In re Christopher M. CA2/8 ( 2023 )

Filed 10/31/23 In re Christopher M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Christopher M., a Person B314839
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK01271C)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Michael C. Kelley, Judge. Conditionally
affirmed and remanded with directions.
Michelle E. Butler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Avedis Koutoujian, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
L.F. (Mother), the mother of a dependent child in a legal
guardianship with a maternal aunt, appeals from the juvenile
court’s order denying her Welfare and Institutions Code1
section 388 petition in which she sought placement of the child
with her or the child’s adult sibling. Mother’s sole contention on
appeal is that the juvenile court and the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with the applicable provisions of the Indian Child Welfare
Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related
California law. We conclude the juvenile court prejudicially erred
in finding that ICWA did not apply because DCFS failed to
comply with its duty of inquiry as to the child’s maternal
extended family. Therefore, we conditionally affirm the order
denying Mother’s section 388 petition and remand for ICWA
compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and C.M. (Father) are the parents of Christopher
M., a boy born in March 2010. Mother also has three adult
children, S.G., M.M., and P.M., from prior relationships. M.M.
and P.M. were minors at the start of the proceedings but have
1 Unless otherwise stated, all further statutory references
are to the Welfare and Institutions Code.
2
since reached the age of majority. Only Christopher is the
subject of this appeal.
On September 17, 2013, DCFS filed a section 300 petition
on behalf of Christopher, M.M., and P.M. based on Mother’s
substance abuse. The petition included an Indian Child Inquiry
Attachment (ICWA-010) form that indicated both Mother and
Father denied any Indian ancestry.
At the September 17, 2013 detention hearing, Mother
appeared and submitted a Parental Notification of Indian Status
(ICWA-020) form in which she checked a box stating she did not
have any Indian ancestry as far as she knew. Father did not
appear. At the hearing, the juvenile court found that ICWA did
not apply.
In its October 2013 jurisdictional and dispositional report,
DCFS recounted that Mother was born in El Salvador and came
to the United States when she was 11 years old. She was raised
by her paternal grandmother in El Salvador, and began residing
with her parents when she moved to the United States. Mother
denied any Indian ancestry. DCFS reported that Father was
born in Mexico and came to the United States when he was
19 years old. He had three sisters and two brothers. His mother
and all of his siblings lived in Mexico, and his father was
deceased. Father also denied any Indian ancestry.
At the October 29, 2013 jurisdictional and dispositional
hearing, Father appeared and submitted an ICWA-020 form,
stating he did not have any Indian ancestry as far as he knew.
The juvenile court again found that ICWA did not apply.
The court sustained an amended section 300 petition and
declared the children dependents of the court. The court placed
3
Christopher in the home of his parents with family maintenance
services.
On April 29, 2014, DCFS filed a section 342 petition on
behalf of Christopher and his half-sibling, P.M., based on
Mother’s recurrent substance abuse, self-cutting behavior, and
failure to comply with her court-ordered services. In an ICWA-10
attachment to the section 342 petition, DCFS stated that Mother
was asked about the children’s Indian status on April 7, 2014,
and she again reported that there was no Indian ancestry in her
family. On May 6, 2014, the court placed Christopher with his
maternal aunt.
On June 17, 2014, the court sustained the section 342
petition, removed Christopher from the custody of his parents,
and granted both parents family reunification services. During
the reunification period, Christopher remained placed in the
home of his maternal aunt. The maternal grandparents also
resided in the home. At the 12-month review hearing on July 2,
2015, the court terminated the parents’ reunification services and
set the matter for a section 366.26 permanency planning hearing.
At the section 366.26 hearing on October 30, 2015, the
court ordered a legal guardianship as the permanent plan for
Christopher. On March 7, 2016, the court appointed the
maternal aunt as the child’s legal guardian, and terminated its
dependency jurisdiction over Christopher with Kinship
Guardianship Assistance Payment (Kin-GAP) funding in place.
The court granted unmonitored visitation to Father and
monitored visitation to Mother.
