In re Y.W. ( 2021 )

Filed 10/19/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Y.W. et al., Persons Coming B310566
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 19CCJP04000A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DESHAWN W. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Daniel Zeke Zeidler, Judge. Conditionally affirmed with
directions.
Jill Smith, under appointment by the Court of Appeal, for
Defendant and Appellant Deshawn W.
Christopher Blake, under appointment by the Court of
Appeal, for Defendant and Appellant Clairessa M.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel and Aileen Wong, Senior Deputy
County Counsel for Plaintiff and Respondent.
_______________________________
INTRODUCTION
Deshawn W. and Clairessa M. appeal from the juvenile
court’s orders terminating their parental rights under Welfare
and Institutions Code section 366.26.1 They argue the juvenile
court and the Los Angeles County Department of Children and
Family Services failed to comply with the inquiry and notice
requirements of the Indian Child Welfare Act (25 U.S.C. § 1901et seq.) (ICWA).
Disagreeing with the court’s narrow view of the duty of
inquiry under ICWA in In re Austin J. (2020) 47 Cal.App.5th 870and the court’s broad view of harmless error in In re A.C. (2021)
65 Cal.App.5th 1060, we conclude that Deshawn’s and Clairessa’s
contentions have merit and that the juvenile court erred in ruling
ICWA did not apply. Therefore, we conditionally affirm the
juvenile court’s orders terminating Deshawn’s and Clairessa’s
parental rights, with directions to ensure the Department
complies with the inquiry and notice provisions of ICWA and
related California law.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Proceedings
On June 24, 2019 the Department filed a petition under
section 300, subdivisions (b)(1) and (j), alleging Deshawn’s and
Clairessa’s history of substance abuse and current use of
marijuana placed their one-year-old son, Y.W., and one-month-
old daughter, Y.G.,2 at risk of serious physical harm. The
Department learned about the family when Clairessa and Y.G.
both tested positive for marijuana when Y.G. was born. The
Department subsequently learned that Deshawn and Clairessa
smoked marijuana regularly and that Y.W. had also tested
positive for marijuana when he was born in 2018. The juvenile
court detained the children from Deshawn and Clairessa, and
placed them in foster care.
At the August 8, 2019 jurisdiction and disposition hearing
the juvenile court sustained the petition and declared Y.W. and
Y.G. dependents of the court under section 300,
subdivisions (b)(1) and (j).3 The court found that there was a
substantial danger and risk of detriment to the health, safety,
protection, or physical or emotional well-being of the children if
they were to remain in the home of their parents, that the
Department made reasonable efforts to prevent removal, and
that there were no services available to prevent further
2 We will refer to the younger child by the first and fourth
letter of her first name because the initials of her first and last
name, and the first three letters of her first name, are the same
as Y.W.’s.
3 For Clairessa, the court sustained counts under section
300, subdivisions (b)(1) and (j); for Deshawn, the court sustained
counts under section 300, subdivision (b)(1).
3
detention. The court removed the children from the custody of
Deshawn and Clairessa and ordered suitable placement for them.
The court also ordered Deshawn and Clairessa to complete
substance abuse and domestic violence programs and to have
monitored visitation with the children.
At the February 26, 2020 six-month review hearing the
juvenile court found Deshawn and Clairessa had “minimally
complied” with their case plans. The court terminated
reunification services and set the case for a selection and
implementation hearing under section 366.26. On January 12,
2021 the juvenile court held the hearing under section 366.26 to
select a permanent plan for the children.4 The court found that
returning the children to Deshawn and Clairessa would be
detrimental, that Deshawn and Clairessa had not maintained
regular and consistent visitation and contact, and that the
children were adoptable. The court terminated Deshawn’s and
Clairessa’s parental rights and ordered the Department to
continue to provide the children with permanency placement
services.
B. ICWA Inquiry and Notice
Deshawn and Clairessa each completed Judicial Council
form ICWA-020, Parental Notification of Indian Status.
Clairessa checked the box next to the statement “I have no Indian
ancestry as far as I know.” Deshawn checked the box next to the
statement “I am or may be a member of, or eligible for
membership in, a federally recognized Indian tribe.” In the space
for Deshawn to state “Name of tribe(s),” Deshawn wrote
4 Because of the COVID-19 pandemic, the juvenile court
continued the hearing under section 366.26 from June 23, 2020 to
January 12, 2021.
