Filed 5/10/22 In re Z.C. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, Peter R. Navarro, Juvenile Referee. Conditionally reversed and remanded with directions.

Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant M.F., mother.

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant A.C., father.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

________________________

INTRODUCTION

Mother and father appeal from the order terminating their parental rights to son under Welfare and Institutions Code section 366.26.[1] Joining in each other’s briefs, the parents contend the juvenile court erred when it declined to find the parent-child beneficial relationship exception to the termination of parental rights applied. They also argue the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with section 224.2, subdivision (b)—the California statute implementing the initial inquiry rules of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).

We conclude the juvenile court did not err in finding the parent-child beneficial relationship exception inapplicable. We nonetheless conditionally reverse and remand for the juvenile court to order DCFS to comply with section 224.2, subdivision (b).

FACTUAL AND PROCEDURAL BACKGROUND

1. Jurisdiction and Disposition

In January 2019, DCFS filed a section 300 petition on behalf of then-13-month-old son (born 2017). At this time, son was living with mother, a maternal aunt (mother’s twin sister), and the maternal grandfather. Father had been in federal custody for almost two years and occasionally called to check in on son. On January 3, 2019, the juvenile court detained son from the parents’ custody and placed him in the home of a maternal relative.

On February 13, 2019, the juvenile court sustained the petition pursuant to section 300, subdivision (b)(1), based on mother’s substance abuse history, and current abuse of methamphetamine, amphetamine, and marijuana. On February 20, 2019, son was placed in the maternal grandfather’s home. By that time mother and maternal aunt had moved out of the house. Son remained in maternal grandfather’s care throughout the dependency proceedings. On May 9, 2019, the juvenile court removed son from parents’ custody, granted reunification services, and ordered monitored visitation. Mother’s reunification plan required her to complete a drug treatment program with weekly random drug testing along with 12-step program attendance, mental health counseling (including psychological and psychiatric evaluations) and individual counseling.

2. Failed Reunification Efforts

Following the disposition hearing, mother entered a sober living home and began drug testing. During this early stage, mother visited son consistently and son was bonded with mother. Mother even had several overnight visits with son, and DCFS liberalized mother’s visitation so that visits were unmonitored and longer.

However, in October 2019, about 9 months into the case, mother relapsed, testing positive for amphetamine and methamphetamine. Because of the positive drug test, the sober living home discharged mother, and mother’s visits reverted to being monitored. Father, who also had drug problems, was released from prison in November 2019, and began visiting son.

In January 2020, mother entered an inpatient drug treatment program and tested positive for methamphetamine upon entry. The program discharged her after only three weeks; mother attributed her discharge to having lice.[2] Subsequently, mother stopped drug testing and inconsistently participated in mental health treatment. Mother nonetheless consistently visited son for a couple of hours on the weekend, and the monitored visits went well.

By August 2020, the parents’ relationship continued to be characterized by instability, intermittent homelessness, persistent drug use, and controlling behavior by father, which occasionally deteriorated into domestic violence. The parents were noncompliant with their case plans and failed to participate in drug testing and other reunification services. The parents continued to visit son together on Saturdays, and DCFS reported had a “good bond” with son.

On August 24, 2020, about a year and seven months after taking jurisdiction, the court terminated reunification because of the parents’ noncompliance, and set the matter for a section 366.26 hearing to select a permanent plan for son. DCFS recommended a plan of adoption for son.

3. The Parents Continue Visitation

In December 2020, DCFS reported that the parents visited son weekly and son enjoyed the visits, but son sought the maternal grandfather during visitation.

As of January 2021, mother was staying with a friend. Father was incarcerated again in federal prison. Mother visited son for three hours on Saturdays, and the maternal grandfather reported the visits went well. However, mother’s visits had become sporadic. Son, who used to ask for mother, did so less frequently as mother visited less often.

At the March 25, 2021 hearing, mother’s counsel informed the court, “On behalf of the mother, we do submit to a termination of parental rights today.” Father’s counsel objected to the termination of parental rights. Counsel for son joined with DCFS in asking the court to terminate parental rights. The hearing was continued.

