Filed 10/24/ 23 In re Z.Q. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Z.Q., a Person Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

v. R.Q., Defendant and Appellant. F086423 (Super. Ct. No. 23CEJ300032

- 1)



### OPINION

THE COURT *
APPEAL from a n order of the Superior Court of Fresno County. Michael G. Idiart, Judge.
Sarah Vaona , under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg , County Counsel, and Lisa R. Flores , Deputy County Counsel, for Plaintiff and Respondent.

- ooOoo

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* Before Hill, P. J., Peña, J. and Snauffer, J.2

. INTRODUCTION J.S. (mother) and R. Q

. (father) are the parents of son Z.Q. (born May 2008). Father appeals from the juvenile court’s disposition order. He contends the Fresno County Department of Social Services (department) and the juvenile court failed to comply with the inquiry requireme nts of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because he reported he may have Indian ancestry through two unknown tribes, but the department did not contact the
Bureau of Indian Affairs or send notice. 1 The department disagrees.
Consistent with our decisions in In re K.H. (2022) 84 Cal.App.5th 566 ( K.H. ) and
In re E.C. (2022) 85 Cal.App.5th 123 ( E.C. ), we conclude “the error is prejudicial because neither the [department] nor the court gathered informat ion 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. )].) Accord ingly, 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
pp. 157

– 158.) FACTUAL AND PROCEDURAL BACKGROUND 2
Petition and Detention On February 8, 2023, the department filed a petition on behalf of Z.Q. pursuant to Welfare and Institutions Code section 300, subdivision (b)(1). 3 Z.Q. was detained and

1 “[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 Because the sole issue on appeal concerns ICWA, we restrict our facts to those bearing on that issue or helpful for clarity.
3 All further statutory references are to the Welfare and Institutions Code unless otherwise noted.3

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placed with relative mentors Michael and Deborah H. The p etition contained an Indian Child Inquiry Attachment (ICWA

- 010(A)) form stating father gave no reason to believe Z.Q. was or could be an Indian child. That same day , the department held a team decision making meeting in which father, father’s friend A.K., maternal grandmother J.Y., and maternal aunt E.H. participated. The “Team Decision

- Making Summary Report” stated “[a]ll present family was inquired about Native American ancestry and all family stated there was none.” On February 9, 2023, father filled o ut a Parental Notification of Indian Status (ICWA

- 020) form, but there he stated he was or could be a member of, or eligible for membership in, a federally recognized Indian tribe. Father did not identify a tribe. The detention report stated ICWA did or could apply because father had reported he did not have Indian ancestry, but it was unknown if mother had ancestry as she had not had contact with the department. On February 9, 2023, the juvenile court conducted a detention hearing. Father appeared, but mother did not. The court inquired with father about Indian ancestry. Father stated he had ancestry through both paternal grandfather and paternal grandmother’s side s of the family with two different tribes, but did not specify which
tribes. The court did not make an ICWA finding, but found a prima facie case had been established and ordered Z.Q. detained. Jurisdiction and Disposition On February 15, 2023, father was interviewed and asked about Indian ancestry again. He stated that growing up he though t he was Native American, however, his aunt told him the family did not have Indian ancestry. He then denied any tribal affiliation. The social worker asked if there were any family members who might know about the family’s Indian ancestry. Father state d both paternal grandmother and paternal grandfather had passed away, and he had lost contact with family. The social worker4

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advised him to inform the department if he believed any family member could provide
further information. On February 16, 2023, fat her fil l ed out another ICWA

- 020 form

— this time denying having Indian ancestry. On February 22, 2023, mother denied having Indian ancestry. The jurisdiction and disposition report stated ICWA did not apply because both parents had denied having Indian ancestry. The department noted it would attempt to make contact with any known relatives in order to make further inquiry. On March 8, 2023, mother filled out an ICWA

- 020 form denying having Indian ancestry. On March 9, 2023, the juvenile court h eld a combined jurisdiction and disposition hearing. Mother and father were both present, but the hearing was continued several
times. On April 27, 2023, at a jurisdiction and disposition hearing , the court found ICWA did not apply, found the allegations in the petition true, ordered Z.Q. detained, bypassed mother for reunification services, and ordered father to participate in reunification
services. A six

