In re Clare M. CA1/2 ( 2023 )

Filed 3/1/23 In re Clare M. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re CLARE M., a Person Coming
Under the Juvenile Court Law.
MARIN COUNTY HEALTH AND
HUMAN SERVICES,
Plaintiff and Respondent, A165427
v.
(Marin County
G.L.,
Super. Ct. No. JV27036A)
Defendant and Appellant.
G.L. (Father) appeals from the juvenile court’s order terminating his
parental rights over his daughter Clare M. (Daughter). His sole contention is
that inquiry into Daughter’s possible Indian heritage under the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California
law (Welf. & Inst. Code, § 224 et seq.)1 was inadequate. We agree, and so we
will conditionally reverse the order and remand only for compliance with
ICWA and related California law, specifically for the Marin County Health
1 Undesignated statutory references are to the Welfare and Institutions
Code.
1
and Human Services (Department) to locate, if possible, the maternal
grandfather and interview him about Daughter’s possible Indian heritage,
and for the juvenile court to ensure that this inquiry is conducted.
BACKGROUND
A detailed recitation of the facts of these dependency proceedings is
contained in our prior unpublished opinion, In re Clare M. (Dec. 30, 2021,
A162576) [nonpub. opn.].2 We set forth only the facts relevant to the ICWA
issue raised on appeal.
In December 2020, the Department filed petitions alleging that
Daughter and her half-brother (Son) came within the jurisdiction of the
juvenile court under section 300, subdivision (b)(1), failure to protect. The
petitions alleged that abuse of alcohol by Mother made her unable to provide
regular care for the children, and that her violent and aggressive behavior
exhibited in front of the children made her unable to supervise and protect
them, with the result that there was a substantial risk that they would suffer
serious physical harm or illness. The petition as to Daughter alleged that
Father had failed to adequately supervise or protect Daughter, by failing to
provide her with regular care, or ensuring that her medical, dental, or basic
needs were met.
2 We granted Father’s request to take judicial notice of this court’s file
in that appeal. Now, on our own motion, we also take judicial notice of the
record filed in connection with writ proceedings initiated by Father and C.E.
(Mother) following the court’s order setting a section 366.26 hearing (G.L., et
al. v. Superior Court of Marin County (A163952)), proceedings that we
dismissed as abandoned. As the parties do, we will refer to the clerk’s and
reporter’s transcripts filed in the prior appeal as “PCT” and “PRT,”
respectively; the clerk’s transcript filed in the writ proceedings as “Writ CT”;
and the clerk’s and reporter’s transcripts filed in this appeal as “CT” and
“RT,” respectively.
2
According to the detention report, the family came to the Department’s
attention in early December 2020, after police officers conducted a welfare
check on the boat where Mother was living with her mother, Daughter, Son,
and her other daughter S.P., who is not a subject of these proceedings. The
police responded to a report of yelling and arguing from the boat. The
maternal grandmother explained that her husband (the maternal
grandfather) and Mother had gotten into a physical altercation in front of the
children.3 The police officers observed a lack of sanitation on the boat and
hazardous conditions on the dock near the boat. The children appeared not
to have bathed in several days, Mother was intoxicated and confrontational,
and she threatened that if social workers came to the boat, she would harm
them and shoot herself and the children.
As also documented in the detention report, Mother denied that she
was a member of a Native American Tribe, but claimed “that her grandfather
had Native American ancestry and was Esopus Lenape from the Algonquin
nation.” Father “stated that he is a federally Recognized Chief of the
Mendocino Indian Reservation” and that Daughter “is registered as a Native
American child under his registration number.”
3 It is unclear if the maternal grandfather also lived on the boat. The
report states that the Child Abuse Hotline, which informed the Department
of the police’s welfare check on the family, indicated that Mother and the
children recently had moved onto the boat with both the maternal
grandmother and maternal grandfather. However, the maternal
grandmother later told the social worker that the maternal grandfather “was
sleeping under a bridge because he was not welcome on the boat.” S.P. also
stated that the maternal grandfather “sleeps underneath a freeway.” The
Department’s subsequent six-month review report states that, according to
the Marin County Sheriff’s Office, the maternal grandfather was living in a
homeless encampment in a park in Sausalito, which is where Mother also
was living at one point during these proceedings.
