Filed 8/10/22 In re J.W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 orders of the Superior Court of Merced County. Donald J. Proietti, Judge.

Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.

Forrest W. Hansen, County Counsel, and Ann Hanson, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Appellant Kayla M. (mother) is the mother of children J.W. and D.T. (collectively “the children”), who are the subjects of a dependency case. Mother challenges the juvenile court’s orders issued at a contested selection and implementation hearing that resulted in mother’s parental rights being terminated. Mother contends the juvenile court erred by failing to apply the beneficial parent-child relationship exception and considering inappropriate factors during its determination on the exception. Mother also argues that the juvenile court failed to comply with the duty to inquire under the Indian Child Welfare Act (ICWA). We conditionally reverse the juvenile court’s orders terminating parental rights and remand for proceedings to ensure ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND

On November 12, 2019, the Merced County Human Services Agency (agency) received a referral alleging the conditions of mother’s home were hazardous to

nine-year-old J.W. and eight-year-old D.T. An agency social worker responded to mother’s home with Merced County Sheriff’s Deputy Ochoa. Mother’s home was found to be “in disarray with trash, debris, old food, clothing, wet clothing in the bathroom, an over-filled cat box, standing bucket of water under the kitchen sink, broken items, and various other hazards.” Mother was using the gas oven to heat the house in the morning, and she was unaware of the risk posed if the oven’s flame went out. Several knives were in reach of the children and empty glass alcohol bottles were on the porch and driveway. The home had a strong smell of mildew and urine from the cat and J.W.’s enuresis. Ochoa’s eyes began burning, and he had to leave the home to catch his breath.

In her interview with the social worker, mother acknowledged having undiagnosed mental health conditions, but she was not receiving any treatment or counseling to address her mental health issues. Mother was having problems managing J.W.’s behaviors, which she claimed as part of the reason for the home’s condition. J.W. was diagnosed with severe attention deficit hyperactivity disorder (ADHD) and explosive personality disorder, and was possibly on the spectrum for autism. Mother stated she was limited in her ability to keep the home clean because of the stress of the children and various medical issues. The medical issues included severe rheumatoid arthritis, sciatica, neuropathy, dead nerves, herniated discs, a possible torn rotator cuff in her shoulder, and fibromyalgia. Mother disclosed taking multiple medications for these conditions, but she denied using illegal drugs.

J.W. reported that his mother used her hand to spank him and D.T. “on the bottom.” Their home had been in its current “dirty” condition for almost two years. The children had to make their own food because mother did not cook for them, and D.T. stated she did not eat on occasion. D.T. described how mother hit, spanked, and slapped J.W. as forms of punishment. Ochoa subsequently placed the children into protective custody.

On November 13, 2019, a social worker interviewed J.W.’s father, Joshua D. (Joshua), who last saw J.W. a couple years earlier. Joshua did not live in the area, and he denied knowledge of the condition of mother’s home. He denied having any concerns with mother’s mental health when he was in a relationship with her. Mother’s husband informed a social worker that mother was previously on medication for a “ ‘mental issue,’ ” but he moved out of the home six months earlier. The children’s maternal grandfather told the social worker that he was aware of the condition of the home and mother’s difficulties with the children and “ ‘stresses and stuff.’ ” He was not aware of any clinical diagnoses for mother, and he believed D.T.’s father, B.T., was abusive without having witnessed abuse.

The agency filed an original petition alleging the children were described by Welfare and Institutions Code section 300, subdivisions (b)(1) and (g).[1] The petition alleged that the children were at risk of suffering serious physical harm as a result of mother’s mental health and inability to maintain a safe environment for the children. The Indian Child Inquiry Attachment portion of the petition indicated that mother may have “Blackfoot and Cherokee” ancestry.

The report prepared for the detention hearing detailed mother’s statement that she believed she had “Blackfoot and Cherokee” ancestry through both of her parents, and she was not aware of any ancestry from the children’s fathers. Joshua stated he was unsure if he had Indian ancestry “because he was told that he does, but is unsure of the tribe.” Joshua reported that the ancestry is “through his Aunt Cindy.” The child’s maternal grandfather informed the agency that the children’s maternal grandmother had “Cherokee and Blackfoot” ancestry. B.T., the alleged father of D.T., was not in contact with the agency.

