case was a long time ago in 2008, 2009, and 2013; and he “was not involved in the instance [sic] involving these children.”

The court held, “based on the history of the mother and father” and “the prior offer of reunification services to both parents,” it was not inclined to offer services but would consider it further at the dispositional hearing. It noted Father was previously offered reunification services and did not comply with the case plan.

Relying on the detention report, the court found a prima facie showing the children were persons described in section 300, that continuance of the children in the home of the parents was contrary to the children’s welfare, and there was a substantial danger to the physical health of the children or the children were suffering severe emotional damage and there was no reasonable means to protect the children’s physical or emotional health without removing them from their parents’ physical custody. The court further noted reasonable efforts had been made to prevent or eliminate the need for removal of the children from the home and to make it possible for the children to return to their home. The court ordered the children to be removed from their parents’ home and gave temporary placement, care, custody, and control to the department pending disposition or further order of the court.

The court further ordered the parents to disclose to the social worker the names, residence, and any known identifying information of any maternal or paternal relatives of the children. The matter was set for a combined jurisdiction/disposition hearing on January 27, 2021.

2. Juvenile dependency jurisdiction is taken over T.L. and S.L.

At a hearing in January 2021, the department recommended the court find the (b)(1), (b)(2), (j)(1), and (j)(2) counts true for jurisdiction. The department further recommended that T.L. and S.L. be removed from both mother and father’s custody, that mother and father be denied reunification services, and the matter be set for a section 366.26 hearing. The department represented it was still completing further inquiry regarding the ICWA, but there was no evidence mother was a member of a tribe.

Mother’s attorney argued mother had a substance abuse disease that she recognized, and she was in a rehabilitation center. She argued the fact mother had been in a rehabilitation facility for 30 days and had since tested negative during random drug testing showed mother had a desire to reunite with her children and was putting in effort toward reunification. Accordingly, mother should be “rewarded with services.” Father objected to the department’s recommendation and asked that the matter be set for trial.

The court set the matter for a contested jurisdiction/disposition hearing in March 2021. At that hearing, the department stated it was recommending reunification services be denied to mother pursuant to section 361.5, subdivision (b)(11) and to father pursuant to subdivision (b)(10) and (11).

The supervisor of the social worker assigned to the case then testified. She explained the department initially intervened in January 2001. When the case initially began, primary physical custody was given to the father of mother’s first three children. Six months later, mother gave birth to another child. The child and mother tested positive for cocaine. The child was removed from mother’s custody and the mother was not offered services. Father received mental health and parenting services in 2008 after his child was removed; mother did not receive services in 2008.

Mother testified she had been addicted to drugs for 27 years, since she was 17 years old. She admitted her first three children were removed from her custody in January 2001. Thereafter, multiple other children were removed from mother’s physical custody after the children tested positive for cocaine at the time of birth, meaning mother had used cocaine while pregnant. This included G.L, the first child father had with mother, who was removed by the department after G.L. tested positive for cocaine at birth. Father stated he did not live with mother while she was pregnant with G.L. and did not observe her to be under the influence of drugs. In 2013, the department removed M.L., the second child of father and mother, after M.L. also tested positive for cocaine at birth; M.L. was adopted the following year. Father reported he was living with mother at that time, but he did not suspect her of being under the influence. Father stated he took care of mother after M.L. was taken so mother would not use drugs anymore. He testified mother told him she was not using drugs anymore and he warned her that he would leave her if she started again. Mother maintained her sobriety for some time.

When T.L. was born in 2016, T.L. did not test positive for cocaine. S.L. was born in February 2019 and he also tested negative for cocaine. S.L. was diagnosed with down syndrome and T.L. was diagnosed with autism and suffered seizures. In the fall of 2020, mother’s mother began living with the family; she had dementia. Father was working two jobs and “was always at work,” according to mother. Sometimes Father would leave at 5:00 a.m. and mother would pick him up at 8:00 or 9:00 p.m.

Father testified he lived alone at the time of trial. At the time of the jurisdiction and disposition hearing in March 2021, mother was in a drug treatment program that she had been in since the end of December 2020.