Also in late March 2021, mother gave birth to a baby boy, who was placed with the maternal grandfather because of a positive toxicology test at birth.[3] Mother’s visits with son became more consistent after giving birth to the baby. DCFS reported: “During the visits, mother’s interactions with [son] are reported to be appropriate. Her language and behavior is appropriate. [Son] does look for the [maternal grandfather] during times when he needs nurturing, but he is comfortable in [mother’s] presence and has an appropriate bond with mother.”

During the recent pregnancy and for two months after giving birth, mother used methamphetamine. In May 2021, mother entered an inpatient drug treatment program. Father had been released from federal custody and was enrolled in the same inpatient program. Father violated the program’s rules and was discharged following incidents at the program between the parents. Shortly before the termination hearing, mother extended her stay at the program another 90 days to ensure her readiness to be discharged. DCFS had concerns that father and mother’s twin sister (also a drug user) would trigger mother to use again following her completion of the inpatient program.

Throughout the case, the maternal grandfather expressed his love for son and desire to raise him. Son had a very close bond to the maternal grandfather, whom he called “dada.” Son felt comfortable in the maternal grandfather’s home, communicated his needs to the maternal grandfather, and was affectionate toward him. He flourished in the maternal grandfather’s care. When the baby joined the maternal grandfather’s home, son was happy to have him there and helped take care of his brother.

On June 23, 2021, mother filed a section 388 petition based on changed circumstances, which was summarily denied by the court. Father filed a section 388 petition the following day, which was granted a hearing.

4. ICWA Efforts and Compliance

On December 12, 2018, mother denied any known Indian heritage when interviewed by DCFS. On January 3, 2019, mother completed an ICWA-020 Parental Notification of Indian Status form indicating she had no known Indian ancestry. At the detention hearing that day, mother told the court that she had no Indian heritage as far as she knew. The court found it had no reason to know that son was an Indian Child.

On January 16, 2019, father informed his attorney that he had no Indian ancestry. In January 2019, the maternal grandmother and grandfather separately told the dependency investigator that the mother had no Indian ancestry. Also in January 2019, mother reiterated the same to the dependency investigator.

On February 1, 2019, the father completed an ICWA-020 Parental Notification of Indian Status form and checked off the item: “I have no Indian ancestry as far as I know.” That same day at the arraignment, the court asked father: “You have no North American Native American ancestry; is that correct?” Father responded that he did not, and the court found that ICWA did not apply. The February 1, 2019 minute order reflected this finding, and stated, “Parents are to keep the Department, their Attorney and the Court aware of any new information relating to possible ICWA status.”

On April 26, 2021, father told DCFS that he has 15 siblings, and gave their first names. Father reported that his parents passed away when he was 12 and 13 years old.[4] Mother informed DCFS that father was the youngest of his siblings. The record does not reflect that DCFS interviewed any of the siblings.

5. Termination of Parental Rights

On August 24, 2021, the contested section 366.26 hearing took place.[5] The court received into evidence DCFS’s reports with attachments. Father, mother, and the maternal grandfather testified.

Mother testified she currently visited son and his baby brother every Saturday from 12:00 to 7:00 or 8:00 p.m. At visits, which the maternal grandfather monitored, son greeted mother with a hug and a kiss, and called her “mom.” They typically went to a park or engaged in an activity, and then proceeded to the maternal grandfather’s home, where they watched a movie and ate dinner. During the visits, mother and son read, learned numbers and letters, talked, and worked on potty training. At visits, mother occasionally had to discipline son or tell him “no.” Prior to the baby’s birth, mother stated she visited son three to four times a week. Since becoming sober in May 2021, mother felt “more present” during the visits. She testified she “always stayed visiting [son],” even during the periods she was not sober. Mother confirmed she was still in a relationship with father.

Father testified he was currently on federal probation for distributing methamphetamine and has used drugs since he was a teenager. Earlier that year, he had tested positive for opiates and methamphetamine in his first inpatient drug program; he was currently enrolled in and had completed two-thirds of a 90-day inpatient substance abuse program. Although father previously had routine visits with son and baby, he was not permitted to visit them while in his current substance abuse program and had not seen them in-person for two months. Father admitted he had never lived with son or the baby.

The maternal grandfather testified that he had son in his care for almost three years, and now cared for son’s baby brother too. He was ready to adopt both children (although the hearing was solely about son’s permanent plan). Son usually called the maternal grandfather “dad” and occasionally “grandpa.” The maternal grandfather stated that during visits, mother “helps me a little bit, you know, with feeding them or changing them.” When visits end, son tells mother he loves her and gives her a kiss, but does not cry. The parents also called son nightly.