3
The maternal grandmother stated that she, the maternal grandfather,
and Mother were not registered members of any Native American tribe. She,
however, reported that her family on her mother’s side may be part of the
Esopus Tribe, and that the maternal grandfather may be part of the
Cherokee Tribe on his mother’s side. The record does not show that the
Department asked the maternal grandfather about his, and thus Daughter’s,
possible Indian heritage.
The maternal grandmother also stated that Father was a registered
member of the Pomo Tribe in Mendocino County. The Department then
contacted 12 separate Pomo Tribes. One tribe stated it was unfamiliar with
Father or Daughter, and each of the remaining tribes stated it either had no
record of Father or Daughter or that Father and Daughter were not
registered with, or known members of, its tribe.
On December 15, the day of the detention hearing, Mother and Father
each submitted a “Parental Notification of Indian Status Form” (ICWA-020
form). Mother indicated that she may be a member of or eligible for
membership of federally recognized Indian tribe. Father wrote “Pomo” and
“Apache” as the tribes that he was a member of or eligible for membership in.
He also wrote, “I am a direct descendant of Cochise.” Father further stated
that he possessed an identification card indicating membership in the
“Mendocino Reservation.”
At the detention hearing, Father claimed he was the chief of the
Mendocino Indian Reservation. The Department countered that “the tribe
that he has named is not a federally recognized tribe,” a point Father
disputed. Father next asserted that his father was from the Pomo Tribe, and
that his mother and grandmother were registered with the Mescalero Apache
Tribe. Upon request of the court and the Department for information on the
4
paternal grandmother, Father was able to provide only her full name and
year of birth. Following further discussion, the court found there was reason
to believe Daughter is an Indian child and ordered the Department to
complete further inquiry. Additionally, the court ordered Daughter detained
and placed her in foster care.
On January 4, 2021, the Department filed its “1st ICWA Addendum” to
its earlier jurisdiction report. It stated it had recently contacted the ICWA
case manager of the Mescalero Apache Tribe and provided the name and
birth year of the paternal grandmother. The case manager stated there was
no record of her in the tribe’s membership records. The Department also sent
ICWA-030 form notices to the United States Department of the Interior’s
Bureau of Indian Affairs, the Bureau of Indian Affairs for the Sacramento
area, and the Mescalero Apache Tribe. The notices listed the names of the
parents; the maternal grandmother and grandfather; the paternal
grandmother and grandfather; two paternal great-great grandmothers; and
two paternal great-great grandfathers. With respect to the paternal
grandmother, the Department included her year of birth and under “Current
address,” wrote “Asked and unknown [¶] North Carolina.” As for the
maternal grandfather, the Department wrote “[d]oes not apply” when asked
to list a tribe or tribal membership, and therefore did not include his possible
affiliation with the Cherokee Tribe.
On January 5, the court held the jurisdiction hearing and sustained the
allegations of the petitions. At the conclusion of the hearing, Mother’s
counsel noted Mother’s request for the Department to consider her relatives
in San Jose as a possible placement for Daughter.
On January 21, the Department filed its disposition report. Father
continued to claim he was the chief of the Mendocino Indian Reservation.
5
The Department also explained it had multiple conversations with Father,
who “provided confusing information about his living situation, livelihood,
and tribal affiliation” and “declined to talk about his past . . . .” Father was
“dismissive of the [Department’s] requests to identify and speak to the
relatives or community members who he mention[ed] [were] supports to him
and who may be able to confirm his statements.” The Department also noted
Mother’s request at the jurisdiction hearing to consider her relatives in San
Jose as a possible placement for Daughter. However, Mother did not provide
further information regarding those relatives. In fact, Mother declined to
speak with the Department about the case as of the time of the report.
On January 26, the court held the initially scheduled dispositional
hearing. The court addressed the ICWA issue, beginning by stating that the
Mendocino Indian Reservation is not a federally recognized tribe.
