In re L.B. ( 2023 )

Filed 12/28/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re L.B., a Person Coming Under
the Juvenile Court Law.
A167363
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY, (Alameda County Superior Ct.
Plaintiff and Respondent, No. JD-034494-01)
v.
La.B.,
Defendant and Appellant.
L.B.’s mother, La.B. (mother), appeals from a judgment entered after a
contested hearing held pursuant to Welfare & Institutions Code1 section
366.26 (terminating parental rights). In this appeal, she argues that the
juvenile court committed reversible error in concluding that an adequate
inquiry as to L.B.’s ancestry had been made under the Indian Child Welfare
Act (ICWA)2, even though no extended family members had been asked about
his ancestry. We agree and therefore reverse the judgment conditionally,
with instructions to complete the inquiry and then to proceed in a manner
consistent with the completed inquiry’s results.
1 All subsequent statutory references are to the Welfare and
Institutions Code, unless otherwise noted.
2 Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).
1
BACKGROUND
After police served a protective custody warrant pursuant to
section 340 and Contra Costa Children & Family Services filed a petition
under section 300, L.B. was placed with a resource family caregiver. Mother
completed a form concerning parental notification of Indian status, on which
she indicated that she might “be a member of, or eligible for membership in, a
federally recognized tribe” of “unknown” name and location. At the initial
hearing, the court inquired of both parents concerning possible ancestry, and
both parents denied any. The Contra Costa County Superior Court exercised
jurisdiction until L.B.’s legal residence was determined to be in Alameda
County, where the case was then transferred.
In the first status review report filed by Alameda County Social
Services Agency (SSA), it is noted that mother “report[ed] residing with her
sister” for two months that year. The same document records a phone call
between that sister and a social worker. An addendum report filed in
anticipation of the section 366.26 hearing mentions not only the maternal
aunt, but also a paternal grandmother, a maternal cousin, and two other
maternal family members—“S[.] and T[.]” However, there is no record of any
of these relatives being asked about L.B.’s ancestry.
At the conclusion of the section 366.26 hearing, the Alameda County
Superior Court found “that the child is not an Indian child, and no further
notice is required under ICWA based upon the following: [¶] . . . [O]n
April 1st, 2021 Contra Costa . . . Court found that ICWA does not apply to
this dependency matter. The reason is because the Court there inquired of
both the mother and father who both indicated they did not have Native
2
American or American Indian ancestry.”3 Accordingly, the juvenile court
terminated the respective parental rights of mother and presumed father.
This appeal followed.
DISCUSSION
Mother argues that “the juvenile court erred when it failed to ensure
adequate inquiry was completed pursuant to” ICWA. (Capitalization
omitted.) We agree.
A trial court’s determination that “an inquiry was ‘adequate’ and an
agency acted with appropriate diligence” is reviewed for abuse of discretion.
(In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004–1005.) The standard for
assessing whether such an error was prejudicial is a matter of ongoing
controversy now pending in our Supreme Court. (In re Dezi C. (2022)
79 Cal.App.5th 769, review granted September 21, 2022, S275578.) Like our
colleagues in Division Two of this court, we “adopt the standard of” In re
Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.), which requires
reversal “ ‘where the record demonstrates that the agency has not only failed
in its duty of initial inquiry, but where the record indicates that there was
readily obtainable information that was likely to bear meaningfully upon
whether the child is an Indian child.’ ”4 (In re V.C. (2023) 95 Cal.App.5th 251,
262.)
3 Because ICWA uses the term “Indian” and “Indian child” we do so on
occasion as well, not out of disrespect, but because of the need for clarity and
consistency, even though we recognize that other terms, such as Native
American, Indigenous American, or American Indian may be preferable. (In
re A.A. (2023) 88 Cal.App.5th 393, 396.)
4 As explained by In re V.C., at least two of the alternative standards
are unsatisfactory: A “presumptive affirmance rule requiring a parent to
demonstrate evidence in the record or make an offer on appeal regarding
possible Indian heritage would routinize” the generally disfavored practice of
3
Another controversy exists over what the requisite ICWA inquiry
entails. (In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.), review granted
September 27, 2023, S281447.) Section 224.2, subdivision (b), provides: “If a
child is placed into the temporary custody of a county welfare department
pursuant to Section 306 . . . , the county welfare department or county
probation department has a duty to inquire whether that child is an Indian
child. Inquiry includes, but is not limited to, asking . . . extended family
members” (among others) “whether the child is, or may be, an Indian
child . . . .” Appellate courts have disagreed as to whether that prescribed
inquiry is required where, as here, the child has been taken into protective
custody pursuant to a warrant, and not “pursuant to Section 306 . . . .” (Ibid.)
Answering in the negative and urging a narrow approach to the
question are authorities such as In re Robert F. (2023) 90 Cal.App.5th 492,
504 (Robert F.), which purport to follow the “plain language of” the statute.
(See also In re Ja.O. (2023) 91 Cal.App.5th 672, 681, and In re Andres R.
(2023) 94 Cal.App.5th 828, 845 (Andres R.).) In Andres R., Division Two of
the Court of Appeal, Fourth Appellate District held that the duty imposed by
section 224.2, subdivision (b), is expressly limited to warrantless removals,
and that this construction neither conflicts with prior precedent nor
undermines the purposes of ICWA. (Andres R., at pp. 846, 845–855.)
considering “new evidence on appeal”; and a rule deeming a deficient inquiry
harmless unless the record contains information suggesting a “ ‘ “reason to
believe” ’ ” otherwise “ ‘would effectively impose a duty on that parent to
search for evidence that the Legislature has imposed on only the
agency . . . .’ ” (In re V.C., supra, 95 Cal.App.5th at p. 261, quoting Benjamin
M., supra, 70 Cal.App.5th at p. 743.) Adopting the third alternative—the
automatic reversal rule set forth by In re G.H. (2022) 84 Cal.App.5th 15, 32,
inter alia—would not change the result in the present case.
