Filed 11/8/22 In re B.J.L. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re B.J.L., a Person Coming Under
the Juvenile Court Law.
CONTRA COSTA COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
A164095
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. J19-00880)
L.L.,
Defendant and Appellant.
L.L. (Mother) appeals after the juvenile court terminated her parental
rights to her daughter, B.J.L. (Minor). She contends the juvenile court did
not use the correct standard in considering whether to apply the beneficial
parent-child relationship exception to the preference for adoption. She also
contends that inquiry into her heritage under the Indian Child Welfare Act of
1978 (25 U.S.C. § 1901 et seq.; ICWA) and related California law (Welf. &
Inst. Code, § 224 et seq.)1 was inadequate. We agree with Mother that the
All undesignated statutory references are to the Welfare and
1
Institutions Code.
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ICWA inquiry was inadequate, and we conditionally reverse the order
terminating parental rights and remand the matter to the juvenile court to
conduct further inquiry. We reject Mother’s other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
I. Detention and Jurisdiction
Minor was six years old when this dependency began in September
2019. According to her maternal aunt (Aunt), Minor was born addicted to
methamphetamine, leading to intervention by the Contra Costa County
Department of Children and Family Services (the Department), and she was
placed with Aunt and her family for the first two years of her life. Mother
had not had a permanent residence for the four years leading up to the
current dependency. During that time, she lived in a tow yard, on the
streets, and sometimes with Aunt.
Mother moved out of Aunt’s home in approximately July 2019, but
Aunt continued to provide care for Minor daily, including taking her to school
and picking her up. Mother and her boyfriend, Carlos, would appear at
Aunt’s home at random times to pick up Minor, sometimes as late as 10:00
p.m. On the evening of September 17, 2019, Carlos dropped Minor off with
Aunt, saying Mother could not handle her. The next day, Mother appeared at
Aunt’s home and demanded that Minor be returned to her care. In light of
her irate behavior and history of substance abuse, Aunt’s adult son suspected
she was under the influence and was not comfortable allowing Minor to go
home with her.
Law enforcement officers were summoned, and Minor told them she
would like to stay with Aunt. Officers conducted a welfare check of Mother’s
home, and saw a box cutter with the razor blade exposed, several dirty
ashtrays full of cigarettes and ashes in the living room, a methamphetamine
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pipe on the coffee table in the living room, and a razor knife with the blade
exposed on the couch. A large butcher knife was stuck into the tree in front
of the house. Mother was arrested for child endangerment and neglect.
A social worker visited Mother’s home a few days later and saw
ashtrays and a bottle of Suboxone within a child’s reach. The bathtub was
clogged and had standing water, and there was mold on the shower tile.
Mother said that she last used methamphetamine four years ago and
that she drank one wine cooler after work. The work program where Mother
and Carlos were employed reported that they both appeared to be under the
influence of narcotics and/or alcohol while at work.
The social worker met with Minor. Minor said that her home was at
Aunt’s residence. The social worker had Minor do a “three houses” exercise.
For the “good house,” Minor drew Mother, Aunt, Carlos, and “ ‘her sister.’ ”
In the “house of dreams,” she drew a bed where she could sleep at Mother’s
house. Her “house of worries” consisted of ghosts.
Minor had developmental delays. When the dependency began, six-
year-old Minor was not toilet trained. She had sensory integration disorder
and speech delay.
On March 3, 2020, the juvenile court adjudged Minor a dependent child
and ordered her placed in foster care, with reunification services for Mother.
Minor was placed in Aunt’s home.
II. Review Hearings
Mother visited Minor consistently, she behaved appropriately, and
Minor enjoyed the visits. Mother called Minor every evening to say
goodnight. She completed an outpatient substance abuse treatment program,
but one of her drug tests was positive for marijuana and on another occasion
there was reason to think she submitted a sample of someone else’s urine. At
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the six-month review hearing on August 25, 2020, the juvenile court
continued Minor in her out-of-home placement, with reunification services for
Mother.
Mother was living with Carlos. Minor’s therapist reported Minor felt
unsafe with Mother because of Mother’s relationship with Carlos. She said
she felt safe only with her relative caregivers. She said she loved Mother but
did not feel Mother was able to keep her safe. She recalled Mother leaving
her home alone at night; she would bury herself under the covers and feel “so
afraid.”
