In re R.M. CA5

Filed 11/29/22 In re R.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

In re R.M., a Person Coming Under the Juvenile
Court Law.

KERN COUNTY DEPARTMENT OF HUMAN F084406
SERVICES,
(Super. Ct. No. JD142846-00)
Plaintiff and Respondent,

v. OPINION
C.T.,

Defendant and Appellant.

THE COURT *
APPEAL from orders of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Sara Vaona, under appointment by the Court of Appeal, for Defendant and
Appellant.
Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-

* Before Peña, Acting P. J., Smith, J. and Meehan, J.
 INTRODUCTION
C.T. (mother) and D.M. (father) are the parents of R.M. (born August 2021).
Mother appeals from the juvenile court’s dispositional order pursuant to Welfare and
Institutions Code section 360.1 Mother’s sole contention on appeal is that the Kern
County Department of Human Services (department) and the juvenile court failed to
comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901
et seq.) (ICWA) and related California law because extended family members were not
asked about R.M.’s possible Indian ancestry.2 The department concedes error, but
maintains the error was harmless and argues that because proceedings are ongoing,
ICWA error can be cured without disturbing the dispositional findings and orders.
For the reasons discussed herein, we accept the department’s concession of error.
However, consistent with our recent decisions in In re K.H. (2022) 84 Cal.App.5th 566
(K.H.) and In re E.C. (2022) __ Cal.App.5th __ [2022 Cal.App. Lexis 923] (E.C.), we
conclude “the error is prejudicial because neither the [department] nor the court gathered
information sufficient to ensure a reliable finding that ICWA does not apply and
remanding for an adequate inquiry in the first instance is the only meaningful way to
safeguard the rights at issue. ([In re A.R. (2021)] 11 Cal.5th [234,] 252–254 [(A.R.)].)
Accordingly, we conditionally reverse the juvenile court’s finding that ICWA does not
apply and remand for further proceedings consistent with this opinion, as set forth
herein.” (K.H., at p. 591; accord, E.C., at p. __ [2022 Cal.App. Lexis 923, **4–5].)

1 All further statutory references are to the Welfare and Institutions Code.
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)

2.
 FACTUAL AND PROCEDURAL BACKGROUND 3
I. Investigation and Petition
On December 18, 2021, law enforcement responded to mother and father’s home
and found various sharp objects, shattered glass, and drug paraphernalia on the floor
within R.M.’s reach, and no running water in the home. R.M. was placed in protective
custody and the parents were arrested.
During mother’s investigative interview, mother reported she did not have Indian
ancestry. Mother has two older sons who are not a part of this appeal. She reported
maternal grandmother and maternal grandfather who live in Oklahoma have legal
guardianship of one son, and maternal aunt T.H., who also lives in Oklahoma, adopted
her other son. Mother had a good relationship with the maternal grandparents, but did
not speak to T.H. She wanted maternal grandmother and maternal aunt C.M. 4 to be
considered for placement and provided their phone numbers.
During father’s investigative interview, father also reported he did not have Indian
ancestry. He said he and mother had been living together “ ‘on and off,’ ” and mother
had been otherwise living with paternal aunt T.M., who lived down the street. Because
they had no running water, they would go to T.M.’s house to bathe R.M. and get clean
water. He reported paternal grandmother also lived down the street. Father provided the

3 Because the sole issue on appeal concerns ICWA, we restrict our facts to those
bearing on that issue or helpful for clarity.
4 Although the department initially identified C.M. as a paternal aunt, this appears
to have been in error. Mother identified C.M. as “her” aunt and maternal grandmother
referred to C.M. as her sister-in-law, indicating she was part of the maternal family, and
she is referred to as “maternal aunt” and “maternal great aunt” elsewhere in the record.
Aunts are included in the statutory definition of “ ‘extended family member,’ ” but
great-aunts are not. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) The distinction ultimately
has no impact on our analysis because C.M., who was interested in placement, is included
within “others who have an interest in the child,” for whom the statutory duty of initial
inquiry is the same as it is for extended family members. (§ 224.2, subd. (b).)