Nonetheless, Father’s counsel noted Father’s insistence that his tribal
reservation is federally recognized and that he would provide documents to
support that claim. Counsel for Mother indicated “that [Mother’s] maternal
grandmother was 100 percent Esopus Lenape Algonquin Native American”
and “that her brother is [a] member of the tribe.” She gave the phone
number of her brother, whom she claimed could provide more information.
The court continued the hearing to February 11.
Pending that hearing, the Department submitted an addendum to its
disposition report. The Department spoke with Mother’s brother, who
confirmed that the Esopus Lenape Algonquin is the tribe from which he and
his family on his maternal grandmother’s side are descended. That tribe, he
explained, is part of the Lenape Nation of Pennsylvania, which is not
federally recognized; it was only recognized by the State of Pennsylvania.
The Department also asked Father for contact information of the tribal
6
elders or other contacts of the Mendocino Indian Reservation. In response,
Father stated he is the chief of the tribe and “you’re looking at him.” Based
on the information thus far in the case, the Department stated it did not
believe there was reason to know Daughter was an Indian child and
recommended that the court find that ICWA did not apply.
Father then filed his “Response to Disposition Report and Statement in
Support of Application of Indian Child Welfare Act.” Father argued that
ICWA applied to this case on the grounds that he resides on the Mendocino
Indian Reservation, which he insisted was a federally recognized tribe. In
support, he attached “relevant excerpts from the Executive Orders relating to
Indian Reserves, from May 14, 1855 to July 1, 1902,” as well as various land
maps.
On February 11, the court held the contested disposition hearing. It
stated it had reviewed Father’s written response to the disposition reports
and his supporting documentation. The court determined that Father failed
to establish he was a member of, or eligible for membership in, any federally
recognized tribe. The court also recounted the Department’s recent inquiries
of Mother’s brother, who confirmed his membership in a tribe, but that the
tribe also was not federally recognized. The court concluded, “[A]t this point
despite some very extensive efforts on the part of the Department and I think
on part of counsel—and I appreciate, Counsel, your efforts in making these
inquiries with your clients—we have not been able to identify eligibility
under [ICWA]. So at this time I’m making a finding that it does not apply.”
Turning to disposition, the court declared Daughter a dependent and
ordered reunification services for Mother only and paternity testing for
Father. Mother and Father appealed, with Father’s appeal not raising any
ICWA issue. (In re Clare M., supra, A162576.) We affirmed the dispositional
7
orders. (Ibid.)
On July 1, the Department submitted its “ICWA Addendum,” which
reported it had received responses to its ICWA-030 notices from various
tribes, including those named by the parents. The responses indicated that
Daughter was not a member or eligible for membership in any of the tribes.
On July 30, the Department filed its six-month status review report,
outlining its recent communications with Father’s brother and sister. The
brother stated that neither he nor his brother were Native American or had
any tribal membership. He also disclosed that the first name Father was
using in these proceedings was not his real name and that he uses a “fake
Indian ID” to receive government benefits. The brother added that Father
suffered from serious mental illness, that he had to limit his interactions
with him, and that he did not trust him with personal information or money.
Father’s sister also denied Native American ancestry or tribal membership,
and stated that Father has “mixed up stories his whole life.”
The court held the contested six-month review hearing over several
days in September and issued its findings and rulings on October 5. It
terminated Mother’s reunification services and set a section 366.26 hearing.
Mother and Father each filed a notice of intent to file a writ petition, but
because neither of them subsequently filed any petitions, we dismissed the
matter. (G.L., et al. v. Superior Court of Marin County, supra, A163952.)
Prior to the section 366.26 hearing, the Department reported that
during one virtual visit between Father and Daughter in December 2021,
Father brought two individuals without permission from the Department.
The individuals were noted to be Father’s relatives but were not identified.
On March 3, 2022, the court held the section 366.26 hearing over Zoom.
During the hearing, an individual using the name “Sister Who Walks With
8
Bears” joined the Zoom waiting room. The court paused the proceedings to
determine the identity of the individual, who then provided her name and
claimed she was “the ICWA representative for the Indian Child Welfare Act.”