At the detention hearing held on November 15, 2019, mother and Joshua were both present and appointed counsel. The juvenile court reiterated the parents and maternal grandfather’s prior statements regarding possible Indian ancestry, and the maternal grandfather clarified that the Indian ancestry came from his wife’s mother (the children’s maternal great-grandmother). The juvenile court directed that mother and Joshua fill out an “ICWA 30 form” (Parental Notification of Indian Status)[2] to provide information to determine if the children qualify for membership or assistance from any identified tribes. Joshua agreed to provide as much information as he could, including contact information for his aunt Cindy.

After the parties submitted on the detention report, the juvenile court ordered the children detained from the custody of their parents, supervised visitation to be arranged by the agency between the parents and children, and the setting of a combined jurisdiction and disposition hearing for December 19, 2019. A hearing regarding D.T. was held on December 2, 2019, where B.T. appeared by phone and was appointed counsel. B.T. denied having Indian ancestry, and the juvenile court determined ICWA was not applicable as to B.T.

Jurisdiction and Disposition

The agency’s jurisdiction and disposition report, filed on December 17, 2019, recommended that the juvenile court find the allegations under section 300, subdivision (b) be found true and order that the children remain in out of home care with family reunification services provided to mother, Joshua, and B.T.

The agency sent formal notice pursuant to ICWA to the Bureau of Indian Affairs (BIA), Blackfeet tribe, and Cherokee tribes on November 21, 2019. The children were placed in the home of relatives. J.W. did not know why he was removed from his home, but he preferred his current placement because he no longer had to get his own food or have a dirty room and house. J.W. had been receiving mental health services for over a year, and he was currently taking his prescribed psychotropic medication. D.T. did not always feel safe in her mother’s home because of guns in the home. She described how J.W. would always be in trouble while she was not, and she described fights between mother and her husband as “play fight[s].”

Mother acknowledged being diagnosed with a mental health disorder when she was seen by a psychiatrist, and she previously took medication for situational depression. She admitted that she had problems keeping her house clean, but she blamed the majority of the mess on J.W. The home was not livable because there was black mold in the kitchen and bathroom, and the water was turned off until her neighbor was able to fix the pipes. Mother was raised in a two-parent household and had two siblings, and she was unable to have friends over to her house as a child because the conditions of the home were dirty. Mother’s family connections were her cousins and Joshua’s adult daughter.

The children’s school records described concerns with their appearance and lack of proper hygiene. J.W. was noted as having diagnoses of ADHD and disruptive mood dysregulation disorder, and he was seen multiple times a week by mental health professionals to assist with coping skills. The care providers did not report any concerning behaviors of J.W. in their home. J.W. and D.T. were both diagnosed with enuresis and wet the bed every night. The care providers reported D.T. had difficulty sleeping due to nightmares, and D.T. would shut down when told she was unable to do something in the home. Mother visited with the children twice per week, but the children initially told visitation staff that they did not want to see mother prior to their first visit. The first visit eventually went well, but mother struggled to interact with J.W. during a later visit.

At a contested jurisdiction and disposition hearing held on January 28 and January 30, 2020, the juvenile court heard testimony from mother and an agency social worker. After hearing testimony and argument from counsel, the juvenile court found the section 300, subdivision (b) allegations true, ordered reunification services for mother and both fathers, and set a six-month review hearing for June 18, 2020.

Family Reunification Period

The agency prepared a report for the six-month review hearing, which recommended that family reunification services be continued for mother and both fathers. The report also recommended that the juvenile court find ICWA did not apply based upon responses from the noticed tribes that the children were not eligible for membership.

The children remained placed together in the home of their maternal cousins. Mother was in compliance with her case plan, but she only partially met the objectives of the psychological treatment and adequate parenting portions of her case plan. Mother was still in the process of renovating her home, with multiple projects scheduled for completion. Mother visited with the children consistently and engaged appropriately with the children both in person and by telephone.

At a continued six-month review hearing held on October 15, 2020, the juvenile court continued family reunification services for mother and both fathers and found ICWA was not applicable to the children.

