Filed 4/15/22 In re E.D. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Jean Nelson, Judge. Conditionally reversed and remanded with directions.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Father appeals from an order terminating parental rights to his daughter under Welfare and Institutions Code section 366.26.[1] Father contends the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with section 224.2, subdivision (b)—the California statute implementing the initial inquiry rules of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We conditionally reverse and remand for DCFS to comply with its statutory responsibilities.

FACTUAL AND PROCEDURAL BACKGROUND

As the only issue raised in father’s appeal is ICWA compliance, we focus on the facts and procedural background relevant to that issue.

The family came to DCFS’s attention in June 2019 when daughter’s half-sibling tested positive for amphetamines at birth. At the time, father was serving a nine-year prison sentence for a 2015 assault with a semiautomatic firearm conviction.

On August 27, 2019, DCFS filed a section 300 petition; the juvenile court ordered DCFS to investigate whether ICWA applied.

On the same date, mother submitted a Parental Notification of Indian Status (ICWA-020) form declaring, “I have no Indian ancestry as far as I know.” The ICWA-020 form stated: “To the parent, Indian custodian, or guardian of the above-named child: You must provide all the requested information about the child’s Indian status by completing this form. If you get new information that would change your answers, you must let your attorney, all the attorneys on the case, and the social worker or probation officer, or the court investigator know immediately and an updated form must be filed with the court.” The bottom part of the form provided: “Note: This form is not intended to constitute a complete inquiry into Indian heritage. Further inquiry may be required by the Indian Child Welfare Act.”

On October 16, 2019, the juvenile court sustained the section 300 petition based on mother’s drug use and domestic violence in the home and found daughter was a person described by section 300, subdivision (b).

On November 26, 2019, father submitted an ICWA-020 form declaring “I have no Indian ancestry as far as I know.” The form had the same printed text we previously described.

At a November 26, 2019 disposition hearing, the court declared daughter a dependent child and removed her from the parents’ custody. The court ordered Family Reunification Services for mother. The court denied services for father pursuant to section 361.5, subdivision (e) after finding by clear and convincing evidence that father’s incarceration would significantly exceed the time period for family reunification services.[2] The juvenile court found ICWA did not apply because both parents indicated they had no Indian ancestry.

On October 23, 2020, the juvenile court conducted a six-month review hearing and terminated mother’s reunification services.

On July 26, 2021, the court held the selection and implementation hearing under section 366.26. Father, who appeared telephonically, objected via counsel to termination of parental rights. The juvenile court found by clear and convincing evidence that daughter was adoptable and there was no exception to adoption. The court terminated mother’s and father’s parental rights to daughter.

Only father appeals.

DISCUSSION

Father argues on appeal that the court’s orders should be vacated because DCFS failed to comply with the initial duty of inquiry under the California statutes that implement ICWA.

1. ICWA and the Standard of Review

“Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) “In California, . . . persistent noncompliance with ICWA led the Legislature in 2006 to ‘incorporate[ ] ICWA’s requirements into California statutory law.’ [Citations.]” (In re Abbigail A. (2016) 1 Cal.5th 83, 91; see also In re Breanna S. (2017) 8 Cal.App.5th 636, 650 [California law “incorporates and enhances ICWA’s requirements”].) Both ICWA and California law define an “Indian child” as a child who is either a member of an Indian tribe or 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); 224.1, subds. (a) & (b); see also In re Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)

The juvenile court and DCFS have an affirmative and continuing duty under ICWA and related California law to inquire whether a child who is the subject of a dependency proceeding is or may be an Indian child. (Isaiah W., supra, 1 Cal.5th at pp. 10-11.) The scope of the duty of inquiry is defined in regulations promulgated under ICWA (see 25 C.F.R. § 23.107 et seq. (2020)), California statutes, and rules of court. (In re T.G. (2020) 58 Cal.App.5th 275, 290–291 (T.G.).) Here, we apply the statutes in effect in July 2021, when the section 366.26 hearing took place. (In re A.M. (2020) 47 Cal.App.5th 303, 321.)

By statute, DCFS’s initial duty of inquiry at the beginning of a child welfare proceeding includes “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.” (§ 224.2, subd. (b).) The 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.” (Id. at subd. (c).) Part of the initial inquiry includes requiring each party to complete the ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(2)(C).) When there is “reason to believe that an Indian child is involved in a proceeding,” further inquiry is required. (§ 224.2, subd. (e); T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.)

On undisputed facts, we make an independent determination whether ICWA’s requirements have been satisfied. (In re D.F. (2020) 55 Cal.App.5th 558, 565.)

2. DCFS Failed to Comply with Section 224.2, Subdivision (b)

Father correctly contends DCFS had an obligation under section 224.2, subdivision (b) to interview the paternal grandmother and the maternal aunt about Indian ancestry, as both are extended family members. DCFS does not argue to the contrary.