Father’s counsel interjected, stating, without taking a position, that under
section 306.6, a non-federally recognized tribe could petition the court to be
allowed to participate in the proceedings. The court noted that no such
petition or request had been received and declined to allow the individual to
remain in the proceedings. Before leaving the proceedings, the individual
was asked to clarify which tribe she was appearing for. She responded she
was appearing for Father and that he was from several tribes of California.
The individual stated, “I’m the representative of all California tribes and the
Women’s Spiritual Leader, ICWA representative . . . it’s called, ‘Children
From the Four Directions.’ ” When asked again to specify a tribe, she stated,
“[Father] is, also, Pomo. I am Miwok.” She stated she was appearing for the
child who is of Pomo descent of Mendocino County, and reiterated she
brought several documents but did not know what to do with them. She was
then dismissed by the court from the proceedings, and the hearing was
continued.
At the section 366.26 hearing on May 11, Father requested another
continuance so that he could “provide full and complete documentation
regarding his ICWA status in the case.” The court denied the request, noting
that the ICWA issue had been addressed extensively and that father already
had the opportunity to present any relevant information.
The court ultimately terminated the parental rights of both parents
and identified adoption as the permanent plan for Daughter.
9
Father appealed.4 He filed an opening brief, and the Department, a
respondent’s brief. Father did not file a reply brief.
DISCUSSION
Father contends the Department and the juvenile court failed to fulfill
their duties to adequately inquire into Daughter’s possible ancestry pursuant
to California law implementing ICWA. We agree.
The Law
Congress enacted ICWA to address concerns regarding the separation
of Indian children from their tribes through adoption or foster care placement
with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).)
“ICWA established minimum standards for state courts to follow before
removing Indian children from their families and placing them in foster care
or adoptive homes.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.),
citing 25 U.S.C. § 1921; 25 C.F.R. § 23.106.) California has adopted statutes
and rules that “implement, interpret, and enlarge upon” ICWA. (In re S.B.
(2005) 130 Cal.App.4th 1148, 1157; see generally § 224 et seq.)
Under California law, the juvenile court and the Department “have an
affirmative and continuing duty to inquire whether a child for whom a
[dependency] petition . . . has been filed, is or may be an Indian child.”
(§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); see Isaiah W., supra,
1 Cal.5th at pp. 9, 14.)
“[S]ection 224.2 creates three distinct duties regarding ICWA in
dependency proceedings. First, from the [Department’s] initial contact with a
minor and his family, the statute imposes a duty of inquiry to ask all involved
persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).)
Mother has filed a separate appeal (A165575) that is currently
4
pending in this court.
10
Second, if that initial inquiry creates a ‘reason to believe’ the child is an
Indian child, then the [Department] ‘shall make further inquiry regarding the
possible Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry
results in a reason to know the child is an Indian child, then the formal notice
requirements of section 224.3 apply. (See § 224.2, subd. (c) . . . ; id.,
subd. (d) . . . ; § 224.3 . . .).” (D.S., supra, 46 Cal.App.5th at p. 1052.)
At issue here is the duty of initial inquiry. Under section 224.2
subdivision (b), the Department had a duty to ask, “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.” “Although commonly referred to as the
‘initial duty of inquiry,’ it ‘begins with the initial contact’ (§ 224.2, subd. (a))
and continues throughout the dependency proceedings. [Citation.]” (In re
J.C. (2022) 77 Cal.App.5th 70, 77.)
“Extended family members” include adults who are the 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);
§ 224.1, subd. (c) [adopting federal definition].)
The juvenile court must determine whether ICWA applies to the child’s
proceedings. (In re Y.W. (2021) 70 Cal.App.5th 542, 552.) “ ‘The juvenile
court may find ICWA does not apply following “proper and adequate further
inquiry and due diligence” by [the Department] because “there is no reason to
know whether the child is an Indian child” or because “the court does not
have sufficient evidence to determine that the child is or is not an Indian
child” ’ [citation], but the court may not find that ICWA does not apply when
11
the absence of evidence that a child is an Indian child results from a
[Department] inquiry that is not proper, adequate, or demonstrative of due
diligence.” (In re Josiah T. (2021) 71 Cal.App.5th 388, 408, citing In re D.F.
