In re A.C. ( 2022 )

Filed 12/12/22 (see dissenting opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re A.C., a Person Coming B319752
Under the Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 20CCJP03582C)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
W.E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ashley Price, Juvenile Court Referee.
Conditionally reversed and remanded with directions.
Janelle B. Price, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
Children’s Law Center 5 and Kristin Hallak Minor.
___________________________
Mother appeals from an order terminating her parental
rights to daughter under Welfare and Institutions Code section
366.26. Mother contends the juvenile court erred when it
determined the Los Angeles County Department of Children and
Family Services (DCFS) satisfied its inquiry obligations under
the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.)
and related California law as to daughter’s possible Indian
heritage. No interested party filed a respondent’s brief; instead,
mother, DCFS, and daughter filed a joint application and
stipulation for conditional affirmance and remand to the juvenile
court to order DCFS to inquire of a non-relative extended family
member (NREFM) caring for the child, and available maternal
and paternal extended family members in compliance with ICWA
and related California law. We accept the parties’ stipulation,
but our disposition is a conditional reversal.
This case involves reversible error because the parties
agree, and we concur, there was noncompliance with the inquiry
requirements of ICWA and related California provisions. (In re
H.V. (2022) 75 Cal.App.5th 433, 438; In re Benjamin M. (2021)
70 Cal.App.5th 735, 744.) Here, DCFS only inquired of the
parents regarding Native American ancestry. DCFS did not ask
the NREFM I.C. (daughter’s caregiver and prospective adoptive
parent), or the extended known maternal and paternal family
members about Indian heritage. Pursuant to Welfare and
Institutions Code section 224.2, subdivision (b), DCFS had a duty
to ask daughter’s “extended family members” and “others who
have an interest in the child” whether daughter is an Indian
child.
After reviewing the entire record, we find that the
statutory requirements set forth at Code of Civil Procedure
2
section 128, subdivision (a)(8) for a stipulated reversal have been
satisfied here. (In re Rashad H. (2000) 78 Cal.App.4th 376, 379–
382.)
DISPOSITION
The juvenile court’s April 7, 2022 order terminating
parental rights to daughter is conditionally reversed, and the
matter is remanded to the juvenile court for proceedings
consistent with this opinion. The juvenile court shall order DCFS
to make reasonable efforts to interview the NREFM (I.C.) and
available maternal and paternal family members about the
daughter’s Indian ancestry and to report to the court the results
of DCFS’s investigation. Based on the information reported, if
the court determines that no additional inquiry or notice to tribes
is necessary, the order terminating parental rights is to be
reinstated. If additional inquiry or notice is warranted, the court
shall make all necessary orders to ensure compliance with ICWA
and related California law. The remittitur shall issue forthwith.
RUBIN, P. J.
I CONCUR:
MOOR, J.
3
In re A.C.
B319752
BAKER, J., Dissenting
Today’s opinion of the court moves the Courts of
Appeal further down the wrong path of adjudicating appeals
that raise issues under the Indian Child Welfare Act (ICWA)
and related California law. The upshot of the majority’s
holding is that—on pain of appellate reversal—juvenile
courts and social services agencies must now make ICWA
inquiry of not just all of a minor’s extended family members
but also untold others who are not even related to the minor.
Fortunately, our Supreme Court has agreed to hear a case
that will hopefully bring some much-needed predictability
and stability to this area of the law. (In re Dezi C. (2022) 79
Cal.App.5th 769, review granted Sept. 21, 2022, S275578
(Dezi C.).) While we await guidance from the Supreme
Court, I write separately to highlight the facts of this case as
an example of just how awry things have gone (and could yet
further go), and to add some observations about how courts
can make sense of an unartfully drafted statute.
I
The pertinent facts can be summarized quickly. The
minor in question, 3-year-old A.C., has two half-siblings, 15-
year-old J.C. and 12-year-old A.G.1 Each child has a
different father; I.C. is J.C.’s father.
Dependency proceedings were initiated by the Los
Angeles County Department of Children and Family
Services (the Department) for all three children. (This
appeal concerns only A.C.) A.C.’s mother and presumed
father were asked if they had any Indian ancestry and both
said they did not. There was no evidence before the juvenile
court that A.C. lived on a tribal reservation, had been a ward
of a tribal court, or that either of her parents had an
identification card indicating membership or citizenship in
an Indian tribe.