Three years later, on July 1, 2019, Mother filed a section
388 petition requesting additional visitation and custody of
Christopher. At the time she filed the petition, Mother had
4
completed a 10-month in-patient drug program and begun
residing with her adult daughter, S.G. In its response to the
petition, DCFS reported that, on August 19, 2019, Mother denied
Indian ancestry.
On August 30, 2019, Mother appeared for a hearing on the
section 388 petition and was reappointed counsel. On that date,
Mother submitted a second ICWA-020 form in which she again
indicated that she had no Indian ancestry as far as she knew.
Father was provided with notice of the section 388 hearing, but
did not appear.
At a contested hearing held on October 31, 2019, the court
partially granted the section 388 petition. The court reinstated
jurisdiction over Christopher and ordered reunification services
for Mother. No services were ordered for Father, and he did not
participate in any of the proceedings that were held following the
reinstatement of jurisdiction.
After Mother received six months of reunification services,
the COVID-19 pandemic delayed the case. On December 7, 2020,
the court terminated reunification services for Mother and
ordered DCFS to resume permanent placement services for
Christopher. On April 6, 2021, the court set the matter for
another section 366.26 hearing. As of that date, Christopher
remained in a legal guardianship with his maternal aunt, and
continued to reside with her and the maternal grandparents.
On May 25, 2021, DCFS completed a concurrent planning
assessment for Christopher. During the assessment, the
maternal aunt initially indicated that she wanted to move
forward with adopting Christopher. However, the maternal aunt
later informed DCFS that she preferred to stay with a legal
5
guardianship instead because Mother became angry when she
learned about the adoption plan.
On August 3, 2021, Mother filed a second section 388
petition. She requested that the court grant her custody of
Christopher, or in the alternative, allow her adult daughter, S.G.,
with whom she was residing, to adopt the child. The following
day, the trial court called the section 366.26 hearing. In a minute
order for that hearing, the court stated that it found good cause
to take the section 366.26 hearing off calendar, and that a further
section 366.26 hearing was not required.
On August 25, 2021, the court held a prima facie hearing
on Mother’s second section 388 petition. The court denied the
petition, finding that Mother had not shown changed
circumstances or that the relief sought was in Christopher’s best
interest.
On August 27, 2021, Mother filed an appeal from the denial
of her second section 388 petition. On October 6, 2021, during
the pendency of Mother’s appeal, the juvenile court terminated
dependency jurisdiction over Christopher with an existing Kin-
GAP guardianship in place.2
DISCUSSION
On appeal, Mother argues the juvenile court erred in
finding that ICWA did not apply because both the court and
DCFS failed to comply with their duty of inquiry. DCFS asserts
(1) Mother’s appeal is moot, (2) ICWA was not implicated at the
section 388 hearing from which she appeals, and (3) substantial
2 We previously granted DCFS’s motion to take additional
evidence or judicial notice of the juvenile court’s October 6, 2021
minute order. (Code Civ. Proc., § 909; Evid. Code, § 452.)
6
evidence supports the finding that Christopher is not an Indian
child. We conclude Mother’s appeal is not moot, and the hearing
at issue on appeal is subject to the requirements of ICWA.
We further conclude the matter must be remanded for DCFS to
conduct a proper ICWA inquiry of Christopher’s maternal
extended family, but no additional inquiry of the paternal
extended family is required in this case.
I. Overview of ICWA and related California law
“ICWA reflects a congressional determination to protect
American Indian children and to promote the stability and
security of Indian tribes and families.” (In re Josiah T. (2021)
71 Cal.App.5th 388, 401 (Josiah T.).) To that end, ICWA
mandates that “[i]n any involuntary proceeding in a [s]tate 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” of the
pending proceedings and the right to intervene. (25 U.S.C.
§ 1912(a).) Similarly, California law requires notice to the child’s
parent, Indian custodian, if any, and the child’s tribe if there is
“reason to know . . . that an Indian child is involved” in the
proceeding. (§ 224.3, subd. (a).)