3.
department with paternal grandmother’s phone number. In addition, he provided paternal
grandfather’s name, but said he did not have a relationship with him because “he left
when he was born,” and denied having any siblings. Father wanted R.M. placed with
paternal grandmother or T.M, but stated he was not opposed to placement with maternal
grandmother or C.M.
On December 21, 2021, the department filed a petition on behalf of R.M. pursuant
to section 300, subdivision (b) (failure to protect). The petition contained an Indian Child
Inquiry Attachment form (ICWA-010(A)) indicating the social worker asked both parents
about Indian ancestry and they gave no reason to believe R.M. is or could be an Indian
child.
II. Detention
On December 22, 2021, father and mother filed Parental Notification of Indian
Status forms (ICWA-020) stating they did not have Indian ancestry. That same day, the
juvenile court conducted a detention hearing. Mother, father, and paternal grandmother
were present. The court stated it received both parents’ ICWA-020 forms indicating they
did not have Indian ancestry and found there was no reason to believe or know that R.M.
is an Indian child and that ICWA did not apply. The court found R.M. came within
section 300 and ordered him detained from the parents.
III. Jurisdiction and Disposition
The jurisdiction social study reiterated that the juvenile court found ICWA did not
apply at the detention hearing. The disposition social study reflected the department had
been in contact with maternal grandmother, paternal grandmother, C.M., T.M., and
paternal cousin Co.M. regarding possible placement.
On February 4, 2022, the department closed the family finding portion of the case.
It had identified 10 maternal relatives and 26 paternal relatives, which included children
and deceased relatives. The department mailed notification letters, civil rights pamphlets,
and relative placement pamphlets.

4.
 On February 24, 2022, the juvenile court conducted a combined jurisdiction and
disposition hearing. Both parents were present, but the hearing was continued.
On April 25, 2022, the juvenile court conducted a continued combined jurisdiction
and disposition hearing. Both parents were present, but the hearing was continued again.
On May 23, 2022, the juvenile court conducted a combined jurisdiction and
disposition hearing. Both parents were present. The juvenile court found the allegations
in the petition true, R.M. was adjudged a dependent of the court and was ordered
removed from parental custody, the parents were ordered reunification services and
supervised visits, and a six-month review hearing was set. The court ordered prior orders
not specifically set aside or modified to remain in full force and effect.
On May 27, 2022, mother filed a notice of appeal.
DISCUSSION
I. ICWA
A. Background
“ ‘ICWA is a federal law giving Indian tribes concurrent jurisdiction over state
court child custody proceedings that involve Indian children living off of a reservation’
[citations], in furtherance of ‘federal policy “ ‘that, where possible, an Indian child should
remain in the Indian community’ ” ’ [citations]. ‘ICWA establishes minimum federal
standards, both procedural and substantive, governing the removal of Indian children
from their families’ [citations], and ‘[w]hen ICWA applies, the Indian tribe has a right to
intervene in or exercise jurisdiction over the proceeding.’ ” (K.H., supra, 84 Cal.App.5th
at p. 594; accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *9–10],
fn. omitted.)
“ ‘In 2006, California adopted various procedural and substantive provisions of
ICWA.’ [Citations.] The Legislature’s ‘primary objective … was to increase
compliance with ICWA. California Indian Legal Services (CILS), a proponent of the
bill, observed that courts and county agencies still had difficulty complying with ICWA

5.
25 years after its enactment, and CILS believed codification of [ICWA’s] requirements
into state law would help alleviate the problem. [Citation.]’ ” (K.H., supra, 84
Cal.App.5th at p. 595; accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis
923, *10].)
“ ‘In 2016, new federal regulations were adopted concerning ICWA compliance.
[Citation.] Following the enactment of the federal regulations, California made
conforming amendments to its statutes, including portions of the Welfare and Institutions
Code related to ICWA notice and inquiry requirements. [Citations.] Those changes
became effective January 1, 2019 .…’ [Citation.] Subsequently, the Legislature
amended section 224.2, subdivision (e), to define ‘reason to believe,’ effective
September 18, 2020.” (K.H., supra, 84 Cal.App.5th at pp. 595–596, fn. omitted; accord,
E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *10–11].)
B. Summary of Duties of Inquiry and Notice
“[W]hether a child is a member, or is eligible for membership, in a particular tribe
is a determination that rests exclusively with the tribe, and neither the [department] nor
the court plays any role in making that determination. [Citations.] ‘ “Because it typically
is not self-evident whether a child is an Indian child, both federal and state law mandate
certain inquiries to be made in each case.” ’ ” (K.H., supra, 84 Cal.App.5th at p. 596;
accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *11–12].)
“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of
notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the
[Bureau of Indian Affairs].’ ”5 (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California
law imposes “an affirmative and continuing duty [on the court and the county welfare