(2020) 55 Cal.App.5th 558, 570–571 [in turn citing § 224.2, subds. (g) and
(i)(2)].)
We review the juvenile court’s ICWA findings under the substantial
evidence test, but “where the facts are undisputed, we independently
determine whether ICWA’s requirements have been satisfied.” (D.S., supra,
46 Cal.App.5th at p. 1051.)5
The Juvenile Court’s ICWA Finding Was Error
As a preliminary matter, the Department “acknowledges and concedes
that a parent’s inaction in the juvenile court does not preclude appellate
review of the substantive issue of whether the ICWA applies . . . .” However,
the Department contends Father’s assertions are premised on a violation of
section 224.2, a state statute, rather than a violation of federal law under
ICWA; thus, the Department maintains Father forfeited his contention by
failing to raise the issue in the juvenile court or in his appeal from previous
orders. We disagree.
As our Supreme Court has explained, ICWA and the California laws
implementing it protect the interests of the Indian tribes “that are separate
and distinct” from those of the parents. (Isaiah W., supra, 1 Cal.5th at p. 13.)
Based on this reasoning, case law has held that “the parent’s failure to object
in the juvenile court to deficiencies in the investigation or noticing does not
5The Department agrees that the juvenile court’s factual
determinations are reviewed for substantial evidence, but argues that the
court’s finding regarding “the adequacy of an agency’s ICWA inquiry” is
reviewed for abuse of discretion, as opposed to de novo. Our conclusion in
this case would be the same under either standard.
12
preclude the parent from raising the issue for the first time on appeal.” (In re
K.R. (2018) 20 Cal.App.5th 701, 706 (K.R.); accord, In re A.R. (2022) 77
Cal.App.5th 197, 204.) Moreover, because the juvenile court’s duty to comply
with ICWA is ongoing until it is determined by the relevant tribe, following
adequate notice, that the child is not an Indian child (Isaiah W., at pp. 6, 11),
“the parent’s failure to appeal from an earlier order does not preclude the
parent from raising the issue of ICWA compliance in an appeal from a later
order, including an order terminating parental rights.” (K.R., supra, 20
Cal.App.5th at p. 706, citing Isaiah W., at pp. 6, 14–15.) It is thus
appropriate for us to consider Father’s ICWA challenge on appeal.
Turning to the merits, Father’s sole contention is that the Department
failed to satisfy its initial inquiry duty because it did not interview extended
family members—namely the maternal grandfather and the paternal
grandmother—and other unnamed maternal and paternal relatives about
Daughter’s potential Indian ancestry.
Father is correct that there is no evidence that the Department
interviewed the maternal grandfather, who reportedly was involved in the
physical altercation with Mother that prompted the initial child welfare
referral in this case. The maternal grandmother was in contact with the
Department and provided the maternal grandfather’s name, as well as her
belief that he had Cherokee heritage. As noted above, although it is unclear
if he lived with the maternal grandmother on the boat, the record indicates
that the maternal grandmother and law enforcement knew his whereabouts.
Yet, there is no information in the record that the Department made any
effort to contact the maternal grandfather to explore his possible Cherokee
heritage. The Department thus failed to satisfy its duty of inquiry under
section 224.2, subdivision (b).
13
Responsibility for this omission rests with not only the Department,
but also the juvenile court, because it failed to ensure the Department had
satisfied its duties of inquiry before finding ICWA did not apply. (Cf. In re
Rylei S. (2022) 81 Cal.App.5th 309, 320 [juvenile court had a duty to ensure
the child protective agency made the relevant inquiries and its failure to do
so was error].)
The Department does not deny it failed to interview the maternal
grandfather about potential Indian ancestry, but suggests it did not need to.