4
“Cherokee → from Texas.” Clairessa told a social worker she was
“of Puerto Rican descent.”
At the detention hearing the court confirmed Clairessa said
she did not have Indian ancestry, and Deshawn confirmed he
believed his grandmother was a member of the Cherokee Tribe.
Based on Deshawn’s responses, the court found that it had reason
to know the children may be Indian children as defined by ICWA
and that the notice requirements under section 224.3,
subdivision (b), “have been triggered.” The court told Deshawn to
provide as much information as possible about his grandmother
and ordered the social worker to provide notice to the Bureau of
Indian Affairs.
Deshawn told the social worker his maternal grandmother
was “95% Cherokee” and provided, among other information, his
mother’s name, date of birth, date of death, and place of death,
and his grandmother’s name, “possible” place of birth, month and
year of death, and place of death. Clairessa told the social worker
she was adopted when she was two years old, did not have any
information about her biological relatives, and was “estranged”
from her adoptive parents, who lived in North Carolina.
Clairessa declined to provide the contact information for her
adoptive parents.
On July 12, 2019 the Department mailed Judicial Council
form ICWA-030 to the Cherokee Nation of Oklahoma, the
Eastern Band of Cherokee Indians, the United Keetoowah Band
of Cherokee Indians, and the Bureau of Indian Affairs. In the
spaces on the form for the Department to fill in the name of
“Mother’s Biological Mother” and “Mother’s Biological Father,”
the Department wrote “UNKNOWN.” In the section on the form
for the Department to provide information on “Father’s Biological
Grandmother,” the Department listed the name of Deshawn’s
grandmother, the Indian tribes she may have been affiliated
5
with, and the date and place of her death. In the space provided
for the Department to list her date and place of birth, the
Department wrote “UNKNOWN.”
After the Department mailed the ICWA-030 notices, the
social worker conducted an online search and found the names of
and contact information for Clairessa’s adoptive parents, Leonard
and Maxcine M. The social worker interviewed Maxcine, who
stated she and Leonard adopted Clairessa when Clairessa was
two years old. Maxcine said the child protective agency in North
Carolina removed Clairessa from her biological mother because
she neglected Clairessa and abused drugs. Maxcine stated she
maintains phone contact with Clairessa, who typically called
asking for money.
At a hearing on July 24, 2019 the juvenile court observed
that the July 12, 2019 ICWA notices “might be incomplete”
because Clairessa’s adoptive parents should know the name of
Clairessa’s biological mother. The court ordered the Department
to interview Clairessa’s adoptive parents again to obtain the
name of Clairessa’s biological mother and biological father.
In a last minute information report filed for the jurisdiction
and disposition hearing, the Department stated that on August 7,
2019 the social worker interviewed Maxcine about any Indian
ancestry that Clairessa might have. Maxcine said she did not
know of any Indian ancestry in her family or in her husband’s.
Maxcine stated, however, that, although she did not know
whether Clairessa’s biological family had any Indian ancestry,
she knew the name of Clairessa’s biological father (but had “no
additional information about him or his relatives”) and was “able
to obtain contact information” for Clairessa’s maternal aunt.
6
There is no record the Department followed up with Maxcine to
obtain the contact information for Clairessa’s biological parents.5
At the August 8, 2019 jurisdiction and disposition hearing
the juvenile court observed that the last minute information
report did not contain contact information for Clairessa’s
biological family. Counsel for the Department stated the report
indicated the adoptive parents “knew how to contact an aunt, and
they noted they would try to do that for the Department, but they
didn’t have any current contact information for them.” The court
asked counsel for Clairessa whether Clairessa had been able to
obtain any further information about her biological relatives, and
counsel replied, “No.”
At an October 23, 2019 progress hearing the court
summarized the status of the Department’s efforts to locate
Clairessa’s biological parents: “We previously had had notices
sent July 12, 2019, but the ICWA notices that were sent on that
date indicated that the maternal grandparents were unknown.
