In re Zachary G. CA2/7 ( 2021 )

Filed 9/22/21 In re Zachary G. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ZACHARY G., a Person B309975
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No 19CCJP04813A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JERRY L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sabina A. Helton, Judge. Conditionally
affirmed and remanded with directions.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent.
__________________
Jerry L., the biological father of five-year-old Zachary G.,
appeals the juvenile court’s disposition order removing Zachary
from the custody of his mother, Shaina G., and placing him in
foster care under the supervision of the Los Angeles County
Department of Children and Family Services (Department).
Jerry, a nonoffending biological (but not presumed) father,
contends the court abused its discretion when it denied his
request for family reunification services. He also contends the
juvenile court and the Department failed to comply with their
duties of inquiry and notice under the Indian Child Welfare Act
of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California
law. We agree the Department failed to adequately investigate
Jerry’s claim of Indian ancestry and the court failed to ensure the
Department complied with its duty of inquiry. Accordingly, we
remand the matter to allow the Department and the juvenile
court to remedy these ICWA errors and otherwise conditionally
affirm the disposition order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial and First Amended Nondetain Dependency
Petitions, Jurisdiction Findings and Disposition Order
On July 30, 2019 the Department filed a nondetain petition
1
pursuant to Welfare and Institutions Code section 300 on behalf
of then-three-year-old Zachary and his younger siblings, one-
1
Statutory references are to this code unless otherwise
stated.
2
year-old R.D. and three-month-old C.D., alleging Shaina had
mental and emotional problems and failed to take her prescribed
psychotropic medication or obtain recommended mental health
treatment; Raymond D., Shaina’s boyfriend and the father of R.D.
and C.D., had a history of substance abuse and was a current
abuser of marijuana; and in June 2019 Shaina had engaged in a
violent altercation with R.D. and C.D.’s paternal grandmother in
the presence of all three children, resulting in an injury to C.D.
At the July 31, 2019 hearing on the nondetain petition
regarding Zachary, Shaina identified Jerry as Zachary’s
biological father. She stated she did not know Jerry’s
whereabouts, explaining Jerry had left her when she told him she
was pregnant with Zachary, had never paid child support or
helped Zachary financially, and had seen Zachary only twice in
his life. Shaina filled out Judicial Council form ICWA-020 and
denied Indian ancestry.
The court found the Department had made a prima facie
case Zachary was a person described by section 300 and released
him to Shaina under the temporary supervision of the
Department with a variety of support services. Finding Jerry an
alleged father, the court declared it had no reason to know at that
time that Zachary was an Indian child but deferred the ICWA
determination until Jerry’s appearance in the case. The court set
a jurisdiction hearing for September 26, 2019, which it later
continued to November 4, 2019.
After an October 2019 argument between Raymond and
Shaina that escalated into a violent incident between Raymond
and another man with the children present, the Department filed
a first amended petition on November 25, 2019 adding
allegations pursuant to section 300, subdivisions (a), and (b), that
3
Shaina and Raymond had a history of domestic violence,
including the October 2019 incident and an August 2019 incident
in which Shaina pushed Raymond while he was holding R.D.,
that put Zachary (and his siblings) at substantial risk of serious
physical harm. The first amended petition also added an
allegation of alcohol abuse involving Raymond.
The court held a jurisdiction hearing on November 26,
2019. Shaina pleaded no contest to the new allegations under
section 300, subdivision (b)(1). The court struck all remaining
allegations involving Shaina and found Zachary a person
described by section 300, subdivision (b)(1). Proceeding directly
to disposition the court declared Zachary a dependent child of the
juvenile court and ordered him released to Shaina’s custody
under the supervision of the Department with family
2
maintenance services. The court set a review hearing for
May 26, 2020.
2. The Department’s Section 387 Petition Seeking Removal
of Zachary; Jerry’s First Appearance in the Case
On July 22, 2020, after having obtained an emergency
removal order for the children, the Department filed a
section 387 petition seeking a more restrictive placement for
Zachary (and his siblings). The supplemental petition alleged
Shaina had failed to comply with “[j]uvenile [c]ourt ordered
2
By this time Shaina had secured residence for herself and
her children at a domestic violence women’s shelter and obtained
an order of protection against Raymond. Shaina’s other children
were also declared dependents of the court, removed from
Raymond and released to Shaina under the supervision of the
Department.