The maternal grandmother stopped living in the house in December 2020. Father stated he found out mother was using drugs again when the social worker came to pick up the children; he was surprised and very disappointed. Mother reported to the social worker that she did not tell father she began using cocaine; he found out through the department when they took the children.

At trial, father stated he did not know what to look for when someone is under the influence of drugs. Father testified he had never seen mother use drugs and had never been around cocaine before. Mother testified she and father were still together at the time of trial.

After considering the evidence, the court found the allegations in (b)(1), (b)(2), (j)(1), and (j)(2) of the petition were proven by a preponderance of the evidence. The court adjudged T.L. and S.L. to be dependents and held it was in the children’s best interests to deny father’s request for family reunification services pursuant to section 361.5, subdivision (b)(10) and (11) and mother’s request for reunification services under section 361.5, subdivision (b)(10). The court stated there was clear and convincing evidence mother’s parental rights had been severed as to her children in six previous dependency actions and father had family reunification services and his parental rights were terminated as to two of his other children that he had with mother. The court concluded the evidence showed mother and father had “failed to make reasonable efforts to treat the problems that led to the removal of the children, siblings and half siblings. Mother continues to use illegal drugs, and father continues to deny he’s aware of mother’s use or to intervene.” It noted the children were exposed to violence and physically abusive behavior in the home while in mother’s custody; mother tested positive while she had the children; and the children were “of tender age and special needs.”

The court further held the “[c]hildren do not come within the provisions of ICWA.” There was clear and convincing evidence continuance of the children in the parents’ home was contrary to the children’s welfare and there would be substantial danger to the children’s physical health, safety, protection, or physical or emotional well‑being if they were returned home. The court noted it had considered placement with relatives but could not make a determination at that time.

3. Court denies father’s section 388 petition.

In October 2021, father filed a JV-180 form, asking the court to change its orders and to place the children under father’s care. Alternatively, father asked the court to give him a chance to reunify with T.L. and S.L. by ordering family reunification services. In support of his requests, father asserted he paid out-of-pocket to continue with routine drug testing after services were bypassed and he completed a parenting program. He also visited with T.L. and S.L. twice a week until the middle of August when the schedule was reduced to twice a month per the visitation order. He asserted the visits demonstrated the parent-child bond was strong between him and the children. He asserted he had a stable job and stable home for the children to return to. With regard to why he believed a change in the court order would be in the children’s best interests, father asserted he was the primary caregiver for the children before the removal and they loved him and visited him regularly since removal. He asserted their bonds were strong and placing them with him would provide permanent physical and emotional stability.

The department responded it did not recommend the court modify its orders. The department detailed that on December 7, 2021, father denied participating in any substance abuse education programs to educate himself on recognizing signs of substance abuse. Father stated his attorney had advised him to take classes on identifying signs of substance abuse, but he had not participated in any classes. He stated he would not be able to recognize if mother relapsed but that he was willing to separate from mother if she did. He stated he was sure mother would not relapse because she had not been offered or participated in substance abuse programs before. The department reminded father that mother was offered services to address her substance abuse issues in the past; father stated he was not aware of this. At that time, mother reported she had been participating in a yearlong substance abuse program and that she would be leaving the inpatient treatment program on December 29, 2021. Her plan after leaving the program was to move back in with father. Father stated he was not aware of mother’s plan to move in with him but if the department was in agreement, he would allow mother back into his home.

The department stated, “Although, the parents have made progress since the children were removed from their care, the Department continues to be concerned about their ability to protect and consistently provide for the children’s needs” and the parents had not “fully ameliorate[d] the circumstance of removal.” The department noted mother had not demonstrated she could maintain her sobriety out of a controlled environment and father indicated he is unable to recognize when mother is under the influence. The department further noted T.L. and S.L. are “generally adoptable, however, they are difficult to place due to their diagnosis of Autism and Down syndrome.” And the current care provider indicated she could not commit to a permanent plan at that time as she needed continued support from service providers and the department, but she was willing to continue caring for the children under a permanent plan of placement with a fit and willing relative.

