In re Dezi C. ( 2022 )

Filed 6/14/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re DEZI C. et al., Persons B317935
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 19CCJP08030)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
ANGELICA A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin R. Kesler, Judge Pro Tempore. Affirmed.
Karen J. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
******
This juvenile dependency case presents what is
unfortunately becoming a common scenario. Both parents of the
two children at issue in this case repeatedly denied having any
American Indian heritage. While the case was ongoing, the social
services agency spoke with several of the parents’ relatives
(including the parents’ parents, their siblings and the father’s
cousin), but never asked those relatives whether the children had
any American Indian heritage. Nearly 30 months into the
proceedings and on appeal from the termination of her parental
rights, Angelica A. (mother) is for the first time objecting that the
agency did not discharge its statutory duty to “inquire” of
“extended family members” whether her children might be
“Indian child[ren]” within the meaning of our state’s broader
version of the federal Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1900 et seq.) (Welf. & Inst. Code, § 224.2, subd. (b)), and is
seeking a remand for the agency to conduct a more fulsome
inquiry on this topic.1 There is no dispute that the agency did not
properly discharge its statutory duty, and that there is therefore
“ICWA error.”
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
The question before us now is whether this error was
harmless and, more to the point, how harmlessness is to be
assessed where an agency has failed to conduct the statutorily
required initial inquiry into a dependent child’s American Indian
heritage. So far, the courts have developed three different
rules—at various points along a continuum—for assessing
harmlessness. In our view, the proper rule lies at a different
point on that continuum. We accordingly offer up a fourth rule:
An agency’s failure to discharge its statutory duty of initial
inquiry is harmless unless the record contains information
suggesting a reason to believe that the children at issue may be
“Indian child[ren],” in which case further inquiry may lead to a
different ICWA finding by the juvenile court. For these purposes,
the “record” means not only the record of proceedings before the
juvenile court but also any further proffer the appealing parent
makes on appeal.
Because the record in this case contains the parents’
repeated denials of American Indian heritage, because the
parents were raised by their biological relatives, and because
there is nothing else in the record to suggest any reason to
believe that the parents’ knowledge of their heritage is incorrect
or that the children at issue might have American Indian
heritage, we conclude that the agency’s error in this case was
harmless and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Mother and Luis C. (father) have two children—Dezi C.
(born May 2016) and Joshua C. (born April 2018).
On November 6, 2019, mother and father got into a verbal
fight. After father threatened to kill mother, mother struck
3
father with a broomstick while father was holding then-toddler
Joshua in his arms. This was not the first such incident between
the parents.
Both mother and father also have longstanding issues with
substance abuse. Mother has been using methamphetamine for
more than seven years; father also uses.
II. Procedural Background
A. Petition, adjudication and termination of
parental rights
On December 17, 2019, the Los Angeles Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
Dezi and Joshua on the basis of (1) mother’s and father’s history
of domestic violence (rendering jurisdiction appropriate under
subdivisions (a) and (b)(1) of section 300), and (2) mother’s and
father’s drug abuse (rendering jurisdiction appropriate under
subdivision (b)(1) of section 300).2
On February 19, 2020, the juvenile court held a combined
jurisdictional and dispositional hearing. The court sustained the
domestic violence and substance abuse allegations under
subdivision (b)(1), struck the domestic violence allegation under
subdivision (a), removed the children from the parents’ custody,
and ordered the Department to provide both parents with family
reunification services in accordance with a “case plan” developed
for each parent.
At a six-month review hearing on August 26, 2020, the
juvenile court concluded that mother and father were not in
2 The petition also alleged that father had failed to protect
the children by allowing mother to remain in the family home,
but that allegation was dismissed.
4
compliance with their case plans, terminated reunification
services, and set the matter for a permanency planning hearing
under section 366.26.
On January 18, 2022, the juvenile court held the
permanency planning hearing. After concluding that the
children were adoptable and likely to be adopted by their
paternal grandparents, the court terminated mother’s and
father’s parental rights.
B. ICWA-related facts
In December 2019, mother and father told a Department
social worker that they had no American Indian heritage. The
next day, mother and father filled out ICWA-020 forms, and
checked the box indicating that they had no American Indian
heritage “as far as [they knew].” At the hearing on whether to
initially detain the children, mother and father told the juvenile
court that they had no American Indian heritage.
