In re L.U. CA4/2

• Court: California Court of Appeal
• Decided: May 30, 2024
• Docket: E082252
• Status: Unpublished

Opinion

Filed 5/30/24 In re L.U. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re L.U., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E082252

Plaintiff and Respondent, (Super. Ct. No. INJ2100009)

v. OPINION

C.M.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Elizabeth Tucker,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Conditionally affirmed and

remanded with directions.

Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and

Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie Jarvi, Deputy

County Counsels, for Plaintiff and Respondent.

1 I.

INTRODUCTION

C.M. (Mother) appeals from the juvenile court’s order terminating parental rights 1 as to her three-year-old daughter L.U. Mother contends the beneficial parental

relationship exception to the termination of parental rights under Welfare and Institutions 2 Code section 366.26, subdivision (c)(1)(B)(i) applied to this case and thus juvenile court

erred in terminating her parental rights. She also argues that the juvenile court and the

Riverside County Department of Public Social Services (DPSS) failed to comply with the 3 Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related state

law.

We conditionally affirm the juvenile court’s order terminating parental rights.

Mother fails to establish the beneficial parental relationship exception under section

366.26, subdivision (c)(1)(B)(i) applied in the present matter. We agree, however, that

there was prejudicial error under ICWA and related California law and remand for

compliance with the inquiry provisions of those laws.

1 C.U. (Father) is not a party to this appeal. 2 All future statutory references are to the Welfare and Institutions Code. 3 “[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 (Benjamin M.).)

2 II.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father have one child, L.U. Father is a registered sex offender, is on 4 parole, and cannot have any contact with his child. The family came to the attention of

DPSS on January 5, 2021, with allegations of general neglect and caretaker

absence/incapacity. On this date, Father had called his parole agent to help him check on

then one-month-old L.U. because Mother had been drinking alcohol and was a “‘raging

alcoholic,’” who drank during the pregnancy. When the parole agent accompanied

Father to Mother’s motel room, they discovered Mother to be severely intoxicated and

stumbling in the room. There were empty alcohol bottles in the refrigerator and a vodka

bottle in the freezer. L.U. was on the bed dressed only in a diaper. The paternal

grandmother came and took L.U. The paternal grandparents were unable to provide for

L.U. long term. The paternal grandmother stated that she had no Native American

ancestry.

Mother had pending charges for child endangerment in Santa Barbara and an open

dependency referral for general neglect after she was found in a motel room intoxicated

when L.U. was 12 days old. She had been in a recovery program, but left after 30 days,

and then arrived in Palm Desert on January 4, 2021. According to Father, Mother was a

belligerent alcoholic and would drink until she passed out. Mother had participated in six

4 “SCT” refers to the clerk’s transcript from a prior appeal, which was dismissed, in case No. E076656. “SRT” will denote the reporter’s transcript from case No. E076656.

3 to seven substance abuse programs and once spent nine months in an inpatient program.

Father was not interested in any services for himself.

When the social worker interviewed Mother, the worker observed Mother to have

a strong odor of alcohol. Initially, Mother denied drinking alcohol or having alcohol in

the room, but then acknowledged a relapse. Mother declined voluntary services,

claiming she did not have a drinking problem. Mother denied having any Native

American ancestry. She also denied ever living on an Indian reservation/

Rancheria/community, attending school, or receiving services from a tribe or services

available to Native Americans provided by the Federal government, such as Indian

Health Services.

On January 6, 2021, the social worker provided the paternal grandmother with a

copy of the protective custody warrant, and L.U. was taken into protective custody. L.U.

was placed into a foster home.

On January 8, 2021, DPSS filed a petition on behalf of L.U. pursuant to section

300, subdivision (b)(1) (failure to protect). The petition noted that ICWA may apply as

Father reported having Native American ancestry through the Iroquois tribe or

“‘Mohawk’ tribe.” Father claimed he was half Mohawk and that he was adopted by J.H.

(the paternal grandmother) and W.U. (the paternal grandfather). Father denied ever

living on an Indian reservation/Rancheria/community, attending school or receiving

services from a tribe or services available to Native Americans provided by the Federal

government, such as Indian Health Services.

4 On January 11, 2021, Mother filed an ICWA-020 Parental Notification of Indian

Status form (ICWA-020) indicating she had no Native American ancestry as far as she

knew. On this same date, Father also filed an ICWA-020 form, none of the options on

the form applied. Specifically, Father did not check the boxes stating the child is or may

be a member of, or eligible for membership in, a federally recognized Indian tribe; one or

more of his parents, grandparents, or other lineal ancestors is or was a member of a

federally recognized tribe; he or the child are a resident of or domiciled on a reservation,

rancheria, Alaska Native village, or other tribal trust land; and the child is or has been a

ward of a tribal court.

The detention hearing was held on January 11, 2021. Mother and Father were

both present in court. Father’s counsel informed the juvenile court that Father’s birth

mother may have Native American ancestry, but that Father changed his name and has

had no contact with his birth mother. Father informed the court that he was adopted at

birth. The court ordered Father to be interviewed by the ICWA social worker to make

sure they received all of the information. The court made temporary detention findings,

ordered Father to cooperate with the ICWA social worker, recalled and quashed the

protective custody warrant, and continued the matter for a contested detention hearing.

The court did not inquire of Mother whether she had Native American ancestry.

5 The contested detention hearing was held on January 13, 2021. Both parents were

present in court. The court noted that it had “already recalled and quashed the protective

custody warrant,” found Father to be the presumed father of L.U., and that ICWA may

apply. CFS’s counsel noted that the social worker’s report indicated that Father may be

Iroquois. Father’s counsel clarified that it was actually “Mohawk,” and Father confirmed

this by stating, “Yeah, it’s Mohawk.” Father also stated, “I have no idea how much or

anything else. I don’t even know 100 percent it’s true. It’s -- it was a declaration by my

biological mother, who’s got some addictions to meth issues and I don’t -- I have an

estranged relationship with her.” The court explained the law required them to follow up

and investigate and ordered DPSS to provide “notice to the identified tribe, and/or Bureau

of Indian Affairs (BIA), as required by law” and file proof of such notice with the Court.

The court formally detained L.U. and provided Mother with visitation twice per week for

one hour.

On January 28, 2021, Mother denied having any Native American ancestry.