In December 2021, the court held a section 388 ex parte hearing on father’s petition. The department asked the court to deny the petition without prejudice. It was not prepared to offer the parents services as mother was continuing to struggle with her sobriety. She was in the process of completing treatment but was not able to provide a plan of sobriety and intended to reside with father without him knowing of those plans. And father was not able to identify specifics of recognizing relapses in mother. The department stated it would continue to assess for the children’s permanent plan and that there was a selection and implementation hearing calendared for January 2022. If mother and father’s circumstances changed in the future, the department could reassess the plan.

Father’s attorney asked for an opportunity to reunify with T.L. and S.L. by placing the children with him on family maintenance or alternatively, offering him reunification services. He argued the removal was due to mother’s substance abuse and that he should have known of mother’s relapse, but father was working all day and mother confessed she kept her drug use from father. He represented he did not plan to accept mother back into his home unless she was assisted by the department in reunifying with the children. Father asked that the children be placed with him so that he could take care of them independently. He argued he was familiar with the children’s health conditions; he raised them until their removal; he had a stable home, stable income, and relatives who could support him; and he had no history of substance abuse.

Mother’s attorney argued mother had made significant progress in her substance abuse program, she was willing to stay in the facility, and the facility would allow her to remain if she was able to obtain her children. Mother’s attorney asked to set the matter for a contested section 366.26 hearing but stated there was room for settlement.

The court denied father’s petition, concluding it did not see any change in circumstances. It noted the department had offered father guidance on getting educated or trained on recognizing narcotics use and people under the influence, which would be a changed circumstance. The court found it was in the children’s best interests to deny the petition without prejudice.

The court also denied mother’s request, finding “her circumstances may be changing” but the court did not find the circumstances had “changed to the extent that the [c]ourt would grant this JV-180.” It found no indication mother had demonstrated her sobriety “would be maintained in a high stressed environment which her children’s needs create every day.”

DISCUSSION

1. Court did not abuse its discretion in denying father’s section 388 petition.

Father first asserts the court abused its discretion in denying his section 388 petition to modify its previous orders. We disagree.

1. 1. Standard of Review and Applicable Law

“Under section 388, a person with an interest in a dependent child may petition the court to change, modify, or set aside a previous court order.” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the child’s best interest. (§ 388, subd. (a); In re Jasmon O. (1994) 8 Cal.4th 398, 415–416.) “The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (Jasmon O., at p. 415.)

“ ‘ “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.) “ ‘The denial of a section 388 motion rarely merits reversal as an abuse of discretion.’ ” (In re Daniel C., supra, 141 Cal.App.4th at p. 1445; In re Amber M. (2002) 103 Cal.App.4th 681,

685–686.)

1. 2. Analysis

Father asserts the court erred in denying his petition because the evidence showed circumstances had changed and the children’s interests would best be served by orders aimed at family reunification. He argues mother’s progress in inpatient treatment and the department’s struggle to find a permanent placement for T.L. and S.L. established changed circumstances. He argues, “because [mother]’s substance abuse no longer put the minors at risk, [his] inability to protect the minors from [mother] no longer put them at risk either. This qualified as evidence of changed circumstances.” Additionally, he contends the lack of prospects for permanent placement of the children was also a changed circumstance. He further argues the court could not reasonably conclude orders aimed at family reunification were not in T.L. and S.L.’s best interests, asserting, “[t]he problem that justified the dependency case against [father] was relatively benign.” (Italics omitted.) He also asserts the “fundamental problem that led to dependency court intervention—[mother]’s substance abuse—no longer existed.” We cannot conclude the juvenile court abused its discretion in denying father’s petition.

“ ‘A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent … might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.’ ” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.) “The change in circumstances supporting a section 388 petition must be material.” (In re N.F. (2021) 68 Cal.App.5th 112, 120; accord, In re Heraclio A. (1996) 42 Cal.App.4th 569, 577 [“In order to grant a petition pursuant to section 388, there must be a substantial change in circumstances regarding the child’s welfare and the requested modification of the prior order must be in the child’s best interests.”].)