While investigating the allegations in this case, the
Department’s social workers spoke to father’s parents (the
paternal grandparents), mother’s parents (the maternal
grandparents), father’s siblings, mother’s siblings, and one of
father’s cousins. The social workers did not ask any of these
individuals whether mother, father, or the children had any
American Indian heritage.
The juvenile court found “[no] reason to know that this is
an Indian child, as defined under ICWA.”
C. Appeal
Mother filed this timely appeal from the termination of her
parental rights.
5
DISCUSSION
Mother argues that the order terminating her parental
rights must be reversed because the Department failed to comply
with its duty under ICWA and related California provisions to
initially inquire of “extended family members” regarding Dezi’s
and Joshua’s possible American Indian heritage.3 It is
undisputed that the Department’s initial inquiry was deficient:
As discussed more fully below, the initial duty of inquiry
mandated by California’s version of ICWA obligates the
Department to question “extended family members” about a
child’s possible American Indian heritage (§ 224.2, subd. (b));
here, the Department spoke with several members of mother’s
and father’s extended families, but did not question them about
the children’s possible heritage. The question thus becomes: Did
the Department’s defective initial inquiry in this case render
invalid the juvenile court’s subsequent finding that ICWA does
not apply (and thus render invalid the court’s concomitant order
terminating mother’s parental rights)?
“[W]e review the juvenile court’s ICWA findings under the
substantial evidence test, which requires us to determine if
reasonable, credible evidence of solid value supports” the court’s
ICWA finding. (In re A.M. (2020) 47 Cal.App.5th 303, 314
3 We reject the Department’s argument that we lack
appellate jurisdiction to entertain mother’s challenge to the
juvenile court’s ICWA finding. Appeals are taken from orders (or
judgments), not from factual findings relating to issues
necessarily bound up in those orders (or judgments). Thus,
mother’s appeal from the order terminating her parental rights
necessarily encompasses the ICWA findings bound up in that
order. Mother’s failure to mention ICWA in her notice of appeal
is accordingly irrelevant.
6
(A.M.).) Where, as here, there is no doubt that the Department's
inquiry was erroneous, our examination as to whether
substantial evidence supports the juvenile court’s ICWA finding
ends up turning on whether that error by the Department was
harmless—in other words, we must assess whether it is
reasonably probable that the juvenile court would have made the
same ICWA finding had the inquiry been done properly. (People
v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) If so, the error is
harmless and we should affirm; otherwise, we must send it back
for the Department to conduct a more fulsome inquiry.
I. The Three Current Rules
At this point in time, the California courts have staked out
three different rules for assessing whether a defective initial
inquiry is harmless. These rules exist along a “continuum.” (In
re A.C. (2022) 75 Cal.App.5th 1009, 1011 (A.C. 2022).) The rule
at one end of this continuum is one that mandates reversal: If
the Department’s initial inquiry is deficient, that defect
necessarily infects the juvenile court’s ICWA finding and reversal
is automatic and required (the “automatic reversal rule”). (In re
J.C. (2022) 77 Cal.App.5th 70, 80-82 (J.C.); In re Antonio R.
(2022) 76 Cal.App.5th 421, 432-437 (Antonio R.); In re A.R. (2022)
77 Cal.App.5th 197, 205 (A.R.); In re H.V. (2022) 75 Cal.App.5th
433, 438; In re Y.W. (2021) 70 Cal.App.5th 542, 556; accord, In re
N.G. (2018) 27 Cal.App.5th 474, 484-485 (N.G.); In re K.R. (2018)
20 Cal.App.5th 701, 708-709.) Under this test, reversal is
required no matter how “slim” the odds are that further inquiry
on remand might lead to a different ICWA finding by the juvenile
court. (Antonio R., at p. 435.) The rule at the other end of the
continuum is one that presumptively favors affirmance: If the
Department’s initial inquiry is deficient, that defect will be
7
treated as harmless unless the parent comes forward with a
proffer on appeal as to why further inquiry would lead to a
different ICWA finding (the “presumptive affirmance rule”). (In
re A.C. (2021) 65 Cal.App.5th 1060, 1065, 1071 (A.C. 2021);
accord, In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431
(Rebecca R.).) The third rule lies in between: If the Department’s
initial inquiry is deficient, that defect is harmless unless “the
record indicates that there was readily obtainable information
that was likely to bear meaningfully upon whether the child is an
Indian child” and that “the probability of obtaining meaningful
information is reasonable” (“the readily obtainable information
rule”). (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744
(Benjamin M.); In re Darian R. (2022) 75 Cal.App.5th 502, 509-
510 (Darian R.); In re S.S. (2022) 75 Cal.App.5th 575, 581-583
(S.S.); A.C. 2022, at p. 1015.)