Mother continued to visit Minor consistently, on a weekly basis, Minor
enjoyed the visits, and the visits went well. Unsupervised visits began on
October 5, 2020, but they had to take place in the community because Mother
was living with Carlos, who had an extensive substance abuse and criminal
history. Twice that month, however, Mother took Minor to the home, and
Carlos was present. As a result, the social worker told Mother visits would
have to take place at the Department. At the 12-month review hearing on
January 19, 2021, the trial court continued Minor’s placement and Mother’s
reunification services.
III. Termination of Reunification Services
A contested 18-month review hearing took place on May 4 and 7, 2021.
The evidence showed Mother’s consistent visits with Minor continued, two
hours a week, the visits still taking place at the Department, and Mother
continued to behave appropriately. Minor looked forward to the visits and
enjoyed them. The social worker testified that Mother and Minor loved each
other. However, Minor had said repeatedly that she would not feel safe living
with Mother and Carlos, that she was scared of Carlos, and that she wanted
to live with Aunt. She had nightmares about being left alone at night.
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During a visit in February 2021, the social worker smelled what seemed to be
alcohol on Mother’s breath. However, Mother behaved appropriately during
the visit.
Mother had not been attending therapy. The therapists she had seen
said she was resistant to treatment and was “in denial” about the reasons for
the dependency. She had not completed a substance abuse program.
The juvenile court terminated reunification services and set a hearing
pursuant to section 366.26 to adopt a permanent plan for Minor.
IV. Termination of Parental Rights
The section 366.26 hearing took place on October 26, 2021.
A. The Department’s Evidence
The Department introduced evidence that Mother continued to visit
with Minor consistently. Until early May 2021, the visits took place at the
Department’s office and were supervised. Mother often brought snacks, and
on a few occasions provided sandwiches, fruit, or cheese and crackers. They
engaged in imaginative play, board games, and picnics by a pond, and Mother
read books to Minor. Mother helped Minor with her homework during one
visit.
Visits moved to Aunt’s house in early May 2021. Mother played with
Minor during the visits, and did not cook dinner, make snacks, or bathe
Minor. During visits, Minor was affectionate with Mother and hugged her.
The social worker testified that visits were scheduled to take place for an
hour on Sundays, although Mother and Aunt could make other arrangements
and the visits sometimes lasted a few hours. Minor enjoyed the visits, and
she said she had fun and liked to play with Mother. According to the social
worker, Minor did not ask to spend time with Mother away from Aunt’s
home, she showed no distress when visits were ending, and she did not ask to
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have the visits last longer. When Minor needed something, she looked to
Aunt to provide it.
After visits, Minor sought extra hugs from Aunt and reassurance that
Aunt would not leave. Aunt and her husband (Uncle) wished to adopt Minor,
who had lived with them more than half her life.
Minor consistently told the social worker she did not want to return to
Mother’s home. The social worker told Minor that being adopted would mean
that she would stay in Aunt and Uncle’s home until she was an adult, and
Minor threw her hands up in the air and said, “Yay,” as if excited about the
prospect. The social worker said there was “definitely a lot of love” in Aunt
and Uncle’s home. Minor was very comfortable with them, and she liked to
sit with them or on their laps. She turned to them if she needed anything,
and she showed off pictures of her with Aunt, Uncle, and their son. She said
that if she was feeling sad or upset, she talked to Aunt and her therapist.
B. Mother’s Testimony
Mother testified that she called Minor every evening to say prayers
together and that she visited two or three times a week. During visits, they
played with Barbie dolls and read. Mother brought toys, books, and snacks to
visits. She also played hopscotch and jump rope to help Minor with her
coordination disability. Minor made gifts and drew pictures for Mother.
They hugged, and Minor lay on Mother during visits. At the end of visits,
Minor would ask Mother to stay. Mother testified that she and Minor loved
each other and shared a “bond that a mother and a child have.”
Mother testified that when Minor was in kindergarten, she arranged to
have Minor evaluated for learning issues. Since the dependency began,
however, Mother could not participate in Minor’s individualized education
plan because she had to stay away from the school.