Here, we cannot conclude the juvenile court exceeded the bounds of reason in concluding the record did not establish a sufficient change of circumstances to justify modification of its previous orders. At the time of the section 388 hearing, father still indicated he was unable to recognize when mother was under the influence and he had not taken steps to address this. Additionally, it was not unreasonable for the court to conclude mother’s participation in an inpatient substance abuse program evidenced “changing” rather than “changed” circumstances, particularly in light of her lengthy substance abuse history and long history with the department. (See In re Clifton B. (2000) 81 Cal.App.4th 415, 423–424 [200 days of sobriety not enough to demonstrate changed circumstances given the parent’s history]; 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.”].) Indeed, as the court acknowledged, mother had not yet demonstrated she could maintain her sobriety outside of a controlled environment. Furthermore, while mother was out of the home during inpatient care, mother represented it was her plan to move back in with father; though father stated he was unaware of her intention and he would not let her return unless the department approved. In light of the circumstances, the court did not abuse its broad discretion in finding father had not carried his burden of proving there was a substantial change of circumstances to justify the court’s modification of its previous orders bypassing him for services and removing the children from his custody.

We also cannot conclude the court abused its discretion in concluding it was in T.L. and S.L.’s best interests not to modify its previous orders. Here, father was bypassed for reunification services. After reunification efforts are terminated or bypassed, the court’s focus shifts from family reunification toward promoting the child’s needs for permanency and stability. (In re K.C. (2011) 52 Cal.4th 231, 236; accord In re Marilyn H. (1993) 5 Cal.4th 295, 309.) There is a rebuttable presumption that continued foster care is in the best interests of the child. (Marilyn H., at p. 310.) “A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.” (In re Stephanie M., supra, 7 Cal.4th at p. 317.) It is not in a child’s best interest “to further delay permanency and stability in favor of rewarding” the parent for his or her “hard work and efforts to reunify.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.)

We cannot conclude the court abused its discretion in determining father had not overcome the presumption that continued foster care was in T.L. and S.L.’s best interests. Before the section 388 hearing, the department reported T.L. and S.L. were placed together in a foster home in which they appeared comfortable and happy. Both children have significant developmental needs related to their diagnoses that require ongoing participation in services and close supervision. Neither father nor mother had participated in any of the children’s medical or developmental service appointments and, thus, the parents had not demonstrated they could meet the children’s individual needs. Furthermore, as discussed, father had not taken steps to learn to identify signs of substance use in mother and she had not demonstrated an ability to maintain her sobriety in an uncontrolled environment.

On this record, we cannot conclude the court exceeded the bounds of reason in determining it was in the children’s best interests to remain in continued foster care. Notably, the court did not close the door to modifying its orders down the line.

2. The matter must be remanded for compliance with the ICWA.

Father next asserts the matter should be remanded for the juvenile court to require the department to comply with the inquiry requirements stemming from the ICWA. We agree the matter must be remanded on this basis.

1. 1. Relevant Procedural History

At the initial detention hearing in December 2020, the court noted the detention report reflected the parents had been asked whether they had Native American ancestry and a “010 was filed with the court stating that there was no reason to believe that the children may be Indian.” But, the court stated it wanted to confirm with both parents. Mother then stated she had Native American ancestry; her great‑great-grandmother was Native American. She did not know what tribe but stated her great-great-grandmother was an enrolled member. Her name was Maria H. and she had passed away. Father represented he did not have any Native American ancestry. The court asked the department to follow up with mother regarding her ICWA status.

At a hearing in January 2021, the department stated it was “still completing further inquiry” but there was no evidence mother was a member of a tribe. There was just a claim made at the detention hearing of unknown ancestry through the maternal family.

On March 12, 2021, the department filed a Notice of Child Custody Proceeding for Indian Child, form ICWA-30, with the court. The form detailed mother denied Native American ancestry on December 17, 2020. But the form noted that the minute order for December 23, 2020, reflected mother claimed possible Native American ancestry. The form ICWA-30 stated, “[a]ttempts were made to contact [mother] so as to confirm/deny whether she has possible Indian ancestry as well as obtain her familial lineage. Attempts made: 02/11, 02/12, 02/16, 02/18 & 02/19/2021 to no avail.” It further noted, “ICWA notice will be sent on her behalf to the BIA with ‘no information available’ on her behalf.”