This diversity of rules is understandable. That is because
courts are grappling with how to assess how the absence of
information (that is, answers to the questions about American
Indian heritage that the agency never asked) might affect the
juvenile court’s ICWA finding. (E.g., Benjamin M., supra, 70
Cal.App.5th at pp. 742-743 [“we cannot know what information
an initial inquiry, properly conducted, might reveal”]; N.G.,
supra, 27 Cal.App.5th at p. 485 [“we simply cannot know whether
[the agency] would have discovered information” bearing on
American Indian heritage].) Where there is an absence of
information or proof, courts typically look to burdens of proof as
the “tie-breaker”: When the party assigned the burden of proof
does not produce sufficient information, that party loses.
(Fukuda v. City of Angels (1999) 20 Cal.4th 805, 821; Sargent
Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1666-
8
1667; Evid. Code, § 115.) Not surprisingly, the current
disagreement over which rule to apply largely reduces down to a
disagreement over where to assign the burden of proof. Courts
adhering to the automatic reversal rule put the burden of proof
on the agency to show that its failure to ask questions would be
harmless, a burden the agency will never be able to carry
because, by definition, it is impossible to know the answers to
unasked questions. (N.G., at pp. 484-485.) Courts adhering to
the presumptive affirmance rule put the burden of proof on the
objecting parent to show—through a proffer—that there is some
information out there that, if obtained through inquiry, might
alter the juvenile court’s ICWA finding. (A.C. 2021, supra, 65
Cal.App.5th at p. 1070.) The third rule largely avoids the issue
by focusing mostly on what is already in the record, thereby
reducing the importance of who bears the burden of proof.
Despite this diversity of rules—and, indeed, perhaps
because we have had the benefit of considering these rules—we
propose a fourth rule for assessing harmlessness, explain why we
believe this fourth rule is preferable, and explain why we
respectfully decline to adopt any of the three previously
formulated rules.
II. A Fourth Rule: The “Reason To Believe” Rule and Its
Rationale
In our view, an agency’s failure to conduct a proper initial
inquiry into a dependent child’s American Indian heritage is
harmless unless the record contains information suggesting a
reason to believe that the child may be an “Indian child” within
the meaning of ICWA, such that the absence of further inquiry
was prejudicial to the juvenile court’s ICWA finding. For this
purpose, the “record” includes both the record of proceedings in
9
the juvenile court and any proffer the appealing parent makes on
appeal.4 To illustrate, a reviewing court would have “reason to
believe” further inquiry might lead to a different result if the
record indicates that someone reported possible American Indian
heritage and the agency never followed up on that information; if
the record indicates that the agency never inquired into one of
the two parents’ heritage at all (e.g., Benjamin M., supra, 70
Cal.App.5th at p. 740); or if the record indicates that one or both
of the parents is adopted and hence their self-reporting of “no
heritage” may not be fully informed (e.g., A.C. 2022, supra, 75
Cal.App.5th at pp. 1015-1016).
We adopt this “reason to believe” rule for three reasons.
First, the “reason to believe” rule weaves together the test
for harmless error compelled by our State’s Constitution5 with
the cascading duties of inquiry imposed upon agencies by our
State’s ICWA statutes.
Our Constitution specifies that a judgment may not be “set
aside” unless it “has resulted in a miscarriage of justice” (Cal.
Const., art. VI, § 13), and our Supreme Court has defined a
4 Considering such proffers in this context is appropriate
under Code of Civil Procedure section 909. (In re Allison B. (May
27, 2022, B315698) [2022 Cal.App.Lexis 465, *6-9] [so holding].)
5 We look to the California standard for harmlessness
because the initial duty of inquiry at issue in this case—that is,
the Department’s obligation to ask the child’s “extended family”
under section 224.2, subdivision (b)—is purely a creature of
California law, as it goes beyond the federal duty to inquire of
“participants” in the juvenile court proceeding (25 C.F.R., §
23.107(a) (2022)). (Accord, A.C. 2021, supra, 65 Cal.App.5th at
pp. 1069-1070; Benjamin M., supra, 70 Cal.App.5th at pp. 741-
742.)