Both juvenile courts and child protective agencies “have an
affirmative and continuing duty to inquire whether a child for
whom a petition under Section 300 . . . may be or has been filed,
is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah
W. (2016) 1 Cal.5th 1, 14.) “ ‘This continuing duty can be divided
into three phases: the initial duty to inquire, the duty of further
inquiry, and the duty to provide formal ICWA notice.’ ” (Josiah
T., supra, 71 Cal.App.5th at p. 402.)
7
California law provides that the duty to inquire “begins
with the initial contact” (§ 224.2, subd. (a)) and requires the
juvenile court and child protective agency to ask all relevant
involved individuals whether the child is or may be an Indian
child (Id., subds. (a)–(c)). At the first appearance of each party,
the court must inquire whether that party “knows or has reason
to know that the child is an Indian child,” and must “instruct the
parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian
child.” (Id., subd. (c).) Additionally, when the agency takes a
child into temporary custody, it must inquire of a nonexclusive
group that includes the child, the parents, and extended family
members “whether the child is, or may be, an Indian child.” (Id.,
subd. (b)). Extended family members include adults who are the
child’s grandparent, aunt or uncle, brother or sister, brother-in-
law or sister-in-law, niece or nephew, first or second cousin, or
stepparent. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
“If the [juvenile] court makes a finding that proper and
adequate further inquiry and due diligence . . . 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).) We generally review the
juvenile court’s ICWA findings under the substantial evidence
test, “ ‘ “which requires us to determine if reasonable, credible
evidence of solid value supports the court’s order.” ’ ” (Josiah T.,
supra, 71 Cal.App.5th at p. 401.)
II. Mother’s appeal is not moot
Prior to the filing of its respondent’s brief, DCFS moved to
dismiss the appeal as moot because the juvenile court has since
8
terminated its jurisdiction over Christopher. DCFS raises the
same mootness argument in its respondent’s brief. On April 19,
2023, we summarily denied DCFS’s motion to dismiss. While
Mother asserts this ruling precludes further consideration of the
issue, the summary denial of a motion to dismiss an appeal does
not establish the law of the case. (See Kowis v. Howard (1992)
3 Cal.4th 888, 901; Building a Better Redondo, Inc. v. City of
Redondo Beach (2012) 203 Cal.App.4th 852, 865.) Nevertheless,
after reexamining the merits of DCFS’s argument, we conclude
Mother’s appeal is not moot.
“A case becomes moot when events ‘ “render[] it impossible
for [a] court, if it should decide the case in favor of plaintiff, to
grant him any effect[ive] relief.” ’ ” (In re D.P. (2023) 14 Cal.5th
266, 276.) Although an order terminating the juvenile court’s
jurisdiction may render an appeal from a previous order in the
proceedings moot, “dismissal for mootness in such circumstances
is not automatic, but ‘must be decided on a case-by-case basis.’ ”
(In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) “[T]he critical
factor in considering whether a dependency appeal is moot is
whether the appellate court can provide any effective relief if it
finds reversible error.” (In re N.S. (2016) 245 Cal.App.4th 53, 60.)
“For relief to be ‘effective,’ two requirements must be met. First,
the plaintiff must complain of an ongoing harm. Second, the
harm must be redressable or capable of being rectified by the
outcome the plaintiff seeks.” (In re D.P., at p. 276.)
Citing In re Rashad D. (2021) 63 Cal.App.5th 156 (Rashad
D.), DCFS argues Mother’s appeal is moot because she did not
appeal from the juvenile court’s order terminating jurisdiction
over Christopher. In Rashad D., the mother appealed from the
jurisdictional finding and dispositional order declaring her child a
9
dependent of the juvenile court, but she did not appeal from the
subsequent order terminating jurisdiction with a custody order
granting her sole physical custody and both parents joint legal
custody. (Id. at p. 162.) In dismissing the appeal as moot, the
Court of Appeal reasoned that, to the extent the mother was
seeking to have the custody order set aside through a reversal of
the jurisdictional finding or dispositional order, “an appeal from
the orders terminating jurisdiction and awarding custody is
necessary for this court to be able to provide effective relief.” (Id.
at p. 164.) Unless the appellate court reversed those orders, the
juvenile court had “no jurisdiction to conduct further hearings in
the now-closed case.” (Ibid.) But because the mother “did not
appeal those orders, they are not . . . subject to appellate review.