The adoptive parents were the godparents, so I said they
probably needed to re-interview them for the ICWA notices. But
the godparents didn’t have any contact information, so the ICWA
notices have been sent on July 12.” The court also stated the
Department received a response from the Eastern Band of
Cherokee Indians,6 made efforts to follow up with the Cherokee
5 A social worker did speak with Maxcine five months later,
on January 13, 2020, about the possibility of adopting Y.W. and
Y.G.
6 On July 22, 2019 the Eastern Band of Cherokee Indians
sent a letter to the Department stating that, based on the
information the Department provided, Y.W. and Y.G. were
“neither registered nor eligible to register as a member of this
tribe.”
7
Nation of Oklahoma and the United Keetoowah Band of
Cherokee Indians, but had not received a response from either of
the latter two tribes. The court found that “ICWA notice is
proper and complete,” but stated that, “for any [section 366.26]
hearing, we will need responses from the Cherokee Nation of
Oklahoma and United Keetoowah [Band of Cherokee Indians] for
new notices.”
On November 13, 2020, in preparation for the hearing
under section 366.26, the court observed that the Department
had not received a response from the Cherokee Nation of
Oklahoma or the United Keetoowah Band of Cherokee Indians
and ordered the Department to send out new ICWA notices to
those two tribes. On November 16, 2020 the Department sent
out new form ICWA-030 notices to the Eastern Band of Cherokee
Indians, the Cherokee Nation of Oklahoma, the United
Keetoowah Band of Cherokee Indians, and the Bureau of Indian
Affairs. As with the first ICWA-030 notices, in the space
provided for the Department to state the birthdate and birthplace
of Deshawn’s grandmother, the Department wrote “UNKNOWN,”
and in the space provided for the Department to state Deshawn’s
grandmother’s date and place of death, the Department again
wrote “UNKNOWN.” On January 7, 2021 the Department
received an email from the Cherokee Nation that stated neither
Y.M. nor Y.G. was an “Indian child” as defined by ICWA. The
Department did not receive a response from the United
Keetoowah Band of Cherokee Indians.
At the January 12, 2021 hearing under section 366.26 the
juvenile court found that ICWA notice was “proper and
complete,” that the court did not have a reason to know or believe
Y.W. or Y.G. was an Indian child, and that ICWA did not apply.
As discussed, the court terminated Deshawn’s and Clairessa’s
8
parental rights. Deshawn and Clairessa timely appealed from
those orders.7
DISCUSSION
A. The Juvenile Court Failed To Ensure the Department
Complied with ICWA and Related California Law
Deshawn and Clairessa contend the Department failed to
conduct an adequate inquiry into Clairessa’s possible Indian
ancestry and omitted essential information on the notice to the
Indian tribes Deshawn identified. Because the Department
failed to fulfill its duty under ICWA and related California law,
and the juvenile court failed to fulfill its duty to ensure the
Department did so, we must conditionally affirm the juvenile
court’s orders and direct the Department and the court to comply
with these laws.
1. Applicable Law
ICWA provides: “‘In any involuntary proceeding in a State
court, where the court knows or has reason to know that an
Indian child is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child
shall notify the parent or Indian custodian and the Indian child’s
tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention.’
7 Clairessa filed her notice of appeal on April 22, 2021, more
than 60 days after the juvenile court’s order terminating her
parental rights. On May 6, 2021 we granted Clairessa’s motion
for relief from trial counsel’s failure to file a timely notice of
appeal and deemed her notice of appeal timely. On May 27, 2021
we consolidated Clairessa’s appeal with Deshawn’s appeal.
9
[Citation.] This notice requirement, which is also codified in
California law [citation], enables a tribe to determine whether
the child is an Indian child and, if so, whether to intervene in or
exercise jurisdiction over the proceeding.” (In re Isaiah W. (2016)
1 Cal.5th 1, 5; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); In re
T.G. (2020) 58 Cal.App.5th 275, 287-288; In re K.R. (2018)
20 Cal.App.5th 701, 706.)8 “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 child from his or her family.”
(In re T.G., at p. 287; see 25 U.S.C. § 1902.)