The agency’s 12-month review report, filed on January 12, 2021, recommended the juvenile court continue family reunification services for mother and terminate family reunification services for both of the children’s fathers. Mother’s home continued to remain uninhabitable, however, she continued to live in the home to attend to plants and animals. Mother completed her parenting program, and she needed to continue following up with her mental health services. Visitation between mother and the children remained consistent and appropriate. The juvenile court continued family reunification services for mother and terminated family reunification services for both fathers at the 12-month review hearing held on March 16, 2021.

The agency’s recommendation for the 18-month review hearing was for mother’s family reunification services to be terminated and a section 366.26 hearing to be set. The children were placed in the home of their maternal grandparents on March 10, 2021. Mother had failed to attend or keep appointments for her mental health services since August 2020. Mother also failed to meet the objective of her case plan requiring her to maintain a suitable residence for herself and the children. Mother continued to live in her home despite its uninhabitable condition, and renovations of the home were still in progress. Visitation remained consistent and appropriate during the final review period.

A contested 18-month review hearing was held on June 8, 2021, where mother was present and provided testimony. Mother testified that she wanted to have the children placed with her at a friend’s home that was available to them while her home was being finished. Mother clarified that she was asking the juvenile court to provide her with an extra six months of family reunification services. Mother testified that she was doing well in her mental health services since she recently switched counselors, however, she could not remember the name of her counselor. Mother was having to undo all of the work that was previously done on her home, and she was currently redoing all of the work. After hearing argument from counsel, the juvenile court terminated mother’s family reunification services and set a section 366.26 hearing for September 29, 2021.

Section 366.26 Hearing

The agency’s section 366.26 report, filed on September 13, 2021, recommended that the juvenile court terminate the parental rights of mother, Joshua, and B.T. and order a permanent plan of adoption for the children. The children remained placed in the home of the maternal grandparents, who were fully committed to raise the children as their own and adopt them to ensure they grew up around their family members. The children also expressed their desire to be adopted by their maternal grandparents.

The agency detailed mother’s consistent attendance of her supervised and unsupervised visits that involved positive interaction between mother and the children. The children did not have challenges separating from mother at the end of visits, and they requested longer visits. J.W. (at 11 years of age) and D.T. (at 10 years of age) were both developmentally on track with no medical concerns noted for either of the children. The maternal grandparents knew the children since birth and had cared for the children prior to the dependency proceedings by allowing the children to stay with them sporadically over the years. Although there was no formal agreement, the maternal grandparents would allow mother to have contact with the children after adoption.

A section 388 petition was filed by mother’s counsel on November 29, 2021, requesting that the children be returned to her custody under a plan of family maintenance. The petition alleged the maternal grandparents were interfering with mother’s ability to visit with the children by seeking adoption with no visitation for mother. Mother had concerns that the maternal grandparents were underreporting J.W.’s behavioral issues because they were not in agreement with him being on medication. Mother claimed she had a safe place to live and was compliant with her mental health treatment.

The juvenile court ultimately denied the section 388 petition without an evidentiary hearing after hearing argument from counsel at the contested section 366.26 hearing beginning on December 2, 2021. The social worker assigned to assess an appropriate permanent plan for the children was called to testify as a witness by mother. The social worker testified that the children wanted to be adopted, and there was a recent conflict between the mother and maternal grandparents regarding visits. During visits supervised by the social worker in July and August 2021, the children made comments that they wanted to spend more time with their mother. However, J.W. did not make those statements again, and mother had to prompt them for a hug at the end of the final two visits.

In mother’s testimony, she expressed her belief that the children would benefit from continuing a relationship with her, and she requested the juvenile court order a permanent plan of legal guardianship for the children. The children testified at the continued section 366.26 hearing on December 8, 2021. J.W. testified regarding his understanding of the differences between guardianship and adoption, and J.W. understood that his grandparents would determine if and when he would have contact with mother. J.W. preferred to be adopted by his grandparents because it made him feel more secure. D.T. also testified that she wanted to be adopted by her grandparents, and she understood that her grandparents could prevent her from seeing mother.

After hearing argument from all counsel, the juvenile court proceeded to find mother did not meet her burden to prove the beneficial parent-child relationship exception. The juvenile court did not find the existence of a beneficial relationship or that continuing the parental relationship would outweigh the security that the children are provided through adoption. The juvenile court followed the agency’s recommendation and terminated the parental rights of mother and the children’s fathers and selected a plan of adoption.