5 Section 224.2, subdivision (k), was amended by Assembly Bill No. 2960 (2021–
2022 Reg. Sess.). This amendment, effective January 1, 2023, is not relevant to our
discussion in this case.

6.
department] to inquire whether a child for whom a petition under [s]ection 300, … may
be or has been filed, is or may be an Indian child.” (§ 224.2, subd. (a).)
“The [state law] duty to inquire begins with the initial contact, including, but not
limited to, asking the party reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.” (§ 224.2, subd. (a).) “If a child is
placed into the temporary custody of a county welfare department pursuant to
[s]ection 306 … the county welfare department … has a duty to inquire whether that
child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents,
legal guardian, Indian custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect, whether the child is, or may
be, an Indian child and where the child, the parents, or Indian custodian is domiciled.”
(§ 224.2, subd. (b).)6 Additionally, “[a]t the first appearance in court of each party, the
court shall ask each participant present in the hearing whether the participant knows or
has reason to know that the child is an Indian child. The court shall instruct the parties to
inform the court if they subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
“If the initial inquiry provides ‘reason to believe’ that an Indian child is involved
in a proceeding—that is, if the court or social worker ‘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’—then the court or social worker ‘shall make further inquiry’ regarding

6 “Courts have recognized it is somewhat inaccurate to refer to the agency’s
‘ “ ‘initial duty of inquiry’ ” ’ [citation] because the duty ‘ “begins with the initial
contact” (§ 224.2, subd. (a)) and continues throughout the dependency proceedings’
[citation]. However, in this case, like many others, an ICWA inquiry was made only of
the parents and after the juvenile court found ICWA did not apply at the detention
hearing, no further information was gathered. Given that our discussion on error …
focuses on the first step of the inquiry and does not involve the duty of further inquiry or
notice, we use the term duty of initial inquiry.” (K.H., supra, 84 Cal.App.5th at p. 597,
fn. 10.)

7.
the child’s possible Indian status as soon as practicable.” (In re Ezequiel G. (2022) 81
Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) “Further inquiry
‘includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents,
Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of
Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the
tribe or tribes and any other person that may reasonably be expected to have information
regarding the child’s membership, citizenship status, or eligibility.’ ” (Ezequiel G., at
p. 999.)
“If there is ‘reason to know’ a child is an Indian child, the agency shall provide
notice to the relevant tribes and agencies in accordance with section 224.3,
subdivision (a)(5).” (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2,
subd. (f).) “There is ‘reason to know’ a child is an Indian child if any one of six statutory
criteria is met—i.e., if the court is advised that the child ‘is an Indian child,’ the child’s or
parent’s residence is on a reservation, the child is or has been a ward of a tribal court, or
either parent or the child possess an identification card indicating membership or
citizenship in an Indian tribe.” (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)
II. Analysis
A. Summary of ICWA Inquiry
The record reflects that during the department’s investigative phase, mother and
father denied having Indian ancestry. They also filed ICWA-020 forms denying the
same. Both parents appeared at the detention hearing, along with paternal grandmother,
where the juvenile court acknowledged receipt of the parents’ ICWA-020 forms and
found ICWA did not apply. Although the court stated it had received the parents’
ICWA-020 forms, it failed to make its own inquiry. Neither did the court inquire of the
paternal grandmother or instruct the parties to inform the court if they subsequently
received information indicating there is reason to know R.M. is an Indian child. (§ 224.2,
subd. (c).) Moreover, the department was in contact with several relatives for placement