4
services of . . . parenting [classes], individual therapy, undergoing
[a] psychological assessment and psychiatric evaluation,” placing
Zachary (and his siblings) at substantial risk of serious physical
harm. The Department also alleged Shaina continued to have
contact with Raymond despite the active restraining order she
had obtained against him.
At the July 27, 2020 detention hearing on the section 387
petition, Jerry, represented by counsel, appeared for the first
time and submitted to the jurisdiction of the court. On his
ICWA-020 form Jerry declared he had Indian ancestry through
Zachary’s paternal great-grandmother. He did not identify a
specific tribe. Jerry resided in Northern California,
acknowledged he had not seen Zachary for some time and
doubted Zachary was his child. He requested DNA paternity
testing.
The court ordered paternity testing and again found Jerry
was an alleged, not a presumed, father. Based on the
representations in Jerry’s ICWA-020 form concerning possible
Indian ancestry, the court ordered the Department “to
investigate said claim and make appropriate ICWA notices.” The
court detained Zachary from Shaina’s custody and set the
jurisdiction hearing on the Department’s section 387 petition for
August 28, 2020.
In its August 12, 2020 report for the August 28, 2020
jurisdiction hearing, the Department erroneously asserted, as it
had in every report it filed in these proceedings since the initial
detention hearing, that the court had made a finding on July 31,
2019 that ICWA did not apply. The report did not mention the
court’s July 27, 2020 order directing the Department to
5
investigate Jerry’s declaration of Indian ancestry as stated in his
ICWA-020 form.
In a last minute information filed August 26, 2020, the
Department reported it had spoken to Jerry in a telephone
interview on August 20, 2020 and Jerry “stated he is not a
registered tribe member nor does he have any American Indian
ancestry.” Jerry also stated he did not want to visit with Zachary
“too often,” as he was “waiting [to take] the DNA test.” “I’ve
always had my doubts,” Jerry stated, about whether Zachary was
his biological son. He said he had seen Zachary five or six times
since he was born.
At the August 28, 2020 jurisdiction hearing, Shaina
pleaded no contest to an amended supplemental allegation in the
3
section 387 petition. The court sustained the amended petition;
found Zachary a person described by section 300,
subdivision (b)(1); dismissed the section 300, subdivision (a),
allegations; and continued the contested disposition hearing to
October 21, 2020. Meanwhile, Jerry advised the court he was
still waiting to be contacted about taking the DNA paternity test.
After twice continuing the disposition hearing at Jerry’s
request to allow him to obtain the results of his paternity test,
the court held the disposition hearing on December 3, 2020. At
that time the court declared Zachary a dependent child of the
court and removed him from Shaina’s custody. The court ordered
monitored visitation for Shaina and various family reunification
services.
3
The petition was amended by interlineation to strike the
allegation that Shaina had failed to abide by the restraining
order and contacted Raymond.
6
Jerry, whose paternity was established by a DNA test in
November 2020, requested the court exercise its discretion to
award him family reunification services as a biological father.
Shaina, the Department and Zachary’s counsel opposed that
request; and the court denied it, stating, “I will find him to be the
biological father, but I don’t see him as participatory in this four-
year-old child’s life such that it would warrant family
reunification services for him.” The court ordered monitored
visitation for Jerry with discretion to the Department to
liberalize visitation.
The Department did not address ICWA at the jurisdiction
or disposition hearings, and the court never inquired whether the
Department had conducted the ICWA inquiry it had ordered.
Jerry filed a timely notice of appeal from the disposition
order.
DISCUSSION
1. The Court Did Not Err in Denying Jerry Family
Reunification Services
a. Governing law and standard of review
As a biological father, and not a presumed father, Jerry is
not statutorily entitled to family reunification services. (See
Welf. & Inst. Code, § 361.5, subd. (a) [absent certain conditions,
when child is removed from parental custody, court “shall” order
family reunification services for statutorily presumed father];
In re Zacharia D. (1993) 6 Cal.4th 435, 448-449, 451 [a presumed
father—one who satisfies the criteria of Family Code
section 7611—is entitled to reunification services; biological
fathers who do not satisfy the requirements to be a presumed
7
father, in contrast, are not entitled to family reunification
4
services]; In re E.T. (2013) 217 Cal.App.4th 426, 436-437.)