DISCUSSION

1. Beneficial Parent-Child Relationship Exception

Mother contends the juvenile court erred when it did not apply the beneficial parent-child relationship exception to adoption. Mother asserts that the juvenile court erred by considering improper factors by comparing the children’s relationships with their prospective adoptive parents and mother in determining that a beneficial relationship did not exist. Mother argues that all of the evidence presented in the case established that the exception was applicable.

A. Legal Principles

At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption unless a statutory exception applies. (§ 366.26, subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship exception, which applies when “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Id., subd. (c)(1)(B)(i).)

A parent claiming an exception to adoption has the burden of proof to establish by a preponderance of evidence that the exception applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Thus, the parent must prove three elements in order to prevail under the beneficial relationship exception: “(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 of the beneficial relationship determination asks the “straightforward” question of whether the parent visited consistently, considering the extent permitted by court orders. (Caden C., supra, 11 Cal.5th at p. 632.) The focus is on the best interest of the child as opposed to punishing or rewarding parents for good behavior in maintaining contact. (Ibid.)

The second element of the exception asks whether the child would benefit from continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 632.) The parent-child 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.’ ” (Ibid., quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The juvenile court’s focus should again be on the child, and it “must remain mindful that rarely do ‘[p]arent-child relationships’ conform to an entirely consistent pattern.” (Caden C., at p. 632.)

When considering the third element, courts must determine “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.” (Caden C., supra, 11 Cal.5th at p. 633.) Potential negative effects from severance of the relationship might include “emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression.” (Ibid.) An adoptive home might provide a new source of stability that alleviates emotional instability and preoccupation leading to those problems, making the loss “not, at least on balance, detrimental.” (Ibid.) Under this element, the court is again guided by the child’s best interest, but in a “specific way: it decides whether the harm of severing the relationship outweighs ‘the security and the sense of belonging a new family would confer.’ ” (Ibid.)

In Caden C., the court held “that because the parent continued to struggle with substance abuse and mental health issues and because of the risks of foster care and benefits of the potential adoptive home, no reasonable court could find the child’s relationship with his parent outweighed the benefits of adoption.” (Caden C., supra, 11 Cal.5th at pp. 625–626.) Rejecting that conclusion, our Supreme Court found “[t]he Court of Appeal did not explain how the parent’s struggles related to the specific elements of the statutory exception: the importance of the child’s relationship with the parent or the detriment of losing that relationship.” (Id. at p. 626.) A parent’s struggles with issues that led to dependency were determined to be relevant only to the extent they inform whether the child would “benefit from continuing the relationship and be harmed, on balance, by losing it.” (Id. at p. 638.)

B. Standard of Review

Appellate courts review a juvenile court’s ruling on the application of the beneficial parent-child relationship exception using a “hybrid” standard. (Caden C., supra, 11 Cal.5th at p. 641.) The substantial evidence standard applies to the first two elements of regular visitation and existence of a beneficial relationship. (Id. at pp. 639–640.) The juvenile court’s decision as to the third element—whether termination of parental rights would be detrimental to the child—is reviewed for an abuse of discretion. (Id. at p. 640.) “Review for abuse of discretion is subtly different, focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when ‘ “ ‘the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’ ” ’ ” (Id. at p. 641.)

The standard of review of a court’s determination that a parent did not meet his or her burden to prove an exception to termination of parental rights is “whether the evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Specifically, the question is “whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ ” (I.W., at p. 1528.)

C. Analysis

In the present case, the juvenile court determined that mother did not meet her burden of proof as to the application of the beneficial parent-child relationship exception.

The parties acknowledge the juvenile court’s finding that mother visited regularly. However, the juvenile court did not find that there was sufficient evidence of a substantial, positive relationship or that any such relationship outweighed the benefits of adoption to establish the exception.

Mother initially contends that evidence was presented that would support a finding of the existence of a beneficial relationship between the children and mother. In support of this contention, mother cites to evidence that “visits were viewed as going well with appropriate interaction between [mother] and each of the children.” Mother then mischaracterizes the evidence by claiming that there was no evidence that the children had any relationship with their grandparents prior to their placement during the dependency proceedings. The social worker’s evaluation of the grandparents as prospective adoptive parents described a relationship with the children since birth where they shared caregiver duties by allowing the children to stay with them occasionally over the years.