8.
purposes, but there is no indication the department conducted ICWA inquires of any of
those relatives. (§ 224.2, subd. (b).)
As a result of the department’s failure to inquire of those relatives, mother
contends the department and the juvenile court failed to comply with their ICWA inquiry
duties and, therefore, the matter must be remanded for compliance. The department
concedes that the error resulted in an inadequate inquiry, but argues the error was
harmless and that because the proceedings are ongoing, the error can be cured without
disturbing the dispositional findings and orders.
Recently, in K.H. and E.C., we addressed ICWA error at the inquiry stage. There,
we explained our decision not to follow the four general approaches articulated by other
appellate courts for determining whether ICWA error requires reversal and concluded
that the Supreme Court’s decision in A.R. supplies the appropriate framework for
assessing prejudice in this context. (K.H., supra, 84 Cal.App.5th at pp. 607–608, citing
A.R., at pp. 252–254; accord, E.C., supra, __ Cal.App.5th __ [2022 Cal.App. Lexis 923,
*4–5].) Applying the standards we articulated in K.H. and E.C., as we will discuss
below, we conclude the department’s error is prejudicial and remand for the department
to conduct a proper, adequate, and duly diligent inquiry is necessary.
B. Standard of Review
“The juvenile court’s finding that ICWA does not apply to the proceeding rests on
two elemental determinations, ‘subject to reversal based on sufficiency of the
evidence.’ ” (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2));
accord, E.C., supra, __ Cal.App.5th __ [2022 Cal.App. Lexis 923, *17].) First, “[t]he
court must find there is ‘no reason to know whether the child is an Indian child,’ which is
dependent upon whether any of the six circumstances set forth in subdivision (d) of
section 224.2 apply.” (Ibid.) Second, “[t]he juvenile court must … find a ‘proper and
adequate further inquiry and due diligence .…’ ” (K.H., at p. 601, quoting § 224.2,
subd. (i)(2)); accord, E.C., at p. __ [2022 Cal.App. Lexis 923, *18].)

9.
 Under the substantial evidence standard, “ ‘a reviewing court should “not reweigh
the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.”
[Citation.] The determinations should “be upheld if … supported by substantial
evidence, even though substantial evidence to the contrary also exists and the trial court
might have reached a different result had it believed other evidence.” ’ [Citations.] The
standard recognizes that ‘[t]rial courts “generally are in a better position to evaluate and
weigh the evidence” than appellate courts’ [citation], and ‘an appellate court should
accept a trial court’s factual findings if they are reasonable and supported by substantial
evidence in the record’ [citation]. ‘[I]f a court holds an evidentiary hearing, it may make
credibility determinations, to which an appellate court would generally defer.’ ” (K.H.,
supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, __ Cal.App.5th at p. __ [2022
Cal.App. Lexis 923, *18].)
The juvenile court’s finding on the second element, however, “is ultimately
discretionary because it requires the juvenile court to ‘engage in a delicate balancing of’
various factors in assessing whether the agency’s inquiry was proper and adequate within
the context of ICWA and California law, and whether the agency acted with due
diligence.” (K.H., supra, 84 Cal.App.5th at p. 601, quoting In re Caden C. (2021) 11
Cal.5th 614, 640; accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923,
*19]; Ezequiel G., supra, 81 Cal.App.5th at pp. 1004–1005.) Therefore, we employ a
hybrid standard and review the court’s determination for substantial evidence and abuse
of discretion. (K.H., at p. 601; accord, E.C., at p. __ [2022 Cal.App. Lexis 923, *18–19];
Ezequiel G., at pp. 1004–1005.)
“ ‘Review for abuse of discretion is subtly different [from review for substantial
evidence], 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.” ’ ”
[Citation.] But “ ‘ “[w]hen two or more inferences can reasonably be deduced from the