And because the juvenile court terminated its jurisdiction . . . and
that termination is final, a remand for further proceedings in the
juvenile court would be meaningless.” (Id. at pp. 164–165.)
Here, the juvenile court terminated its dependency
jurisdiction over Christopher with a Kin-GAP guardianship in
place during the pendency of Mother’s appeal. However, even
after terminating the dependency, the juvenile court retained
jurisdiction over Christopher as a ward of the legal guardianship.
As the relevant statute provides, “[f]ollowing establishment of a
legal guardianship, the court may continue jurisdiction over the
child as a dependent child . . . or may terminate its dependency
jurisdiction and retain jurisdiction over the child as a ward of the
legal guardianship.” (§ 366.3, subd. (a)(3); see In re Priscilla D.
(2015) 234 Cal.App.4th 1207, 1216.) Because the juvenile court
continues to have jurisdiction over Christopher through the legal
guardianship, it maintains the authority to conduct further
proceedings in the case, such as adjudicating petitions to modify
10
or terminate the guardianship, and if appropriate, reinstating its
dependency jurisdiction. (See § 366.3, subd. (b).) Thus, unlike
Rashad D., this is not a case where the juvenile court lacks
“jurisdiction to conduct further hearings in [a] now-closed case.”
(Rashad D., supra, 63 Cal.App.5th at p. 164.)
Furthermore, if this court were to find reversible error with
respect to the ICWA inquiry, we could grant effective relief to
Mother in the form of a remittitur remanding the matter to the
juvenile court with directions to ensure that DCFS conducts a
proper inquiry into Christopher’s possible Indian ancestry. (See
In re S.G. (2021) 71 Cal.App.5th 654, 664.) Accordingly, an
appeal from the juvenile court’s order terminating dependency
jurisdiction over Christopher is not necessary for this court to
provide effective relief on Mother’s ICWA claim. Under these
circumstances, Mother’s appeal is not moot.
III. ICWA is applicable to the section 388 hearing where
Mother sought a change in custody
DCFS also argues the juvenile court’s ICWA finding should
be affirmed because ICWA’s requirements were not implicated at
the hearing from which Mother appeals. We disagree.
ICWA applies to any “ ‘child custody proceeding’ ” involving
an Indian child. (25 U.S.C. § 1903(1).) Under California law, an
“ ‘Indian child custody proceeding’ means a hearing during a
juvenile court proceeding . . . involving an Indian child . . . that
may culminate in one of the following outcomes: [¶] (A) Foster
care placement . . . [¶] (B) Termination of parental rights . . . [¶]
(C) Preadoptive placement . . . [¶] (D) Adoptive placement.”
(§ 224.1, subd. (d)(1).) “Foster care placement” includes “removal
of an Indian child from their parent . . . for placement in a foster
home, institution, or the home of a guardian . . ., in which the
11
parent . . . may not have the child returned upon demand, but in
which parental rights have not been terminated.” (Id.,
subd. (d)(1)(A).) Where there is reason to know that an Indian
child is involved, ICWA notice must be provided “for hearings
that may culminate in an order for foster care placement,
termination of parental rights, preadoptive placement, or
adoptive placement.” (§ 224.3, subd. (a).) Additionally,
“[w]henever an Indian child is removed from a foster care home
or institution, guardianship, or adoptive placement for the
purpose of further foster care, guardianship, or adoptive
placement, placement of the child shall be in accordance with
[ICWA].” (§ 224, subd. (b).)