10
“miscarriage of justice” as existing only when “it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of error” (Watson, supra,
46 Cal.2d at p. 836, italics added). Thus, our State’s test for
harmlessness is an outcome-focused test.
ICWA was enacted to curtail “the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement” (Miss. Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32), and “to
promote the stability and security of Indian tribes and families by
establishing . . . standards that a state court . . . must follow
before removing an Indian child from his or her family” (In re
Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.); In re Isaiah
W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.)). Under the ICWA and
California statutes our Legislature enacted to implement it (§§
224-224.6), as recently amended, a juvenile court—and, as its
delegate, the Department—have duties all aimed at assessing
whether a child in a pending dependency case is an “Indian child”
entitled to the special protections of ICWA. (§§ 224.2, 224.3,
added by Stats. 2018, ch. 833, §§ 5, 6; A.M., supra, 47 Cal.App.5th
at pp. 320-321 [applying ICWA law in effect at time of order
appealed from].)6 Under ICWA as amended, the Department and
6 For these purposes, an “‘Indian child’” is a child who (1) is
“a member of an Indian tribe,” or (2) “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, subd. (a) [adopting
federal law definition].) By its terms, this definition turns “‘on
the child's political affiliation with a federally recognized Indian
Tribe,’” not “necessarily” “the child's race, ancestry, or ‘blood
11
juvenile court have “three distinct duties.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1052 (D.S.) [noting amendment's creation of
three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-884
[same].) The first duty is the initial “duty” of the Department
and the juvenile court “to inquire whether [a] child is an Indian
child.” (§ 224.2, subds. (a) & (b).) The Department discharges
this duty chiefly by “asking” family members “whether the child
is, or may be, an Indian child.” (Id., subd. (b).) This includes
inquiring of not only the child’s parents, but also others,
including but not limited to, “extended family members.” (Ibid.)
For its part, the juvenile court is required, “[a]t the first
appearance” in a dependency case, to “ask each participant”
“present” “whether the participant knows or has reason to know
that the child is an Indian child.” (Id., subd. (c).) The second
duty is the duty of the Department or the juvenile court to “make
further inquiry regarding the possible Indian status of the child.”
(Id., subd. (e).) This duty of further inquiry is triggered if the
Department or court “has reason to believe that an Indian child is
involved” because the record contains “information . . . suggesting
the child is Indian” (ibid.; D.S., at p. 1049; In re Levi U. (2000) 78
Cal.App.4th 191, 198, superseded by statute on another ground
as stated in In re B.E. (2020) 46 Cal.App.5th 932, 940), and, once
triggered, obligates the Department to conduct further interviews
to gather information, to contact the Bureau of Indian Affairs and
state department of social services for assistance, and/or to
contact the relevant Indian tribe(s). (§ 224.2, subd. (e)(2).) The
third duty is the duty to notify the relevant Indian tribe(s). (§
quantum.’” (Austin J., supra, 47 Cal.App.5th at p. 882, quoting
81 Fed.Reg. 38801-38802 (June 14, 2016).)
12
224.3, subd. (a); 25 U.S.C. § 1912(a).) This duty is triggered if the
Department or the court “knows or has reason to know . . . that
an Indian child is involved.” (§ 224.3, subd. (a).)
Because the governing test for harmlessness is outcome
focused, adapting that test to the situation in this case means
courts should focus on whether it is reasonably probable that an
agency’s error in not conducting a proper initial inquiry affected
the correctness (that is, the outcome) of the juvenile court’s ICWA
finding. As noted above, ICWA already provides a standard for
assessing whether further inquiry is necessary after an initial
inquiry—namely, if the initial inquiry provides a reason to
believe that the child is an Indian child because the record
contains “information . . . suggesting the child is Indian.” This
standard reserves further inquiry for those cases in which such
inquiry may affect the juvenile court’s ultimate ICWA
determination. Because the question before us in assessing
harmlessness is also whether further inquiry would affect the
juvenile court’s ICWA finding, the “reason to believe” standard is
the logical standard to apply.