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C. The Court’s Ruling
The juvenile court terminated parental rights, finding as it did so that
Mother had maintained regular visitation and contact with Minor and that
they shared a relationship and had affection for each other, but that the
benefits of the relationship did not outweigh the benefits and stability of
permanency. Mother appeals from this order.
DISCUSSION
I. Parental-Benefit Exception to Adoption
A. Legal Background
The purpose of a section 366.26 hearing after reunification services
have been terminated is to select a permanent plan in the dependent child’s
best interests. (In re A.S. (2018) 28 Cal.App.5th 131, 152.) At this point, the
focus is no longer on the parent’s interest in reunification but on the child’s
needs for permanence and stability. (Ibid., citing In re Sadie S. (2015) 241
Cal.App.4th 1289, 1303.) Adoption is the preferred alternative. (§ 366.26,
subd. (b)(1).) The juvenile court presumes that terminating parental rights is
in the child’s best interest, and a parent has the burden to demonstrate a
“ ‘compelling reason for determining that termination would be detrimental
to the child’ due to one of six enumerated reasons.” (A.S., at p. 152, citing
§ 366.26, subd. (c)(1)(B).) Among those is that “[t]he parents have
maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
The juvenile court’s rejection of this “parental-benefit exception” is
before us now. Our high court engaged in an extended analysis of this
exception in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). It explained
that the parent has the burden to prove three elements: “(1) regular
visitation and contact, and (2) a relationship, the continuation of which would
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benefit the child such that (3) the termination of parental rights would be
detrimental to the child.” (Id. at p. 631.) In assessing whether termination
would be detrimental, the trial court “must decide whether the harm from
severing the child’s relationship with the parent outweighs the benefit to the
child of placement in a new adoptive home. [Citation.] By making this
decision, the trial court determines whether terminating parental rights
serves the child’s best interests.” (Id. at pp. 631–632.)
The first element asks simply whether the parent visits consistently, to
the extent permitted by the court. (Caden C., supra, 11 Cal.5th at p. 632.)
This is a factual question, and we review the juvenile court’s determination
for substantial evidence. (Id. at pp. 639–640.)
For the second element, courts consider whether “the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “[T]he
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.’ ” (Caden C., supra, 11
Cal.5th at p. 632, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Courts may also look to how the child feels about, interacts with, looks to, or
talks about the parents. (Caden C., at p. 632.) And the court should bear in
mind that parent-child relationships do not “conform to an entirely consistent
pattern,” and it is not necessary “to calibrate a precise ‘quantitative
measurement of the specific amount of “comfort, nourishment or physical
care” [the parent] provided during [his or] her weekly visits.’ ” (Ibid.) To
satisfy this element, the parent “must show that the child has a substantial,
positive, emotional attachment to the parent—the kind of attachment
implying that the child would benefit from continuing the relationship.” (Id.
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at p. 636.) We review a juvenile court’s finding on this element for
substantial evidence. (Id. at pp. 639–640.)
The third element—whether termination of parental rights would be
detrimental to the child due to the parent-child relationship (§ 366.26,
subd. (c)(1)(B))—requires the court to decide “whether it would be harmful to
the child to sever the relationship and choose adoption. [Citations.] Because
terminating parental rights eliminates any legal basis for the parent or child
to maintain the relationship, courts must assume that terminating parental
rights terminates the relationship. [Citations.] What 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.” (Caden C., supra, 11
Cal.5th at p. 633.) The question is not whether the parent can provide a
home for the child, it is whether the harm of severing the parent-child
relationship “outweighs ‘the security and the sense of belonging a new family
would confer.’ [Citation.] ‘If severing the natural parent/child relationship
would deprive the child of a substantial, positive emotional attachment such
that,’ even considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child, the court should not terminate parental rights. . . .
When the relationship with a parent is so important to the child that the
security and stability of a new home wouldn’t outweigh its loss, termination
would be ‘detrimental to the child due to’ the child’s beneficial relationship
with a parent.” (Id. at pp. 633–634.) We review the juvenile court’s
determination on this issue for abuse of discretion. (Id. at p. 640.)