“‘ICWA itself does not impose a duty on courts or child
welfare agencies to inquire as to whether a child in a dependency
proceeding is an Indian child. [Citation.] Federal regulations
implementing ICWA, however, require that state courts “ask
each participant in an emergency or voluntary or involuntary
child-custody proceeding whether the participant knows or has
reason to know that the child is an Indian child.” [Citation.] The
court must also “instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.”’” (In re J.S. (2021) 62 Cal.App.5th
678, 685; see 25 C.F.R. § 23.107(a).) In addition, ICWA allows
states to provide ““‘a higher standard of protection to the rights of
the parent or Indian custodian of an Indian child than the rights
8 “‘Indian child’ means any unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or
(b) 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); see § 224.1, subds. (a) & (b); In re D.F. (2020)
55 Cal.App.5th 558, 565.)
10
provided under” ICWA,’” and the California Legislature has
imposed on the court and child protective agencies “‘“an
affirmative and continuing duty to inquire whether a child,” who
is the subject of a juvenile dependency petition, “is or may be an
Indian child.”’” (In re J.S., at p. 686; see § 224.2, subd. (a); In re
D.S. (2020) 46 Cal.App.5th 1041, 1048.)
Section 224.2, subdivision (b), requires the child protective
agency 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.” (See In re
J.S., supra, 62 Cal.App.5th at p. 686; In re T.G., supra,
58 Cal.App.5th at p. 290; Cal. Rules of Court, rule 5.481(a)(1).) If
the court or child protective agency “has reason to believe that an
Indian child is involved in a proceeding, but does not have
sufficient information to determine that there is reason to know
that the child is an Indian child,” the court and the Department
“shall make further inquiry regarding the possible Indian status
of the child, and shall make that inquiry as soon as practicable.”9
(§ 224.2, subd. (e); see In re J.S., at p. 686; In re T.G., at p. 290;
9 “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. Information suggesting membership or
eligibility for membership includes, but is not limited to,
information that indicates, but does not establish, the existence
of one or more of the grounds for reason to know enumerated in
paragraphs (1) to (6), inclusive, of subdivision (d).” (§ 224.2,
subd. (e)(1); see In re J.S., supra, 62 Cal.App.5th at p. 686, fn. 7;
In re T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.)
11
Cal. Rules of Court, rule 5.481(a)(4).) If the further inquiry
“results in a reason to know the child is an Indian child, then the
formal notice requirements of section 224.3 apply.” (In re D.S.,
supra, 46 Cal.App.5th at p. 1052; see 25 U.S.C. § 1912(a); § 224.3
[notice under ICWA “shall be provided” if the court, social
worker, or probation officer “has reason to know . . . that an
Indian child is involved”].) The continuing duty to inquire
whether a child is or may be an Indian child “can be divided into
three phases: the initial duty to inquire, the duty of further
inquiry, and the duty to provide formal ICWA notice.” (In re D.F.
(2020) 55 Cal.App.5th 558, 566; see In re Charles W. (2021)
66 Cal.App.5th 483, 489.)
“‘The juvenile court must determine whether proper notice
was given under ICWA and whether ICWA applies to the
proceedings.’” (In re A.M. (2020) 47 Cal.App.5th 303, 314.) “If
the court makes a finding that proper and adequate further
inquiry and due diligence as required in [section 224.2] have been
conducted and there is no reason to know whether the child is an
Indian child, the court may make a finding that [ICWA] does not
apply to the proceedings, subject to reversal based on sufficiency
of the evidence.” (§ 224.2, subd. (i)(2); see In re D.S., supra,
46 Cal.App.5th at p. 1050; Cal. Rules of Court,
rule 5.481(b)(3)(A).)