The juvenile court removed A.C. from her parents’
custody and ordered her placed with I.C., her half-sister’s
father who is not biologically related to A.C. and is not
married to or in a relationship with A.C.’s mother. I.C. is
referred to in the appellate record as A.C.’s non-related
extended family member. 2
II
A
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
1 These were the children’s ages at the commencement of
dependency proceedings.
2 I.C. also denied having any Indian ancestry.
2
welfare practices that resulted in the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement, usually in non-
Indian homes.’ [Citation.] ICWA declared that ‘it is the
policy of this Nation to protect the best interests of Indian
children and to promote the stability and security of Indian
tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from
their families and the placement of such children in foster or
adoptive homes which will reflect the unique values of
Indian culture . . . .’ (25 U.S.C. § 1902.)” (In re Isaiah W.
(2016) 1 Cal.5th 1, 7-8.)
ICWA defines an “Indian child” as any unmarried
person under the age of 18 who “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), emphasis added; see also 25
C.F.R. § 23.108 [“The Indian Tribe of which it is believed the
child is a member (or eligible for membership and of which
the biological parent is a member) determines whether the
child is a member of the Tribe, or whether the child is
eligible for membership in the Tribe and a biological parent
of the child is a member of the Tribe, except as otherwise
provided by Federal or Tribal law”].) ICWA also defines who
counts as an “extended family member”: a person over the
age of 18 who is an “Indian child’s grandparent, aunt or
uncle, brother or sister, brother-in-law or sister-in-law, niece
3
or nephew, first or second cousin, or stepparent.” 3 (25 U.S.C.
§ 1903(2).)
ICWA gives Indian tribes a right to intervene in any
state court proceeding contemplating foster care placement
of, or termination of parental rights to, an Indian child; the
statute also imposes substantive requirements with respect
to such placement and termination decisions. (25 U.S.C. §§
1911(c), 1912, 1915.) To effectuate that right to intervene,
ICWA requires that for any state court involuntary
proceeding “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” must notify the child’s parents or Indian
custodian and the Indian child’s tribe of the pending state
court proceeding and the right to intervene. (25 U.S.C. §
1912(a).)
In 2015 and 2016, the Bureau of Indian Affairs (BIA)
undertook a notice and comment process to update
regulations promulgated to implement the ICWA statutory
scheme. (80 Fed. Reg. 14880 (Mar. 20, 2015) [proposed rule];
81 Fed. Reg. 38778 (June 14, 2016) [final rule].) Among the
principal purposes of the rulemaking was a desire to
establish procedures for determining whether ICWA applies
in state court child custody proceedings. (80 Fed. Reg.
14881.)
3 The statute cautions this list only controls in the absence of
a definition by the “law or custom of the Indian child’s tribe.”
4
The BIA’s proposed rule contemplated adding a new
section 23.107 to the Code of Federal Regulations that would
identify actions child services agencies and state courts must
undertake to determine whether a child is an Indian child.
(80 Fed. Reg. 14887.) State courts, under the rule as
proposed, would be required to “ask, as a threshold question
at the start of any State court child custody proceeding,
whether there is reason to believe the child . . . is an Indian
child by asking each party to the case, including the
guardian ad litem and the agency representative, to certify
on the record whether they have discovered or know of any
information that suggests or indicates the child is an Indian
child.” (80 Fed. Reg. 14887.) The proposed rule stated there
would be “reason to believe” a child was an Indian child if
any of five criteria were present (for example, a party to the
proceeding or Indian tribe or organization informed the court
that the child was an Indian child). (80 Fed. Reg. 14887-
14888.) The proposed rule further provided that notice of
state court proceedings must be provided to each tribe where
the child may be a member or eligible for membership (and
to the child’s parents or custodian) when a court or child
services agency “knows or has reason to believe” that the
child in question is an Indian child. (80 Fed. Reg. 14888.)
The final rule the BIA prepared after receiving
comments— which is intended to establish “minimum
Federal standards” (81 Fed. Reg. 38779)—differed
significantly from the proposed rule, including with respect
to the rule’s requirements for what courts must do to
5
investigate whether a minor involved in court proceedings is
an Indian child.