4
In turn, responding to Andres R. and defending the rival construction
originally championed by Delila D., supra, 93 Cal.App.5th 953, the Third
Appellate District recently set forth the most comprehensive case for
subdivision (b)’s broader application. (In re C.L. (2023) 96 Cal.App.5th 377.)
According to that analysis, “section 224.2 was intended to expand the scope of
initial inquiry beyond the parents,” even when a child was removed pursuant
to a protective custody warrant. (Id. at p. 388.)
We decline to adopt the narrow approach advanced by Robert F. and
instead express our “agreement with Delila D. on this point, holding that the
duty to make ICWA inquiry of ‘extended family members’ applies even if” the
children are “not taken into ‘temporary custody’ pursuant to section 306.” (In
re V.C., supra, 95 Cal.App.5th at p. 260.)
In support of the conclusion in Delila D., supra, 93 Cal.App.5th at
page 962 that “there is only one duty of initial inquiry, and that duty extends
to available family members no matter how the child is initially removed
from home,” we note that section 224.2, subdivision (a) refers simply to “an
affirmative and continuing duty to inquire whether a child . . . is or may be
an Indian child.” (Italics added.) Moreover, subdivision (b) “does not state
that the inquiry it describes applies ‘only if’ a child is taken into temporary
custody under section 306.” (Delilah D., at p. 974.) And “most importantly, it
simply doesn’t make sense to apply different initial inquiries depending on
how the child was initially removed from home, as that procedural
happenstance has nothing to do with a child’s ancestry.” (Id. at p. 975.)
Our high court acknowledged that the Congressional enactment of
ICWA in 1978 was in response to “abusive child 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-
5
Indian homes.” (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) None of the cases using
or following the narrower approach of Robert F. or Andres R. criticize the
federal policy underlying ICWA, or the goal of ICWA to protect the best
interests of Indian children and to promote the stability and security of
Indian tribes and families. (25 U.S.C. § 1902.) As the court recognized in In re
C.L., in enacting the federal policy that “ ‘where possible, an Indian child
should remain in the Indian community[,]’ ” it is clear that “identification of a
child’s Indian community early on is paramount.” (In re C.L., supra,
96 Cal.App.5th at p. 389, citing Mississippi Choctaw Indian Band v. Holyfield
(1989) 490 U.S. 30, 37.) We agree with the observation in Delila D. that
“[a]pplying a narrower initial inquiry to the subset of dependencies that
begin with a temporary removal by warrant frustrates the purpose of the
initial inquiry.” (Delila D., supra, 93 Cal.App.5th at p. 962.) It makes no
sense to require social workers to inquire of extended family members only in
cases where the initial removal of the child was done without a warrant.
Children removed from their homes through a protective custody warrant
under section 340 are no less deserving of investigation into possible Native
American heritage.
These policy considerations further inform our agreement with the
analysis and conclusions of the courts in Delila D., In re V.C., and In re C.L.
from earlier this year. We also second Justice Slough’s concurring opinion in
Andres R. in which she explains the reasons for her view that section 224.2,
subdivision (b), and California Rules of Court, rule 5.481 “create a clear
mandate: where a child has been removed from home or is at risk of being
removed from home, the social worker must ask available extended family
members whether the child is or may be an Indian child.” (Andres R., supra,
94 Cal.App.5th at 861 (conc. opn. of Slough, J.).) An interpretation of section
6
224.2(b) that reduces the opportunities for identification of a child’s Native
American heritage plainly conflicts with that mandate. Finally, we agree
with the court’s observation in Delilah D. that “[t]he costs of broadening the
inquiry [to include extended family members] are slight, as departments are
already required to identify and to contact extended family members for
various reasons unrelated to ICWA during dependency proceedings. (Delilah
D., supra, 93 Cal.App.5th at p. 975, citing In re S.S. (2023) 90 Cal.App.5th
694, 702–703 [providing a list of examples].)
Here, notwithstanding the availability of and contact with multiple
members of L.B.’s extended family, there seems to have been no attempt to
ask those relatives about L.B.’s ancestry. For that reason, the inquiry was
inadequate as a matter of law and the juvenile court’s determination to the
contrary was an abuse of discretion. Further, the error was prejudicial
because the availability of those relatives indicates the existence of “readily
obtainable information that was likely to bear meaningfully upon whether
the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
In short, the failure to complete the requisite inquiry was reversible error.
DISPOSITION
The judgment is conditionally reversed. The juvenile court shall order
the SSA to complete the initial ICWA inquiry, including the specific inquiries
required under section 224.2, subdivision (b). If evidence of L.B.’s Native
American heritage is uncovered, the court shall proceed in conformity with
ICWA and related California law. If not, the juvenile court shall reinstate the
judgment immediately.
7
HIRAMOTO, J.*
WE CONCUR:
BROWN, P.J.
GOLDMAN, J.
Alameda County Social Services v. La.B. (A167363)
* Judge of the Superior Court of California, County of Contra Costa,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
8
Trial Judge: Hon. Ursula Jones Dickson
Trial Court: Alameda County Superior Court
Attorneys:
Sarah Vaona, under appointment by the Court of Appeal, for
Defendant and Appellant.
Donna R. Ziegler, County Counsel, Samantha N. Stonework-
Hand, Senior Deputy County Counsel, for Plaintiff and Respondent.
9