The court heard argument from counsel on the combined father’s section 388 petition and the section 366.26 hearing. Mother asked the court not to terminate parental rights, but rather find the section 366.26, subdivision (c)(1)(B)(i), exception applied because mother visited consistently and acted in a parental role. Father also requested the court find that same exception applied based on his relationship to son.

Son’s counsel joined in DCFS’s recommendation that the court terminate parental rights. Counsel described father as a friendly visitor and mother as a “part-time mother.” Counsel asserted the maternal grandfather had been the “real parent,” bearing the parental responsibilities. Son’s counsel opined that mother’s instability, exemplified by her struggle with sobriety and triggering relationship with father, rendered her relationship with son less beneficial to son than the stability and permanence of adoption.

DCFS asserted that the maternal grandfather was in essence the sole parental figure for son. Son lived the majority of his life with the maternal grandfather. He never lived with father and was with mother for only a year. The parents’ long-standing history of addiction and relapses continued to be obstacles to their relationship with son.

The court found that “mother is -- has been a part-time mother. The visits she has are akin to an aunt visiting a cousin, a sibling. But there is no parent-child relationship to the degree that terminating parental rights would be detrimental to [son]. His home is with his grandfather who he calls his dad.” The court stated that father had not raised son at all. The court found son to be adoptable and that no exceptions applied. “There’s no evidence that if parental rights would be severed, that [son] would be – would be impacted to his detriment. Parents have failed to show that any benefit derived from their relationship with [son] outweighs the need for stability and permanency in [son]’s life.”

The minute order stated that “the parent has maintained regular visitation with the child and has not established a bond with the child.” The court terminated parental rights, ordered a permanent plan of adoption for son, and designated the maternal grandfather as son’s prospective adoptive parent.

The mother and father filed timely notices of appeal.

DISCUSSION

The parents argue (1) the court erred when it terminated parental rights, finding there was no parent-child beneficial relationship exception to adoption, and (2) DCFS’s ICWA inquiry was deficient.[6]

1. The Parent-child Beneficial Relationship Exception

The parents do not challenge the court’s finding that son was adoptable. They assert that son had a beneficial parent-child relationship with mother that precluded termination of parental rights.

1. 1. Applicable Law

“When the juvenile court finds that a dependent child is likely to be adopted, it must terminate parental rights and select adoption as the permanent plan unless it finds that termination would be detrimental to the child under one of several exceptions. [Citations.] If the child is likely to be adopted, ‘adoption is the norm.’ [Citation.] ‘t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.’ ” ([i]In re N.F. (2021) 68 Cal.App.5th 112, 123.)

Under the parent-child beneficial relationship exception to adoption, the parent must prove: “(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child.” (In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).) The first element is straightforward. For the second element, “the focus is the child. And the relationship may be shaped by a slew of 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.’ . . . [C]ourts often consider how children feel about, interact with, look to, or talk about their parents.” (Id. at p. 632.) As to the last element, “[w]hat courts need to determine, therefore, is how the child would be affected by losing the parental relationship — in effect, what life would be like for the child in an adoptive home without the parent in the child’s life.” (Id. at p. 633.)

We review the juvenile court’s findings about visitation and the existence of a beneficial parent-child relationship for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 639.) We review for abuse of discretion the court’s assessment whether termination of parental rights would be detrimental to the child because of the beneficial parental relationship. (Id. at p. 640.)

When assessing whether the parental bond exception applies, “the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Essentially, “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 p. 631.)

1. 2. The Juvenile Court Did Not Err When It Denied the Beneficial Relationship Exception

Although mother’s visitation was inconsistent between August 2020 and March 2021, the juvenile court found mother had regularly visited son. DCFS concedes mother “satisfied” the first element.