The court has discretion to order family reunification
services for a biological father, but only upon a finding such
services would be in the child’s best interests. (§ 361.5, subd. (a)
[“[u]pon a finding and declaration of paternity by the juvenile
court . . . , the juvenile court may order services for the child and
the biological father, if the court determines that the services will
benefit the child”].) “‘“The concept of a child’s best interests ‘is an
elusive guideline that belies rigid definition. Its purpose is to
maximize a child’s opportunity to develop into a stable, well-
adjusted adult.’”’” (Jennifer S. v. Superior Court (2017)
15 Cal.App.5th 1113, 1124.) Relevant considerations include the
parent’s fitness and history, the strength of the parent-child
bond, and the child’s need for stability and continuity. (Ibid.;
In re William B. (2008) 163 Cal.App.4th 1220, 1228.) It is the
parent’s burden to demonstrate the child would benefit from the
provision of court-ordered services. (Jennifer S., at p. 1124.)
We review the juvenile court’s decision to deny family
reunification services to a biological father for abuse of discretion.
(In re Elija V. (2005) 127 Cal.App.4th 576, 588.) We may reverse
the court’s decision only when it is arbitrary or irrational. (In re
Caden C. (2021) 11 Cal.5th 614, 641 [court abuses its discretion
when its determination is arbitrary, capricious or patently
absurd]; In re Stephanie M. (1994) 7 Cal.4th 295, 318 [same].)
4
Jerry does not contend the court erred in finding he was not
a presumed father.
8
b. The court did not abuse its discretion in finding
family reunification services for Jerry were not in
Zachary’s best interests
Emphasizing (1) Zachary’s reunification with Shaina
remained uncertain, (2) there was no finding Raymond (or
anyone else) was Zachary’s presumed father (cf. In re J.H. (2011)
198 Cal.App.4th 635, 649 [“[u]sually, it is not in the child’s best
interests for a biological father to receive reunification services
when another man has been deemed the child’s presumed
5
father”]; In re Elija V., supra, 127 Cal.App.4th at p. 588 [same]),
and (3) there was no evidence Jerry was unstable or presented
any risk to Zachary, Jerry argues it was necessarily in Zachary’s
best interests for Jerry to receive family reunification services
and to begin to build a relationship with Zachary that could
result in his assuming custody of Zachary should Shaina be
unsuccessful in reunifying with him.
Jerry’s argument is certainly not unreasonable, but our
task is simply to determine whether the juvenile court abused its
discretion in denying him family reunification services. Citing
Jerry’s indifference to Zachary throughout Zachary’s life—Jerry
long questioned his paternity and made no meaningful effort to
see Zachary, support him or be involved in any aspect of his life
until receiving the results of the DNA paternity test—the court
agreed with Zachary’s counsel and the Department that an order
of family reunification services was not in Zachary’s best
interests. However, recognizing Zachary may benefit from
knowing Jerry, the court ordered monitored visitation for Jerry
5
Although Raymond told the social worker that he treated
Zachary as his own son, he did not seek presumed father status.
9
with discretion to the Department to liberalize. That carefully
considered ruling, far from being arbitrary or irrational, was well
6
within the court’s broad discretion.
2. The Court and the Department Committed ICWA Error
a. ICWA and the duties of inquiry and notice
“ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards a state court must follow before removing an Indian
7
child from his or her family.” (In re T.G. (2020) 58 Cal.App.5th
275, 287; see 25 U.S.C. § 1902; In re Isaiah W. (2016) 1 Cal.5th 7-
8.) ICWA and its controlling federal regulations (25 C.F.R. § 23(2020)) set minimal procedural protections for state courts to
follow before removing Indian children and placing them in foster
care or adoptive homes; the statute authorizes states to provide
“‘a higher standard of protection’” to Indian children, their
families and their tribes than the rights provided under ICWA.