2. The Department Failed To Conduct an
Adequate Inquiry into Clairessa’s Possible
Indian Ancestry
The Department failed to satisfy its duty to inquire, under
section 224.2, subdivision (b), whether Y.W. and Y.G. are or may
be Indian children because it did not make meaningful efforts to
locate and interview Clairessa’s biological parents, who were
“extended family members,” as defined by ICWA and related
12
California law.10 (See In re A.C., supra, 65 Cal.App.5th at p. 1069
[child protective agency “erred by failing to ask the father and his
extended family members whether [the father] had any Indian
ancestry” (fn. omitted)]; In re S.R. (2021) 64 Cal.App.5th 303, 314
[“[t]he statute obligates the court and child protective agencies to
ask all relevant involved individuals . . . ‘whether the child is, or
may be, an Indian child’”]; In re T.G., supra, 58 Cal.App.5th at
p. 290 [the “duty to inquire begins with initial contact [citation]
and obligates the juvenile court and child protective agencies to
ask all relevant involved individuals whether the child may be an
Indian child”].) It is true the Department initially did not (yet)
know how to contact Clairessa’s biological parents. But once the
social worker learned of a potentially viable lead to locate them,
she made no effort to pursue it. Maxcine told the social worker
she knew the name of Clairessa’s biological father and could
obtain the contact information for Clairessa’s maternal aunt
(someone who might have been able to provide information about
Clairessa’s biological mother), but the Department did not follow
up with Maxcine to gather this information, even though a social
worker spoke with and emailed Maxcine a few months later on
another topic (adopting the children). (See In re N.G. (2018)
27 Cal.App.5th 474, 482 [child protective agency did not satisfy
its duty of inquiry when it failed to ask the maternal uncle
whether the child may have had Indian ancestry]; see also In re
10 See 25 United States Code section 1903(2) (“‘extended
family member’” includes the child’s “grandparent”); section
224.1, subdivision (c); In re D.S., supra, 46 Cal.App.5th at
page 1053; In re Michael A. (2012) 209 Cal.App.4th 661, 665 (“A
‘grandparent’ is defined by the ICWA as an ‘“extended family
member.”’”).
13
K.R., supra, 20 Cal.App.5th at p. 709 [“a social services agency
has the obligation to make a meaningful effort to locate and
interview extended family members to obtain whatever
information they may have as to the child’s possible Indian
status”].)
Citing In re Austin J., supra, 47 Cal.App.5th 870, the
Department contends that, because Clairessa and Maxcine
denied any Indian ancestry, “there was no reason to believe the
children were Indian children through mother’s parentage to
trigger a duty to make ‘further inquiry’ as to her side of the
family, including any available biological relatives.” The
Department’s continuing duty of inquiry is not so narrow. In In
re Austin J. a father stated in court and on his form ICWA-020
that neither he nor his children had Indian ancestry and that
none of them was eligible for membership in an Indian tribe. (Id.
at p. 888.) The court held that, based on the father’s responses to
the ICWA inquiry, “there was no ‘reason to believe’ that any of
his children are Indian children based on his parentage” and
that, “[t]herefore, there was no duty to make a ‘further inquiry’ as
to his side of the family.” (Ibid.)
The court’s holding in In re Austin J., however, is
inconsistent with section 224.2, subdivision (b), which as
discussed requires the Department to ask, as part of its initial
duty of inquiry, extended family members (including the
biological grandparents) whether the child is or may be an Indian
child. (See § 224.2, subd. (b); Cal. Rules of Court,
rule 5.481(a)(1).) Nothing in section 224.2, subdivision (b),
relieves the Department of its broad duty to seek that
information from “all relevant” individuals (In re S.R., supra,
64 Cal.App.5th at p. 314) simply because a parent states on the
14
ICWA-020 form, as Clairessa stated here, “I have no Indian
ancestry as far as I know.” Such a rule ignores the reality that
parents may not know their possible relationship with or
connection to an Indian tribe. (See, e.g., ibid. [“the children’s
parents apparently had no idea of their family’s connection to the
. . . tribe . . ., even though the children’s great-grandmother was a
member”]; In re T.G., supra, 58 Cal.App.5th at p. 295 [“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”]; In re Breanna S. (2017) 8 Cal.App.5th
636, 650 [‘“parents may be unsure or unknowledgeable of their
own status as a member of a tribe’”], disapproved on another
ground in In re Caden C. (2021) 11 Cal.5th 614, 637, fn. 6;
Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254
[“a child may qualify as an Indian child within the meaning of
the ICWA even if neither of the child’s parents is enrolled in the
tribe”].)
Moreover, the holding of In re Austin J. is at odds with the
Department’s “continuing duty” (§ 224.2, subd. (a)) to determine
whether a child is or may be an Indian child. That Clairessa
disclaimed any Indian ancestry at the outset of the dependency
proceedings did not end the Department’s duty of inquiry,
especially where relevant contact and identifying information
was readily available. (See In re Isaiah W., supra, 1 Cal.5th at
p. 15 [although the juvenile court found ICWA inapplicable at the
disposition hearing, “the court had an affirmative and continuing
duty to determine ICWA’s applicability at the . . . hearing to
terminate [the mother’s] parental rights”]; In re Elizabeth M.
