Because the sole issue on appeal is compliance with state law implementing ICWA, a detailed recitation of the non-ICWA related background is not necessary to the resolution of this appeal.
On January 22, 2019, DCFS filed a petition under section 300 seeking to detain minors F.D., K.D., and A.D., then ages five, three, and one, from father and mother. The petition alleged violent altercations between the parents in the children’s presence. DCFS amended the petition on March 1, 2019, to add allegations that father abused alcohol and used marijuana.
In advance of the detention hearing, mother and father both signed ICWA-020 forms indicating they had no Indian ancestry as far as they knew. Mother and father were both present at the detention hearing, as were the children, maternal grandmother, and paternal great aunt. The juvenile court asked, “Is there any American Indian ancestry, mother, father?” Mother’s counsel and father’s counsel both answered, “No.” The court found, “There is no reason to know that the child[ren are] Indian child[ren] within the meaning of ICWA and I find that ICWA does not apply.”
The juvenile court ordered the children detained, and DCFS placed them with paternal great aunt. The minute order for each child from the detention hearing read, “The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA [Bureau of Indian Affairs]. Parents are to keep the Department, their Attorney and the Court aware of any new information relating to possible ICWA status. ICWA-020, the Parental Notification of Indian Status[,] is signed and filed.”
DCFS filed a jurisdiction/disposition report on March 4, 2019. The report described a prior dependency case in 2014 involving parents and then-infant F.D. The report stated that in that prior dependency case, the juvenile court found that it did “not have a reason to know that [F.D. was] an Indian Child,” and did not order notices to any tribes or the BIA. The court in the prior case ordered the parents to keep DCFS, their attorney, and the juvenile court aware of any new information relating to ICWA status, and noted the filing of signed parental notification of Indian status forms. The prior case ended with the juvenile court returning F.D. to mother and father and terminating jurisdiction.
The jurisdiction/disposition report also stated that on February 26, 2019, a month after the detention hearing in the instant case, a dependency investigator asked father if he had Indian ancestry, and father said no, consistent with his ICWA-020 form and his counsel’s response to the juvenile court at the detention hearing. The investigator asked father whether mother had Indian ancestry, and father said, “I don’t think so.” Mother missed her appointment with the investigator so the investigator did not interview her. Although DCFS social workers spoke with mother on later occasions, the record does not indicate they asked her further about possible Indian ancestry.
The jurisdiction/disposition report contained biographical information about mother and father obtained in the 2014 dependency case. The report indicated that mother’s parents separated when she was an infant, and she was raised by her mother (maternal grandmother). Mother indicated she had a “distant relationship” with her father (maternal grandfather), whom she did not visit until she was 13, and who “shortly thereafter . . . ‘disowned’ her because she was a ‘troublemaker.’ ”
On June 10, 2019, the juvenile court sustained the allegations in the amended section 300 petition except for the claim that father used marijuana. On October 16, 2020, the juvenile court terminated reunification services for mother and father, finding they were not in compliance with the case plan and had made minimal progress in addressing the issues that led to the detention of the children. A year later, on October 13, 2021, the juvenile court terminated mother’s and father’s parental rights. The court declared adoption as the appropriate permanent plan and designated maternal grandmother as the prospective adoptive parent.
Father timely appealed. Mother did not appeal.
DISCUSSION
The only issue in this appeal concerns the adequacy of DCFS’s inquiry into the children’s ancestry as required by state law implementing ICWA. Father does not otherwise challenge the orders issued in this case.
“At the outset of a dependency case, the child welfare agency and the juvenile court have a statutory initial duty to inquire into whether a child is, or may be, an Indian child. ‘The child welfare department’s initial duty of inquiry 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 and where the child, the parents, or Indian custodian is domiciled.” [Citation.]’ [Citation.]” (In re Darian R. (2022) 75 Cal.App.5th 502, 507 (Darian R.), fn. & italics omitted.) Under ICWA, the term “ ‘extended family member’ ” is “defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.” (25 U.S.C. § 1903(2).)
Father argues DCFS did not fulfill its duties under state law implementing ICWA because DCFS social workers never interviewed available extended family members as to whether the children might be Indian children. DCFS concedes this was error. DCFS nonetheless contends the error was harmless under the test for prejudice articulated in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.).
Benjamin M. held that the failure to interview an extended family member about Indian ancestry is prejudicial “where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (Supra, 70 Cal.App.5th at p. 744.) In that case, the appellate court concluded the failure to inquire of extended family members was prejudicial because the father of one of the children never appeared in the proceeding and father’s brother was available to ask about whether father had Indian ancestry. (Id. at p. 745.)
Similar to Benjamin M., opinions from this division have assessed whether ICWA error was prejudicial by evaluating whether further investigation was likely to produce meaningful information about whether a child is an Indian child. In In re A.C. (2022) 75 Cal.App.5th 1009, a majority of this court held a failure to interview extended family members was prejudicial because, although both parents had signed ICWA forms indicating neither had Indian ancestry, “mother was the product of foster care and thus may not have known her cultural heritage.” (Id. at pp. 1015–1016.) Also, the detention report indicated the child might be an Indian child. (Id. at p. 1016.) The majority “[could not] conclude from this equivocal record that DCFS’s failure to conduct any inquiry as to mother and father’s extended family members was not prejudicial.” (Ibid.)
In contrast, in Darian R., we rejected the mother’s claim that failure to interview her sister and father, with whom she had lived during part of the dependency proceedings, was prejudicial where both parents denied Indian ancestry, mother was under a court order to provide information relevant to ICWA, there was no evidence mother was estranged from her family, and a prior court order in an earlier dependency case involving the same biologic parents found ICWA inapplicable. (Darian R., supra, 75 Cal.App.5th at p. 510.) Under these circumstances, we concluded, “The record simply does not support mother’s unvarnished contention that additional interviews of mother’s father and sister would have meaningfully elucidated the children’s Indian ancestry.” (Ibid.)
In In re S.S. (2022) 75 Cal.App.5th 575 (S.S.), we similarly rejected the argument that DCFS’s failure to interview the maternal grandmother about Indian ancestry was prejudicial. (Id. at p. 581.) The maternal grandmother, with the assistance and encouragement of both the child’s counsel and the mother’s counsel, sought to have the child placed with her over DCFS’s objection. (Id. at pp. 580, 582.) We noted that under ICWA, there is a preference to place Indian children with extended family members. (Id. at p. 582, citing 25 U.S.C. § 1915(a) & (b).) Thus, “[t]he maternal grandmother, Mother’s counsel, and [the child’s] counsel, each of whom requested that the court consider placing [the child] with the maternal grandmother, would . . . have a strong incentive to bring to the court’s attention any facts that suggest that [the child] is an Indian child. Their failure to do so implies that the maternal grandmother is unaware of such facts.” (S.S., at p. 582.)
DCFS argues that Darian R. and S.S. support