10.
facts, the reviewing court has no authority to substitute its decision for that of the trial
court” ’ ” [Citations.] [¶] While each standard here fits a distinct type of determination
under review, the practical difference between the standards is not likely to be very
pronounced.’ ” (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, __
Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *19].)
“Review of the juvenile court’s findings under the foregoing standards is
deferential, but ‘ “an appellate court [nevertheless] exercises its independent judgment to
determine whether the facts satisfy the rule of law.” ’ [Citations.] Where the material
facts are undisputed, courts have applied independent review to determine whether
ICWA’s requirements were satisfied.” (K.H., supra, 84 Cal.App.5th at p. 602; accord,
E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *19–20].)
C. Department and Juvenile Court Erred
1. Duties
As previously mentioned, “[a]t the first appearance in court of each party, the
court shall ask each participant present in the hearing whether the participant knows or
has reason to know that the child is an Indian child. The court shall instruct the parties to
inform the court if they subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
Moreover, when “a child is placed into the temporary custody of a county welfare
department …, the county welfare department … has a duty to inquire whether [the] child
is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal
guardian, Indian custodian, extended family members, others who have an interest in the
child, and the party reporting child abuse or neglect, whether the child is, or may be, an
Indian child and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2,
subd. (b).) Extended family members include adult grandparents, siblings, brothers- or
sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C.
§ 1903(2); § 224.1, subd. (c).)

11.
 “If the court[ or the department] has reason to believe that an Indian child is
involved in a proceeding, but does not have sufficient information to determine that there
is reason to know that the child is an Indian child, the court[ or the department] 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).) “There is reason to believe a child
involved in a proceeding is an Indian child whenever the court, social worker, or
probation officer 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).)
County welfare departments “must on an ongoing basis include in its filings a
detailed description of all inquiries, and further inquiries it has undertaken, and all
information received pertaining to the child’s Indian status, as well as evidence of how
and when this information was provided to the relevant tribes. Whenever new
information is received, that information must be expeditiously provided to the tribes.”
(Cal. Rules of Court, rule 5.481(a)(5).)7
2. Juvenile Court’s Finding Unsupported by Substantial Evidence
In this case, the department inquired only of mother and father, which fell short of
complying with the plain language of section 224.2, subdivision (b). Neither did the
juvenile court conduct an ICWA inquiry at the parties’ first appearance in court or
“instruct [them] to inform the court if they subsequently receive information that provides
reason to know the child is an Indian child.” (§ 224.2, subd. (c).)
“We recognize the frustration with the sheer volume of cases suffering from this
fundamental defect given that the vast majority of inquiries will not result in a finding
that a child is or may be an Indian child. However, ‘[t]he judiciary, in reviewing statutes
enacted by the Legislature, may not undertake to evaluate the wisdom of the policies
embodied in such legislation; absent a constitutional prohibition, the choice among

7 All further references to rules are to the California Rules of Court.

12.
competing policy considerations in enacting laws is a legislative function.’ [Citation.]
[County welfare departments] and lower courts are, by now, on very clear notice of the
problems caused when little to no inquiry is made. While we are not persuaded that
compliance with section 224.2 will prove onerous once [county welfare departments]
provide a record of their efforts for the juvenile court to review, we may not interpret the
law to relieve either one of the burden of complying with the plain directives of the
statute.” (K.H., supra, 84 Cal.App.5th at pp. 619–620, fn. omitted.)
“[T]he law demands more than merely inquiring of [m]other and [f]ather” (K.H.,
supra, 84 Cal.App.5th at p. 620, citing In re Antonio R. (2022) 76 Cal.App.5th 421, 431;
accord, In re M.M. (2022) 81 Cal.App.5th 61, 74, review granted Oct. 12, 2022, S276099
(dis. opn. of Wiley, J.)), a point the department does not dispute. There may be cases in
which there is no one else to ask, but if that is so, the record must be developed to reflect
that fact and be supported by documentation. (Rule 5.481(a)(5).) “On a well-developed
record, the court has relatively broad discretion to determine [that] the [department’s]
inquiry was proper, adequate, and duly diligent on the specific facts of the case.” (K.H.,
at p. 589; accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *43].)
Under these circumstances, the department did not fulfill its statutory duty of
inquiry. (§ 224.2, subds. (b) & (e).) As a result, the juvenile court’s finding that ICWA
did not apply was not supported by substantial evidence, and its contrary conclusion was
an abuse of discretion. (§ 224.2, subd. (i)(2).)
D. Prejudice
“Where, as here, the deficiency lies with [a department’s] duty of initial inquiry
and a juvenile court’s related finding of ‘proper and adequate further inquiry and due
diligence’ (§ 224.2, subd. (i)(2)), the error is one of state law ([In re] Benjamin M., supra,
70 Cal.App.5th at p. 742). Under the California Constitution, ‘[n]o judgment shall be set
aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of
the improper admission or rejection of evidence, or for any error as to any matter of