Father reported that he had been adopted. He had attempted to call his biological mother

to inquire about possible Native American ancestry, but he “kept getting the run-around

and she could not give him a straight answer.” Father stated that if he did have Native

American ancestry, it would be with the “‘Iroquois tribe and they don’t recognize anyone

who is less than 50 [percent].’” He noted that he had spoken to his attorney and realized

he did not have Native American ancestry, and that was why he completed the ICWA-

020 form stating that he had no such ancestry. When the social worker asked Father for

6 his biological mother’s telephone number to inquire about possible Native American

ancestry, Father declined to provide the social worker with her telephone number and

said he did not want her involved.

Mother denied the allegations in the petition and reported only drinking one time

during her pregnancy. However, Father’s parole officer informed the social worker that

Mother drank throughout her pregnancy. The maternal grandfather believed Mother was

addicted to alcohol and often required medical care. In addition, Mother had numerous

psychological holds since high school. He noted Mother began using alcohol at age 13,

had been heavily addicted to alcohol, had been to the emergency room over 15 times due

to her alcohol abuse, and often became abusive and illogical in her thinking due to her

alcohol addiction.

The maternal grandfather indicated that he and the maternal grandmother were

willing to provide care for L.U. and requested to be assessed for placement. Mother

stated that she was comfortable with L.U.’s foster home. She did not want any of her

family involved and did not want them to be assessed for placement.

On February 4, 2021, Mother requested a contested hearing and the juvenile court

continued the matter. At that time, the court found that ICWA did not apply based “upon

everything” the court had “read and considered.”

7 On February 17, 2021, Mother informed the social worker that she had entered an

inpatient drug treatment program at MFI Recovery Center and that she wanted L.U.

placed with her as the program allowed children. Mother also stated that she was

participating in parenting classes, an outpatient substance abuse program, and therapy.

Mother regularly visited L.U. and was appropriate, nurturing, attentive, and loving

towards the child. She fed L.U. and changed her diaper.

The contested jurisdictional/dispositional hearing was held on March 2, 2021.

Mother was present telephonically, and Father was present in court. The court found that

ICWA did not apply and that L.U. was not an Indian child. The court found true the

allegations in the petition, declared L.U. a dependent of the court, provided Mother with 5 reunification services and denied services to Father.

Due to Mother’s compliance with her case plan, which included a substance abuse

program, parenting classes, and individual counseling, on June 22, 2021, then eight-

month-old L.U. was returned to Mother’s care on family maintenance services. Mother’s

home was clean and free of safety threats and hazards. She had provisions for L.U., such

as organic food, age-appropriate toys, diapers, and clothes, and kept a daily schedule and

journal. Mother was not working and stated that she was providing for herself and L.U.

through her savings. She also asserted that she was a yoga instructor and owned a

catering business. She denied any medical or mental concerns and claimed that she was

“spiritually married” to Father. The social worker expressed some concern with L.U.’s

5 Mother subsequently appealed, but later withdrew the appeal.

8 development and wanted to rule out Fetal Alcohol Syndrome and recommended

additional family maintenance services.

On July 22, 2021, Mother and Father both denied Native American ancestry.

Mother was present at the August 19, 2021, six-month review hearing and requested the

case be set for a contested hearing.

On September 1, 2021, Mother informed the social worker that she thought the

case would be closed, so she canceled her breathalyzer testing and discontinued calling

the substance abuse hotline. As such, she failed to test in August 2021.

The contested six-month review hearing was held on September 13, 2021. At that

time, Mother withdrew her request for a contested hearing. The court found Mother’s

progress was substantial and ordered additional family maintenance services, including

80 hours of alcohol testing. The court also found that ICWA did not apply, a sufficient

inquiry had been made, and there was no new information to indicate that ICWA may

now apply.

On November 29, 2021, Mother and Father indicated that they had no Native

American ancestry.

DPSS recommended the dependency be terminated with juvenile court custody

orders. L.U., who was then one year old, was bonded with Mother. Mother supervised

and cared for L.U., and L.U. looks for her Mother. L.U. had been meeting developmental

milestones and was thriving in Mother’s care. Mother had completed her case plan

services. She completed an inpatient substance abuse program, aftercare, and mental

9 health services. However, Mother had “many ‘no shows’” for random substance abuse

testing.

By December 2021, it appeared that Mother had relapsed. On December 9, 2021,

Mother invited the former foster mother over to her residence for breakfast. The foster

mother believed Mother was intoxicated and exhibited slurred speech and had trouble

standing. An officer responded to Mother’s home and confirmed she was heavily

intoxicated, with slurred speech, slow movements, and she smelled like alcohol. The

officer was “‘1000 [percent] sure [Mother] was drunk.’” However, because Mother was

able to care for L.U., the officer did not arrest Mother.

Following an immediate response referral with allegations of general neglect, four

hours later the social worker arrived at the home and found Mother to be coherent and

able to engage in a conversation with the worker. The social worker did not observe any

alcohol in the home. Mother denied the allegation she consumed alcohol and reported

she was suffering from a medical condition related to menopause and that her medication

caused her to have slurred speech and stumble. The maternal grandfather reported that

Mother was falling asleep during a Facetime call on December 10, 2021. L.U. was

detained pursuant to a protective custody warrant.

10 On December 14, 2021, DPSS filed a section 387 petition alleging the previous

disposition of placement with Mother was not effective in protecting L.U. Specifically,

the petition alleged Mother failed to benefit from services because she continued to abuse

alcohol while caring for L.U. The social worker recommended L.U. be removed from

Mother’s care.

The following day, on December 15, 2021, the juvenile court formally detained

L.U. from Mother and recalled the protective custody warrant. L.U. was placed in a

foster home. Mother was present at the detention hearing on the supplemental petition

and the juvenile court did not inquire of Mother whether she had Native American

ancestry. Mother was provided with supervised visitation twice a week for a minimum of

one hour. The court found that a sufficient ICWA inquiry had been conducted and that

ICWA did not apply.

On December 23, 2021, Mother and Father indicated that they did not have any

Native American ancestry. As to the allegations in the section 387 petition relating to her

relapse, Mother reported experiencing excessive vaginal bleeding that began on

December 5, 2021, and lasted six days. On December 9, 2021, Mother informed the

social worker that she was weak and disoriented due to her medication. Mother denied

alcohol consumption. According to the reporting party, Mother was consuming whiskey

and claimed that her dependency case was closed. Mother did not test for substances on

December 10, 2021. In addition, Mother was not allowed at one of L.U.’s medical

appointments due to her threatening behavior. Mother had also threatened the resource

11 parents and the foster family agency and acted erratically during visits. Mother, however,

was appropriate during visitation once she modified her behavior and had started an

intensive outpatient substance abuse program.