The final rule retained the proposed rule’s requirement
that a court ask the participants in a proceeding, at the
commencement of the proceeding, whether the child is an
Indian child. (81 Fed. Reg. 38803-38805, 38869-38870; see
also 25 C.F.R. § 23.107(a) [“State courts must 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. The
inquiry is made at the commencement of the proceeding and
all responses should be on the record”].) But the final rule
abandoned, in response to various concerns expressed by
commenters, the proposed rule’s “reason to believe”
formulation of the standard that should govern Indian child
determinations. (81 Fed. Reg. 38803-38804.) Specifically,
commenters expressed concern that “requiring notices to
Tribes is expensive, time consuming, and causes undue
delay, especially when a parent has only a vague notion of a
distant Tribal ancestor,” and commenters “noted the
discrepancy between the phrases ‘reason to believe’ and the
statutory phrase ‘reason to know’”—emphasizing that the
reason to believe standard was overly broad. (81 Fed. Reg.
38804.) The BIA, in response, opted to use only the “reason
to know” standard found in ICWA itself, explaining the
change was made to be consistent with the statutory text
and to promote clarity. (81 Fed. Reg. 38803.)
6
The BIA, in its final rule, also responded to
commenters who urged that its regulations “should be clear
about whom, at a minimum, agencies should ask about the
child’s ancestry” and “what should be asked.” (81 Fed. Reg.
38804.) The BIA rejected that approach. The agency
explained the final rule it promulgated directly addressed
only what courts, not social services agencies, must do. (81
Fed. Reg. 38805.)
B
After the BIA’s promulgation of the final rule in 2016,
our Legislature set about revising California’s ICWA-related
statutes.
The Legislature adopted, almost verbatim, the
provision in the new BIA regulations that requires
dependency court judges to ask at the initial child custody
hearing whether the child involved may be an Indian child.
(Compare 25 C.F.R. § 23.107(a) [“State courts must 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. The
inquiry is made at the commencement of the proceeding and
all responses should be on the record”]) with Welf. & Inst.
Code, § 224.2, subd. (c) [“At the first appearance in court of
each party, the court shall ask each participant present in
the hearing whether the participant knows or has reason to
7
know that the child is an Indian child”]. 4) That obligation is
(for the most part) straightforward. 5
But in two major ways, the Legislature diverged—
confusingly—from the BIA’s approach to regulating the
additional efforts a court must undertake to determine
whether an Indian child may be involved in a juvenile court
proceeding.
First, unlike the BIA, the Legislature chose not to
abandon a “reason to believe” standard in favor of the
“reason to know” standard in ICWA itself. But that is not to
say the Legislature chose only the “reason to believe”
standard that some commenters on the BIA’s rule described
as “broader.” Instead, the Legislature retained both
standards and required courts and social services agencies to
assess whether there is reason to believe a child is an Indian
child and then, at least in some cases, to later assess
whether there is reason to know the same child is an Indian
child. (§ 224.2, subds. (d) [reason to know], (e) [reason to
believe].) Employing both partially overlapping standards
can be confusing, particularly because Section 224.2 requires
courts to use many of the same legal criteria when making
both a reason to believe and a reason to know determination.
(§ 224.2, subd. (e)(1) [“There is reason to believe a child
4 References to Section 224.2 that follow are to Welfare and
Institutions Code section 224.2.
5 There may be occasion in a given case to interpret who
counts as a “participant.”
8
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)”].6)
Second, the Legislature drafted subdivisions of Section
224.2 commanding investigation of Indian child status
beyond the aforementioned first court appearance inquiry (§
6 A court making a reason to believe determination may
accordingly need to grapple with the quasi-metaphysical question
of when information “indicates” but does “not establish[ ] the
existence” of the specified legal grounds in paragraphs one
through six of subdivision (d).
Briefly summarized, these grounds are (1) “a person having
an interest in the child” informs the court that the child is an
Indian child; (2) the child’s residence is on a reservation or in an
Alaska Native village; (3) any participant in the court proceeding,
or an Indian tribe or agency, informs the court that information
has been discovered “indicating” the child is an Indian child; (4)
the child him or herself “gives the court reason to know” that the
child is an Indian child (an aside: yes, there is a reference to
“reason to know” in a list of circumstances that are supposed to
define when “reason to know” exists); (5) the court is informed the
child has been a ward of a tribal court; and (6) the court is
informed that the child or his or her parents has an identification
card indicating membership or citizenship in an Indian tribe.