In assessing the quality of mother’s relationship with son, the court found that mother’s visits were akin to those of an aunt. The court concluded that there was no “parent-child relationship to the degree that terminating parental rights would be detrimental to [son].” The trial court’s factual conclusions are supported by the record. Although mother showed consistent visitation and an emotional bond with son, mother was required to do more than show “frequent and loving contact.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) “Interaction between [a] natural parent and child will always confer some incidental benefit to the child. . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Son had lived almost his entire life in the maternal grandfather’s home. Mother lived with son in grandfather’s home only a short time before son’s detention. Mother had custody the first 13 months of his life, but by the contested section 366.26 hearing, son was almost four years old and, with a few exceptions, mother had not progressed beyond monitored weekend visits. The record shows that son looked to the maternal grandfather, not mother, for comfort and nurturing during visitation. The trial court could have reasonably found that, although son was happy to see mother (greeting her as “mom” and with a hug and kiss), she was not the person with whom son found security and safety. In the last year leading up to the hearing, mother visited inconsistently, and son asked for mother less often. The record also supports the trial court’s finding that, by the time of the section 366.26 hearing, mother’s visits were akin to those of an aunt or family member, not those of a parental figure. (In re Angel B. (2002) 97 Cal.App.4th 454, 468 [“the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt”].)

As for the last element, the court in its minute order stated: “The Court finds that any benefit accruing to the child from his/her relationship with the parent(s) is outweighed by the physical and emotional benefit the child will receive through the permanency and stability of adoption, and that adoption is in the best interests of the child.” Mother asserts that because son “was doing very well with the status quo of living with the maternal grandmother and having frequent and continuing contact with his mother,” son’s “chances of remaining healthy and emotionally stable will not be enhanced by severing his bond with his mother.” Mother asserts that her “removal from [son]’s life creates a high probability, if not a certainty, of causing emotional instability, acting out behaviors, difficulties in school, insomnia, anxiety or depression in [son].” The trial court did not abuse its discretion in ruling otherwise.

That son talked to mother about what was on his mind during visits showed that son was a happy toddler and comfortable with mother—not that his relationship with her was essential to his emotional stability.[7] The trial court reasonably concluded that mother’s own instability, which manifested in less frequent and inconsistent visitation in the year leading up to the termination of parental rights, rendered her relationship with son less beneficial to son than the stability and permanence of adoption.

Mother asserts that the court “compared [mother]’s ability to care for [son] with the maternal grandfather’s ability to care for him.” We disagree with this characterization of the record. The juvenile court stated: “mother [ ] has been a part-time mother. The visits she has are akin to an aunt visiting a cousin, a sibling. But there is no parent-child relationship to the degree that terminating parental rights would be detrimental to [son]. His home is with his grandfather who he calls his dad. . . . And the mother has pretty much just relinquished her parental responsibilities and duties to her father.” In making this statement, the juvenile court was not comparing parental attributes. It was observing that the grandfather was son’s sole parental figure and that mother did not occupy that role in son’s life.

Citing In re D.M. (2021) 71 Cal.App.5th 261, 271, mother asserts the court applied the wrong standard in assessing possible detriment to son because it concluded that son’s primary emotional attachment was to the maternal grandfather and that mother did not act like a parent. In D.M., the juvenile court evaluated the father’s occupation of a parental role in his children’s lives by evaluating whether he attended their medical appointments and understood their medical needs, never commenting on the attachment between the parent and children. (Id. at p. 270.) The D.M. court reversed because the existence of a parent-child relationship is based on “whether there is a substantial, positive emotional attachment between the parent and child.” (Ibid.) Consistent with D.M., the juvenile court here evaluated son’s emotional attachment to mother when examining her parental role and did not limit its assessment to mother’s ability to perform parental functions like diapering, feeding, attending medical appointments, or caregiving.

Mother also cites In re J.D. (2021) 70 Cal.App.5th 833, 859, for the principle that she was not required to prove son’s attachment to her was his primary bond. The juvenile court imposed no such test. Rather, the court examined whether the bond was of such significance to be parental in nature. The “strength and quality of the parent’s relationship with the child, including whether that parent has a parental role, is a relevant consideration to the court’s detriment finding.” (In re A.L. (2022) 73 Cal.App.5th 1131, 1157.)

The trial court reasonably concluded that mother failed to demonstrate that her relationship with son was so substantial that severance of her parental rights would greatly harm son. We find no abuse of discretion in the juvenile court’s finding that the parental relationship did not outweigh the security and stability of adoption. (See Caden C., supra, 11 Cal.5th at p. 633.)