We agree that DCFS’s failure to interview the two extended family members, both of whom were involved in the dependency proceedings, was error.[3] “Nothing in section 224.2, subdivision (b), relieves the Department of its broad duty to seek that information from ‘all relevant’ individuals [citation] simply because a parent states on the ICWA-020 form, . . . ‘I have no Indian ancestry as far as I know.’ Such a rule ignores the reality that parents may not know their possible relationship with or connection to an Indian tribe.” (In re Y.W. (2021) 70 Cal.App.5th 542, 554 (Y.W.).) Relying entirely on the representations on parents’ ICWA-020 form statements was error – the form itself even makes that clear: “This form is not intended to constitute a complete inquiry into Indian heritage.”

3. The Error Was Prejudicial

Respondent’s brief understandably does not try to justify or excuse DCFS’s failure to comply with its statutory obligations. Its response is that the failure was not prejudicial. Citing In re Benjamin M. (2021) 70 Cal.App.5th 735, 744-745 (Benjamin M.), DCFS argues that since both parents denied Indian heritage, further inquiry of paternal grandmother and maternal aunt would not likely bear meaningfully upon whether daughter was an Indian child. It claims the parents’ execution of the two ICWA-020 forms was sufficient evidence for a reliable ICWA determination.

Benjamin M. is curious authority for DCFS, as the Court of Appeal there held “a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Finding both inadequate inquiry and prejudicial error, the appellate court reversed an order terminating parental rights. The father was homeless and did not appear in the dependency proceedings. DCFS did not ask father’s extended family members about the child’s Indian ancestry, even though the social worker had access to those relatives. (Id. at pp. 744-745.)

In In re Antonio R. (2022) 76 Cal. App. 5th 421 (Antonio R.), Division 7 found prejudicial DCFS’s failure to ask extended family members about a child’s Indian heritage. The Antonio R. court dispensed with DCFS’s argument that the inquiry “error was harmless because there were ‘slim’ odds the information in the possession of the extended maternal relatives would show [the child] is qualified for membership in an Indian tribe.” (Id. at p. 435.) The court warned: “Speculation as to whether extended family members might have information likely to bear meaningfully on whether the child is an Indian child has no place in the analysis of prejudicial error where there is an inadequate initial inquiry. Rather, in determining whether the failure to make an adequate initial inquiry is prejudicial, we ask whether the information in the hands of the extended family members is likely to be meaningful in determining whether the child is an Indian child, not whether the information is likely to show the child is in fact an Indian child.” (Id. at p. 434.) (See also In re J.C. (April 4, 2022, B312685) __ Cal.App.5th __ [2022 WL 1011784]

Returning to the facts of the present case, it is undisputed that DCFS obtained an executed ICWA-020 form from mother and father. Each parent denied Indian ancestry. It is also undisputed that DCFS did nothing else – it made no inquiries from known extended family members or anyone.

The facts of this case are almost square with those in In re H.V. (2022) 75 Cal.App.5th 433 (H.V.), an appeal decided by another of panel of this division. There, DCFS asked mother about the child’s Indian ancestry, and mother “did not give the social worker any reason to believe the child was or might be an Indian child.” The social worker interviewed maternal great-grandmother and paternal great-grandfather, but failed to ask questions about the child’s Indian heritage. Mother also executed an ICWA-020 form in which she denied any knowledge of Indian ancestry. (Id. at p. 436.) In response to an inquiry from the juvenile court, mother (through counsel) “indicated that alleged father did not have Indian ancestry.” (Ibid.)

On the appeal from jurisdiction and disposition orders, DCFS did not contend it discharged its first-step inquiry. It instead took the tack from the courts in A.C, supra, 65 Cal.App.5th at page 1069, and Rebecca R., supra, 143 Cal.App.4th at page 1431, and argued that mother must make an affirmative representation of Indian ancestry or any error is deemed harmless. (H.V., supra, 75 Cal.App.5th at p. 438.) This court disagreed. “Mother does not have an affirmative duty to make a factual assertion on appeal that she cannot support with citations to the record.” (Ibid.) It found the error prejudicial and conditionally affirmed and remanded for ICWA compliance.[4] (Id. at pp. 438-439.)

We see no reason to depart from the court’s analysis and resolution in H.V. In both this case and that one, DCFS went no further than to inquire of the parents. Equally telling is that in both cases, DCFS knew about extended family members – the maternal grandmother and paternal grandfather in H.V. and the maternal aunt and paternal grandmother in the present case – but asked them nothing about the child’s Indian ancestry.[5] (In re J.C., supra, __ Cal.App.5th __, at pp. 4*-5* [2022 WL 1011784] [rejecting DCFS’s harmless error theory because “by failing to conduct an adequate inquiry, the Department virtually guarantees the (incomplete) information it obtains will support a finding that ICWA does not apply” and such reasoning “allows the harmless error exception to swallow the rules governing the duty to inquire.”].)