Relying on In re Ezequiel G. (2022) 81 Cal.App.5th 984 (Ezequiel G.), the
Department argues that it would be “absurd at best and impossible at worst”
to read section 224.2, subdivision (b) as requiring it to inquire “of every
member of a child’s extended family.” (Ezequiel G., supra, 81 Cal.App.5th at
p. 1006.) According to that case, “the focus of the court’s analysis should not
be on the number of individuals interviewed, but on whether the
[Department’s] ICWA inquiry has yielded reliable information about a child’s
possible tribal affiliation.” (Id. at p. 1009.) And here, the Department
suggests, its inquiries of Mother and her brother yielded reliable information
that the tribe which they claimed they were members or eligible to be
members of (the Lenape Nation of Pennsylvania) was not a federally
recognized tribe and thus not subject to ICWA. We are not persuaded.
In Ezequiel G., the court stated that “the key inquiry should be whether
the ICWA inquiry conducted has reliably answered the question at the heart
of the ICWA inquiry: Whether a child involved in a proceeding ‘is or may be
an Indian child’ . . . .” (Ezequiel G., supra, 81 Cal.App.5th at p. 1009.) Here,
the inquiry conducted of Mother and her brother did not conclusively answer
this question, because nothing they said undermined the maternal
grandmother’s statement that the maternal grandfather may have Cherokee
14
heritage. Mother and her brother claimed Indian heritage on the maternal
grandmother’s side; they did not address, much less deny, possible Indian
heritage on the maternal grandfather’s side. They also did not claim that the
Lenape Nation was the only tribe with which the family was affiliated.
Further, there is nothing to indicate that the maternal grandmother was not
a reliable source. In short, it was neither “absurd” nor “impossible” for the
Department to have interviewed the maternal grandfather about Daughter’s
possible Indian ancestry.
We reject, however, Father’s challenge with respect to the paternal
grandmother, whom the Department also did not interview. Unlike with the
maternal grandfather, the record is not silent as to the Department’s efforts
to locate and gather the relevant information from the paternal grandmother.
At the jurisdiction hearing, Father claimed his mother may be registered
with the Mescalero Apache Tribe. Upon request for her information by the
court and the Department, Father was able to provide only her name and
year of birth. In the ICWA-030 forms that the Department sent to the
Bureau of Indian Affairs and various tribes, the Department listed the
paternal grandmother’s name, and under “Current address,” wrote “Asked
and unknown . . . [¶] North Carolina.” With the limited information it had,
the Department then asked the ICWA case manager for the Mescalero
Apache Tribe whether the paternal grandmother was registered with the
tribe, to which the case manager responded the tribe had no record of her.
We thus may infer from the record that the Department did make an effort,
albeit an unsuccessful one, “to locate and interview [the paternal
grandmother] to obtain whatever information [she] may have as to
[Daughter’s] possible Indian status.” (K.R., supra, 20 Cal.App.5th at p. 709.)
To the extent Father argues the Department had a duty to inquire of
15
extended relatives whose contact information it could not obtain, case law
suggests the contrary. As some courts have put it, ICWA did not require the
Department “to ‘cast about’ for information or pursue unproductive
investigative leads” (D.S., supra, 46 Cal.App.5th at p. 1053), such as where,
for example, “parents ‘fail[ ] to provide any information requiring follow-
up’ . . . or refuse to talk to [the Department].” (In re A.M. (2020)
47 Cal.App.5th 303, 323 [agency’s failure to interview maternal relatives was
reasonable where the mother could not provide information about maternal
relatives, and no maternal relative appeared at any hearing or participated
in the matter].)6
The Error Was Not Harmless
Having found error with respect to the Department’s failure to
interview the maternal grandfather, we turn to the issue of prejudice.
The appellate courts are divided on what showing of prejudice warrants
reversal for ICWA inquiry errors, and the issue is currently pending before
our Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769 (Dezi C.), rev.