Based on the present record, we cannot find that the evidence compels a finding of the existence of a beneficial relationship as a matter of law. Mother’s suggestion that there was evidence that would support a finding that such a relationship existed ignores the fact that it was her burden to prove that portion of the exception. Even if we were to accept that the children often enjoyed appropriate visits with mother, such evidence is not enough to preserve parental rights. (See In re Derek W. (1999) 73 Cal.App.4th 823, 827 [“The parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant.”) In sum, this is not a case in which “the undisputed facts established the existence of a beneficial parental … relationship.” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)

Next, mother cites to the recent cases of In re D.P. (2022) 76 Cal.App.5th 153 and In re J.D. (2021) 70 Cal.App.5th 833, in support of her contention that the juvenile court’s orders must be reversed for improper consideration of certain factors.

In J.D., the appellate court concluded that it was unclear to what extent the juvenile court—there, acting before Caden C.—considered improper factors at the second step of analyzing the parent-child beneficial relationship exception, and it reversed and remanded for a new section 366.26 hearing in accordance with Caden C. (In re J.D., supra, 70 Cal.App.5th at pp. 865, 870.) Specifically, it observed that the juvenile court had appeared to consider “the mere fact [that mother] had been unable to succeed in overcoming her parenting struggles,” “the suitability of [the minor’s] current placement,” the minor’s attachment to his current caregiver, and the court’s determination that mother did not occupy a “parental” role—all factors improper under Caden C. (In re J.D., at pp. 864–865.)

In D.P., the juvenile court stated the parents had not presented enough evidence for it to apply the exception in declining to apply the beneficial parent-child relationship exception to adoption. (In re D.P., supra, 76 Cal.App.5th at pp. 161, 167.) The agency had argued the evidence was insufficient based on considerations subsequently disapproved in Caden C. (Id. at pp. 162, 164, 168.) The appellate court reversed because it found the evidence presented by the parents was sufficient to require the court to weigh the evidence. (Id. at pp. 167, 169, fn. 5.) It concluded the juvenile court had considered improper factors by relying on the children’s bonds with their care providers without assessing their bond with their parents and considering the possibility the parents would have a continued relationship with the children. (Id. at p. 168.) The appellate court also found remand was justified because the juvenile court did not have the benefit of Caden C. when making its ruling. (Id. at p. 169.)

The cases cited by mother are inapposite because the children’s section 366.26 hearing was held in December 2021, more than six months after Caden C., so the juvenile court had the benefit of the Supreme Court’s analysis, which was cited by the agency’s counsel in closing argument. Furthermore, the juvenile court in this case did not refuse to apply the beneficial parent-child relationship exception based on an improper comparison concerning the relationship between the children and their mother and their grandparents. In considering the beneficial parent-child relationship exception here, the juvenile court began by explaining its inability to consider continued contact between the children and mother postadoption. The juvenile court then reasoned as follows:

“And it certainly would be clear if that were a component of adoption, that the parent be allowed to continue to have a relationship with their children could be very disruptive to bonding in this new family.

“And clearly these children have bonded with their grandparents and view them as their primary support, primary attachment to them. They know who their mother is. And they obviously have a love and respect for their mother, but their mother doesn’t fill the role and hasn’t filled the role that these grandparents have filled for the past couple of years for these children. [¶] … [¶]

“And I do find that the strength and quality of the grandparents’ relationship, and the attempt to vilify the grandparents’ role in all this was also disturbing to the Court. [¶] … [¶]

“I believe that that relationship clearly outweighs what mother has presented to the court that the children want to continue to see her; that the wanting to continue to see her does not outweigh the security and sense of belonging that these children clearly have with their grandparents.

“As such, I do not find mother has presented the evidence to support the second or third prong of the test for the benefit exception. The children would have some benefit—continuing relationship with the parent, but it is not the type of benefit that would outweigh the security that they are being provided through adopting. And I do not find that termination of the parental rights would be detrimental to the children based upon the evidence presented.”