The department also filed the response from the Bureau of Indian Affairs (BIA) in which the BIA indicated the notice contained insufficient information to determine tribal affiliation. Following the jurisdiction and disposition hearing, the court concluded the children did not come within the ICWA’s provisions.

On May 6, 2021, the department filed a motion to declare the ICWA inapplicable to the case based on the BIA’s response to the provided notice. In the department’s response to father’s section 388 petition, the department noted an updated ICWA inquiry was completed on May 19, 2021, and mother stated she had no Native American ancestry. In July 2021, the court granted the ICWA motion, holding the ICWA did not apply to this case.

1. 2. Standard of Review

Where, as here, the juvenile court finds the ICWA does not apply to a child, “[t]he finding implies … social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry.” (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) The juvenile court may not “find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a [child protective agency] inquiry that is not proper, adequate, or demonstrative of due diligence.” (In re Josiah T. (2021) 71 Cal.App.5th 388, 408.)

“ ‘[W]e review the juvenile court’s ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court’s order. [Citations.] We must uphold the court’s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.’ ” (In re D.F. (2020) 55 Cal.App.5th 558, 565 (D.F.).)

1. 3. Applicable Law

“ICWA reflects ‘a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum 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.’ ” (D.F., supra, 55 Cal.App.5th at p. 565, fn. omitted.)

The duties imposed by the ICWA on the juvenile court and a county welfare department can be separated into three phases: (1) an initial duty to inquire, (2) a duty of further inquiry, and (3) a duty to provide the ICWA notice. (D.F., supra, 55 Cal.App.5th at pp. 565–567.) “First, from the Agency’s initial contact with a minor and his 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).)” (In re Charles W. (2021) 66 Cal.App.5th 483, 489; In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) If the child is placed in temporary custody, the county welfare department has a duty to inquire whether the child may be an Indian child. (§ 224.2, subd. (b).) “Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.” (Ibid.) “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.)” (Charles W., supra, 66 Cal.App.5th at p. 489.) “The required further inquiry includes (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child’s membership or eligibility in a tribe. At this stage, contact with a tribe ‘shall, at a minimum,’ include telephone, facsimile, or electronic mail contact to each tribe’s designated agent for receipt of ICWA notice, and ‘sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.’ ” (D.S., supra, at p. 1049, fns. omitted.) “ ‘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.’ ” (Charles W., at p. 489; In re D.S., at p. 1052.) If, after fulfilling the duty of inquiry and the duty of further inquiry, the court or the county welfare department “knows or has reason to know … that an Indian child is involved” in the dependency proceedings, then notice pursuant to the ICWA must be given. (§ 224.3, subd. (a).)

1. 4. Analysis

Father asserts mother’s report of Native American ancestry created a “reason to believe” that T.L. and S.L. might be Indian children.[2] He asserts the court correctly ordered the department to investigate as required by section 224.2, subdivision (e)(2). But, he argues, aside from attempting to call mother, “the Department apparently made no effort to comply with the statutory requirement to interview available relatives.” He acknowledges the department sent notice of the proceedings to the BIA, but asserts the notice “omitted family history information necessary to allow the Bureau to provide meaningful assistance” and did not identify the maternal great‑great-grandmother. He asserts the error requires remand. The department does not dispute it was required to make further inquiry by interviewing relatives and any other persons who reasonably could have been expected to have information regarding the possible Indian status of the children after mother claimed she may have Native American ancestry. It urges us to presume it performed its official duty absent evidence to the contrary pursuant to Evidence Code section 664. Furthermore, the department asserts father fails to demonstrate such error in further inquiry was prejudicial. On reply, father asserts we cannot assume the department made the required inquiry. He relies upon In re K.R. (2018) 20 Cal.App.5th 701, 709, in arguing the department may not omit discussion of its inquiry efforts in its report and then claim the sufficiency of its efforts cannot be challenged on appeal in light of the silent record. We agree with father.