At a hearing on January 5, 2022, the juvenile court ordered DPSS to conduct at

least three 80-hour random alcohol tests of Mother. Mother missed her random drug test

on December 27, 2021, and tested negative on January13, 2022, but her specimen was

diluted. She tested negative on January 18, 2022. Mother attempted to test on January

21, 2022, but the clinic was closed.

The jurisdictional hearing on the section 387 petition was held on February 3,

2022. The court found true the allegations in the section 387 petition. A contested

dispositional hearing was set.

Mother did not get along with the foster parents and sent text messages they did

not approve of. Mother accused the foster parents of causing injuries to L.U. and failing

to supervise her. Mother tested negative for substances at the end of January 2022 and

beginning of February 2022. She completed a psychological evaluation. The examiner

was “unconvinced” that Mother was drinking alcohol on December 9, 2021, and opined

Mother would most likely benefit from services.

L.U. was assessed at 14 months and was found to be behind in fine motor skills

and developmentally delayed. On April 25, 2022, L.U. was examined by a genetics

specialist. The doctor indicated L.U. had facial features of Fetal Alcohol Syndrome.

Mother and both grandmothers blamed the foster parents for L.U.’s delays.

12 On May 12, 2022, the juvenile court found that reasonable efforts were made to

prevent the need for removal of L.U. from the home and adjudged her a dependent of the

court. L.U. was formally removed from Mother’s care, and Mother was provided with

reunification services.

Mother participated in general counseling. She also submitted three negative tests

in May 2022, and one in June 2022. Mother regularly visited L.U. twice per week, in her

home, for two hours, supervised by DPSS. L.U. was excited to visit with Mother, and

Mother was attentive, affectionate, and comforting to L.U. Mother provided healthy

snacks, changed L.U.’s diaper, followed L.U. around, and kept her safe. Mother also

played learning toys with L.U. and L.U. laughed and enjoyed interacting with Mother. In

addition, Mother read L.U. books and promoted her speech and well-being. L.U. was

observed to be bonded with Mother and did not want to leave at the end of visits. By

June 2022, Mother’s visits with L.U. progressed to unsupervised. Mother had

demonstrated sobriety during the reporting period, and DPSS believed L.U. would be

safe in Mother’s care.

L.U. was on an extended visit with Mother while in the presence of the maternal

grandmother in June 2022. Mother agreed to attend an appointment for L.U. via Zoom

on June 22, 2022. However, Mother did not attend the appointment with L.U., had

trouble signing on to the Zoom meeting, and appeared to be possibly intoxicated in

L.U.’s presence. Due to this concern, law enforcement was called that evening. DPSS

13 learned that Mother was arrested for public intoxication on June 22, 2022. Mother was

uncooperative with law enforcement, and a bottle of wine was found in the home.

The maternal grandmother informed the social worker that she had checked into a

separate hotel room with L.U. to keep her safe, and that Mother was currently at home

“‘sleeping it off.’” When Mother learned that L.U. had been returned to her foster

parents and the extended visit had ended, Mother was distraught and stated that she was

going to kill herself. The social worker contacted law enforcement to conduct a wellness

check on Mother. Law enforcement found Mother asleep on the bed with a “‘gash’” on

her head where it looked like she had fallen. Mother denied wanting to kill herself.

Mother was arrested again on June 30, 2022, for public intoxication in Indio. DPSS also

learned that Mother had been arrested for public intoxication on April 13, 2022, at a

restaurant in Rancho Mirage.

On July 5, 2022, the juvenile court ordered Mother’s visits to be supervised and

instructed DPSS to file a section 388 petition. On July 8, 2022, DPSS filed a section 388

petition to terminate reunification services to Mother and a hearing was set.

Mother was referred to a higher level of care and prescribed medication to block

her ability to drink alcohol. Mother submitted two negative tests in July 2022.

The 18-month review hearing was held on August 15, 2022. The juvenile court

found ICWA did not apply, a sufficient inquiry had been made, and that there was no

new information to indicate ICWA may now apply. The court terminated Mother’s

reunification services and reduced Mother’s visits to once a month. As such, the court

14 granted DPSS’s section 388 petition and set the matter for a section 366.26 hearing to

determine a more permanent plan for L.U.

On September 27, 2022, Mother and Father denied having any Native American

ancestry. On November 10, 2022, the juvenile court found ICWA did not apply, a

sufficient inquiry had been made, and there was no new information to indicate ICWA

may now apply.

On November 8, 2022, Mother filed a section 388 petition seeking reunification

services or family maintenance services. Mother claimed that she had completed a 30-

day program, which included parenting, self-esteem groups, women’s issue groups, and

addressed healthy relationships. She asserted that she had completed a 30-day program at

Hacienda Valdez, was in sober living, seeing a psychiatrist, and taking medication to

keep her from drinking. She noted that she had seven negative tests and was attending

Alcoholics Anonymous (AA) meetings. The juvenile court denied Mother’s section 388

petition to change the court order.

L.U. had been diagnosed with Fetal Alcohol Spectrum Disorder and Intellectual

Disability. Mother consistently visited L.U. and was always very attentive to her needs.

L.U. was observed to enjoy her time with Mother. Mother was arrested on November 18,

2022, for public intoxication and resisting arrest.

Both parents denied having any Native American ancestry on December 12, 2022.

Father also denied having any Native American ancestry on January 23, 2023. On

February 23, 2023, the juvenile court found ICWA did not apply to L.U., a sufficient

15 ICWA inquiry had been made, and that there was no new information to indicate ICWA

On March 6, 2023, L.U. was transported to Tennessee for a special visit with non-

related extended family members (NREFMs). L.U. was officially placed with her

NREFMs on March 15, 2023. The NREFMs expressed a desire to adopt L.U. After

being placed in Tennessee, Mother regularly visited L.U. on a monthly basis via Zoom.

Mother was enthusiastic during the virtual visits and encouraged L.U. as she completed

activities, such as coloring or playing.

L.U. improved tremendously with her cognitive and physical levels after being

placed with the NREFMs (prospective adoptive parents). L.U. no longer struggled when

she walked or spoke, and she was learning new things every day. She looked happy,

interactive, affectionate, and safe in her environment. L.U. was building a strong bond

with the prospective adoptive family, and the prospective adoptive parents’ children

considered L.U. to be their sibling. The prospective adoptive parents were committed to

adopting L.U. and raising her into adulthood.