(In re T.G., at pp. 287-288; see 25 U.S.C. § 1921.) In addition to
6
Jerry does not identify what other court-ordered services he
seeks. To the extent Jerry believes he would benefit from a
parenting class, for example, nothing prevents him from asking
the Department for recommendations and enrolling in one.
7
For purposes of ICWA, an “Indian child” is an unmarried
individual under age 18 who is either a member of a federally
recognized Indian tribe or is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe. (See 25 U.S.C. § 1903(4)
[definition of “‘Indian child’”] & (8) [definition of “‘Indian tribe’”];
see also Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal
definitions].)
10
significantly limiting state court actions concerning out-of-family
placements for Indian children (see In re T.G., at pp. 287-288),
ICWA permits an Indian child’s tribe to intervene in or, where
appropriate, exercise jurisdiction over a child custody proceeding
(see 25 U.S.C. § 1911(c); In re Isaiah W., at p. 8.)
To ensure Indian tribes have the opportunity to intervene
in, or exercise jurisdiction over, a dependency proceeding,
investigation of a family member’s belief a child may have Indian
ancestry must be undertaken and notice provided to the
appropriate tribes. (§ 224.2, subd. (a) [imposing on the court and
child protective services agencies “an affirmative and continuing
duty to inquire whether a child . . . is or may be an Indian child”];
see In re Charles W. (2021) 66 Cal.App.5th 483, 489.) The duty to
inquire “begins with initial contact (§ 224.2, subd. (a)) and
obligates the juvenile court and child protective agencies to ask
all relevant involved individuals whether the child may be an
Indian child.” (In re T.G., supra, 58 Cal.App.5th at p. 290; see
§ 224.2, subds. (a)-(c).) In addition, section 224.2, subdivision (e),
imposes a further duty of inquiry regarding the possible Indian
status of the child if the court, social worker, or probation officer
has reason to believe that an Indian child is involved in a
8
proceeding.” (See also Cal. Rules of Court, rule 5.481(a)(4) [as
8
Effective September 18, 2020, after the August 2020
jurisdiction hearing but prior to the December 2020 disposition
hearing in the case at bar, section 224.2, subdivision (e), was
amended to add a definition of the phrase “reason to believe”:
“There is reason to believe a child involved in a proceeding is an
Indian child whenever the court, social worker, or probation
officer has information suggesting that either the parent of the
child or the child is a member or may be eligible for membership
in an Indian tribe.” (§ 224.2, subd. (e).)
11
amended January 1, 2020, imposing duty of further inquiry if
social worker “knows or has reason to know or believe that an
Indian child is or may be involved”].) That further inquiry
requires interviewing, “as soon as practicable,” extended family
members, contacting the Bureau of Indian Affairs and contacting
“the tribe or tribes and any other person that may reasonably be
expected to have information regarding the child’s membership,
citizenship status, or eligibility.” (§ 224.2, subd. (e) & (e)(2).) If
these inquiries result in reason to know the child is an Indian
child, notice to the relevant tribes is required. (§ 224.3; 25 U.S.C.
§ 1912(a); In re J.S. (2021) 62 Cal.App.5th 678, 686; In re T.G., at
p. 290.)
b. The Department did not adequately investigate Jerry’s
claim of Indian ancestry
After the court’s July 27, 2020 order directing the
Department to speak to Jerry based on his responses in his
ICWA-020 form, the social worker asked Jerry whether he was
an enrolled member of an Indian tribe or had any Indian
ancestry. Jerry responded no to both questions. Citing these
two ICWA-related questions and Jerry’s “no” responses, the
Department contends it complied with the court’s order and no
further inquiry was required. Had the Department asked Jerry
about his ICWA-020 form, clarified any discrepancy between his
response on that form and in his subsequent interview with the
social worker and confirmed his more recent statement was
accurate, we would likely agree it complied with the court’s order
and no further inquiry duty was triggered. (See In re D.S. (2020)
46 Cal.App.5th 1041, 1053 [Department did not violate duty of
inquiry by failing to interview great-grandmother; “[a]lthough
D.S.’s great-grandmother may fall within th[e] category” of people
12
reasonably expected to have information about the child’s Indian
ancestry, the child protective agency could reasonably conclude,
based on its detailed communications with the aunt denying
Indian ancestry, that no further inquiry was needed because
there was no further information of value to obtain from great-
grandmother]; see generally In re J.S., supra, 62 Cal.App.5th at
p. 690 [duty of further inquiry does not require Department to
“cast about” for further information or pursue unproductive
leads]; In re D.F. (2020) 55 Cal.App.5th 558, 570 [same].)