13.
pleading, or for any error as to any matter of procedure, unless, after an examination of
the entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)”
(K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, __ Cal.App.5th at p. __
[2022 Cal.App. Lexis 923, *32–33].)
“ ‘[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must
clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of
justice’ [citations], and California law generally interprets its constitutional miscarriage
of justice requirement ‘as permitting reversal only if the reviewing court finds it
reasonably probable the result would have been more favorable to the appealing party but
for the error.’ ” (K.H., supra, 84 Cal.App.5th at pp. 606–607; accord, E.C., supra, __
Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *33].)
However, in A.R., the Supreme Court “recognized that while we generally apply a
Watson[8 ] likelihood-of-success test to assess prejudice, a merits-based outcome-focused
test is not always appropriate because it cannot always adequately measure the relevant
harm. [Citation.] In other words, where the injury caused by the error is unrelated to an
outcome on the merits, tethering the showing of prejudice to such an outcome misplaces
the measure, at the expense of the rights the law in question was designed to protect.”
(K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
As we explained in K.H., “ ‘ICWA compliance presents a unique situation .…’ ”
(K.H., supra, 84 Cal.App.5th at p. 608.) “ICWA is not directed at reaching, or
protecting, a specific outcome on the merits.” (Id. at p. 609; accord, E.C., supra, __
Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *37].) Rather, “ ‘[t]he purpose of ICWA
and related California statutes is to provide notice to the tribe sufficient to allow it to
determine whether the child is an Indian child, and whether the tribe wishes to intervene

8 People v. Watson (1956) 46 Cal.2d 818, 836.

14.
in the proceedings’ [citation], and an adequate initial inquiry facilitates the information
gathering upon which the court’s ICWA determination will rest.” (K.H., at p. 609;
accord, E.C., at p. __ [2022 Cal.App. Lexis 923, *34].) Yet, “while the appealing party is
usually a parent, parents do not bear the burden of gathering information in compliance
with ICWA [citations], and parents may raise the claim of error for the first time on
appeal.” (K.H., at p. 608; accord, E.C., at p. __ [2022 Cal.App. Lexis 923, *34–35].)
Further, the ultimate determination whether a child is an Indian child rests with the tribe,
not with a parent, the department, or the juvenile court. (K.H., at p. 590; accord, E.C., at
p. __ [2022 Cal.App. Lexis 923, *11–12].)
“Although the duty of inquiry is a continuing one (§ 224.2, subd. (a)), as we have
seen in countless cases, including here, if the inquiry is inadequate at the outset, the
likelihood that the opportunity to gather relevant information will present itself later in
the proceeding declines precipitously.” (K.H., supra, 84 Cal.App.5th at p. 609; accord,
E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *37–38].) “Thus, ‘the
relevant injury under ICWA is not tied to whether the appealing parent can demonstrate
to the juvenile court or a reviewing court a likelihood of success on the merits of whether
a child is an Indian child[, under a standard Watson analysis]. The relevant rights under
ICWA belong to Indian tribes and they have a statutory right to receive notice where an
Indian child may be involved so that they may make that determination. It necessarily
follows that [in the context of ICWA and consistent with A.R.,] the 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, and
whether ICWA does or does not apply. Many cases do not proceed beyond the inquiry at
the first stage in the compliance process and, therefore, ensuring adequacy and accuracy
at this step is critical’ ” (E.C., at p. __ [2022 Cal.App. Lexis 923, *38], quoting K.H., at
p. 591), and “ ‘requiring adequacy as the law directs “is generally the only meaningful[ ]
way to safeguard the statutory right[s]” as intended under ICWA and related California