On June 2, 2023, both parents again denied having any Native American ancestry.

On June 22, 2023, the juvenile court found that ICWA did not apply to L.U., a sufficient

inquiry had been made, and that there was no new information to indicate ICWA may

16 Mother was again arrested in July 2023 for substance-related issues. On

September 5, 2023, the parents again reported that they had no Native American ancestry

in their families.

The section 366.26 hearing was held on September 27, 2023. Mother was not

present in court. Mother’s counsel stated that she had not had contact with Mother,

requested a continuance, and objected to the termination of parental rights on behalf of

Mother. Mother’s counsel did not raise the beneficial parental relationship exception to

the termination of parental rights. The court denied Mother’s request to continue the

matter. The court found ICWA did not apply, a sufficient inquiry had been made, and

that there was no new information to indicate that ICWA may now apply. The court

found it was likely L.U. would be adopted, noting the child “is quite young and is in a

placement that is prepared to move forward with the adoption,” and terminated parental

rights. Mother timely appealed.

III.

DISCUSSION

A. Beneficial Parental Relationship Exception

Mother contends the beneficial parental relationship exception to the termination

of parental rights (§ 366.26, subd. (c)(1)(B)(i)) applied to this case, and therefore the

juvenile court erred in terminating her parental rights. DPSS argues Mother forfeited the

issue on appeal for failing to raise it below, and further asserts that even if we consider

Mother’s argument on the merits, the exception does not apply. We find Mother forfeited

17 this issue, and alternatively, find the juvenile court did not abuse its discretion in not

applying the beneficial relationship exception.

1. General Legal Principles

When a juvenile court cannot safely return a child to a parent’s custody, the court

must set a permanency planning hearing under section 366.26. (In re Caden C. (2021) 11

Cal.5th 614, 630 (Caden C.).) “‘“[A]t a section 366.26 hearing, the court may select one

of three alternative permanency plans for the dependent child—adoption, guardianship or

long-term foster care.” [Citation.] At this stage of the dependency proceedings, adoption

is preferred because it ensures permanency and stability for the minors. [Citations.]’

[Citation.] Thus, as a general rule, at a section 366.26 hearing, if the trial court finds that

the child is adoptable, it must select adoption as the permanent plan and terminate

parental rights. (§ 366.26, subds. (b)(1) & (c)(1).)” (In re L.A.-O. (2021) 73 Cal.App.5th

197, 205-206; see Caden C., supra, at p. 631 [under § 366.26, adoption is “the norm”].)

Section 366.26, subdivision (c) states several exceptions to this rule. Relevant

here, the beneficial relationship exception applies if “[t]he court finds a compelling

reason for determining that termination would be detrimental to the child due

to . . . [¶] . . . [t]he parents hav[ing] maintained regular visitation and contact with the

child and the child would benefit from continuing the relationship.” (§ 366.26, subd.

(c)(1)(B)(i).)

Caden C. clarified that a parent must prove three elements for the beneficial

relationship exception to apply. (Caden C., supra, 11 Cal.5th at p. 631.) Specifically, a

18 parent must show by a preponderance of the evidence (1) “regular visitation and contact

with the child, taking into account the extent of visitation permitted”; (2) “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”; and (3)

“terminating that attachment would be detrimental to the child even when balanced

against the countervailing benefit of a new, adoptive home.” (Id. at p. 636.) “In other

words, the court balances the strength and quality of the natural parent[-]child

relationship in a tenuous placement against the security and the sense of belonging a new

family would confer. If severing the natural parent[-]child relationship would deprive the

child of a substantial, positive emotional attachment such that the child would be greatly

harmed, the preference for adoption is overcome and the natural parent’s rights are not

terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

When the parent has met that burden, “it would not be in the best interest of the

child to terminate parental rights, and the court should select a permanent plan other than

adoption.” (Caden C., supra, 11 Cal.5th at pp. 636-637.) “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.” (Id. at p. 633.)

“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.” (Ibid.)

19 2. Forfeiture

“[A] reviewing court ordinarily will not consider a challenge to a ruling if an

objection could have been but was not made in the trial court.” (In re S.B. (2004) 32

Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re S.J. (2008)

167 Cal.App.4th 953, 961-962; accord, In re Maria Q. (2018) 28 Cal.App.5th 577, 590

[“‘A party forfeits the right to claim error as grounds for reversal on appeal when he or

she fails to raise the objection in the trial court.’”].) Moreover, “[g]eneral objections are

insufficient to preserve issues for review. [Citation.] The objection must state the ground

or grounds upon which the objection is based.” (In re E.A. (2012) 209 Cal.App.4th 787,

790; accord, In re Daniel B. (2014) 231 Cal.App.4th 663, 672.) “‘The purpose of this

rule is to encourage parties to bring errors to the attention of the trial court, so that they

may be corrected.’” (In re Daniel B., supra, at p. 672.)

It is the parent’s burden to raise any applicable exception to the preferred plan of

adoption during the section 366.26 hearing. (In re Erik P. (2002) 104 Cal.App.4th 395,

403 (Erik P.) [parent’s burden to raise any relevant exception at the selection and

implementation hearing]; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) The failure

to raise an exception forfeits the issue on appeal. (Erik P., supra, at p. 403; In re S.B.,

supra, 32 Cal.4th at p. 1293 [dependency matters are not exempt from forfeiture rule].)

20 Application of the beneficial parental relationship exception depends entirely on a

detailed analysis of the relevant facts by the juvenile court. As Autumn H. explains, the

beneficial parental relationship exception “must be examined on a case-by-case basis,

taking into account the many variables which affect a parent[-]child bond. The 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

are some of the variables which logically affect a parent[-]child bond.” (In re Autumn H.,

supra, 27 Cal.App.4th at pp. 575-576.) Thus, the applicability of the exception is not a

pure question of law. (Erik P., supra, 104 Cal.App.4th at p. 403 [“If a parent fails to

raise one of the exceptions at the hearing, not only does this deprive the juvenile court of

the ability to evaluate the critical facts and make the necessary findings, but it also

deprives this court of a sufficient factual record from which to conclude whether the trial

court’s determination is supported by substantial evidence.”].) In addition, “[t]he

juvenile court does not have a sua sponte duty to determine whether an exception to

adoption applies.” (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 ; see In re

Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [no sua sponte duty to raise beneficial

parental relationship exception to adoption]; In re Daisy D. (2006) 144 Cal.App.4th 287,

291-292 [no sua sponte duty to raise sibling relationship exception to adoption]; Erik P.,

supra, 104 Cal.App.4th at p. 402 [same].)