9
224.2, subd. (c)) in a manner that appears to require
limitless inquiry into whether a child might be an Indian
child. (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1007
(Ezequiel G.); Dezi C., supra, 79 Cal.App.5th at 785 [Section
224.2 creates “an open-ended universe of stones” to be
turned or left unturned].) Section 224.2, subdivision (b), for
instance, states a county welfare department has a “duty to
inquire” whether a child placed in its temporary custody is
an Indian child and this inquiry “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, whether the child is, or may be, an Indian child and
where the child, the parents, or Indian custodian is
domiciled.” (Emphasis mine.) Section 224.2, subdivision
(e)(1) states there is reason to believe a child is an Indian
child when the court, social worker, or probation officer “has
information suggesting” the “parent of the child or the child”
is a member of a tribe or eligible to be a member; such
information “includes, but is not limited to” (emphasis mine)
the six subdivision (d) “reason to know” criteria I set forth in
the margin earlier. And Section 224.2, subdivision (e)(2)
states there must be “further inquiry” when reason to
believe exists (i.e., to determine if there is “reason to know”),
and this further inquiry “includes, but is not limited to”
(mine again) myriad investigative activities: interviewing
parents and extended family members; contacting the BIA,
the Department of Social Services, “and any other person
10
that may reasonably be expected to have information”
regarding the tribes to which the child might be a member or
eligible for membership; and contacting the tribe(s)
themselves “and any other person that may reasonably be
expected to have information” about whether the child is a
member or eligible for membership. 7
Section 224.2 also addresses how courts of review
should assess at least one aspect of the juvenile courts’
compliance with the inquiry obligations it imposes. 8
7 “Contact” is defined to “include sharing information
identified by the tribe as necessary for the tribe to make a
membership or eligibility determination, as well as information
on the current status of the child and the case.” (§ 224.2, subd.
(e)(2)(C).) Published authority has not, to my knowledge,
considered whether or how this definition requires anything
meaningfully different than what must be provided to the tribes
when formal notice (Welf. & Inst. Code, § 224.3, subd. (a)(5)) is
required.
8 Section 224.2, subdivision (g) states that where there is
reason to know a child is an Indian child but a court still does not
have sufficient evidence to determine the child is an Indian child,
the “court shall confirm, by way of a report, declaration, or
testimony included in the record that the agency or other party
used due diligence to identify and work with all of the [pertinent]
tribes” to determine whether the child or his or her parents are
tribal members or eligible for membership. Under Section 224.2,
subdivision (i)(1), if there is reason to know a child is an Indian
child, the court must treat the child as an Indian child “unless
and until” the court determines otherwise after a review of a
subdivision (g) due diligence report, formal notices sent to tribes,
and any tribal response to those notices.
11
Subdivision (i)(2) states review should be for sufficiency of
the evidence: “If the court makes a finding that proper and
adequate further inquiry and due diligence as required in
this section have been conducted and there is no reason to
know whether the child is an Indian child, the court may
make a finding that the federal Indian Child Welfare Act of
1978 (25 U.S.C. Sec. 1901 et seq.) does not apply to the
proceedings, subject to reversal based on sufficiency of the
evidence.” 9
III
Unsurprisingly, these recent amendments to the
Welfare and Institutions Code have generated confusion and
divergent views in the appellate courts. Even the courts that
reach different results are nearly unanimous on one point,
though: review of a juvenile court’s ICWA finding should be
for sufficiency of the evidence, which calls for application of
the substantial evidence standard of review. (See, e.g., In re
S.H. (2022) 82 Cal.App.5th 166, 175; Dezi C., supra, 79
Cal.App.5th at 777; In re Josiah T. (2021) 71 Cal.App.5th
388, 401; In re J.S. (2021) 62 Cal.App.5th 678, 688 [“We
review a court’s ICWA findings for substantial evidence.