6 For similar reasons, we also reject Father’s claim the Department
should have inquired of certain maternal and paternal relatives. The
maternal relatives refer to Mother’s “relatives in San Jose” whom she asked
the Department to consider as a possible placement for Daughter. The
paternal relatives refer to two individuals whom Father brought to a visit
with Daughter without prior authorization. The record does not identify any
of these individuals or their relationship, if any, to Daughter. Thus, it is
unclear whether any of them qualify as an “extended family member” or a
necessary subject of ICWA inquiry under section 224.2, subdivision (b). The
record indicates that Mother, who at times declined to speak to the
Department about the case, failed to provide the names and contact
information of the relatives. As did Father, who was “dismissive” of the
Department’s requests for information on his relatives. As noted, ICWA did
not obligate the Department “to ‘cast about’ for information or pursue
unproductive investigative leads.” (D.S., supra, 46 Cal.App.5th at p. 1053.)
16
granted Sept. 21, 2022, S275578.)
Courts have employed varying standards when assessing deficiencies in
the duty of inquiry, holding, for instance, that: (1) deficient initial inquiry is
reversible per se (In re G.H. (2022) 84 Cal.App.5th 15, 32; In re A.R., supra,
77 Cal.App.5th at p. 207; see In re K.H. (2022) 84 Cal.App.5th 566, 617–618
(K.H.) [interpreting these cases as “involv[ing] records so undeveloped that
the inadequacy of the inquiry is readily apparent and there simply is no basis
on which to find substantial evidence would support a contrary conclusion”];
(2) deficient inquiry requires reversal where the record indicates that there
was readily obtainable information that was likely to bear meaningfully upon
whether the child is an Indian child (In re Benjamin M. (2021)
70 Cal.App.5th 735, 744 (Benjamin M.)); (3) deficient inquiry is harmless
unless the record contains information suggesting a “reason to believe” the
child is an Indian child (Dezi C., supra, 79 Cal.App.5th at p. 779); and
(4) deficient inquiry is harmless unless the record below demonstrates or the
parent on appeal makes an offer of proof or other affirmative assertion of
Indian heritage (the “presumptive affirmance” approach). (In re A.C. (2021)
65 Cal.App.5th 1060, 1069 (A.C.); accord, In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1430–1431 (Rebecca R.).)
The court in K.H. looked at the issue through a slightly different lens.
It explained that the relevant rights under ICWA belong to Indian tribes,
which have a statutory right to receive notice when an Indian child may be
involved so they can determine whether the child is an Indian child, and
“prejudice to those rights lies in the failure to gather and record the very
information the juvenile court needs to ensure accuracy in determining
whether further inquiry or notice is required.” (K.H., supra, 84 Cal.App.5th
at p. 591.) The question for the reviewing court is whether the trial court’s
17
discretionary determination of whether the agency conducted an adequate
and diligent ICWA inquiry is supported by substantial evidence, or whether
the agency’s efforts “fall so short of the mark that the evidence is patently
insufficient to support the court’s determination, and [the court] abuses its
discretion in finding the agency’s inquiry was proper, adequate, and
discharged with due diligence.” (Id. at p. 604.) Considering the appropriate
standard for reversal, the K.H. court concluded that “where the opportunity
to gather the relevant information critical to determining whether the child is
or may be an Indian child is lost because there has not been adequate inquiry
and due diligence, reversal for correction is generally the only effective
safeguard.” (Id. at p. 610.)
Father does not expressly endorse any one particular standard, but
argues that we “should eschew any suggestion by the department to apply
harmless error analysis to its failure to conduct a proper ICWA inquiry.” The
Department asserts that under any of the standards, the error was harmless.
Here, reversal is required under each of the harmless error rules except the
presumptive affirmance rule from cases such as A.C., which we decline to
follow for reasons we explain.
Numerous courts, including a different panel of the same court that
decided A.C., have criticized the presumptive affirmance approach. (See
K.H., supra, 84 Cal.App.5th at pp. 612–614; citing In re Y.M. (2022)
82 Cal.App.5th 901, 913–915; Dezi C., supra, 79 Cal.App.5th at pp. 777–778;
Benjamin M., supra, 70 Cal.App.5th at pp. 743–744; A.C., supra,
65 Cal.App.5th at pp. 1074–1078 (dis. opn. of Menetrez, J.).) As explained in
K.H., courts have found the approach “suffers from three main shortcomings”:
it would routinize consideration of new evidence on appeal, which is generally
disfavored; it shifts the burden of investigation onto parents in dependency
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proceedings; and it does not sufficiently serve the interests of the Native
American tribes because prejudicially deficient inquiries will go uncorrected
if an appealing parent is unwilling or unable to make a meaningful proffer on
appeal. (See K.H., at pp. 612–614 [and cited cases].) These criticisms are
well taken.