B. Analysis
Mother contends that she met her burden to prove all three of these
elements and that the juvenile court relied on improper factors in deciding
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otherwise. As to maintaining regular visitation and contact, there is no
dispute that this element is met, as the trial court found.
As to the second element—whether Minor would benefit from
continuing the relationship—Mother points to evidence that Minor looked
forward to the visits and did not want her to leave; that Mother behaved
appropriately during visits; that they loved each other and showed affection
with words and gestures; that she brought toys and games to visits; that she
engaged Minor in jumping rope and hopscotch to assist with her motor
development; that she once helped Minor with her homework; that early in
the dependency, Minor’s “dream house” included only Minor and Mother; and
that the adoption social worker who testified had never observed a visit
between Minor and Mother.
In announcing the basis for its ruling, the juvenile court did not
distinguish clearly its findings on the second and third elements of the
parental-benefit exception. The court found there was a “parental
relationship in the sense that [Minor] knows that [Mother] is her mother, and
I have no doubt that they have affection for each other.” But, the court went
on, the relationship seemed superficial in that it was “primarily one of a fun
person to play with when they get together.” Although Aunt allowed Mother
to visit whenever she wished and to extend her visits for several hours,
Mother did not engage in such parental activities as helping with homework,
providing food, and eating together. The court additionally credited the
evidence that Minor had not asked to spend additional time with Mother,
that Minor turned to Aunt rather than Mother for help, that after visits
Minor asked Aunt for reassurance that she would not leave her, that Minor
said she did not want to live with Mother and felt safe with Aunt, and that
Minor jumped and yelled “Yay” when told that she could have a permanent
10
home with aunt. Stressing the benefits of permanence, the court concluded
that a permanent home with the Aunt who was her primary caregiver was in
Minor’s best interest. Without discounting the evidence on which Mother
here relies, the court found the relationship between Mother and Minor was
not sufficiently beneficial that Minor would suffer detriment from
terminating it, particularly when balanced against the stability of
permanency.
Mother argues that the trial court improperly discounted her
relationship with Minor because it did not consider the relationship
“parental.” In support of her argument, she draws our attention to a number
of cases that have considered whether, in light of Caden C., it is appropriate
for a court to require a parent to occupy a “parental role” before applying the
parental-benefit exception. The Department inexplicably ignores these cases
in its respondent’s brief, but they demand our consideration.
Caden C. cautions that “rarely do ‘[p]arent-child relationships’ conform
to an entirely consistent pattern,” and that “it is not necessary—even if it
were possible—to calibrate a precise ‘quantitative measurement of the
specific amount of “comfort, nourishment or physical care” [the parent]
provided during [his or] her weekly visits.’ ” (Caden C., supra, 11 Cal.5th at
p. 632.) And in weighing whether termination of parental rights would be
detrimental, the court should not compare the parent’s attributes as a
custodial caregiver to those of a prospective adoptive parent. (Id. at p. 634.)
In cases preceding Caden C., courts considering the parental-benefit
exception looked to whether the parent “occupies a parental role in the child’s
life, resulting in a significant, positive, emotional attachment from child to
parent” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 954; accord, In re Beatrice
M. (1994) 29 Cal.App.4th 1411, 1418–1419), characterizing a “parental role”
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as “more than frequent and loving contact, an emotional bond with the child,
or pleasant visits” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229) or more
than that of a “ ‘friendly visitor’ ” (In re Angel B. (2002) 97 Cal.App.4th 454,
468).
After reviewing this background and the decision in Caden C., the court
in In re L.A.-O. (2021) 73 Cal.App.5th 197, concluded that the term “parental
role,” standing alone, was ambiguous and it “can be understood in ways that
conflict with Caden C. and in ways that do not.” (Id. at pp. 202, 209–211.)
The appellate court suggested it was better not to use the term, focusing
instead on whether there is a “ ‘substantial, positive emotional attachment
between the parent and child.’ ” (Id. at p. 211.) The court then turned to the
facts of the case before it; in declining to apply the parental-benefit exception,
the juvenile court explained that the children had been removed from the
parents for a significant time, most visits had been supervised, and the
parents “ ‘ha[d] not acted in a parental role in a long time.’ ” (Id. at p. 205.)