[Citations.] We must uphold the court’s orders and findings
if any substantial evidence, contradicted or uncontradicted,
9 As I explain post, I believe the sufficiency of the evidence
review that is the only type of review explicitly contemplated by
the statute can aid in making sense of the substantive inquiry-
related provisions of the statute.
12
supports them, and we resolve all conflicts in favor of
affirmance”], internal quotation marks omitted; but see
Ezequiel G., supra, 81 Cal.App.5th at 1004, 1008 [applying a
hybrid substantial evidence and abuse of discretion standard
of review].) Where courts have diverged is in answering this
question: can it really be that the Legislature intended
appellate courts to invariably reverse juvenile court orders
(which often delays finalizing an adoption) if the court or a
social services agency has not interrogated every extended
family member that can be contacted about whether a child
in dependency proceedings may be an Indian child?
A few appellate opinions, including one in this division,
answer “yes,” that is what appellate courts must do. (See,
e.g., In re H.V. (2022) 75 Cal.App.5th 433, 438 (H.V.); In re
Y.W. (2021) 70 Cal.App.5th 542, 556; In re Antonio R. (2022)
76 Cal.App.5th 421, 435 [reversal required even if there are
“‘slim’ odds the information in the possession of the extended
maternal relatives would show [the child] is qualified for
membership in an Indian tribe”] (Antonio R.).) Dezi C. and
Ezequiel G. identify the considerable problems with this
approach. (Dezi C., supra, 79 Cal.App.5th at 782-785
[cataloging problems, including an incentive for parents in
dependency proceedings to “game the system” and the
creation of “a seemingly endless feedback loop of remand,
appeal, and remand” because “section 224.2 creates an open-
ended universe of stones” and “the automatic reversal rule
mandates remand if any stone is left unturned”]; Ezequiel
G., supra, 81 Cal.App.5th at 1007-1008 [“The difficulty of
13
describing precisely what the statute requires in a particular
case is highlighted by the ambiguity of the remand
instructions in cases that independently review alleged
ICWA error. Although the reversals in these cases are based
on an agency’s failure to make an ICWA inquiry of particular
named individuals, the remand instructions typically are not
limited to these individuals, but instead send cases back to
juvenile courts with instructions to ensure ICWA
compliance, without specifying exactly what that entails”].10)
I have highlighted problems too. (H.V., supra, at 441 (dis.
opn. of Baker, J.) [“This unpredictability in the law is a real
problem. It is beyond dispute that ordering a child services
agency to try to run down suggestions of possible Indian
heritage has real costs to the agency’s core mission of
keeping children healthy and safe—there are only so many
hours in a day and only so many child services agency
employees on the payroll”].)
10 A good example of the ambiguity Ezequiel G. highlights is
found in Antonio R., supra, 76 Cal.App.5th 421. In analyzing a
claim that ICWA-related inquiry was insufficient, the Antonio R.
court found error because “[a]ll the Department needed to do was
to inquire of the maternal relatives—identified by Mother and
later present in the courtroom—whether Antonio is or may be an
Indian child.” (Id. at 436.) But the opinion’s dispositional
language is much broader and, indeed, indeterminate—ordering
the juvenile court and the social services agency “to comply with
the inquiry and notice provisions of ICWA and California law
consistent with this opinion, including inquiring of the maternal
extended family members.” (Id. at 436-437, emphasis added.)
14
The majority of courts, on the other hand, recognize the
answer to the question of whether the Legislature intended
automatic reversal for failure to interview every available
extended family member must be “no.” Nearly all of these
courts approach the issue from the perspective of prejudicial
error, but not all in precisely the same manner. Dezi C.
helpfully catalogs the differences, including the harmless
error approach (unfortunately dubbed the “reason to believe”
rule) that Dezi C. itself proposes. (Dezi C., supra, 79
Cal.App.5th at 777-779.)