21 Here, Mother failed to raise the beneficial parental relationship exception to

adoption at the section 366.26 hearing. Because she failed to raise the exception, the

juvenile court did not have the ability to evaluate the critical facts and make the necessary

findings. (Erik P., supra, 104 Cal.App.4th at p. 403.) As such, a sufficient factual record

has not been established from which we can determine whether the juvenile court’s

determination is supported by substantial evidence or whether the court abused its

discretion when it did not apply the exception. (Ibid.) Accordingly, we find Mother

forfeited this issue on appeal.

3. Assuming No Forfeiture

Even if Mother had not forfeited this issue on appeal, we find the juvenile court

did not err in not applying the beneficial parental relationship exception to the

termination of parental rights. As noted above, under Caden C., supra, 11 Cal.5th at p.

631, for the beneficial relationship exception to apply a parent must show by a

preponderance of the evidence (1) “regular visitation and contact with the child, taking

into account the extent of visitation permitted”; (2) “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”; and (3) “terminating that attachment would be

detrimental to the child even when balanced against the countervailing benefit of a new,

adoptive home.” (Id. at p. 636.) We review the first two elements or prongs of the test

for substantial evidence. (Id. at p. 640; see In re S.G. (2021) 71 Cal.App.5th 654, 671.)

22 As to the third element, “[t]he court makes the assessment by weighing the harm

of losing the relationship against the benefits of placement in a new, adoptive home. And

so, the ultimate decision—whether termination of parental rights would be detrimental to

the child due to the child’s relationship with his [or her] parent—is discretionary and

properly reviewed for abuse of discretion.” (Caden C., supra, 11 Cal.5th at p. 640.) “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

facts, the reviewing court has no authority to substitute its decision for that of the trial

court.’”’ [Citations.]” (Id. at p. 641.)

Even assuming that the record shows Mother satisfied the first two requirements

of the beneficial relationship exception under Caden C. (regular visitation and a

substantial emotional attachment), Mother cannot show the court abused its discretion in

not applying the exception. Specifically, the court could “‘“‘reasonably . . . deduce[]

from [the record]’”’” that severing even a substantial emotional attachment with Mother

would not be detrimental to L.U. when considered in the larger context of the benefits to

the child from being legally adopted by her current caregivers. (Caden C., supra, 11

Cal.5th at p. 641 [no abuse of discretion when court’s conclusion reflects one of “‘“‘two

or more inferences [that] can reasonably be deduced from the facts’”’”].)

23 Mother identifies nothing in the record that would prevent the court from

reasonably concluding the many benefits of allowing L.U. to find a permanent adoptive

home with caregivers with whom the child also shared a bond outweighed any detriment

from severing Mother’s relationship with L.U. L.U. was first detained when she was one

month old, and she was placed in foster care from January 6, 2021, to June 22, 2021,

when she was then reunified with her Mother. L.U. was again removed from Mother and

placed back in foster care on December 10, 2021. L.U. was eventually placed with her

caregivers in Tennessee on March 6, 2023. L.U. was thriving with her caregivers and her

caregivers were committed to adopting L.U. At the time of the section 366.26 hearing,

L.U. was almost four years old, L.U.’s relationship with Mother consisted of monthly

video chats with Mother, and L.U. had spent almost her entire young life as a dependent

of the juvenile court. The security of a new, permanent home outweighed any benefit

L.U. had in maintaining a relationship with Mother.

Given this record, we cannot find an abuse of discretion.

B. ICWA

Mother argues DPSS failed to comply with the duty of initial and further inquiry

required by ICWA because it did not ask the paternal grandmother, maternal

grandparents, and a maternal aunt who were all readily available about possible Indian

ancestry. DPSS argues it was not required to conduct an initial inquiry as to extended

family members because L.U. was initially taken into custody under a section 340

protective custody warrant. (§ 224.2, subd. (b).) Alternatively, DPSS argues any error in

24 failing to inquire of extended relatives was harmless and not prejudicial and that if DPSS

erred, the matter should be conditionally reversed.

1. Governing Legal Principles

“ICWA establishes minimum federal standards that a state court must follow

before removing Indian children from their families. [Citation.] California law

implementing ICWA also imposes requirements to protect the rights of Indian children,

their families, and their tribes.” (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky

R.); §§ 224-224.6; see In re Abbigail A. (2016) 1 Cal.5th 83, 91 [“persistent

noncompliance with ICWA led the Legislature in 2006 to ‘incorporate[] ICWA’s

requirements into California statutory law’”].) “An Indian child is any unmarried person

under 18 who ‘is either (a) a member of an Indian tribe or (b) is eligible for membership

in an Indian tribe and is the biological child of a member of an Indian tribe.’ (25 U.S.C.

§ 1903(4); see § 224.1, subd. (b).)” (Ricky R., supra, at p. 678.)

Typically, it “is not self-evident whether a child is an Indian child,” so “both

federal and state law mandate certain inquiries to be made in each case.” (Benjamin M.,

supra, 70 Cal.App.5th at p. 741.) “‘“‘Federal regulations implementing ICWA . . .

require that state courts “ask each participant in an emergency or voluntary or involuntary

child-custody proceeding whether the participant knows or has reason to know that the

child is an Indian child.” [Citation.] The court must also “instruct the parties to inform

the court if they subsequently receive information that provides reason to know the child

is an Indian child.”’”’ [Citations.] ‘State law, however, more broadly imposes on social

25 services agencies and juvenile courts (but not parents) an “affirmative and continuing

duty to inquire” whether a child in the dependency proceeding “is or may be an Indian

child.”’” (In re J.C. (2022) 77 Cal.App.5th 70, 77.)

Under California law, the juvenile court and county child welfare department have

“an affirmative and continuing duty to inquire” whether a child subject to a section 300

petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th

558, 566 (D.F.); Ricky R., supra, 82 Cal.App.5th at p. 678; In re Isaiah W. (2016) 1

Cal.5th 1, 14 [“juvenile court has an affirmative and continuing duty in all dependency

proceedings to inquire into a child’s Indian status”].) “This continuing duty can be

divided into three phases: the initial duty to inquire, the duty of further inquiry, and the

duty to provide formal ICWA notice.” (D.F., supra, at p. 566.)