We do not find that, in making its determination, the juvenile court abused its discretion by relying on impermissible factors. The juvenile court’s ruling on the exception did not consider the children’s bond with the grandparents without an assessment of their relative bond with mother, and there is no indication that the juvenile court relied on mother’s lack of a primary attachment to bar the beneficial parent-child relationship exception. Viewed in its context, the juvenile court considered the children’s relative bond with mother by acknowledging their love and respect for mother, desire to have continued contact with mother, and awareness of who their mother is. On balance, it concluded that continuing the children’s relationship with mother was not as beneficial as the security provided to them through adoption.

Under these circumstances, the juvenile court’s ruling is entitled to a presumption of correctness, and remand is unwarranted. (Caden C., supra, 11 Cal.5th at p. 640.) Therefore, the juvenile court did not err in declining to apply the beneficial parent-child relationship exception, and its orders terminating mother’s parental rights were proper.

2. ICWA Inquiry and Notice

Mother also contends the juvenile court’s finding that ICWA did not apply was not supported by sufficient evidence because the record does not include interviews conducted by the agency with all known maternal family members regarding her claim of Indian ancestry. Mother also argues that the notice served on the tribes omitted information and the agency failed to document further inquiry or include information regarding Joshua’s claim of unknown Indian ancestry in the information provided to the tribes.

1. Legal Principles

ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe … have a right to intervene” (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224.2, subd. (e)). An “Indian child” is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)

In every dependency proceeding, the agency and the juvenile court have an “affirmative and continuing duty to inquire whether a child is or may be an Indian child .…” (Cal. Rules of Court, rule 5.481(a); see also § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing duty to inquire whether a child is or may be an Indian child “can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).)

The initial duty to inquire arises at the referral stage when the reporting party is asked whether it has “any information that the child may be an Indian child.” (§ 224.2, subd. (a).) Once a child is received into temporary custody, the initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether he or she “knows or has reason to know that the child is an Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete an ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(2)(C).)

Next, a duty of further inquiry arises when the agency or juvenile court has “reason to believe” the proceedings involve an Indian child but “does not have sufficient information to determine that there is reason to know that the child is an Indian child.” (§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists when the juvenile court or agency “has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe.” (Id., subd. (e)(1).)

If there is a reason to believe an Indian child is involved, the juvenile court or agency “shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e); In re Y.W. (2021) 70 Cal.App.5th 542, 552.) Further inquiry includes, but is not limited to, “nterviewing the parents, Indian custodian, and extended family members,” and contacting the BIA, the State Department of Social Services, and the tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)–(C).)

The final duty component arises when the court or agency has “reason to know” the child is an Indian child. ([i]D.F., supra, 55 Cal.App.5th at p. 567.) A “ reason to know” exists if one of the following circumstances is present: “(1) A person having an interest in the child … informs the court that the child is an Indian child[;] [¶] (2) The residence … of the child [or] the child’s parents … is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding … informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child … gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[;] [or] [¶] (6) The court is informed that either parent or the child possess[es] an identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)−(6).)

“The duty to provide notice is narrower than the duty of inquiry. Although the duty of inquiry applies to every ‘child for whom a petition under Section 300, 601, or 602 may be or has been filed’ [citation], and the duty of further inquiry applies when there is a ‘reason to believe that an Indian child is involved in a proceeding’ [citation], the duty to provide notice to Indian tribes applies only when one knows or has ‘reason to know … an Indian child is involved,’ and only ‘for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement.’ ” (In re Austin J. (2020) 47 Cal.App.5th 870, 884 (Austin J.).)

“Once [the agency] or the juvenile court has a reason to know an Indian child is involved, notice pursuant to ICWA must be sent to the pertinent tribe(s) via registered or certified mail.… [¶] It is this ‘notice requirement, which … 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.’ ” (D.F., supra, 55 Cal.App.5th at p. 568, italics omitted.)

An Indian tribe’s determination that a child is or is not a member of, or eligible for membership in, that tribe is conclusive. Information that the child is not enrolled or is not eligible for enrollment in the tribe is not determinative unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom. (§ 224.2, subd. (h).)