Moreover, essential to the prejudice inquiry in Rebecca R., a case
followed by A.C. and cases cited therein, was the fact that the father was
complaining on appeal that he was not asked about his Indian ancestry.
Thus, the court found it incumbent upon the father to demonstrate prejudice
on appeal by stating what he obviously knew. (Rebecca R., supra,
143 Cal.App.4th at p. 1431.) Here, in contrast, Father is the appealing
parent, and the issue is the ancestry of the other parent, namely of the
maternal grandfather. As such, unlike the situation in Rebecca R., we cannot
say that “[t]he knowledge of any Indian connection is a matter wholly within
the appealing parent’s knowledge. . . .” (Ibid.) Indeed, there is nothing in the
record to indicate that Father has any knowledge of Mother’s ancestry. As
explained in Benjamin M., if the presumptive affirmance rule is “read as
saying a parent must claim she herself has Indian ancestry, the rule would
apply to deny Mother relief because she has disclaimed such ancestry. If
read somewhat more broadly as saying a parent must claim the child has
Indian ancestry, then Mother could make that claim based only on knowledge
of Father’s ancestry, which she has no legal duty or necessary logical reason
to know.” (Benjamin M., supra, 70 Cal.App.5th at p. 745.) Thus, “the facts of
this case show why [the presumptive affirmance approach] is contrary to the
framework of ICWA and to the flexible, case-by-case approach that a
harmless error analysis usually entails.” (Ibid.)
For these reasons, we will move on to analyze the error here under the
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other prejudice standards. Ultimately, we need not choose among the
remaining standards because, under any of them, the error here was not
harmless.
Under the reversible per se approach, reversal would clearly be
required. Under Benjamin M., the Department’s deficient inquiry was not
harmless. As discussed, the record indicates that the maternal grandfather,
ostensibly, was accessible through the maternal grandmother with whom the
Department had contact, and that his responses would have borne
meaningful information on Daughter’s Indian status. (Benjamin M., supra,
70 Cal.App.5th at pp. 744–745.) The error also would not be harmless under
Dezi C., which stated that “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.” (Dezi C., supra, 79 Cal.App.5th at p. 779.)
Unlike in Dezi C., which found the deficient inquiry harmless where both
parents signed ICWA-020 forms attesting they had no Indian ancestry (id. at
p. 776), the record does not contain similar denials from Mother or Father.
Additionally, as explained, the maternal grandmother informed the
Department that the maternal grandfather may have Cherokee heritage.
The record thus discloses a “reason to believe” that a further inquiry might
lead to a different result. (Id. at p. 779.)
Finally, “where the opportunity to gather the relevant information
critical to determining whether the child is or may be an Indian child is lost
because there has not been adequate inquiry and due diligence, reversal for
correction is generally the only effective safeguard.” (K.H., supra,
84 Cal.App.5th at p. 610.) Under this standard, too, the error here cannot be
said to be harmless.
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DISPOSITION
The order terminating parental rights is conditionally reversed. The
matter is remanded with directions for the juvenile court and the
Department to comply with the inquiry and, if appropriate, notice provisions
of ICWA and related state law. If, after compliance with the law, the juvenile
court concludes ICWA does not apply, the order terminating parental rights
shall immediately be reinstated. If, after proper inquiry and notice to
applicable tribes, the court finds that ICWA does apply, the court shall
proceed in conformity with ICWA and related state law.
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_________________________
Richman, J.
We concur:
_________________________
Stewart, P.J.
_________________________
Markman, J. *
In re Clare M. (A165427)
*Superior Court of Alameda County, Judge Michael Markman, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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