2. DCFS’s ICWA Inquiry Error Was Prejudicial

The parents contend that DCFS failed to comply with section 224.2, subdivision (b), because it did not ask son’s paternal relatives (including any of father’s 15 siblings) whether they have Indian ancestry.

1. 1. ICWA and the Standard of Review

The juvenile court and DCFS have an affirmative and continuing duty under ICWA and related California law to inquire whether a child who is the subject of a dependency proceeding is or may be an Indian child. (In re Isaiah W. (2016) 1 Cal.5th 1, 10-11.) The scope of the duty of inquiry is defined in regulations promulgated under ICWA (see 25 C.F.R. § 23.107 et seq. (2020)), California statutes, and rules of court. (In re T.G. (2020) 58 Cal.App.5th 275, 290–291 (T.G.).)

By statute, DCFS’s initial duty of inquiry at the beginning of a child welfare proceeding includes “asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child.” (§ 224.2, subd. (b).) The court must inquire at each party’s first appearance, whether any participant in the proceeding “knows or has reason to know that the child is an Indian child.” (Id., at subd. (c).) Part of the initial inquiry includes requiring each party to complete the ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(2)(C).) When there is “reason to believe that an Indian child is involved in a proceeding,” further inquiry is required. (§ 224.2, subd. (e); T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.)

On undisputed facts, we make an independent determination whether ICWA’s requirements have been satisfied. (In re D.F. (2020) 55 Cal.App.5th 558, 565.)

1. 2. DCFS Failed to Comply with Section 224.2, Subdivision (b)

The parents correctly contend DCFS had an obligation under section 224.2, subdivision (b) to ask one or more of father’s available siblings about Indian ancestry, as they are extended family members. We agree that, on the state of the record, including DCFS’s failure to inquire of any available paternal relatives, the trial court erred when it found ICWA compliance.

“Nothing in section 224.2, subdivision (b), relieves the Department of its broad duty to seek that information from ‘all relevant’ individuals [citation] simply because a parent states on the ICWA-020 form, . . . ‘I have no Indian ancestry as far as I know.’ Such a rule ignores the reality that parents may not know their possible relationship with or connection to an Indian tribe.” (In re Y.W. (2021) 70 Cal.App.5th 542, 554 (Y.W.).) In the circumstances present here, relying entirely on the parents’ representations was error.

1. 3. The Error Was Prejudicial

DCFS nonetheless asserts the error was not prejudicial. Citing In re Benjamin M. (2021) 70 Cal.App.5th 735, 744-745 (Benjamin M.), DCFS argues that since both parents denied Indian heritage, further inquiry of father’s siblings would not likely bear meaningfully upon whether son was an Indian child. DCFS asserts the present case is unlike the fact patterns that required reversal in Benjamin M. and In re Josiah T. (2021) 71 Cal.App.5th 388, where there was a missing parent who was not available to claim or deny Indian heritage, and In re Y.W., supra, 70 Cal.App.5th at page 556, where the mother was adopted as a young child and was not in contact with her biological relatives. DCFS argues there was no reason for father not to know his heritage since “there was no indication father was adopted, and he had been in contact with the available paternal relatives.”

DCFS’ argument ignores the realities of father’s family history. Father’s parents died when he was 12 and 13 years old, respectively. Father was the youngest of the 16 children. After father was orphaned, he lived with a sister as a child.

With DCFS unable to contact father’s parents, father’s 15 older siblings were a likely source of information about Indian ancestry. Before their death, father’s parents presumably lived with his siblings for many years before father was born. It would not be surprising that one or more of the siblings would know more about any Indian heritage than did father.

In In re H.V. (2022) 75 Cal.App.5th 433 (H.V.), an appeal decided by another of panel of this division, DCFS asked mother about the child’s Indian ancestry, and mother “did not give the social worker any reason to believe the child was or might be an Indian child.” (Id. at p. 436.) The social worker interviewed maternal great-grandmother and paternal great-grandfather but failed to ask questions about the child’s Indian heritage. Mother also executed an ICWA-020 form in which she denied any knowledge of Indian ancestry. (Ibid.) In response to an inquiry from the juvenile court, mother (through counsel) “indicated that alleged father did not have Indian ancestry.” (Ibid.)