This “terse” ruling, the appellate court concluded, was susceptible to a proper
interpretation—that “the children had a substantial, positive, emotional
attachment to the prospective adoptive parents but not to the parents”—and
to an improper one—that the parents were not capable of taking custody, had
not been good parents, or had not been providing necessary parental care.
(Id. at pp. 211–212.) Because it could not discern the basis of the juvenile
court’s ruling, the appellate court remanded the matter with directions to
reconsider the application of the parental-benefit exception. (Id. at p. 212;
see also In re D.M. (2021) 71 Cal.App.5th 261, 270 [remand where juvenile
court said father did not attend medical needs and had not risen to level of
parent, but said nothing about the attachment between father and children];
In re J.D. (2021) 70 Cal.App.5th 833, 864–865 [juvenile court’s “conclusory”
12
statement that relationship did not “ ‘amount to a parental bond’ ” could have
encompassed factors irrelevant under Caden C.]; In re M.G. (2022) 80
Cal.App.5th 836, 848 [psychologically or emotionally significant relationship
may exist even if parents do not occupy parental role].)
As Mother recognizes, two recent decisions have declined to remand a
case for a new hearing on the application of the parental-benefit exception, In
re Katherine J. (2022) 75 Cal.App.5th 303, and In re A.L. (2022) 73
Cal.App.5th 1131. The juvenile court in Katherine J. concluded a father
whose own violent actions had led to a restraining order and disrupted the
visitation schedule with his daughter had “ ‘not occupied a significant
parental role.’ ” (Katherine J., at pp. 315–316.) While agreeing that “Caden
C. requires juvenile courts to do more than summarily state that a parent has
not occupied a parental role in his child’s life,” the appellate court concluded
there was no error. (Id. at p. 319.) That was because the juvenile court did
not rely on the bare conclusion that the father did not occupy a parental role
but explained what it meant by that, that is, that his unresolved issues with
substance abuse and violence had destabilized the child’s life for years,
compromising his ability to maintain a strong, positive emotional attachment
with her. (Id. at pp. 319–320.)
Focusing on the third element of the parental-benefit exception,
whether the detriment of severing the relationship outweighed the benefit of
an adoptive home, the court in In re A.L. concluded it was appropriate for the
juvenile court to consider “whether, and the extent to which, the caregivers
and [parent] occupied parental roles with the minor,” because “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., supra, 73 Cal.App.5th at p. 1157.) In contrast
13
to the situation in In re J.D., the juvenile court in A.L. found there was a
beneficial relationship between the father and the child; while it may have
been improper to rely on whether a parent’s role was “parental” in that
second-element inquiry, such a relationship was relevant to the balancing in
the third element. (In re A.L., at p. 1161.)
Likewise, a natural reading of the juvenile court’s ruling here is that it
found Mother satisfied the second element of the parental-benefit exception,
although there were limits to the bond. Immediately after referring to Caden
C., the court found Mother had maintained regular visitation and that she
had a relationship with Minor, but it was limited in depth and in the degree
to which it was parental. The court then discussed a variety of factors,
including that Mother spent her visits playing rather than helping with
homework, guiding Minor, or preparing meals; that Minor did not ask for
additional time with Mother; that she looked to Aunt rather than Mother for
help, that she needed additional reassurance after visits that Aunt would not
leave her; and she said she wanted to stay with Aunt. And, the court
explained, Minor, now eight years old, had spent the first two years of her life
and the most recent two years—all told, about half her life—in Aunt’s care;
she and Mother had lived with Aunt a significant portion of the intervening
four years; and even when Mother and Minor were not living with Aunt, Aunt
and Uncle often took Minor to and from school and had her for overnight
visits. Aunt’s home was thus the only stable home Minor had ever known,
and she and Uncle had a long-term parental relationship with Minor. (See
Caden C., supra, 11 Cal.5th at p. 632 [proper factors include the child’s age,
how much time has been spent in the parent’s custody, effects of the
interactions, the child’s particular needs, and how the child feels about and
looks to the parent]; In re A.L., supra, 73 Cal.App.5th at p. 1158 [weight
14
properly given to facts that prospective adoptive home was stable and that
child was attached to caregivers and wanted to remain with them].)