15
(2018) 19 Cal.App.5th 768, 787 [“the agency must pursue all
reasonable investigative leads”].)
The Department asserts this case is “akin to” In re J.S.,
supra, 62 Cal.App.5th 678. It is not. In In re J.S. this court held
the Department conducted an adequate inquiry into the father’s
possible Indian ancestry by interviewing the paternal
grandmother, who the father indicated may be “Native
American.” (Id. at p. 683.) The paternal grandmother stated she
did not know of any tribe associated with her family, “had no
other information,” and did not identify any other paternal
relatives. (Id. at p. 690.) The investigative trail ended with the
paternal grandmother. In contrast, Maxcine blazed a new trail of
ICWA information: She had access to knowledge about
Clairessa’s biological family the Department could have obtained
with a phone call or email. (Cf. In re A.M., supra, 47 Cal.App.5th
at p. 323 [mother “has not demonstrated there was a viable lead
that would require [the child protective agency] ‘to make a
meaningful effort to locate and interview extended family
members’”]; In re D.S., supra, 46 Cal.App.5th at p. 1054 [“limited
information” provided by the aunt “was too attenuated for the
[a]gency to do anything further”]; In re C.Y. (2012)
208 Cal.App.4th 34, 41-42 [juvenile court conducted an adequate
inquiry by asking the mother’s adoptive father whether he knew
the names of the mother’s biological parents or had any
information about her Indian ancestry, and the adoptive father
said he did not and did not know of anyone who did].)
For its part, the juvenile court failed to ensure the
Department adequately investigated the children’s possible
Indian ancestry through Clairessa’s side of the family. At the
August 8, 2019 jurisdiction and disposition hearing, the court
16
began to question the Department’s failure to obtain information
about Clairessa’s biological parents, but ultimately accepted the
Department’s erroneous assertion that the last minute
information report stated Maxcine did not have current contact
information for Clairessa’s biological parents, when in fact the
report stated the opposite. Two months later, without any
further updates from the Department on its efforts to locate
Clairessa’s biological parents, the court restated its earlier
(erroneous) understanding that Maxcine did not know how to
contact Clairessa’s biological parents. ICWA and related
California law require more. (See In re N.G., supra,
27 Cal.App.5th at p. 482 [“The juvenile court . . . had a duty to
ensure that [the child protective agency] made [the relevant]
inquiries,” including asking the maternal uncle whether the child
“may have maternal Indian ancestry”]; In re K.R., supra,
20 Cal.App.5th at p. 709 [“the court has a responsibility to
ascertain that the agency has conducted an adequate
investigation and cannot simply sign off on the notices as legally
adequate without doing so”].)
Citing In re Rebecca R. (2006) 143 Cal.App.4th 1426 and
In re A.C., supra, 65 Cal.App.5th 1060, the Department argues
“any alleged error was harmless” because Deshawn and Clairessa
“have made no representation that [Clairessa’s] biological
relative would provide any information indicating the children
were Indian children.” In In re Rebecca R. the father contended
the child protective agency failed to carry out its duty of inquiry
because the social worker never asked him whether his child may
have had Indian ancestry. (In re Rebecca R., at pp. 1428-1429.)
The court held that, because the father never claimed “some
Indian connection sufficient to invoke the ICWA,” he “failed to
17
show a miscarriage of justice.” (Id. at pp. 1430-1431.) The court
stated: “The burden on an appealing parent to make an
affirmative representation of Indian [ancestry] is de minimis,”
and “[i]n the absence of such a representation, there can be no
prejudice and no miscarriage of justice requiring reversal.” (Id.
at p. 1431.) Following In re Rebecca R., the court in In re A.C.
similarly held that “a parent asserting failure to inquire must
show—at a minimum—that, if asked, he or she would, in good
faith, have claimed some kind of Indian ancestry.” (In re A.C., at
p. 1069.)