Mother appeals from the juvenile court’s order denying her
second section 388 petition. In that petition, Mother requested
the court grant her custody of Christopher, or alternatively, allow
Christopher’s adult half-sibling, S.G., to adopt him. At the time
Mother filed the petition on August 3, 2021, the court had
reinstated its dependency jurisdiction over Christopher and set
another section 366.26 hearing to determine whether a legal
guardianship with the maternal aunt should remain the child’s
permanent plan. For reasons that are not clear from the record,
the court took that section 366.26 hearing off calendar the day
after Mother filed the petition, but it did not terminate its
dependency jurisdiction at that time. Instead, Christopher
remained a dependent of the court when it held the hearing on
the section 388 petition.
If Mother had been granted the relief that she sought in
her petition, then the court would have removed Christopher
from his legal guardian, and either (1) returned him to Mother’s
custody, or (2) placed him in the home of S.G. and set the matter
12
for a new section 366.26 hearing to determine whether adoption
by S.G. should be ordered as the child’s permanent plan. Had
Mother limited her section 388 petition to requesting that
Christopher be returned to her care, then we would agree with
DCFS that the hearing on the petition did not implicate ICWA
because granting the requested relief would mean placing the
child with a parent. This is so because ICWA has no application
when parents seek return of a child to their care. (See In re N.F.
(2023) 95 Cal.App.5th 170, 180.) However, based on the specific
relief that Mother sought, another possible outcome at the
hearing was a foster care placement with Christopher’s adult
half-sibling with adoption as the child’s new permanent plan
goal. The hearing on Mother’s section 388 petition therefore met
the definition of an “Indian child custody proceeding” if there was
reason to know that an Indian child was involved. (§ 224.1,
subd. (d)(1).)
IV. Remand is required for DCFS to conduct an ICWA
inquiry of maternal extended family members
Mother challenges the juvenile court’s finding that ICWA
did not apply on the grounds that the court and DCFS failed to
comply with their duty of inquiry under ICWA and California
law. She argues neither the court nor DCFS conducted an
adequate ICWA inquiry of the parents, and instead relied solely
on the parents’ denials of Indian ancestry in their ICWA-020
forms. Mother also asserts the ICWA inquiry was inadequate
because DCFS never asked any extended family members on
either the paternal or maternal sides of Christopher’s family
about the child’s possible Indian ancestry.
13
A. ICWA inquiry of the parents
With respect to the inquiry made of the parents, the record
reflects that DCFS filed the original section 300 petition in
September 2013 on behalf of Christopher and his half-siblings,
M.M. and P.M. In September 2013 and again in October 2013,
DCFS asked both Mother and Father if they had Indian ancestry,
and each of them denied any Indian ancestry. At their first court
appearances, both Mother and Father also submitted ICWA-020
forms in which they indicated they did not have Indian ancestry
as far as they knew. At the October 2013 jurisdictional and
dispositional hearing, the juvenile court found that ICWA did not
apply based on the information provided by the parents.
Mother contends this inquiry of the parents was
inadequate because the juvenile court did not independently
inquire at the jurisdictional and dispositional hearing whether
either parent knew or had reason to know that Chritopher was
an Indian child. Mother also claims the court failed to address an
error in Father’s ICWA-020 form, which listed M.M. (who has a
different father) under the child’s name instead of Christopher.
As DCFS points out, however, M.M. likely was named on the
form because he was the first child listed in the dependency case
title. The failure to name Christopher appears to have been a
simple oversight given that Father never claimed paternity over
M.M., and there is nothing in the record to suggest Father
intended to submit an ICWA-020 form for any child other than
Christopher. Moreover, both Mother and Father attended the
hearing with their respective counsel, and neither the parents
nor their counsel disputed the accuracy of the information in the
ICWA-020 forms or the court’s finding that ICWA did not apply.
Additionally, in August 2019, Mother again denied any Indian
14
ancestry both in an interview with DCFS and in an updated
ICWA-020 form that she submitted at the hearing on her first
section 388 petition. Although Father was given notice of the
hearing, he did not appear or make any effort to participate in
the reopened dependency case. Considering the totality of this
record, we see no reversible error with respect to the ICWA
inquiry made of the parents.