The difficulty with all of the opinions relying on
harmless error doctrine to cabin limitless statutory
provisions is the same: reviewing courts typically do not
undertake a counterfactual harmless error analysis when
the issue is the sufficiency of the evidence to support a
determination made in the court below. (See, e.g., In re
Catherine S. (1991) 230 Cal.App.3d 1253, 1258 [“The concept
of harmless error plays no role in an analysis of the
sufficiency of evidence to support a ruling. If the ruling was
unsupported by substantial evidence, it is necessarily
reversible”]; see also People v. Garcia (2016) 62 Cal.4th 1116,
1133 [reversing burglary conviction unsupported by
substantial evidence in the record—without requiring any
showing of prejudice].) There is good practical reason for
that: it is hard for a reviewing court to abstractly determine
what other evidence could have been presented in a lower
court but was not, and what the effect of that evidence would
have been. (See Dezi C., supra, 79 Cal.App.5th at 778 [“This
15
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”].)
The majority in Ezequiel G., supra, 81 Cal.App.5th 984takes a different approach to the problem of how to make
sense of Section 224.2. Importantly, the majority
understands “complying with the literal language of [Section
224.2]—that is, making an initial and further ICWA inquiry
of every member of a child’s extended family, including first
and second cousins, plus every other person who has an
interest in the child—is absurd at best and impossible at
worst.” (Id. at 1006.) The Ezequiel G. court solves this
problem not by relying on principles of harmless error, but
by holding an abuse of discretion standard of review should
govern assessment of a juvenile court’s management of
ICWA-related inquiry. (Id. at 1004-1005 [“Deciding whether
an inquiry was ‘adequate’ and an agency acted with
appropriate diligence requires more of a court than simply
applying a statutory checklist to undisputed facts. Instead,
it requires the court to ‘engage in a delicate balancing’
[citation], to assess whether an ICWA inquiry was
appropriate and sufficient in light of the facts of a particular
case. In short, the statute directs the juvenile court to
perform a quintessentially discretionary function, and thus
we believe our review should be for abuse of discretion”].)
16
This approach has much to recommend it, including
the advantage of avoiding an awkward application of
harmless error principles. Indeed, I hold a similar but not
identical view of how the ICWA-related inquiry process
should work, having now confronted a multiplicity of appeals
raising these issues. As I next explain in the context of the
facts of this case, I believe only a substantial evidence
inquiry is necessary if we endeavor to understand what the
Legislature likely intended when amending Section 224.2—
however imperfectly that intent was realized.
IV
The majority returns this case to the juvenile court
with directions to interrogate non-related extended family
member I.C., and “available maternal and paternal family
members,” about whether A.C. may be an Indian child. This
result only exacerbates the problems we have already seen
in our ICWA jurisprudence.
There are already many published Court of Appeal
opinions—particularly when taken to their logical conclusion
regardless of any analytically arbitrary limits in their
dispositional language—that require social workers to ask
ICWA-related questions of every family member of a child
they can find: parents, grandparents, brothers, sisters, first
cousins, second cousins, aunts, uncles, etcetera. That can be
a challenge in its own right. But the upshot of today’s
opinion is that this universe has gotten even bigger: juvenile
courts and social services agencies must now also contact
17
and interview non-related extended family members
presumably because they qualify as “others who have an
interest in the child.” But what does that mean? How is a
court or social services agency to decide who else has an
interest in a child such that ICWA-related questions must be
posed? Do family friends qualify? Therapists? Pastors?
Teachers? Coaches? Doctors? Dentists? The ambiguity is
remarkable.
Strictly speaking, the jurisprudential impact of
reversing based on invocation of this vague category of
“others who have an interest in the child” might be viewed
as limited insofar as the “including but not limited to”
language in the pertinent statutory provisions makes the
lists indeterminate (more on that in a moment). But
practically speaking, I submit the impact of the result the
court reaches today is quite dramatic: one Court of Appeal
has now said that juvenile courts and social services
agencies must make a judgment about all those who have an
interest in a child and ask ICWA-related questions of all of
those people plus all extended family members. I do not
envy the juvenile courts and social workers who must try to
carry out such a task.
I would resolve this appeal differently. I would reject
the joint stipulation to remand the cause with directions to
make ICWA-related inquiry of a non-related extended family
member (and others). Instead, I would interpret the inquiry
categories in section 224.2 as recommended sources of
ICWA-related information, not theoretically never-ending to-
18
do lists, and conclude substantial evidence supports the
juvenile court’s determination that A.C. is not an Indian
child. I shall elaborate.