A parent, however, does not need to assert he or she has
Indian ancestry to show a child protective agency’s failure to
make an appropriate inquiry under ICWA and related law is
prejudicial. The courts in In re Rebecca R., supra,
143 Cal.App.4th 1426 and In re A.C., supra, 65 Cal.App.5th 1060missed (and the Department’s argument misses) the point of the
statutory requirement that the social worker ask all relevant
individuals whether a child is or may be an Indian child: to
obtain information the parent may not have. It is unreasonable
to require a parent to make an affirmative representation of
Indian ancestry where the Department’s failure to conduct an
adequate inquiry deprived the parent of the very knowledge
needed to make such a claim. (See In re Michael V. (2016)
3 Cal.App.5th 225, 233 [“the burden of coming forward with
information to determine whether an Indian child may be
involved and ICWA notice required in a dependency proceeding
does not rest entirely—or even primarily—on the child and his or
her family”].) The Department’s failure to conduct an adequate
inquiry into Y.W. and Y.G.’s possible Indian ancestry makes it
impossible for Deshawn and Clairessa to demonstrate prejudice.
18
(See In re N.G., supra, 27 Cal.App.5th at p. 484 [ICWA error was
prejudicial where the record did not show “the court’s and the
agency’s efforts to comply with ICWA’s inquiry and notice
requirements”]; see also In re Mary G. (2007) 151 Cal.App.4th
184, 212 [“In re Rebecca R. does not hold that on appeal a parent
must produce evidence—as a prerequisite to reversal for ICWA
notice deficiencies—that the child is a member of an Indian tribe
or eligible for membership in a tribe. Indeed, a parent does not
have to make that showing at the juvenile court to trigger the
ICWA notice provisions. Rather, that is a determination the
noticed tribes make.”].)
3. The Department Did Not Give Proper Notice to
the Tribes
The Department’s failure to comply with ICWA did not end
with its failure to conduct a proper inquiry into Clairessa’s
possible Indian ancestry. In addition, the notices the
Department sent to the Cherokee tribes omitted essential
background information about Deshawn’s grandmother that
federal regulations and related California law require. Federal
regulations implementing ICWA provide that the notice must
include, in addition to information about the child and the child’s
parents, “‘[i]f known, the names, birthdates, birthplaces, and
Tribal enrollment information of other direct lineal ancestors of
the child, such as grandparents.” (25 C.F.R. §§ 23.11(a),
23.111(d)(1)-(3); see In re E.H. (2018) 26 Cal.App.5th 1058, 1069;
In re Breanna S., supra, 8 Cal.App.5th at p. 651, fn. 8.) Section
224.3, subdivision (a)(5)(C), requires ICWA notices to include
“[a]ll names known of the Indian child’s biological parents,
grandparents, and great-grandparents, or Indian custodians,
including maiden, married, and former names or aliases, as well
19
as their current and former addresses, birth dates, places of birth
and death, tribal enrollment information of other direct lineal
ancestors of the child, and any other identifying information, if
known.” (See In re T.G., supra, 58 Cal.App.5th at p. 294.)
“ICWA notice requirements are strictly construed” (In re
J.M. (2012) 206 Cal.App.4th 375, 380) and “‘must include enough
information for the tribe to “conduct a meaningful review of its
records to determine the child’s eligibility for membership.”’”
(In re J.S., supra, 62 Cal.App.5th at p. 688; see In re Breanna S.,
supra, 8 Cal.App.5th at p. 653 [“vigilance in ensuring strict
compliance with federal ICWA notice requirements is
necessary”]; In re A.G. (2012) 204 Cal.App.4th 1390, 1397
[“[b]ecause of their critical importance, ICWA’s notice
requirements are strictly construed”].) Here, in the first notice to
the tribes, the Department omitted the birthplace of Deshawn’s
grandmother; in the second notice, the Department also omitted
the date and place of her death. These omissions violated federal
and state law. (See 25 C.F.R. §§ 23.11(a), 23.111(d)(1)-(3);
§ 224.3, subd. (a)(5)(C); In re E.H., supra, 26 Cal.App.5th at
p. 1069 [“‘it is necessary to provide as much information as is
known on the Indian child’s direct lineal ancestors’”]; In re
Louis S. (2004) 117 Cal.App.4th 622, 630 [“The burden is on the
[a]gency to obtain all possible information about the minor’s
potential Indian background and provide that information to the
relevant tribe or, if the tribe is unknown, to the [Bureau of Indian
Affairs].”].)