B. ICWA inquiry of the paternal extended family
With respect to DCFS’s failure to inquire of Christopher’s
paternal extended family, the record shows that, when DCFS
interviewed Father for its jurisdictional and dispositional report
in October 2013, he stated that he was the sole member of his
family residing in the United States. Father also reported that
Christopher’s paternal grandfather was deceased, and that the
child’s paternal grandmother, aunts, and uncles all resided in
Mexico. This is the only information in the record about the
paternal side of Christopher’s family, and there is no indication
that Father provided DCFS with identifying or contact
information for any paternal relatives.
As this court recently explained: “ ‘Where . . . a parent
largely fails . . . to provide names and contact information for
extended family members, [the Department’s] ability to conduct
an exhaustive ICWA inquiry necessarily is constrained.’
[Citation.] . . . Requiring the Department to track down
information about extended family members beyond that offered
by participants in the proceedings would impose an undue
burden on the Department and necessarily reduce the resources
it has to otherwise protect the welfare of dependent children.”
(In re H.B. (2023) 92 Cal.App.5th 711, 720; see In re S.S. (2023)
90 Cal.App.5th 694, 704–705 (S.S.) [extended family inquiry
15
requirement is limited and intended to ensure social workers
“ask an added question of extended family members whom [they]
often already are investigating in their usual course of work”].)
Because the record does not support an inference that DCFS ever
had the names or contact information for any paternal extended
family members, Mother has not shown DCFS failed to comply
with its duty of inquiry as to the paternal side of Christopher’s
family.
C. ICWA inquiry of the maternal extended family
We reach a different conclusion, however, with respect to
Christopher’s maternal extended family. The record reflects that,
over the course of the dependency proceedings, DCFS had contact
with several of Christopher’s maternal relatives, including (1) the
maternal aunt who was appointed Christopher’s legal guardian;
(2) the maternal grandparents who resided with Christopher and
the maternal aunt as recently as April 2021; and (3) the adult
half-sibling, S.G., with whom Mother was residing as of August
2021. There is no indication in the record, however, that DCFS
ever asked any of these extended family members whether
Christopher is or might be an Indian child.
In the absence of any evidence that DCFS complied with its
duty to inquire of these known and available extended family
members, as required by section 224.2, subdivision (b), the
juvenile court’s implied finding that DCFS fulfilled its duty of
inquiry as to the maternal side of Christopher’s family was not
supported by substantial evidence. (See, e.g., In re Jayden G.
(2023) 88 Cal.App.5th 301, 311 [ICWA error where DCFS failed
to inquire of available extended family members for whom it had
contact information]; In re J.W. (2022) 81 Cal.App.5th 384, 389
[ICWA error where DCFS did not ask mother’s extended family
16
members about their Indian ancestry, despite having contact
with maternal grandmother, uncle, and aunt]; In re M.M. (2022)
81 Cal.App.5th 61, 70, review granted Oct. 12, 2022, S276099
[ICWA error where no inquiry was made of extended family
members with whom DCFS was in contact].)
Turning to the question of prejudice, appellate courts have
adopted several divergent standards for deciding whether an
ICWA inquiry error is prejudicial. These standards have been
described as ranging from a presumptive affirmance rule (In re
A.C. (2021) 65 Cal.App.5th 1060, 1065) to a rule requiring
reversal in all cases where ICWA requirements have been
ignored (In re A.R. (2022) 77 Cal.App.5th 197, 207), or where an
inadequate inquiry makes it impossible for the parent to show
prejudice (In re Y.W. (2021) 70 Cal.App.5th 542, 556). There are
also variations in between, including a standard finding harmless
error unless the record contains information suggesting a reason
to believe the child may be an Indian child (In re Dezi C. (2022)
79 Cal.App.5th 769, 779, review granted Sept. 21, 2022,
S275578), and a standard finding prejudice where the record
shows there was readily obtainable information that was likely to
bear meaningfully upon whether the child is an Indian child
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 744).