Based on all of these factors, the court found that the relationship was
“not sufficiently beneficial to” outweigh “the benefits and stability of
permanency.” It is thus apparent that the court considered the strength of
Minor’s attachment to Mother, and balanced the detriment of severing that
relationship against the benefits that a permanent home would bring to
Minor. And, contrary to Mother’s contention otherwise, the court did not
improperly impose a requirement that Minor’s primary attachment be to
Mother rather than the caregivers. (See J.D., supra, 70 Cal.App.5th at p. 859
[parent need not prove child has primary attachment to parent].) While we
agree that Mother’s failure to help with homework or cooking would not
suffice to defeat the parental-benefit exception, the court explained, at length,
many reasons for its determination that were supported by the record and
appropriate under the law. We see no error.
Relying on In re J.D., Mother argues there is an additional ground for
reversal, in that the social worker who recommended termination of parental
rights—who had only recently been assigned to the case—did not ask Minor
how she felt about Mother or about not seeing her again, and because the
social worker had not observed any visits. While In re J.D. treats evidence of
a child’s feelings about a parent as useful, it also explains that it is the
parent’s burden to prove the existence of the parental-benefit exception. (In
re J.D., supra, 70 Cal.App.5th at pp. 860–861.) We do not read that case to
require the social worker who recommends termination of parental rights to
inquire into a child’s feelings about adoption or personally observe a
visitation, and, while we agree more information would have been better, we
will not add such a requirement here.
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II. Inadequate ICWA Inquiry
Mother also contends the Department and the juvenile court did not
satisfy their duty to inquire into her possible Native American ancestry. The
Department acknowledges its inquiry fell short, but contends there was no
prejudice.
The purpose of ICWA is to “ ‘protect Indian children and to promote the
stability and security of Indian tribes and families by establishing minimum
federal standards a state court must follow before removing an Indian child
from his or her family.’ ” (In re S.H. (2022) 82 Cal.App.5th 166, 173.) In
service of this goal, when a child is placed in the custody of a county welfare
department, the department must inquire whether the child is an Indian
child. This inquiry includes asking the child, parents, and extended family
members including aunts or uncles, whether the child is or may be an Indian
child. (§ 224.2, subd. (b); In re J.C. (2022) 77 Cal.App.5th 70, 77; In re A.C.
(2022) 75 Cal.App.5th 1009, 1015.) The inquiry need not be exhaustive, and
the agency need not necessarily question every possible extended family
member, but it must provide enough information for the juvenile court to
make an informed determination of whether the inquiry was adequate and
whether the child may be an Indian child. (In re K.H. (2022) 2022 Cal.App.
Lexis 880, pp. *32–*33, *43, *60–*61.) In addition, the juvenile court, at the
first appearance in court of each party, must ask whether the participant
knows or has reason to know the child is an Indian child. (§ 224.2, subd. (c).)
At the outset of this dependency, Mother told a social worker she
believed she had Native American ancestry but did not know the tribal
affiliation. Shortly afterward, she signed an ICWA-020 form indicating she
did not have any Indian ancestry. The form itself recited that it was “not
intended to constitute a complete inquiry into Indian heritage” and that
16
ICWA might require further inquiry. The “Indian Child Welfare Act Status”
discussion in the Department’s disposition report and subsequent status
review reports explained only that Mother had signed the form indicating she
had no Native American heritage. It appears the juvenile court made no
finding regarding ICWA until, on March 3, 2020, it found there was no reason
to believe Minor was a Native American child.
The record does not show that the juvenile court asked Mother whether
she had reason to know Minor was an Indian child. Nor does it show the
Department asked Mother about the basis for her earlier statement that she
might have Native American ancestry, or that the Department made any
inquiry at all of either of Mother’s two older sisters, one of whom was caring
for Minor. The Department “acknowledges its shortcomings” in failing to
make further inquiries of extended family members. We agree that this
inquiry was inadequate. We must therefore consider whether it requires
reversal.