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law [citation]. If this step is disregarded, the protection Congress and the state
Legislature intended to afford tribes goes unrealized.’ ” (E.C., at p. __ [2022 Cal.App.
Lexis 923, *38–39], quoting K.H., at p. 609.)
As we explained in K.H., “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.” (K.H., supra, 84 Cal.App.5th at p. 610, citing
A.R., supra, 11 Cal.5th at pp. 252–254; accord, E.C., supra, __ Cal.App.5th at p. __
[2022 Cal.App. Lexis 923, *40].) Here, the department’s inquiry, limited only to mother
and father “ ‘fell well short of that required to gather the information needed to
meaningfully safeguard the rights to tribes, as intended under ICWA and California
law’ ” (E.C., at p. __ [2022 Cal.App. Lexis 923, *42], quoting K.H., at p. 620), and “[a]
finding of harmlessness on this record would necessarily require speculation and ‘is at
odds with the statutory protections that ICWA and California law intend to afford Indian
children and Indian tribes.’ ” (E.C., at p. __ [2022 Cal.App. Lexis 923, *41], quoting
K.H., at p. 611.) Therefore, the error is prejudicial.
We recognize that mother is appealing from the juvenile court’s dispositional
order, and that the department and juvenile court “have an affirmative and continuing
duty to inquire whether a child … is or may be an Indian child.” (§ 224.2, subd. (a).)
However, briefing was completed without the benefit of our decisions in K.H. and E.C., it
is unclear from the department’s position whether it recognizes the degree to which its
inquiry was deficient,9 and the juvenile court’s ICWA finding was not supported by

9 We are not convinced the department understands why its inquiry was deficient.
In its reply brief, the department argued its error was harmless as the “duty of further
inquiry was never triggered because the first duty did not reveal any evidence to suggest
there was a ‘reason to believe’ the child was an Indian child. The record on appeal is
insufficient to have obligated the agency to pursue additional inquiry with extended
family members.” (Italics added.) The department is mistaken to believe that inquiring

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substantial evidence of a proper, adequate and duly diligent inquiry. We have explained
why the error in this case, left uncorrected, is prejudicial; and in K.H. and E.C., we
explained that “ ‘if the inquiry is inadequate at the outset, the likelihood that the
opportunity to gather relevant information will present itself later in the proceeding
declines precipitously.’ ” (E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis
923, *37–38], quoting K.H., supra, 84 Cal.App.5th at p. 609.)
Therefore, the juvenile court’s finding that ICWA does not apply is vacated and
this matter is remanded. The juvenile court is instructed to ensure the department
conducts “ ‘a proper, adequate, and duly diligent inquiry under section 224.2,
subdivision[s] (b) [and (e)], and document its inquiry in the record in compliance with
rule 5.481(a)(5).’ ” (E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923,
*44], quoting K.H., supra, 84 Cal.App.5th at p. 621.) “ ‘This should not be interpreted as
requiring an exhaustive search for and questioning of every living relative of [R.M.]’ but
‘[w]e leave that determination for the juvenile court in the first instance because it is
better positioned to evaluate the evidence provided by the [d]epartment. So long as the
court ensures the inquiry is reasonable and of sufficient reach to accomplish the
legislative purpose underlying ICWA and related California law, the court will have an
adequate factual foundation upon which to make its ICWA finding. (§ 224.2,
subd. (i)(2).)’ ” (E.C., at p. __ [2022 Cal.App. Lexis 923, *44–45], quoting K.H., at
p. 621.)
DISPOSITION
The juvenile court’s finding that ICWA does not apply is vacated and this matter
is remanded. The court is directed to order the department to comply with the inquiry

of extended family members is only required when there is reason to believe the child is
an Indian child. The law is clear—the department’s initial duty of inquiry includes
asking extended family members, or others who have an interest in the child, if the child
is, or may be, an Indian child. (§ 224.2, subd. (b).)

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requirements set forth in section 224.2, subdivisions (b) and (e), and the documentation
provisions of rule 5.481(a)(5). In all other respects, the dispositional findings and orders
are affirmed.

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