- month review hearing was set. On June 13, 2023, father filed a notice of appeal. DISCUSSION
I. IC WA
A. Legal Principles “ ‘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 app lies, the Indian tribe has a right to5

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intervene in or exercise jurisdiction over the proceeding.’ ” ( K.H. , supra , 84 Cal.App.5th 566, 594, fn. omitted; accord, E.C. , supra , 85 Cal.App.5th at p. 138, fn. omitted.) “ ‘In 2006, California adopted various pro cedural 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 d ifficulty complying with ICWA 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 , 85 Cal.App.5t h at pp. 138

– 139.) “ ‘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 I nstitutions 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 , 85 Cal.App.5th at p. 139.)

1. 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 , 85 Cal.App.5th at pp. 139

– 140.) “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].’ ” ( In re A.R. (2022) 77 Cal.App.5th 197, 204.) California6

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law imposes “an affirmative and continuing duty [on the court and the county welfare 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, b ut 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 pursu ant 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 h ave 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).) Additionally, “[a]t the first appear ance 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 r eceive 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 informat ion 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 the child’s possible Indian status as soon as practicab le.” ( 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 information7

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regarding the child’s membership, citizenshi p status, or eligibility.’ ” ( Ezequiel G. , at
p. 999.) “If there is ‘reason to know’ a child is an Indian child, the [department] 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 c hild,’ 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).) 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).) 4
B. Standard of Re view “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); accor d,
E.C. , supra , 85 Cal.App.5th at pp. 142

– 143.) 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 app ly.” ( K.H. , at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C. , at p. 143.) Second, “[t]he juvenile

4 All further references to rules are to the California Rules of Court.8

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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. 143.) 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 substantia l 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 pos ition 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 , 85 Cal.App.5th at p. 143.) The juvenile court’s finding on the second eleme nt, however, “is ultimately discretionary because it requires the juvenile court to ‘engage in a delicate balancing of’ various factors in assessing whether the [department’s] inquiry was proper and adequate within the context of ICWA and California law, a nd whether the [department] 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 , 85 Cal.App.5th at p. 143; Ezequiel G. , supra , 81 Cal.App.5th at pp. 1004

– 1005.) Therefo re, 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 pp. 143

– 144; Ezequiel G. , at pp. 1004

– 1005.) “ ‘Review for abuse of discretion is subtly different [f rom 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, capriciou s, or patently absurd determination.” ’ ” [Citation.] But “ ‘ “[w]hen two or more inferences can reasonably be deduced from the9

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

court [.] ” ’ ” [ C itations.] [¶] 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 , 85 Cal.App.5th at pp. 143

– 144 .) “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 , 85 Cal.App.5th at p. 144.) C. Analysis
1. Summary of ICWA Inquiry In the present case , father went back and forth claiming he had Indian ancestry. Initially, he denied having Indian ancestry, but when the juvenile court inquired of him at the detention hearing, he said he believed he had ancestry through both paternal grandparents with two unspecified tribes. The court, however, did not order a further inquiry or make an ICWA finding at that time. Father later reported to a social worker he did not have Indian ancestry. He said that growing up he believed he had Indi an ancestry, but an aunt told him otherwise. He then filled out an ICWA

- 020 form denying ancestry. As for mother, she denied having Indian ancestry all along. At the combined jurisdiction and disposition hearing, the court found ICWA did not apply.
Fath er argues the juvenile court’s finding was erroneous because there was insufficient information to conclude he did not have Indian ancestry. He argues the department should have “attempted to complete a form ICWA

- 030” or contacted the
Bureau of Indian Aff

airs, and failure to do so resulted in prejudicial error. The department concedes inquiry was not perfect, but argues that there were no other known10

.

relatives to inquire of and father did not give reason to believe Z.Q. could be an Indian
child. Accordin gly, the department asserts prejudicial error did not occur.
I n K.H. and E.C. , we addressed ICWA error at the inquiry stage. There, we explained our decision not to follow the approaches articulated by other appellate courts for determining whether ICWA e rror 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. , supra , 11 Cal.5th at pp. 252

– 254; accord, E.C. , supra , 85 Cal.App.5th at p. 152.) Applying the standards
we articulated in K.H. and E.C. , as we discuss below, we conclude the department’s error is prejudicial and remand for the department to conduct a proper, adequate, and duly diligent inquiry i s necessary.