However, the Department provided no evidence the social
worker even asked Jerry about the statements in his ICWA-020
form, let alone obtained any evidence clarifying the discrepancy.
This was error. (See In re Gabriel G. (2012) 206 Cal.App.4th
1160, 1167 [where a discrepancy existed between a father’s
ICWA-020 form declaring Indian ancestry and his subsequent
oral statement to social worker denying Indian ancestry, the
Department was obligated to at least clarify the discrepancy
before concluding no further investigation was required]; see also
In re L.S. (2014) 230 Cal.App.4th 1183, 1197-1198 [where the
mother made inconsistent statements about which tribe she
belonged to and whether, in fact, she had any Indian ancestry at
all, the Department and court had duty to investigate and/or
clarify the inconsistencies and provide evidence to the court about
the extent of those inquiries before the court could properly
determine ICWA did not apply].)
The court compounded the Department’s error when it
failed to ensure the Department complied with the July 2020
order directing it to investigate Zachary’s possible Indian
ancestry based on Jerry’s responses in his ICWA-020 form. (See
In re T.G., supra, 58 Cal.App.5th at p. 293 [“[t]he court here
13
fulfilled its initial obligation to ask about Tamara’s possible
Indian ancestry; it failed, however, to ensure the Department
complied with its duty of further inquiry based on the responses
the court had received from Tamara and Loretta S.”]; In re L.S.,
supra, 230 Cal.App.4th at p. 1198 [“[T]he juvenile court also
failed in its duty. Given the conflicting and inadequate
information on mother’s claim of Indian [ancestry], the court had
a duty either to require the Agency to provide a report with
complete and accurate information regarding the results of its
inquiry and notice or to have the individual responsible for notice
9
to testify in court regarding the inquiry made”].)
In an alternate attempt to justify its failure to investigate,
the Department points out great-grandparents are not included
in the definition of “extended family members” in ICWA or
California law. (See 25 U.S.C. § 1903(2) [“‘extended family
member’ shall be as 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 had 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”]; § 224.1, subd. (c) [extended family
member “shall be defined as provided in Section 1903 of” ICWA].)
9
It appears the Department may have prompted the court’s
error by consistently reporting, incorrectly, that the court had
determined in July 2019 that ICWA did not apply and by
omitting any reference to the court’s July 2020 ICWA order in its
jurisdiction/disposition report and last minute information filing
or at the December 2020 disposition hearing. Nonetheless, the
court has its own continuing and affirmative duty to inquire
whether the child is or may be an Indian child. (§ 224.2,
subd. (a).)
14
Accordingly, the Department argues, Jerry’s ICWA-020 form did
not provide it with information that would have triggered any
further duty of inquiry and it was not obligated to interview the
paternal great-grandmother. (See § 224.2, subd. (e)(2)(A)
[“[w]hen there is reason to believe the child is an Indian child,”
further inquiry includes “[i]nterviewing the parents, Indian
custodian and extended family members”].)
At the threshold, the Department’s argument ignores the
court’s July 27, 2020 order finding Jerry’s ICWA-020 form gave
rise to a duty to conduct further inquiry and directing it to
conduct the necessary investigation. It is not the Department’s
role to unilaterally decide an existing court order no longer needs
to be obeyed.
In addition, the Department’s cramped interpretation of
the applicable statutes reflects a fundamental misapprehension
of the scope of the duty of further inquiry when, as here, a parent
provides the Department with information the child is or may be
10
an Indian child. That duty includes not only the obligation to
interview extended family members, as defined, but also to
contact the tribe and “any other person that may reasonably be
expected to have information regarding the child’s membership,
citizenship status, or eligibility.” (§224.2, subd. (e)(2)(C); Cal.