Second, the “reason to believe” rule also best reconciles the
competing policies at issue when an ICWA objection is asserted
in later at the final phases of the dependency proceedings. As
noted above, ICWA’s inquiry and notice requirements “are, at
their heart, . . . about effectuating the rights of Indian tribes” by
ensuring that the juvenile court determines whether a child may
be an actual or potential member of an Indian tribe and by
thereafter giving the pertinent tribe(s) the opportunity to make
the final determination of tribal status. (Benjamin M., supra, 70
Cal.App.5th at pp. 740-742; Isaiah W., supra, 1 Cal.5th at p. 12;
In re Hunter W. (2011) 200 Cal.App.4th 1454, 1468.) Competing
13
against that policy is the dependent child’s interest in avoiding
delay and the instability that comes from having the final
determination of his or her permanent placement remain “up in
the air.” (A.R., supra, 77 Cal.App.5th at p. 207 [“prompt
resolution of [dependency] cases based on the children’s need for
permanency remains a significant consideration in . . . juvenile
dependency cases”].) Also in the mix is the judicial branch’s
interest in ensuring that the agency “gets the message” that it is
critical to conduct a proper initial inquiry (ibid.), as well as the
branch’s interest in discouraging game playing by parents who
hold back any objection to the adequacy of the agency’s inquiry
until an appeal of the termination of their parental rights in the
hopes of delaying the finality of that termination (ibid.; Rebecca
R., supra, 143 Cal.App.4th at p. 1431). In our view, none of these
policies trumps all the others; instead, they must all be honored.
By limiting a remand for further inquiry to those cases in which
the record gives the reviewing court a reason to believe that the
remand may undermine the juvenile court’s ICWA finding, the
“reason to believe” rule effectuates the rights of the tribes in
those instances in which those rights are most likely at risk,
which are precisely the cases in which the tribe’s potential rights
do justify placing the children in a further period of limbo. The
“reason to believe” rule also removes the incentive to use ICWA
as a thirteenth-hour delay tactic and, by allowing parents to cite
their proffers on appeal as well as the juvenile court record, still
sends a “message” to agencies that ICWA’s mandates are not to
be ignored because remand will be ordered in any case where
there is reason to believe the failure to inquire mattered.
Third and lastly, the “reason to believe” rule, by focusing on
what is in the record rather than what is not in the record,
14
largely sidesteps the “how can we know what we don’t know” and
burden of proof conundrums that animate the automatic reversal
and presumptive affirmance rules.
III. Rejecting the Other Rules
We decline to adopt the other three rules currently in use
by the appellate courts for the reasons set forth below.
A. The automatic reversal rule
We decline to adopt the automatic reversal rule because we
disagree with its rationale and because it inevitably leads to what
we believe are undesirable consequences.
The cases adopting the automatic reversal rule appear to
rest on two alternative rationales—namely, that (1) it is critical
that the juvenile court be certain whether a dependent child may
be an Indian child, and this need for certainty requires that an
agency never be excused from conducting the full inquiry
mandated by our State’s ICWA statutes, and (2) even if
something less than certainty is required, remand for a full
inquiry mandated by the ICWA statutes is required because
whatever the child’s parents say about their American Indian
heritage is inherently suspect (J.C., supra, 77 Cal.App.5th at p.
81 [“it is not uncommon for parents to mistakenly disclaim (or
claim) Indian ancestry”]; Antonio R., supra, 76 Cal.App.5th at p.
432 [parents may lie because they are ‘“fearful to self-identify”’]),
and because it is impossible to know what information the
extended family might have unless those family members are
asked.
The rationale that ICWA demands certainty appears to rest
on three interlocking premises: (1) our Supreme Court held in
Isaiah W. that the interest of the tribes in the proper
determination of a dependent child’s status as an Indian child is
15
paramount and trumps all other competing policy considerations
(see Isaiah W., supra, 1 Cal.5th at p. 12 [“the federal and state
[ICWA] statutes were clearly written to protect the integrity and
stability of Indian tribes despite the potential for delay in placing
the child,” italics added]; see A.C. 2022, supra, 75 Cal.App.5th at
pp. 1016, 1019); (2) a tribe always has the right to collaterally
attack a final judgment terminating parental rights, and the only
way to stave off such collateral attacks is to remand to conduct a
proper inquiry prior to the entry of judgment (Antonio R., supra,
76 Cal.App.5th at pp. 436-437; A.R., supra, 77 Cal.App.5th at pp.
202, 207-208); and (3) the only way to get agencies to take
seriously their statutory ICWA duties is to reverse in every case
when they shirk them because, otherwise, their inaction is
rewarded given that the less information an agency learns, the
more likely its defective analysis will be found to be harmless
(J.C., supra, 77 Cal.App.5th at p. 80).