Commonsense tells us that the family elders, not the child’s parents, are likely to have firsthand or more accurate information about the family tree. (See In re S.R. (2021) 64 Cal.App.5th 303, 314 [“It isn’t easy to track tribal affiliations and those connections are easily lost. . . . This case is a stark example of that dynamic, because the children’s parents apparently had no idea of their family’s connection to the Yaqui tribe of Arizona, even though the children’s great-grandmother was a member and still lived with the grandparents in Colorado.”].)

We do not suggest that in every case where initial DCFS inquiry is limited to the receipt of negative Indian ancestry on an ICWA-020 that error is automatically prejudicial. There may be circumstances that make further inquiry unavailable or unnecessary. For example, in In re Darian R. (2022) 75 Cal.App.5th 502, 510, the appellate court held that failure to inquire of the children’s maternal aunt and grandfather was not prejudicial because in earlier dependency proceedings the juvenile court had found that the children did not have Indian ancestry. That is not our case.

DISPOSITION

We conditionally reverse the juvenile court’s order, and remand the with directions to the juvenile court to order DCFS to comply with Welfare and Institutions Code section 224.2 as follows:

1. DCFS shall conduct an inquiry investigation into daughter’s Indian ancestry, including making diligent efforts to interview daughter’s extended family members as defined by section 224.1, subdivision (c) and 25 U.S.C. section 1903(2), including the paternal grandmother Maria P. and maternal aunt Liliana for the purpose of obtaining information required for ICWA notice compliance.
2. If from that initial inquiry DCFS has a reason to believe daughter is an Indian child, then, as soon as practicable, it shall make further inquiry regarding daughter’s possible Indian status.
3. If from that further inquiry DCFS has a reason know daughter is an Indian child, then it shall comply with the formal notice requirements in section 224.3.
4. DCFS shall document its investigation, including its interviews with family members and attempts to conduct such interviews, its contact with tribes (if any), and any information obtained from the tribes, and provide that documentation to the juvenile court.
5. The juvenile court shall conduct a noticed hearing to review the adequacy of DCFS’s investigation. If the court determines DCFS’s investigation was adequate and there is no reason to know daughter is an Indian child as that term is defined under ICWA, then the termination of parental rights order shall remain in place.
6. If the court determines DCFS’s investigation was adequate and there is a reason to know daughter is an Indian child as that term is defined under ICWA, then termination of parental rights order is reversed and DCFS shall provide adequate ICWA notice to the tribe or tribes, mother, alleged father, and the regional Bureau of Indian Affairs and shall proceed thereafter in compliance with ICWA and related California statutes.

RUBIN, P. J.

I CONCUR:

KIM, J.

In re E.D.

B314304

BAKER, J., Dissenting

I would affirm because substantial evidence supports the juvenile court’s finding that ICWA did not apply. (In re H.V. (2022) 75 Cal.App.5th 433, 441 (dis. opn. of Baker, J.); see also In re J.S. (2021) 62 Cal.App.5th 678, 688 [applying substantial evidence standard of review].)

BAKER, J.

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

[2] Father was not eligible for parole until June 2024. Under section 361.5, subdivision (e), “If the parent or guardian is incarcerated, . . . the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered. . . .” (§ 361.5, subd. (e).)

[3] At one time, daughter was placed in the maternal aunt’s home. Daughter also had continuing contact with the paternal grandmother, who was evaluated for placement.

[4] Justice Baker, in his dissent in H.V., decried ICWA’s complexity, finding it anything but straightforward, a point with which we agree. (H.V., supra, 75 Cal.App.5th at p. 440 (dis. opn. of Baker, J.).) He concluded that under appropriate substantial evidence review, there was “substantial evidence supporting the juvenile court’s determination that ICWA does not apply.” (Id. at p. 441.)

In another recent dissent that disagreed with the majority’s finding that ICWA noncompliance was harmless error, Judge Crandall, sitting on assignment, observed that any presumption of prejudice in this setting “provides parents with a last-minute, readily-available delay tactic.” (In re A.C. (March 4, 2022, B312391) __ Cal.App.5th __ [2022 WL 630860, at p. *10] (conc. & dis. opn. of Crandall, J.) For this and other policy reasons, the dissent found no prejudice. The majority’s response was: “These arguments are grist for the legislative mill.” (Id. at p. *5.)

[5] Arguably In re H.V., supra, 75 Cal.App.5th 433, is a stronger case for prejudice than the present one as the only information about father there came not from father or his family but from mother.