Rules of Court, rule 5.481(a)(4)(A); see In re T.G., supra,
58 Cal.App.5th at p. 290; cf. In re D.S., supra, 46 Cal.App.5th at
p. 1053 [recognizing child’s great-grandmother “may fall within
this category”].) That would include, in this instance, the
10
“ICWA defines a ‘“parent”’ to include ‘any biological parent,’
while excluding ‘the unwed father where paternity has not been
acknowledged or established.’” (25 U.S.C. § 1903(9); see In re
T.G., supra, 58 Cal.App.5th at pp. 291-292.)
15
paternal great-grandmother and any other person Jerry may
have identified during a proper interview.
The Department’s reliance on In re Austin J. (2020)
47 Cal.App.5th 870 to argue Jerry’s declaration of Indian
ancestry on his ICWA-020 form was insufficient to trigger the
duty of further inquiry is misplaced. The Austin J. court held
that the mother’s statements to a social worker that she “may
have” Indian ancestry because the maternal grandmother had
told her she had Cherokee ancestry were insufficient to trigger a
duty of inquiry. The court held statements of Indian ancestry
alone, without further indication the child was an “Indian child”
within the meaning of the specific ICWA definition of that term,
were insufficient to trigger the duty of inquiry. (Id. at p. 889.)
Here, unlike the mother in Austin J., Jerry checked the box on
his ICWA-020 form indicating “one or more of my parents,
grandparents or other lineal ancestors is or was a member of a
federally recognized tribe.” (See ibid. [“[m]other conspicuously
did not check the boxes on her parental notification of Indian
status forms that would have indicated she or any of the children
is or may be a member of, or eligible for membership in, an
Indian tribe”].) Moreover, to the extent the Department relies on
the Austin J. court’s holding that statements of Indian ancestry
are too uncertain to provide a reason to believe the child was or
may be an Indian child (see id., at p. 884 [mother’s statements, at
most, created a possibility of Indian ancestry; “Indian ancestry,
without more, does not provide a reason to believe that a child is
a member of a tribe or is the biological child of a member”]), we
have previously rejected that interpretation of the duty of inquiry
as inconsistent with both the letter and spirit of ICWA and
related California law: “We do not agree with Austin J.’s narrow
16
reading of the nature and quality of information sufficient to
trigger the duty of further inquiry. [Fn. omitted.] In particular,
that court’s insistence a parent’s express statement of Indian
ancestry does not constitute a reason to believe an Indian child
may be involved is fundamentally at odds with well-established
ICWA law.” (In re T.G., supra, 58 Cal.App.5th at p. 295; accord,
In re S.R. (2021) 64 Cal.App.5th 303, 317 [In re Austin J.’s
narrow interpretation of the duty of inquiry as requiring the level
of knowledge required to provide ICWA notice conflicts with
broader duty of further inquiry required under section 224.2,
11
subdivision (e)].)
The Department’s assertion the omission of the name of a
particular tribe on Jerry’s ICWA-020 form negated any duty of
11
As we explained in In re T.G., supra, 58 Cal.App.5th at
page 295, the Legislature’s creation of a duty to inquire that is
significantly more expansive than the duty to provide ICWA
notice is premised “on the commonsense understanding that, over
time, Indian families, particularly those living in major urban
centers like Los Angeles, may well have lost the ability to convey
accurate information regarding their tribal status. [Fn. omitted.]
As a result, the information available at the outset of dependency
proceedings will often be inadequate to ensure the necessary
protection of the rights and cultural heritage of Indian children,
Indian families and Indian tribes. [Citation.] General
information from the family about its ancestry frequently
provides the only available basis to believe an Indian child may
be involved. [Citation.] Additional investigation may not develop
further information establishing the need for ICWA notice, but it
is essential to the enforcement of the court’s and child protective
agency’s ‘affirmative and continuing duty to inquire’ to construe
broadly the duty to make further inquiry.” (Accord, In re S.R.,
supra, 64 Cal.App.5th at p. 317.)
17
further inquiry is also without merit. (See In re Elizabeth M.