We reject each of these premises. Although Isaiah W.
states that ICWA values the “integrity and stability of Indian
tribes” despite possible delay in permanency, the question
presented in that case was whether a parent’s failure to appeal a
juvenile court’s ICWA finding in a prior appeal precluded the
parent from appealing that finding after the final judgment
terminating parental rights. (Isaiah W., supra, 1 Cal.5th at pp.
7-10.) Thus, the issue in Isaiah W. was whether an appellate
court could examine the ICWA issue at all; Isaiah W. had no
occasion to hold—and did not purport to hold—that ICWA errors,
once examined, could never be harmless. To be sure, a tribe
maintains a right to collaterally attack a final judgment. But
that right is akin to a criminal defendant’s right to collaterally
attack his final judgment of conviction, and courts have never
16
viewed the possibility of such collateral attacks as warranting a
rule of automatic reversal for all errors raised during the direct
appeal of a criminal conviction. There is similarly no justification
for one here. And our Supreme Court has rejected the notion
that reversal is necessary to incentivize agencies to do a better
job: “[T]he price that would be paid for” the “added incentive” of
“treating [an] error as . . . structural” (and hence automatically
reversible), “in the form of needless reversals of dependency
judgments, is unacceptably high in light of the strong public
interest in prompt resolution of these cases so that the children
may receive loving and secure home environments as soon as
reasonably possible.” (In re James F. (2008) 42 Cal.4th 901, 918.)
Further, the notion that inaction will be rewarded ignores that
inaction affecting the soundness of the juvenile court’s ICWA
finding will be prejudicial: If an agency fails entirely to ask the
parents about their possible American Indian heritage, as noted
above, there is “reason to believe” the parents may have such
heritage and the agency’s inaction will demand remand.
We are also unpersuaded by the alternate rationale that
failing to remand for further inquiry yields too great a probability
that a dependent child may be an Indian child because parents’
reports of their American Indian heritage cannot be trusted and
because it is not known what information other relatives might
have provided. We decline to adopt a rule that obligates us to
view with a jaundiced eye whatever parents report about their
heritage, at least in the usual case where the parents were not
adopted and thus can be presumed to be knowledgeable. (Accord,
Rebecca R., supra, 143 Cal.App.4th at p. 1431 [“The knowledge of
any Indian connection is a matter wholly within the appealing
parent’s knowledge . . . .”].) Further, and as noted above, we
17
prefer the traditional approach to evaluating harmlessness,
which looks to what is in the record (or proffered by the parent on
appeal) rather than speculating about what might have been
placed in the record.
In addition, the automatic reversal rule leads to what we
view as three undesirable consequences.
First, it encourages parents to “game the system.” The
usual rule of procedure is that an error is forfeited if it is not
raised, which creates an incentive to object as early as possible
and thus helps ensure that errors can be fixed before the
litigation is completed in the trial court. (E.g., People v. Nieves
(2021) 11 Cal.5th 404, 451.) The automatic reversal rule perverts
that incentive: If parents know that they are guaranteed an
automatic remand based on an agency’s failure to engage in a full
inquiry as required by ICWA, they have every incentive not to
object when they observe deficiencies in the agency’s inquiry. By
remaining silent, they “keep[] an extra ace up their sleeves” that
will, at a minimum, guarantee a remand that forestalls the
finality of the final judgment in the dependency case and, indeed,
may even derail arranged adoption of the dependent children if
the prospective adoptive parents cannot abide that additional
delay. (In re H.B. (2008) 161 Cal.App.4th 115, 122; Rebecca R.,
supra, 143 Cal.App.4th at p. 1431.) In this respect, the automatic
reversal rule gives rise to the “very evil the Legislature intended
to correct”—namely, “lengthy and unnecessary delay in providing
permanency for children.” (In re Marilyn H. (1993) 5 Cal.4th 295,
310.)