The juvenile court must inquire at each party’s first appearance, whether any

participant in the proceeding “knows or has reason to know that the child is an Indian

child.” (§ 224.2, subd. (c).) Part of the initial inquiry also includes requiring each party

to complete the California Judicial Council form ICWA-020, Parental Notification of

Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).) In addition, when an agency

takes a child into temporary custody, the agency must ask “the child, parents, legal

guardian, Indian custodian, extended family members, others who have an interest in the

child,” and the reporting party whether the child is or may be an Indian child. (§ 224.2,

subd. (b).) Extended family members include adults who are the child’s stepparents,

26 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).)

When the initial inquiry gives the juvenile court or the department “reason to

believe that an Indian child is involved” (§ 224.2, subd. (e)), the court and social worker

must conduct further inquiry to “determine whether there is reason to know a child is an

Indian child.” (§ 224.2, subd. (e)(2); see In re J.S. (2021) 62 Cal.App.5th 678, 686.) The

required further inquiry includes, but is not limited to: “(1) interviewing the parents and

extended family members to gather [the] . . . information [required to include in notices

sent under section 224.3]; (2) contacting the [BIA] and State Department of Social

Services for assistance in identifying the tribes in which the child may be a member or

eligible for membership in; and (3) contacting the tribes and any other person that may

reasonably be expected to have information regarding the child’s membership or

eligibility.” (D.F., supra, 55 Cal.App.5th at pp. 566-567, fn. omitted; § 224.2, subd.

(e)(2)(A)-(C); Cal. Rules of Court, rule 5.481(a)(4).) The department “does not discharge

their duty of further inquiry until they make a ‘meaningful effort’ to locate and interview

extended family members and to contact BIA and the tribes.’” (In re K.T. (2022) 76

Cal.App.5th 732, 744.) At this stage, contact with a tribe “shall, at a minimum,” include

telephone, facsimile, or electronic mail contact to each tribe’s designated agent for receipt

of ICWA notice, and “sharing information identified by the tribe as necessary for the

tribe to make a membership or eligibility determination, as well as information on the

current status of the child and the case.” (§ 224.2, subd. (e)(2)(C).) There is “reason to

27 believe” a child involved in a proceeding is an Indian child whenever 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.” (§ 224.2, subd. (e)(1),

amended by Stats. 2020, ch. 104, § 15, effective Sept. 18, 2020, italics added.)

Finally, if the further inquiry “‘“‘results in a reason to know the child is an Indian

child, then the formal notice requirements of section 224.3 apply.’”’” (In re J.C., supra,

77 Cal.App.5th at p. 78; accord, Ricky R., supra, 82 Cal.App.5th at p. 679 [“The duty to

provide notice arises only if [the agency] or the court ‘knows or has reason to know that

an Indian child is involved.’”]; 25 U.S.C. § 1912(a); § 224.3, subd. (a).) Federal

regulations define the grounds for reason to know that an Indian child is involved (25

C.F.R. § 23.107(c)(1)-(6)), and state law conforms to that definition (§ 224.2, subd.

(d)(1)-(6)).)

“The juvenile court must determine whether proper notice was given under ICWA

and whether ICWA applies to the proceedings. [Citation.]” (In re Charlotte V. (2016) 6

Cal.App.5th 51, 57.) “‘“If the court makes a finding that proper and adequate further

inquiry and due diligence as required in [section 224.2] 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 to the proceedings, subject to reversal based on sufficiency of the

evidence.”’” (In re J.C., supra, 77 Cal.App.5th at p. 78.) A juvenile court finding that

ICWA is inapplicable generally implies that the department and court have fulfilled their

duty to inquire. (See In re Austin J. (2020) 47 Cal.App.5th 870, 885 [a finding that

28 “ICWA does not apply” implies social workers and 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”].) We review ICWA findings for substantial evidence, but “where the facts

are undisputed, we independently determine whether ICWA’s requirements have been

satisfied.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1051; see In re A.M. (2020) 47

Cal.App.5th 303, 314.) “We must uphold the court’s orders and findings if any

substantial evidence, contradicted or uncontradicted, supports them, and we resolve all

conflicts in favor of affirmance.” (In re A.M., supra, at p. 314.)

We apply a harmless error analysis to ICWA errors. (See Benjamin M., supra, 70

Cal.App.5th at pp. 743-744 [this court applied prejudice analysis when agency failed to

conduct proper ICWA inquiry]; In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414-

1415 [harmless error analysis to deficiencies in ICWA notice]; In re D.W. (2011) 193

Cal.App.4th 413, 418 [same]; In re E.W. (2009) 170 Cal.App.4th 396, 402-403 [same].)

Any error in this case is one of state law, and requires reversal only upon a showing of

prejudice. (In re S.S. (2022) 75 Cal.App.5th 575, 582.)

2. Duty of Initial Inquiry

Once a child is taken into temporary custody, DPSS must ask 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).) Specifically, section

224.2, subdivision (b), provides that, “[i]f a child is placed into the temporary custody of

29 a county welfare department pursuant to [s]ection 306,” DPSS’s obligation includes

asking the “extended family members” about the child’s Indian status.

Section 306 permits a social worker to take a child into temporary custody

“without a warrant” in emergency situations, namely, when “the social worker has

reasonable cause to believe that the child has an immediate need for medical care or is in

immediate danger of physical or sexual abuse or the physical environment poses an

immediate threat to the child’s health or safety.” (§ 306, subd. (a)(2).) Peace officers

may also take children into temporary custody without a warrant when similar exigent

circumstances exist (§§ 305, 305.6, subd. (a)), and section 306 also permits the social

worker to take temporary custody of a child “who has been delivered by a peace officer.”

(§ 306, subd. (a)(1).)

By contrast, section 340 provides for the issuance of protective custody warrants,

and on a weaker showing than is required for a warrantless detention under section 306.

(§ 340, subd. (b)(2).) Specifically, section 340 authorizes the juvenile court to issue

protective custody warrants when a section 300 petition has been filed and “the

circumstances of [the minor’s] home environment may endanger the health, person, or

welfare of the minor, or whenever a dependent minor has run away from his or her court-

ordered placement.” (§ 340, subd. (a).) A court may also issue a protective custody

warrant without a section 300 petition. (§ 340, subd. (b).)