If the juvenile court makes a finding that proper and adequate further inquiry and due diligence have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that ICWA does not apply, subject to reversal if the court subsequently receives information providing reason to believe the child is an Indian child. If the court receives such information, it must direct the social worker or probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)

Social workers have no duty under federal law to ask extended family members about possible tribal membership. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The error, if any, is an error of state law. (Ibid.) The test for prejudicial state law error is whether, after an examination of the entire case, including the evidence, we are of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

B. Standard of Review

Where, as here, the juvenile court finds ICWA does not apply to a child, “[t]he finding implies that … 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.” (Austin J., supra, 47 Cal.App.5th at p. 885.) We review the juvenile court’s ICWA findings for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) We must uphold the juvenile 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 Alexzander C. (2017) 18 Cal.App.5th 438, 446.) The appellant “has the burden to show that the evidence was not sufficient to support the findings and orders.” (Ibid.)

C. Analysis

Adequacy of Agency’s Inquiry

In the present case, mother informed the agency and juvenile court that she had “Blackfoot and Cherokee” ancestry through both of her parents. The maternal grandfather clarified to the juvenile court that the Indian ancestry came from his wife’s mother (the children’s maternal great-grandmother). Joshua reported he was unsure if he had Indian ancestry, and he claimed any ancestry was through his aunt Cindy. Both parents were directed to provide their family’s information to determine if the children were eligible for membership in any identified tribes, and Joshua agreed to provide contact information for his aunt Cindy. The agency sent notice pursuant to ICWA to the BIA, Blackfeet tribe, and Cherokee tribes in November 2019.

First, we reject mother’s claim that reversal is required based upon insufficient or inaccurate notice being sent to the tribes and BIA. At most, mother’s statement suggested the possibility that the children may have Indian ancestry through the Cherokee tribes and Blackfeet tribe. Indian ancestry, however, is not among the six enumerated statutory criteria for determining whether there is a reason to know a child is an Indian child. (§ 224.2, subd. (d)(1)–(6).) “[V]ague information or ‘ “family lore” ’ indicating a child ‘ “may” ’ have Indian ancestry [is] insufficient to” establish a statutory reason to know the child is an Indian child. (In re A.M. (2020) 47 Cal.App.5th 303, 322.) ICWA notice is required only if after initial and further inquiries there is “reason to know” that an Indian child is involved in the proceeding. (§ 224.2, subd. (f).) Any insufficiencies regarding mother’s claim of ancestry or Joshua’s claim of unknown Indian ancestry in the notices sent, therefore, were legally irrelevant.

In addition, there is no evidence that any living relatives with knowledge of Joshua’s unknown Indian ancestry were available for the agency to interview. Joshua only expressed uncertainty as to whether his family had Indian ancestry, and there is no evidence in the record that he provided contact information for his aunt Cindy or other relatives such that they were available to the agency. Without such information being placed on the record, we can reasonably infer that father was unable to provide information on relatives who would shed light on his unknown claim of Indian ancestry. (See In re I.J. (2013) 56 Cal.4th 766, 773 [“ ‘we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations’ ”].) This differs significantly from cases such as In re I.F. (2022) 77 Cal.App.5th 152, where the parent was challenging the child welfare agency’s failure to obtain biographical information from a relative who was available and already interviewed by social workers.

The agency had no duty to locate or interview J.W.’s paternal relatives without knowledge that available paternal relatives had meaningful information regarding claimed Indian ancestry. (See, e.g., In re Michael V. (2016) 3 Cal.App.5th 225, 233 [Agency made no effort to locate and interview children’s maternal grandmother “even though it was she who reportedly had the direct link to a tribe”].) “ICWA does not obligate the court or [agency] ‘to cast about’ for investigative leads. [Citation.] There is no need for further inquiry if no one has offered information that would give the court or [agency] reason to believe that a child might be an Indian child. This includes circumstances where parents ‘fail[] to provide any information requiring followup’ [citations], or if the persons who might have additional information are deceased [citation], or refuse to talk to [the agency].” (In re A.M., supra, 47 Cal.App.5th at p. 323.) “[T]he obligation is only one of inquiry and not an absolute duty to ascertain or refute” Indian ancestry. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.)