We believe, however, that the approach adopted by the
Fifth District Court of Appeal in In re K.H. (2022) 84 Cal.App.5th
566 (K.H.) is the correct one. “ ‘ICWA compliance presents a
unique situation’ ” because its purpose, and the purpose of the
California statutes that implement it, “ ‘is to provide notice to the
tribe sufficient to allow it to determine whether the child is an
Indian child, and whether the tribe wishes to intervene in the
proceedings.’ ” (Id. at p. 608.) In assessing whether an inquiry
17
error is prejudicial, “the relevant injury under ICWA is not tied to
whether the appealing parent can demonstrate to the juvenile
court or a reviewing court a likelihood of success on the merits of
whether a child is an Indian child. The relevant rights under
ICWA belong to Indian tribes and they have a statutory right to
receive notice where an Indian child may be involved so that they
may make that determination. It necessarily follows that the
prejudice to those rights lies in the failure to gather and record
the very information the juvenile court needs to ensure accuracy
in determining whether further inquiry or notice is required, and
whether ICWA does or does not apply.” (Id. at p. 591.) Where
there has not been a proper inquiry, “the error is prejudicial
because neither the agency nor the court gathered information
sufficient to ensure a reliable finding that ICWA does not apply
and remanding for an adequate inquiry in the first instance is the
only meaningful way to safeguard the rights at issue.” (Ibid.)
Applying the approach articulated in K.H., we conclude
that DCFS’s failure to make any inquiry of known and available
extended family members on the maternal side of Christopher’s
family left the juvenile court without sufficient evidence upon
which to find that the inquiry was proper, adequate, and duly
diligent. As in K.H., the error was prejudicial because “the
inquiry fell well short of that required to gather the information
needed to meaningfully safeguard the rights of the tribes, as
intended under ICWA and California law.” (K.H., supra,
84 Cal.App.5th at p. 620.)
Additionally, as a majority panel of this division reasoned
in S.S., “[p]lacing this child with maternal family members does
not dispel prejudice to tribes. [Citation.] Even in such cases,
tribes may assert tribal jurisdiction or may formally intervene in
18
state court.” (S.S., supra, 90 Cal.App.5th at p. 711.) “A ‘tribe’s
rights are independent of the rights of other parties.’ ” (Ibid.)
Accordingly, remand for a proper and adequate inquiry of
Christopher’s maternal extended family is required in this case.
DISPOSITION
The juvenile court’s order denying Mother’s section 388
petition is conditionally affirmed, and the matter is remanded for
compliance with ICWA and related California law. On remand,
the court must promptly direct DCFS to comply with its duty of
inquiry in accordance with section 224.2 by interviewing known
and available maternal extended family members about the
child’s possible Indian status. If that information establishes a
reason to know that an Indian child is involved, notice must be
provided in accordance with ICWA and section 224.3. The court
must determine, on the record, whether the ICWA inquiry and
notice requirements have been satisfied and whether Christopher
is an Indian child. If the court determines Christopher is an
Indian child, it must vacate its order and conduct a new hearing
on Mother’s section 388 petition and all further proceedings in
accordance with ICWA and related California law. If not, the
court’s original order shall remain in effect.
VIRAMONTES, J.
I CONCUR:
WILEY, J.
19
STRATTON, P. J., Dissenting
Mother appeals the juvenile court’s order establishing a
guardianship with a maternal aunt for son Christopher M. She
contends DCFS did not comply with its initial duty of inquiry
under Welfare and Institutions Code3 section 224.2,
subdivision (b) in that DCFS failed to ask available extended
maternal family members whether Christopher is an “Indian
child” within the meaning of section 1903 of the federal Indian
Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
DCFS erred in failing to question extended maternal family
members despite having contact information for them. However,
I conclude the error was harmless because Christopher’s
designated legal guardian is his maternal aunt.