As I have previously said, and as Ezequiel G.
recognizes, the “including but not limited to” language that
repeatedly appears in Section 224.2 requires the absurd or
impossible if the statute is read to require inquiry of each
category of people the statute mentions. (Ezequiel G., supra,
81 Cal.App.5th at 1006; H.V., supra, 75 Cal.App.5th at 440-
441 (dis. opn. of Baker, J.).) But the statutory provisions at
issue do not have to be read that way, and established
precedent tells us we should interpret statutes to avoid
absurd consequences (In re J.W. (2002) 29 Cal.4th 200, 210).
Put in more specific terms, Section 224.2, subdivision
(b) says “[i]nquiry 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, whether the
child is, or may be, an Indian child and where the child, the
parents, or Indian custodian is domiciled.” If that is read as
a direction that exhaustive inquiry must be made of each of
these categories and unspecified others (because the list is
without limitation), the statute is practically if not
theoretically impossible to satisfy. But if these are instead
examples of the categories of people a social services agency
or court should inquire of, the “includes, but is not limited
to” language makes good sense. That is just the sort of
language one uses when recommending a course of action
19
while permitting the person who will be undertaking the
action to consider other options in light of what is
appropriate in any given case. 11 Read in that manner, the
various provisions of Section 224.2 direct courts to manage
an appropriate inquiry and consider all of the enumerated
potential sources of ICWA-related information as necessary
to arrive at a reasonable conclusion of whether a child is, or
may be, an Indian child. (See Ezequiel G., supra, 81
Cal.App.5th at 1004-1005 [“Deciding whether an inquiry was
‘adequate’ and an agency acted with appropriate diligence
requires more of a court than simply applying a statutory
checklist to undisputed facts”].)
11 The same is true in other places where the statute uses the
“including but not limited to” formulation. When assessing
whether there is “reason to believe” a child may be an Indian
child, for instance, a juvenile court should look to the six Section
224.2, subdivision (d) factors as potential indicia of eligibility for
tribal membership and should ensure it has sufficient
information from these sources or others to reasonably make a
determination.
By contrast, other provisions of the statute that do not use
the “including but not limited to” formulation are not amenable
to the same interpretation. The aforementioned subdivision (c),
for instance, states a court must ask each participant present at
the first court appearance whether the person knows or has
reason to know the child is an Indian child. That is a
straightforward requirement that presents no difficulty in
applying. So too, for example, with subdivision (f), which
requires formal notice to tribes and governmental entities where
there is reason to know a child is an Indian child.
20
The statute’s sole expressed focus on review for
sufficiency of the evidence reinforces the point. If the statute
requires inquiry of every extended family member, every
other person with an interest in a child, and unspecified
others as well, there is no real need for review for sufficiency
of the evidence—only perfect compliance will suffice. 12 If,
instead, the sources that are specified in the statute without
limitation are understood as recommended sources of ICWA-
related information, a review for substantial evidence fits
nicely: a reviewing court will decide whether the juvenile
court amassed sufficient information to reasonably conclude
the particular child implicated in a juvenile court proceeding
is not an Indian child.13
12 Consider a hypothetical example based loosely on facts of a
case recently before this court. A child placed in foster care in
dependency proceedings has 36 cousins. The child welfare agency
interviews 30 of those cousins, learns of no information indicating
the child may be an Indian child, and opts not to contact the
remaining six. The juvenile court finds ICWA does not apply. I
submit that, on appeal, the view of most courts would be that this
has to be sufficient and there is no reason to remand for inquiry
of the remaining six. But for those courts that have held Section
224.2 requires inquiry of all available people in the categories it
specifies, the question is this: what statutory basis is there to say
such a remand is not required?
13 An additional benefit of this statutory interpretation and
review for sufficiency of the evidence approach is it allows a
dialogue of sorts between the courts and the Legislature that a
harmless error approach grounded in constitutional principles
21
On that understanding of Section 224.2, I believe
substantial evidence supports the ICWA-related finding the
juvenile court made here. Both parents denied Indian
ancestry and there were no other indicia (e.g., tribal
reservation residence) that A.C. is an Indian child. (Ezequiel
G., supra, 81 Cal.App.5th at 1010 [“Because tribal
membership typically requires an affirmative act by the
enrollee or her parent, a child’s parents will, in many cases,
be a reliable source for determining whether the child or
parent may be a tribal member”]; see also 25 U.S.C.