The Department argues it did not have to include the
birthplace of Deshawn’s grandmother in the notices to the tribes
because Deshawn only provided a “possible” place of her birth,
and according to the Department, a possible place of birth is not a
“known” fact that the Department must include on the notice.
The Department, however, provides no authority for this
20
argument. Nothing in ICWA, the implementing federal
regulations, or the related California statutes defines “known” as
“certain.” “Known,” in the context of providing as much
information as possible for the tribes to make a meaningful
determination of a child’s membership or eligibility for
membership, should include all information in the possession of
the Department. At a minimum, the Department admittedly
failed to include in the second ICWA-030 notice (for the section
366.26 hearing)11 the date and location of the death of Deshawn’s
grandmother, facts that were not only known, but arguably
certain.
Finally, the Department argues its failure to include the
birthplace of Deshawn’s grandmother in the ICWA notice was
harmless because “there is no reason to believe that this
information would have produced a different result concerning
the children’s Native American heritage.” “‘[O]rdinarily failure
in the juvenile court to secure compliance with [ICWA’s] notice
provisions is prejudicial error.’ [Citations.] Any failure to comply
with a higher state standard, however, ‘must be held harmless
unless the appellant can show a reasonable probability that he or
she would have enjoyed a more favorable result in the absence of
the error.’” (In re Breanna S., supra, 8 Cal.App.5th at p. 653;
accord, In re E.H., supra, 26 Cal.App.5th at p. 1072.)
The Department’s incomplete notices to the tribes violated
both federal regulations and state law. (25 C.F.R. §§ 23.11(a),
23.111(d)(1)-(3); § 224.3, subd. (a)(5)(C); see In re Breanna S.,
supra, 8 Cal.App.5th at pp. 651, 654 [where the notices to the
11 “Notice shall be sent . . . for every hearing that may
culminate in an order for . . . termination of parental rights . . .
unless it is determined that [ICWA] does not apply to the case in
accordance with Section 224.2.” (§ 224.3, subd. (b).)
21
tribes omitted background information on the lineal ancestors,
including their places of birth and death, “the Department
violated the requirements of both federal and state law regarding
the content of an ICWA notice”].) The notices omitted not only
the place of birth, but also the date and place of death of
Deshawn’s grandmother. The Department’s failure to provide
this information was not harmless in light of Deshawn’s claim of
Indian ancestry through his grandmother. (See In re E.H., supra,
28 Cal.App.5th at p. 1074 [child protective agency’s failure to
provide the tribe with “complete and accurate notice of the
personal identifying information about the ‘direct lineal
ancestors’ of [the child] who may have had” Indian ancestry was
prejudicial]; In re Breanna S., at p. 655 [“once ICWA notice is
required, . . . we would be extremely reluctant under most
circumstances to foreclose the tribe’s prerogative to evaluate a
child’s membership rights without it first being provided all
available information mandated by ICWA”].) We cannot say the
Cherokee tribes would have made the same determination Y.W.
and Y.G. were not Indian children had the Department fulfilled
its obligations under ICWA and related California law and
mailed notices with more complete information. (See In re E.H.,
at p. 1074; In re Breanna S. at p. 654; cf. In re J.M., supra,
206 Cal.App.4th at p. 382 [omission of the name of a known
great-great-grandparent from the ICWA notice “was necessarily
harmless” because the “children are disqualified from
membership irrespective of their great-great grandparents’
possible membership in the tribe”].)
22
DISPOSITION
The juvenile court’s orders terminating the parental rights
of Deshawn and Clairessa are conditionally affirmed. The
juvenile court is directed to ensure the Department complies fully
with the inquiry and notice provisions of ICWA and related
California law, including obtaining from Maxcine the name of
Clairessa’s biological father and the contact information for
Clairessa’s maternal aunt, following up on any information the
Department may obtain about Clairessa’s possible Indian
ancestry, and sending new ICWA-030 notices to the Cherokee
tribes that include complete biographical information about
Deshawn’s grandmother.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
23