In this court, there is split of authority on the question of when the duty to make

ICWA-related inquiries under section 224.2, subdivision (b) arises. In three published

30 decisions, this court has concluded the duty to inquire of extended family members and

others under section 224.2, subdivision (b) arises only when the child is placed into the

temporary custody of a child welfare agency without a warrant. (In re Robert F. (2023)

90 Cal.App.5th 492, 499-503, review granted July 26, 2023, S279743 (Robert F.); In re

Ja.O. (2023) 91 Cal.App.5th 672, 677-679, review granted July 26, 2023, S280572

(Ja.O.); In re Andres R. (2023) 94 Cal.App.5th 828, 846-848, review granted Nov. 15,

2023, S282054.)

In two other published decisions, this court has concluded that the duty to inquire

under section 224.2, subdivision (b) applies in every case when a child is taken or placed

into the temporary custody of the child welfare agency, regardless of how the child was

taken into custody—with or without a warrant. (In re Delila D. (2023) 93 Cal.App.5th

953, 962 review granted Sept. 27, 2023, S281447 (Delila D.) [“[T]here is only one duty

of initial inquiry, and that duty encompasses available extended family members no

matter how the child is initially removed from home.”]; In re Samantha F. (2024) 99

Cal.App.5th 1062, 1067 [accord].) To date, four other courts, in published decisions,

have agreed with Delila D. (In re C.L. (2023) 96 Cal.App.5th 377 [Third Dist.]; In re

Jerry R. (2023) 95 Cal.App.5th 388 [Fifth Dist.]; In re V.C. (2023) 95 Cal.App.5th 251

[First Dist., Div. Two]; In re L.B. (2023) 98 Cal.App.5th 512 [First Dist., Div. Four].)

The question is under review in our Supreme Court, and Ja.O. is the lead case. (In re

Samantha F., supra, at p. 1068.)

31 In this case, we need not decide whether we agree with the reasoning of Robert F.,

Ja.O., and Andres R., or with the reasoning of Delila D. and Samantha F. because the

record is clear that the juvenile court failed to inquire about Mother under subdivisions

(c) of section 224.2. That provision specifically provides, “[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).)

Our interpretation of section 224.2 does not exclude children removed pursuant to

warrants from ICWA inquiry. Such children are still subject to the duty of initial inquiry

under subdivisions (a) and (c) of section 224.2. They are also subject to the duty of

further inquiry under subdivision (e) of section 224.2 if there is reason to believe they are

Indian children. (Robert F., supra, 90 Cal.App.5th at pp. 502-503, review granted; Ja.O.,

supra, 91 Cal.App.5th at pp. 680-681, review granted.)

3. Duty of Further Inquiry

Contrary to DPSS’s assertion, we agree with Mother that DPSS failed to conduct a

further inquiry into Father’s extended relatives concerning his claims of Indian ancestry.

At the detention hearing, Father believed he had Indian ancestry through his biological

mother with either the Iroquois tribe or the Mohawk tribe, and the court ordered Father to

be interviewed by the ICWA social worker to make sure they received all of the

information. At the jurisdictional hearing, the court explained to Father the law required

32 DPSS to follow up and investigate his claim of Native American ancestry and ordered

DPSS to provide “notice to the identified tribe, and/or Bureau of Indian Affairs (BIA), as

required by law” and file proof of such notice with the court.

Although the social worker interviewed Father concerning his claim of possible

Native American ancestry, there is no indication the social worker inquired of the

paternal grandparents concerning Father’s claim. There is also no suggestion in the

record that DPSS attempted to get Father’s biological mother’s contact information from

the paternal grandparents when Father failed to provide such information to the social

worker. Further, DPSS did not provide informal notice to the tribes or the BIA. Contact

with a tribe must include, at a minimum, “‘telephone, facsimile, or electronic mail

contact to each tribe’s designated agent’ and include information ‘necessary for the tribe

to make a membership or eligibility determination.’” (D.F., supra, 55 Cal.App.5th at p.

567; § 224.2, subd. (e)(3); Cal. Rules of Court, rule 5.481.)

“The duty to develop information concerning whether a child is an Indian child

rests with the court and the Department, not the parents or members of the parents’

families.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 430.) In addition, the

department “has a duty ‘to document it[s inquiry] and to provide clear information to the

court’ so the court may rule on the question of whether the ICWA applies.” (In re Josiah

T. (2021) 71 Cal.App.5th 388, 406 (Josiah T.); see Cal. Rules of Court, rule 5.481(a)(5)

[the child welfare agency “must on an ongoing basis include in its filings a detailed

description of all inquiries, and further inquiries it has undertaken, and all information

33 received pertaining to the child’s Indian status, as well as evidence of how and when this

information was provided to the relevant tribes”].)

The juvenile court also erred in failing to ensure DPSS complied with its duties of

inquiry before finding ICWA did not apply. (See § 224.2, subd. (i)(2) [“the court may

make a finding that [ICWA] does not apply to the proceedings” if “the court makes a

finding that proper and adequate further inquiry and due diligence as required in this

section have been conducted”]; see also In re Rylei S. (2022) 81 Cal.App.5th 309, 320

[“[r]esponsibility for the errors and omissions here does not rest solely with the

Department”; “[t]he juvenile court also erred in failing to ensure the Department had

satisfied its duties of inquiry before finding ICWA did not apply to the proceedings”]; In

re Antonio R., supra, 76 Cal.App.5th at pp. 430, 432 [concluding the juvenile court failed

to ensure the department complied with ICWA and related California law].)

Following the jurisdictional/dispositional report, DPSS’s subsequent reports

showed the parents repeatedly denying Native American ancestry. However, the reports

contained no explanation for Father’s later denials and provided no specifics regarding

the inquiry made of the parents as to their Indian heritage, including whether they had

been asked to explain or elaborate on Father’s inconsistent responses. The record also

does not indicate that DPSS ever contacted the maternal grandparents, the paternal

grandfather, or the biological paternal grandmother—nor that it contacted the BIA or any

Iroquois or Mohawk tribe—to ascertain whether L.U. is an Indian child. DPSS may not

simply rely on a denial “when there is a conflict in the evidence and no supporting

34 information”; “a mere change in reporting, without more, is not an automatic ICWA free

pass.” (Josiah T., supra, 71 Cal.App.5th at pp. 405-406 [paternal grandmother’s

statement she had Cherokee ancestry triggered the department’s duty of further inquiry,

which was not extinguished by her subsequent denial of Indian heritage in the absence of

“any specifics regarding the inquiry”; “[w]ithout further information about what was

asked and what was said, we cannot agree the single-sentence, unexplained denial . . .

extinguished [the department’s] reason to believe Josiah T. may be an Indian child”]; see

also In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1167-1168 [concluding there was

duty of further inquiry after the child’s father filled out a form indicating the child’s

paternal grandfather was a member of a Cherokee tribe; although the social worker

subsequently interviewed the father and reported that the father stated he did not have

Indian heritage, the social worker’s representation in the department’s report did not

provide specifics regarding the inquiry the social worker made of the father as to his

Indian heritage].) On this record, DPSS’s duty of further inquiry had not been

extinguished, and the court thus erred in failing to ensure it had been satisfied. (See

generally Josiah T., supra, 71 Cal.App.5th at pp. 404-406; In re Gabriel G., supra, at pp.