Second, the rule—in conjunction with the breadth of the
duty of initial inquiry under section 224.2—may yield a
seemingly endless feedback loop of remand, appeal, and remand.
18
Section 224.2 does not limit the duty of initial inquiry to
“extended family members.” Instead, an agency’s duty “includes,
but is not limited to, 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.” (§ 224.2, subd. (b), italics added.) Because the
automatic reversal rule mandates remand if any stone is left
unturned, and because section 224.2 creates an open-ended
universe of stones, the rule ostensibly empowers the party to
obtain a remand to question extended family members, then a
second remand to question the family babysitter, and then a third
remand to question long-time neighbors, and so on and so on.
Lastly, the automatic reversal rule seemingly elevates
ICWA above the constitutional mandate that reversal is only
required when there would be a miscarriage of justice. But it is
well settled that constitutional provisions trump statutory law,
not the other way around. (E.g., County of Los Angeles v.
Commission on State Mandates (2007) 150 Cal.App.4th 898, 904.)
B. The presumptive affirmance rule
We decline to adopt the presumptive affirmance rule
because, by focusing on what a parent proffers on appeal, it
ignores that the juvenile court record may provide a reason to
believe that the juvenile court’s ICWA finding is incorrect and
that further inquiry is warranted. Where, for instance, a parent
is never asked about his or her American Indian heritage or the
parent’s answer is of less value because the parent is adopted, the
presumptive affirmance rule would mandate affirmance in the
absence of proffer, even though, in our view, there is on those
facts reason to believe the child may be an Indian child. By
placing the onus solely on the parent to come forward with a
19
proffer of information likely to be obtained on remand, the
presumptive affirmance rule not only embraces finality at the
expense of the tribe’s interest in ascertaining accurate
determinations of the Indian status of dependent children, but
does too little to incentivize agencies to conduct proper inquiries
because prejudicially deficient inquires will go uncorrected if the
parent is unwilling or unable to make a meaningful proffer on
appeal.
C. The readily obtainable information rule
Although this third rule is the closest in approach to the
reason to believe rule we adopt, we nevertheless reject it for two
reasons.
First, this rule focuses on whether “there was readily
obtainable information . . . likely to bear meaningfully upon
whether the child is an Indian child” and the “probability of
obtaining meaningful information.” (Benjamin M., supra, 70
Cal.App.5th at p. 744.) Because this rule focuses on the ease of
obtaining information that bears on the question of a child’s
Indian status rather than whether that information is likely to
affect the juvenile court’s ICWA finding, this rule lacks the
outcome-focus that is the hallmark of usual harmlessness review.
Second, this rule appears to be so flexible and malleable
that some courts—and, indeed, mother in this case—have argued
that it functions as a type of automatic reversal rule.
Specifically, mother argues here that the Department had
“readily obtainable information . . . likely to bear meaningfully
upon whether [Dezi and Joshua]” were Indian children because
the Department could have easily interviewed mother’s and
father’s relatives about the children’s Indian heritage when they
questioned them on other topics. The Department’s failure to do
20
so, mother concludes, is grounds for automatic reversal. The
same analysis has been hinted at in J.C., supra, 77 Cal.App.5th
at page 82, and Antonio R., supra, 76 Cal.App.5th at pages 426,
436-437. The uncertainty of the meaning and breadth of this rule
has led at least one judge to comment that the rule “merely
shifts” “the battleground” to the appellate courts, where there
will be skirmishes over whether information was readily
obtainable. (A.C. 2022, supra, 75 Cal.App.5th, at p. 1020, fn. 4
(dis. opn. of Crandall, J.).)
IV. Application
The record in this case does not provide a “reason to
believe” that Dezi and Joshua are Indian children. Both mother
and father attested—to the Department, on an official form, and
to the juvenile court during their initial appearances—that they
had no Indian heritage. Mother and father grew up with their
biological family members. Mother points to nothing else in the
juvenile court’s record indicating that she or father has any
American Indian heritage. And mother makes no proffer on
appeal that either parent has any such heritage. In these
regards, the facts of this case are nearly identical to those of
Darian R., supra, 75 Cal.App.5th 502, and S.S., supra, 75
Cal.App.5th 575. Although these other cases applied the readily
obtainable information test, they came to the same conclusion as
we do under the reason to believe test we adopt today: No
remand is warranted.
21
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
22