Current section 224.2, subdivision (e) does not require that any extensive or particular formal documentation of ICWA inquiry be provided to the juvenile court or relevant tribes. (In re M.W. (2020) 49 Cal.App.5th 1034, 1046; but see Cal. Rules of Court, rule 5.481(a)(5) [“The petitioner must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child’s Indian status, as well as evidence of how and when this information was provided to the relevant tribes.”].) However, even prior to the substantial amendments that took effect in January 2019, the department could not omit any discussion of its efforts to interview family members and claim its efforts could not be challenged on appeal because the record is silent. (In re K.R., supra, 20 Cal.App.5th at p. 709; In re N.G. (2018) 27 Cal.App.5th 474, 485; see also Cal. Rules of Court, rule 5.481(b)(2) [“When there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court must confirm, by way of a report, declaration or testimony included in the record that the agency or other party used due diligence to identify and work with all of the tribes of which there is reason to know the child may be a member, or eligible for membership, to verify whether the child is in fact a member or whether a biological parent is a member and the child is eligible for membership.”].) Thus, “n the absence of an appellate record affirmatively showing the juvenile 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.” ([i]N.G., at p. 484.)

Here, the record is devoid of information regarding the efforts taken by the department to contact, let alone interview, any family members, aside from mother and father, to inquire about the children’s possible Native American ancestry. And it is undisputed the department was required to engage in a further inquiry into the children’s potential Native American ancestry after mother represented she believed she had Native American ancestry. Notably, the BIA stated the notice provided to it contained insufficient information to determine the children’s tribal affiliation. Also, the record contains a December 2021 report indicating the department spoke to a maternal cousin, but there is no indication the department asked the cousin about the family’s possible Native American status.

Although the juvenile court instructed mother to provide the department with her relatives’ contact information and the record reflects that after the detention hearing, the department attempted to call mother to gather additional information for the purposes of the ICWA, ultimately the “duty to develop information concerning whether [the children were] Indian child[ren] rest[ed] with the court and the [d]epartment, not the parents or members of the parents’ families.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 430.) And here, the department had numerous contacts with mother during the pendency of the proceedings and could have followed up on the information on any of those instances and documented its other efforts to contact and interview family members regarding the children’s potential Native American ancestry.

We cannot conclude, as the department argues, mother’s later representation denying Native American ancestry relieved the department of its duty of further inquiry. We note, “[t]he purpose of ICWA and related California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings.” (In re N.G., supra, 27 Cal.App.5th at p. 484.) And the Supreme Court has emphasized it is preferable to err on the side of examining thoroughly whether a child may be an Indian child. (See In re Isaiah W. (2016) 1 Cal.5th 1, 15.)

The department also urges us to consider that both mother and father failed to raise a claim of ICWA error in the juvenile court when the juvenile court could have determined whether the department failed to contact identified relatives with possible knowledge of the children’s Native American ancestry. However, as the Supreme Court has held, “ ‘given the court’s continuing duty throughout the dependency proceedings to ensure the requisite notice is given [citation], and the protections the ICWA affords Indian children and tribes, the parents’ inaction does not constitute a waiver or otherwise preclude appellate review.’ ” (In re Isaiah W., supra, 1 Cal.5th at p. 13.)

Accordingly, we conclude a limited remand is appropriate for the court and department to adequately inquire into whether the children are Indian children.

DISPOSITION

The court’s order denying father’s section 388 petition is conditionally affirmed. The juvenile court finding that the ICWA does not apply is vacated and the matter is remanded for further ICWA compliance proceedings, whereafter the juvenile court shall enter new ICWA findings. If the children are found to be Indian children, the juvenile court shall proceed in compliance with the ICWA, including considering any petition filed to invalidate prior orders. (25 U.S.C. § 1914; § 224, subd. (e).)

* Before Detjen, Acting P. J., Smith, J. and DeSantos, J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Father has consistently denied Native American ancestry.