1167-1168.)

4. Harmless Error

DPSS concedes the record does not reflect the maternal grandparents and paternal

grandfather were asked about Native American ancestry and that the social worker did

not ask the paternal grandmother about the paternal biological grandmother. DPSS,

35 however, believes the error was harmless. We disagree.

The affirmative and ongoing duty of the department and the juvenile court to make

ICWA inquiries and the department’s specific obligation to ask extended family members

about the child’s Indian status are imposed by state, not federal, law. (§ 224.2, subds. (a),

(b); Cal. Rules of Court, rule 5.481.) Accordingly, as previously noted, reversal is

permitted only if we find the error was prejudicial. (Cal. Const., art. VI, § 13; Benjamin

M., supra, 70 Cal.App.5th at p. 742.)

We recognize our courts are divided on the question of what sort of failure of

inquiry constitutes prejudicial error when a child services agency fails to comply with the

inquiry provisions, and that our Supreme Court is poised to resolve the issue. (In re Dezi

C. (2022) 79 Cal.App.5th 769, 779-782, review granted, Sept. 21, 2022, S275578.)

Unless and until our Supreme Court instructs otherwise, we will continue to follow our

opinion in Benjamin M., supra, 70 Cal.App.5th 735. There we adopted the view that a

reviewing court must conditionally reverse a no-ICWA finding if the record demonstrates

that the agency did not fulfill its initial duty of inquiry by asking readily available persons

who might have helpful information likely to bear meaningfully upon whether a child is

an Indian child. (Benjamin M., supra, at p. 744; see Josiah T., supra, 71 Cal.App.5th at

p. 408 [“the court may not find that ICWA does not apply when the absence of evidence

that a child is an Indian child results from a [department’s] inquiry that is not proper,

adequate, or demonstrative of due diligence”].)

36 Here, the maternal grandparents and the paternal grandmother were involved in

the proceedings, known to DPSS and readily available. In addition, a maternal aunt was

present in court on July 5, 2022, with the maternal grandparents. It is unclear whether the

paternal grandfather and the biological paternal grandmother were readily available to

DPSS. However, DPSS could have inquired of the paternal grandmother as to their

information. DPSS concedes that the maternal grandparents and the paternal

grandmother were readily available, but contends Mother has not shown the information

these relatives could have provided would bear meaningfully on the issue of whether

L.U. is an Indian child. That does not mean, however, that it may choose not to interview

readily available extended family members and others who have an interest in the child

who may have potentially meaningful information on the theory there is no reason to

believe that those persons would not yield any new information. (Benjamin M., supra, 70

Cal.App.5th at p. 744.)

In Benjamin M., we noted there that the Legislature placed the burden of making

inquiry provisions and searching for evidence of Indian ancestry on the child services

agencies, not the parent. (Benjamin M., supra, 70 Cal.App.5th at pp. 743-745.)

Moreover, ICWA’s purpose is not limited to protecting the interests of Indian children

and their families but encompasses as well the separate and distinct rights of the tribes to

intervene in (or exercise jurisdiction over) a custody proceeding involving an Indian

child. (25 U.S.C. §§ 1901, 1902, 1911; In re Isaiah W., supra, 1 Cal.5th at pp. 7, 9;

Benjamin M., supra, at pp. 743-745.)

37 Naturally, a tribe cannot exercise its rights to intervene in a child custody

proceeding if it does not have notice of it. And, for proper notice to be given, there must

be an adequate investigation to determine whether the children who are the subject of the

proceeding have or may have Indian ancestry. Compliance with the ongoing and

affirmative duty of initial inquiry set forth in section 224.2, subdivisions (a) and (b), and

California Rules of Court, rule 5.481 is crucial to that investigation. As we explained in

Benjamin M., though we cannot know what extended family members will say when

interviewed by the department about a child’s ancestry, their answers are likely to bear

meaningfully on the question whether the child comes within ICWA. (Benjamin M.,

supra, 70 Cal.App.5th at pp. 744-745.) We cannot simply assume from the statements

made by the parents that they are not aware of (or are simply denying) Native American

ancestry that other extended family members or others who have an interest in the child

will not have any useful information bearing on the subject. (Id. at pp. 742-743 [until the

child services agency complies with its duty to gather information by conducting an

initial inquiry, we cannot know what information an initial inquiry, properly conducted,

might reveal].)

As stated in In re Rylei, supra, 81 Cal.App.5th 309, when, as here, “the errors

were the Department’s nearly complete failure to make the additional inquiries of

extended family members . . . required by section 224.2, subdivision (b) (and, in this

case, the inquiries under section 224.2, subdivision (e), as well),” the “missing

information was, at the very least, likely to be meaningful in determining whether the

38 children involved were Indian children—whether the information ultimately showed they

were or established they were not.” (In re Rylei, supra, at p. 324.) “Because we do not

know what we do not know, nothing more in the way of prejudice need be shown.”

(Ibid.) Proper and adequate inquiry—including under section 224.2, subdivision (c), and

further inquiry under section 224.2, subdivision (e)—is required on remand.

IV.

DISPOSITION

The orders terminating parental rights are conditionally affirmed. The matter is

remanded to the juvenile court for full compliance with the inquiry and, if applicable, the

notice provisions of ICWA and related California law and for further proceedings not

inconsistent with this opinion. If the juvenile court determines that ICWA does not

apply, then the court shall reinstate the orders. If the court determines that ICWA does

apply, then it shall proceed in conformity with ICWA and related California law.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

We concur:

McKINSTER Acting P. J.

RAPHAEL J.