(2018) 19 Cal.App.5th 768, 786 [failure to provide any tribal
name at all “does not, without more, relieve the child protective
agency of its affirmative obligation to interview family members
and others who could be expected to have relevant information
concerning the child’s status or the court of its duty to ensure an
appropriate inquiry has been conducted before concluding ICWA
does not apply to the case”]; In re Michael V. (2016) 3 Cal.App.5th
225, 235-236 [statement by children’s mother that she had been
told maternal grandmother was “full-blooded Indian” with no
reference to a specific tribe obligated Department to contact other
relatives to inquire if they might have information regarding
children’s possible Indian ancestry]; see also In re T.G., supra,
58 Cal.App.5th at p. 295 [explaining duty of further inquiry].)
3. The ICWA Error Was Not Harmless; Remand Is
Required for the Department and the Court To Correct
the Error
Due to the Department’s failure in the case at bar to
conduct the appropriate inquiry and the court’s failure to ensure
compliance with its order, we are left with Jerry’s ICWA-020
form declaring Indian ancestry, Jerry’s subsequent statement
denying Indian ancestry, and no explanation for his conflicting
responses. On this essentially silent record, we cannot know
within any degree of reasonable probability whether, had the
Department made the requisite effort to clarify the discrepancy
between Jerry’s two responses, it would have discovered
information necessitating further interviews and notice to one or
more Indian tribes. Although it is typically the appellant’s
burden to demonstrate prejudice (In re E.H. (2018)
26 Cal.App.5th 1058, 1072 [reviewing court evaluates violation of
a state law ICWA standard under the state law standard for
18
harmless error, that is, whether the appellant can show it is
reasonably probable he or she would have enjoyed a more
favorable result absent the error]; In re G.C. (2013)
216 Cal.App.4th 1391, 1400 [same]), when the silent record is
caused by the Department’s and the court’s failure to make the
appropriate inquiries, we simply cannot find the error harmless.
(See In re Gabriel G., supra, 206 Cal.App.4th at p. 1168
[conditionally reversing order terminating parental rights due to
Department’s and court’s failure to address father’s conflicting
responses about his Indian ancestry]; In re N.G. (2018)
27 Cal.App.5th 474, 484 [when the record is silent as to whether
the Department asked the mother or other maternal relatives
whether N.G. may have maternal Indian ancestry, ICWA error
was necessarily prejudicial]; cf. In re K.R. (2018) 20 Cal.App.5th
701, 708 [although it is generally the appellant’s burden to
demonstrate prejudice, in an ICWA matter on appeal, the parent
is in effect “acting as a surrogate for the tribe in raising
compliance issues on appeal”; “[a]ppellate review of procedures
and rulings that are preserved for review irrespective of any
action or inaction on the part of the parent should not be derailed
simply because the parent is unable to produce an adequate
record”]; but see In re A.C. (2021) 65 Cal.App.5th 1060, 1071-
12
1073.) Accordingly, remand is required for the Department and
the court to address these ICWA errors.
12
In In re A.C., supra, 65 Cal.App.5th 1060, the court of
appeal held the Department erred in failing to inquire whether
the father had Indian ancestry; but, because the father did not
claim on appeal to actually have Indian ancestry, the majority
found the error was harmless. (Id. at p. 1073, citing In re
Rebecca R. (2006) 143 Cal.App.4th 1425, 1430-1431.) As in In re
19
DISPOSITION
The disposition order granting Jerry monitored visitation
and otherwise denying him family reunification services is
conditionally affirmed. The matter is remanded to the juvenile
court for compliance with the duty of inquiry and, if applicable,
notice provisions under ICWA and related California law and for
further proceedings not inconsistent with this opinion.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
A.C., Jerry’s appeal is silent as to whether he actually has any
Indian ancestry, let alone whether Zachary is an Indian child.
Nevertheless, unlike the majority in In re A.C., we do not believe
that assertion is essential to finding the Department’s failure to
make the appropriate ICWA inquiry was prejudicial (see In re
A.C., at p. 1073 [explaining that, had father simply claimed
Indian ancestry, court would have found error prejudicial and
reversed]), particularly when, as we have discussed, a parent
may lack access to specific information without the Department’s
investigatory assistance. (See fn. 11, above.)
20