In enacting ICWA, Congress found “that an alarmingly
high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high
percentage of such children are placed in non-Indian foster and
adoptive homes and institutions.” (25 U.S.C. § 1901(4).) ICWA
reflects the intent of Congress “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, and
by providing for assistance to Indian tribes in the operation of
child and family service programs.” (25 U.S.C. § 1902.) The
3 Undesignated statutory references are to the Welfare and
Institutions Code.
court is obligated to ask each “participant” in the proceedings
whether they have reason to believe the child is an Indian child
and to instruct the parties to inform the court if they
subsequently receive information that provides a reason to know
the child is an Indian child. (In re Austin J. (2020)
47 Cal.App.5th 870, 882–883, superseded by statute on other
grounds as stated in In re E.C. (2022) 85 Cal.App.5th 123, 147;
see 25 C.F.R. § 23.107(a) (2022).)
As our Supreme Court has recognized, “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 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.’ ” (In re Isaiah W. (2016) 1 Cal.5th
1, 7.) In enacting these provisions, “ ‘Congress was concerned not
solely about the interests of Indian children and families, but also
about the impact on the tribes themselves of the large numbers of
Indian children adopted by non-Indians.’ ” (Id. at p. 9.)
The concern about separating Indian children from their
Indian families, heritage and culture was the topic of extensive
Congressional hearings when ICWA was enacted. As one
commentator wrote, the “ ‘wholesale separation of Indian
children from their families is perhaps the most tragic and
destructive aspect of American Indian life today.’ ” (Atwood,
Flashpoints Under the Indian Child Welfare Act: Toward a New
Understanding of State Court Resistance (2002) 51 Emory L.J.
587, 601, cited in In re A.C. (2022) 75 Cal.App.5th 1009, 1014.)
ICWA authorizes states to provide even more protection
than the federal statute provides. In 2006, the California
2
legislature enacted parallel statutes to affirm ICWA’s purposes
and mandate compliance with ICWA in all Indian child custody
proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.)
In California, the child protection agency is obligated 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.” (§ 224.2, subd. (b); In re Dominick D. (2022)
82 Cal.App.5th 560, 566.)
Here, DCFS did not fulfill its duties under section 224.2 as
it did not ask extended maternal family members about Indian
ancestry, despite having their contact information. This was a
legal error. But the next question is whether the error was
prejudicial. A prerequisite to reversal of a trial court’s decision
under California law is a showing of miscarriage of justice. (Cal.
Const., art. VI, § 13.)
I find no miscarriage of justice, that is, no prejudice. ICWA
itself sets out placement priorities. Section 1915 of title 25 of the
United States Code provides that in any adoptive placement of an
Indian child under state law, “a preference shall be given, in the
absence of good cause to the contrary, to a placement with [¶]
(1) a member of the child’s extended family; [¶] (2) other members
of the Indian child’s tribe; or [¶] (3) other Indian families.”
(25 U.S.C. § 1915(a).) Extended family under ICWA includes
aunts and uncles. (25 U.S.C. § 1903(2).)
In this case, the legal guardianship by the maternal aunt
(who is residing with the maternal grandparents) implemented
ICWA’s first preference. Christopher is in no danger of being
separated from his biological family, the evil ICWA was enacted
to prevent. (In re J.W. (2022) 81 Cal.App.5th 384, 391.)
3
Moreover, even if a tribe had intervened, it would be bound by
the placement priorities of the statute if, as the court found here,
the first placement priority was in the minor’s best interest.
Given that the placement chosen by the juvenile court is clearly
in Christopher’s best interests and also promotes rather than
eviscerates his connection to his biological family, I am hard
pressed to say that a tribe’s inability to participate warrants
delaying Christopher’s unification with, not separation from, his
biological family.
I cannot find that ICWA and its California counterpart
were intended to elevate a tribe’s right to participate over the
child’s interest in a secure and safe placement within the bosom
of the child’s biological family. Tribes are included in the
proceedings to ensure that no unreasonable and unjustified
separation from biological family members occurs. Nothing like
that happened here. That the tribe may be the unofficial real
party in interest does not supersede the child’s best interests. Do
we want to unwind this biological-family guardianship so that a
tribe can come in and suggest someone else within the first
preference category? I do not. There is no miscarriage of justice.
STRATTON, P. J.
4