§ 1903(4) [an Indian child “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”].)
V
An obvious counterpoint to my proposed resolution of
this appeal requires brief discussion. If I am correct, the
argument goes, why then does the Department concede a
may well foreclose. If the Legislature believes I have too
permissively understood the inquiry directions it sought to give
juvenile courts and social services agencies, the Legislature can
further amend the statute to make its intent clearer. (For
instance, the Legislature might specify: “Obtaining a denial of
tribal membership or eligibility for tribal membership from a
child’s parents shall not be sufficient alone to discharge a county
welfare or probation department’s obligation to inquire into
whether a child is, or may be, an Indian child.”)
22
remand here is appropriate? My response: small wonder the
Department concedes error. The adversarial process in
these cases has broken down to a degree as a result of two
factors.
First, the Department’s position is easily understood as
a decision to treat any delays in finalizing an adoption as its
chief concern. If the choice in a particular case is between
accepting a relatively quick remand for further ICWA-
related investigation (even if the Department believes such
investigation is almost certainly not going to be fruitful) or
waiting the months necessary for completion of full briefing
and argument of an appeal, the Department appears to be
choosing in some cases what it views as the lesser of two
evils. 14
Second, the Department may be interpreting comments
from some courts as encouragement to abandon its normal
adversarial posture. There are breezy, appellate
observations in published opinions that minimize the
aggregate burden of inquiry efforts—even though that view
is not shared by at least one of those closest to the action.
(Compare In re Oscar H. (2022) 84 Cal.App.5th 933, 935
[“The [Department] could have satisfied its inquiry
obligations by asking for contact information and making a
14 The problem, of course, is that legally unnecessary
additional inquiry efforts to be undertaken on remand take time
that could be spent elsewhere. Even if that can be done more
quickly for one child than resolving that child’s dependency
appeal, in the aggregate the time adds up.
23
few phone calls”]; Antonio R., supra, 76 Cal.App.5th at 436
[“All the Department needed to do was . . .”] with In re A.C.
(2022) 75 Cal.App.5th 1009, 1019 (conc. & dis. opn. of
Crandall, J.) [“As someone who handled a busy dependency
calendar for the three and a half years immediately
preceding this assignment, it is hard to understate the
havoc, expense, and uncertainty caused by the[ ] conflicting
mandates” of ICWA and other law requiring prompt
resolution of juvenile matters and stable homes for
dependent children].) In addition, another opinion more
directly counsels the Department to acquiesce in just the
sort of stipulated remand we have here; while the posture of
that case was different, the Department may be
understanding the direction more broadly. (In re M.B.
(2022) 80 Cal.App.5th 617, 629 [“Rather than attempt to
moot [the parent’s] appeal by belatedly conducting the
investigation required by section 224.2, the Department’s
proper course of action was to stipulate to a conditional
reversal with directions for full compliance with the inquiry
and notice provisions of ICWA and related California law—a
procedure the Department has used in many ICWA appeals
pending before us”].)
I accordingly do not believe the Department’s
acquiescence in a remand carries its customary force in
demonstrating the existence of reversible error.
24
VI
In closing, it is again worth emphasizing that
compliance with ICWA, which enables tribal participation, is
important. The point is not that the Department should be
relieved of a sensible, robust duty to inquire that is
necessary to determine whether the protections of ICWA
apply in a given case. Rather, the point, as I have said
before (H.V., supra, 75 Cal.App.5th at 439 (dis. opn. of
Baker, J.)), is that it is possible to have too much of a good
thing, and we should not be in the business of appellate
nitpicking that is not compelled by statute.
Reviewing courts should ensure, via conditional
reversal (or affirmance), that juvenile courts are attentive to
the straightforward obligation in both federal and state law
that requires ICWA-related inquiry of all participants at the
first dependency court appearance. Social services agencies
should take seriously the potential sources of tribal
membership information specified in Section 224.2 and
inquire of parents and other family members likely to have
relevant information. But the juvenile courts must manage
that process in the first instance and our review should be
appropriately deferential, looking at the sufficiency of the
evidence for a juvenile court’s determination that an
adequate inquiry has been made to determine whether a
child is an Indian child.
BAKER, J.
25