As discussed above, an “Indian child” is a member of a federally recognized Indian tribe, or is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4), (8).) “Being an ‘Indian child’ is thus not necessarily determined by the child’s race, ancestry, or ‘blood quantum,’ but depends rather ‘on the child’s political affiliation with a federally recognized Indian Tribe.’ ” (Austin J., supra, 47 Cal.App.5th at p. 882; see In re T.G. (2020) 58 Cal.App.5th 275, 294 [“[a]n ‘Indian child’ is defined in terms of tribal membership, not ancestry”].)

“Without the identity of a tribe, let alone a federally recognized one, or at least a specific geographic area of possible ancestry origin, the BIA could not have assisted the [agency] in identifying the tribal agent for any relevant federally recognized tribes.” (In re J.S. (2021) 62 Cal.App.5th 678, 689, 690 [Transmission of a notice to the BIA would have been an “idle act” where agency interviewed only family members identified as having information on unknown Indian ancestry.].) Furthermore, there is no evidence that Joshua was currently claiming ancestry in a specific tribe. Without more information, the agency was unable to contact and provide information to any tribes. (See In re Hunter W., supra, 200 Cal.App.4th at pp. 1468–1469 [ICWA finding upheld where mother could not identify tribe or provide any other relative who could reveal more information].)

Next, we do agree that the agency was required to interview the children’s maternal grandmother, who was the claimed source of the children’s possible Indian ancestry. The maternal grandmother was available to the agency as she had placement of the children during the dependency case. The agency’s reports do not expressly indicate that the family’s Indian ancestry was discussed with the maternal grandmother or maternal aunt and uncle. In some cases, an agency’s failure to document every interview of a relative as part of its further inquiry would be insufficient to invalidate a juvenile court’s ICWA finding on its own. (See, e.g., In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 [a silent record regarding interviews of additional family members regarding Indian ancestry did not render the ICWA inquiry inadequate].) However, we are unable to infer that the maternal grandmother was interviewed given the inaccuracies in the information the agency provided to the tribes.

We conclude that the juvenile court’s implied finding that the agency conducted an adequate further inquiry into mother’s Indian ancestry was not supported by substantial evidence with respect to the agency’s failure to interview the maternal grandmother and share complete and accurate family information with the tribes. Contact for further inquiry requires the “sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination .…” (§ 224.2, subd. (e)(2)(C).) Unlike the formal notice required where there is a “reason to know,” contact for further inquiry does not require the sharing of significant and detailed information on the child’s grandparents, great‑grandparents, and other direct lineal ancestors. (§ 224.3, subd. (a)(5)(c).) However, the tribes do require biographical information that is accurate and as complete as possible to make their determinations.[3]

The information provided to the tribes omitted the names of the children’s maternal grandparents and mistakenly identified other individuals in their place. The maternal grandparents’ information was clearly available to the agency because they had placement of the children and the maternal grandfather was present at the detention hearing. Furthermore, given this inconsistency it is not clear whether the children’s maternal great-grandmother, the relative identified as having Indian ancestry, was correctly identified as such.[4] Based upon these omissions and inaccuracies, we cannot say the agency adequately discharged its duty of further inquiry. Therefore, we conclude the juvenile court’s finding ICWA did not apply was supported by insufficient evidence and limited remand is required.

DISPOSITION

The finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the agency to comply with the inquiry provisions set forth in section 224.2.

If, after the court finds adequate inquiry has been made consistent with the reasoning in this opinion, the court finds ICWA applies, the court shall vacate its existing orders and proceed in compliance with ICWA and related California law. If the court finds ICWA does not apply, the finding that ICWA does not apply to the case shall be reinstated.

In all other respects, the court’s orders terminating parental rights are affirmed.

* Before Poochigian, Acting P. J., Smith, J. and Meehan, J.

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

[2] The correct reference for the Parental Notification of Indian Status form is ICWA‑020. An ICWA-030 form is Notice of Child Custody Proceeding for Indian Child.

[3] In the letters sent to the agency by the Cherokee Nation and United Keetoowah Band of Cherokee Indians, the tribes indicated any incorrect or omitted information could invalidate their determination on the children’s Indian status.

[4] We also note that the respondent’s brief incorrectly identifies the mother of the maternal grandfather as the source of mother’s Indian ancestry.