2. The Department and Juvenile Court Erred As previously mentioned, “[i] f the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have
sufficient information to determ ine that there is reason to know that the child is an Indian child, the court, social worker, or probation officer 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).) “T here 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. Information suggesting membership or eligibility for membership includes, but is not limited to , information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumera ted in [section 224 .2 , subdivision (d)(1) to (6)]

. ” (§ 224.2, subd. (e)(1), italics added.) “ When there is reason to believe the child is an Indian child, further inquiry is necessary to help the court, social worker, or probation officer determine wheth er there is reason to know a child is an Indian child. Further inquiry includes

... [¶] [c] ontacting the Bureau of Indian11

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Affairs and the State Department of Social Services for assistance in identifying the
names and contact information of the tribes in whi ch the child may be a member, or eligible for membership in, and contacting the tribes and any other person that may reasonably be expected to have information regarding the child ’ s membership status or eligibility. ” (§ 224.2, subd. (e)(2)(B).) Here, father appeared to be uncertain about the family’s Indian ancestry. He went back and forth claiming and disclaiming ancestry. However, there was reason to believe Z.Q. could be an Indian child because father stated he could have ancestry through

two unk nown tribes. Therefore, the department should have contacted the Bureau of Indian Affairs for assistance in identifying the names of any possible tribes. (§ 224.2,
subd. (e)(2)(B).)

3. Prejudice “Where, as here, the deficiency lies with the [departmen t’s] duty of [...] 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 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 , 85 Cal.App.5th at p. 151.) “ ‘[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’ [citatio ns], 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 but12

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for the error.’ ” ( K.H. , supra , 84 Cal.App.5th at pp. 606

– 607; accord, E.C. , supra , 85 Cal.App.5th at pp. 151

– 152.) However, in A.R. , the Supreme Court “recognized that while we generally apply a
Watson [ 5 ] likelihood

- of

- success test to assess prejudice, a merit s

- 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 prej udice 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 , 85 Cal.App.5th at p. 154.) Rather, “ ‘[t]he purpose of ICWA and related C alifornia 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 in the proceedings’ [citation], and an adequate initial inquiry facilitates the informa tion gathering upon which the court’s ICWA determination will rest.” ( K.H. , at p. 608; accord, E.C. , at pp. 152

– 153.) Yet, “while the appealing party is usually a parent, parents do not bear the burden of gathering information in compliance with ICWA [ci tations], and parents may raise the claim of error for the first time on appeal.” ( K.H. , at p. 608; accord, E.C. , at p. 153.) 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 pp. 139

– 140.) “[W]here 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

5 People v. Watson (1956) 46 Cal.2d 818, 836.13

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safeguard.” ( K.H. , at p. 610, citing A.R. , supra , 11 Cal.5th at pp. 252

– 254; accord, E.C. , at p. 155.) Here, the department’s inquiry, “ ‘fell well short of that required to gather the information needed to meaningfully safeguard the rights of the tribes, as intended under ICWA and California law’ ” ( E.C. , supra , 85 Cal.App.5th at p. 156, quoting K.H. , supra , 84 Cal.App.5th 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. 155, quoting K.H. , at p. 611.) Therefore, the error is prejudicial and reversal is required. Accordingly, the juvenile court’s finding that ICWA does not apply is conditionally reversed and the matter is remanded. The court is instructed to ensure the
de partment 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 , 85 Cal.App.5th at p. 157, quoting K.H. , supr a , 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 [Z.Q.]’ 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 adequ ate factual foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)’ ” ( E.C. , at
p. 157, quoting K.H. , at p. 621.) DISPOSITION The juvenile court’s finding that ICWA does not apply is conditionally reversed,
and the matter is remanded to the juvenile court with directions to order the department to comply with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b) and (e), and rule 5.481(a)(5). If, after determining that an adequate14

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inquiry was made consist ent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding shal l be reinstated. In all other respects, the juvenile court’s order is
affirmed.