On the appeal from jurisdiction and disposition orders, DCFS did not contend it discharged its first-step inquiry. It instead took the tack from the courts in In re A.C. (2021) 65 Cal.App.5th 1060, 1069, and In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, and argued that mother must make an affirmative representation of Indian ancestry or any error is deemed harmless. (H.V., supra, 75 Cal.App.5th at p. 438.) This court disagreed. “Mother does not have an affirmative duty to make a factual assertion on appeal that she cannot support with citations to the record.” (Ibid.) It found the error prejudicial and remanded for ICWA compliance.^[8] (Id. at pp. 438-439.)

In both this case and H.V., DCFS failed to inquire with the extended paternal family about Indian heritage. Equally telling is that in both cases, DCFS knew of the extended family members – the maternal grandmother and paternal grandfather in H.V. and son’s paternal aunts and uncles in the present case– but asked them nothing about the child’s Indian ancestry.^[9]

Family elders may well have firsthand or more accurate information about the family tree. (See In re S.R. (2021) 64 Cal.App.5th 303, 314 [“It isn’t easy to track tribal affiliations and those connections are easily lost. . . . This case is a stark example of that dynamic, because the children’s parents apparently had no idea of their family’s connection to the Yaqui tribe of Arizona, even though the children’s great-grandmother was a member and still lived with the grandparents in Colorado.”].) Here, the family elders included the older siblings.

“Speculation as to whether extended family members might have information likely to bear meaningfully on whether the child is an Indian child has no place in the analysis of prejudicial error where there is an inadequate initial inquiry. Rather, in determining whether the failure to make an adequate initial inquiry is prejudicial, we ask whether the information in the hands of the extended family members is likely to be meaningful in determining whether the child is an Indian child, not whether the information is likely to show the child is in fact an Indian child.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 434; see also In re J.C. (2022) 77 Cal.App.5th 70, 80 [“by failing to conduct an adequate inquiry, the Department virtually guarantees the (incomplete) information it obtains will support a finding that ICWA does not apply” and such reasoning “allows the harmless error exception to swallow the rules governing the duty to inquire.”].) We must remand for the juvenile court to order DCFS to comply with its ICWA inquiry duties.

DISPOSITION

The juvenile court’s order terminating parental rights under section 366.26 is conditionally reversed solely based on inadequate ICWA compliance. The case is remanded to the juvenile court to ensure compliance with ICWA and related California law by ordering DCFS to inquire of available paternal relatives (including, at minimum, the sister with whom father resided when he was released from prison) whether they have reason to believe son is an Indian child. Based on the responses, if no additional inquiry is necessary, the court’s original order shall be reinstated. If additional inquiry is required, DCFS shall comply with all applicable ICWA statutes and regulation, and related state law.

In all other respects, the order is affirmed.

RUBIN, P. J.

WE CONCUR:

MOOR, J.

KIM, J.

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

[2] The program did not reveal the reason for her discharge.

[3] Father was the baby’s father.

[4] After the father’s release from prison in November 2019, father lived with his sister for some time.

[5] The court also heard and denied father’s section 388 petition that day.

[6] On appeal, father makes no substantive argument on the parent-child beneficial relationship exception, only joining in mother’s arguments. Both separately, and by joining mother’s arguments, he contends DCFS did not comply with ICWA.

[7] Mother testified that at visits, son was “excited to tell [her] whatever it is he needs to tell me at that moment.”

[8] Justice Baker, in his dissent in H.V., decried ICWA’s complexity, finding it anything but straightforward, a point with which we agree. (H.V., supra, 75 Cal.App.5th at p. 440 (dis. opn. of Baker, J.).) He concluded that under appropriate substantial evidence review, there was “substantial evidence supporting the juvenile court’s determination that ICWA does not apply.” (Id. at p. 441.)

In another recent dissent that disagreed with the majority’s finding that ICWA noncompliance was prejudicial, Judge Crandall, sitting on assignment, observed that any presumption of prejudice in this setting “provides parents with a last-minute, readily-available delay tactic.” (In re A.C. (2022) 75 Cal.App.5th 1009, at p. 1024 (conc. & dis. opn. of Crandall, J.) For this and other policy reasons, the dissent found no prejudice. The majority’s response was: “These arguments are grist for the legislative mill.” (Id. at p. 1016.)

[9] Arguably H.V., supra, 75 Cal.App.5th 433, is a stronger case for prejudice than the present one as the only information about father there came not from father or his family but from mother.