Multiple recent appellate decisions have considered how to assess
whether error in carrying out ICWA inquiry is prejudicial, and the issue is
currently pending before our Supreme Court. (In re Dezi C. (2022) 79
Cal.App.5th 769, rev. granted Sept. 21, 2022, S275578.) As recently
explained in In re K.H., supra, 2022 Cal.App. Lexis 880, pp. *45–*60, the
courts have articulated several different tests for prejudice. At one end of the
spectrum, some courts have required an appellant to show that, if asked, he
or she would have claimed Indian ancestry. (See, e.g., In re A.C. (2021) 65
Cal.App.5th 1060, 1069.) At the other end, some cases follow a “ ‘clear rule
that requires reversal in all cases where the ICWA inquiry rules were not
followed.’ ” (In re G.H. (2022) 84 Cal.App.5th 15, 32, quoting In re E.V. (2022)
80 Cal.App.5th 691, 694.)
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There are competing approaches taking a middle ground. The court in
In re Dezi C. held that “an agency’s failure to conduct a proper initial inquiry
into a dependent child’s American Indian heritage is harmless unless the
record contains information suggesting a reason to believe that the child may
be an ‘Indian child’ within the meaning of ICWA.” (In re Dezi C., supra, 79
Cal.App.5th at p. 779; accord, In re Ezequiel G. (2022) 81 Cal.App.5th 984,
1014.) The court in In re Benjamin M. (2021) 70 Cal.App.5th 735, 744, took
another middle-ground approach, holding that reversal is necessary where
the record demonstrates not only that the agency failed in its duty of initial
inquiry, but also that “there was readily obtainable information that was
likely to bear meaningfully upon whether the child is an Indian child.”
The court in In re K.H. looked at the issue through a somewhat
different lens. It explained that the relevant rights under ICWA belong to
Indian tribes, which have a statutory right to receive notice when an Indian
child may be involved so they can determine whether the child is an Indian
child, and “prejudice to those rights lies in the failure to gather and record
the very information the juvenile court needs to ensure accuracy in
determining whether further inquiry or notice is required.” (In re K.H.,
supra, 2022 Cal.App. LEXIS 880 at pp. *8–*9.) The question for the
reviewing court, under this analysis, is whether the juvenile court’s
discretionary determination of whether the agency conducted an adequate
and diligent ICWA inquiry is supported by substantial evidence, or whether
the agency’s efforts “fall so short of the mark that the evidence is patently
insufficient to support the court’s determination, and [the court] abuses its
discretion in finding the agency’s inquiry was proper, adequate, and
discharged with due diligence.” (Id. at pp. *9–*10, *25–*28, *31.)
Considering the appropriate standard for reversal, the court concluded that
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“where the opportunity to gather the relevant information critical to
determining whether the child is or may be an Indian child is lost because
there has not been adequate inquiry and due diligence, reversal for correction
is generally the only effective safeguard.” (Id. at p. *44.)
Whatever the relative merits of these varying approaches, we conclude
the error here requires reversal. This is not a case of a record that is silent
on the question of Indian heritage. Rather, Mother affirmatively told the
social worker she believed she had Native American ancestry. Nevertheless,
the record contains no indication the Department made any further inquiries,
aside from having Mother fill out the ICWA-020 form. Not only could the
Department have sought more information from Mother to resolve the
contradiction, it also had ready access to at least one of Mother’s two older
sisters—who would have been a source of “readily obtainable information”—
but there is no evidence it asked either of them about Indian ancestry. (In re
Benjamin M., supra, 70 Cal.App.5th at p. 744.) Bearing in mind the conflict
in Mother’s statements and the silence of the record on any attempt to follow
up on her original statement with either Mother or her sisters, remand is
necessary under any standard.
DISPOSITION
The order terminating parental rights is conditionally reversed. The
matter is remanded with directions for the juvenile court and the
Department to comply with the inquiry and (if appropriate) notice provisions
of ICWA and state law. If, after compliance with the law, the juvenile court
concludes ICWA does not apply, the order terminating parental rights shall
immediately be reinstated. If, after proper inquiry and notice to applicable
tribes, the court finds that Minor is an Indian child, the court must proceed
in conformity with ICWA.
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TUCHER, P.J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
In re B.J.L. (A164095)
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