In re A.W. CA1/3

Filed 1/19/23 In re A.W. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re A.W., a Person Coming Under
the Juvenile Court Law.
A165112
NAPA COUNTY HEALTH AND (Napa County Super.
HUMAN SERVICES, Ct. No. 20JD000022)
Plaintiff and Respondent,
v.
J.M.,
Defendant and Appellant.
J.M. (Mother) appeals from the order terminating her parental rights
to her son, A.W. (Minor), pursuant to Welfare and Institutions Code
section 366.26.1 Mother contends: (1) the juvenile court abused its discretion
by denying her Marsden2 motion; and (2) the court and the Napa County
Health and Human Services, Child Welfare Services Department
(Department) failed to comply with the inquiry provisions of the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)). We find no merit in
1 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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Mother’s argument concerning the denial of her Marsden motion. But we
find merit in her claim that the ICWA inquiry in this case was deficient, and
so we will conditionally reverse the order terminating parental rights and
remand the matter for full compliance with the inquiry provisions of ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention, Jurisdiction, and Disposition
The Department filed a dependency petition on March 12, 2020,
alleging M.W. (Father) put then nine-year-old Minor at great risk of serious
physical harm or death (§ 300, subd. (a)) by manufacturing illegal drugs—
namely, Butane Honey Oil—while Minor was at home. The petition alleged
Minor was in an adjacent room when an explosion occurred that caused
serious damage to the bathroom and severe burns to Father. With regard to
Mother, the Department alleged she placed Minor at substantial risk of harm
(§ 300, subd. (b)), as she was aware of Father’s drug lab, his drug use, and the
explosion, but failed to take protective action. As to both parents, the
petition alleged they have drug problems that prevent them from properly
parenting Minor, and they have a significant history with child welfare
services and failed to reunify with other children from other partners due to
substance abuse and neglect. The juvenile court detained Minor on March
13, 2020.
In its jurisdiction and disposition report, the Department reported it
made numerous unsuccessful attempts to contact Father, but it spoke to
Mother who admitted using illegal substances for the last 27 years. Mother
asserted she was high every day for the last ten years until Minor was
removed, but she felt she did not have a problem staying sober, and does not
need support to stay sober. Mother relayed that Father had full custody of
Minor, but they co-parented and she saw Minor every day. There were many
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times when she felt Father was not properly caring for Minor but she never
stepped in or tried to get custody of Minor because she was high. She did not
understand her role in Minor’s removal as she was not present during
Father’s drug lab incident, even though she agreed her substance use
prevented her from keeping her son safe when Father was not providing
appropriate care. She saw Father with butane tanks, but thought he was
“ ‘doing it at a friend’s house.’ ” She stated what happened at his drug lab
was a “ ‘shitty situation but not an explosion’ ” since there were walls left
standing. According to concerned family members, Mother knew about
Father’s illegal activities. The Department recommended the court bypass
reunification services for both parents. The bypass recommendation as to
Mother was based on her failure to reunify with another child (§ 361.5,
subd. (b)(10)).
Following a contested jurisdiction and disposition hearing in May 2020,
the juvenile court found Minor is a child described by section 300,
subdivisions (a) and (b). The court adjudged Minor a dependent child and
bypassed reunification services for Father, but ordered services for Mother
and her compliance with a specific reunification plan.
B. The Six- and Twelve-Month Review Hearings
Prior to the six-month review hearing, the Department reported that
Mother was not in compliance with numerous portions of her reunification
plan. For example, she had not obtained stable housing and was living in
hotels and in her vehicle. She had not attended appointments with the
Department social worker, had not maintained her sobriety or developed a
plan for doing so, and had not participated in therapy. The Department had
no contact with Father, who had an active warrant. At the six-month review
hearing on November 10, 2020, the court ordered Mother to comply with the
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court-ordered reunification plan and advised that failure to do so could result
in termination of services.
A 12-month review hearing was set for May 13, 2021. Prior to the
hearing, the Department filed a report recommending termination of
reunification services for Mother. The report indicated the Department made
contact with Father. As for Mother, she still was not in compliance with
significant portions of her reunification plan, e.g., she had not obtained stable
housing, she was using drugs and got fired from her job, she inconsistently
participated in drug treatment, she had not participated in therapy, and she
had not progressed to unsupervised visits with Minor. In April 2021, Mother
married someone who was recently released from custody and has substance
abuse issues.
The report also noted Minor was engaging in concerning behavior in his
kin caregiver’s house,3 such as defiance, aggression, and lack of hygiene and
impulse control. The caregiver reported Minor’s difficulty in the home
partially stemmed from Mother setting unrealistic expectations about Minor
returning to her care. Minor also had minimal rules while living with
Father, and it was likely difficult for him to transition to a home with more
structure. The caregiver was unwilling to adopt Minor.
At the scheduled 12-month hearing on May 13, 2021, Mother appeared
in court with counsel and requested a contested hearing, which the court set
for June 10, 2021 in courtroom C. At a readiness conference on June 8 in
courtroom C, with Mother present, the contested hearing was continued to
June 24, 2021 in courtroom C with a readiness conference on June 22 in the
same courtroom. Mother and Father both appeared at the June 22 readiness
3 Minor was living in the home of his paternal aunt and paternal step-
uncle.
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conference. At Mother’s request, the contested hearing was re-set for July 8,
2021 with a readiness conference on July 6.
On June 29, 2021, the court heard a request for Minor to travel with
his resource family. Mother was not present at this hearing, which took place
in courtroom C, though her attorney said she told Mother about the hearing
and expected her to appear. At the hearing, county counsel asked the court
to reschedule the contest. The court rescheduled the contested hearing for
July 20, 2021 in courtroom C.
On July 15, 2021, the court held a readiness conference in
Department 2. Mother again did not appear. When asked to confirm the
July 20 date for the contested hearing, Mother’s counsel expressed concern:
“I’m a little bit worried, your Honor. I have lost, just recently, contact with
my client. I got not too long ago additional discovery from the social worker
that indicates she has not been participating or in contact. I guess I can
confirm it and try to reach her and make sure she shows for her contest. I
just don’t know what the end result is going to be.” County counsel asserted
she believed Mother was provided notice of that readiness conference.
Ultimately, the court confirmed the July 20 date for the contested hearing in
courtroom C.
On July 20, 2021, the 12-month contested review hearing took place in
courtroom C. Mother was not present. Mother’s counsel explained that after
Mother failed to appear at the readiness conference, she called Mother and
reminded her of the date, and expected her to be there based on their
conversation. County counsel indicated the Department had lost contact with
Mother “for quite some time.” When asked if the parties wanted to present
any additional evidence, Mother’s counsel said she had none, but knew
Mother would want to testify if she were present. The Department and
5
counsel for Minor objected when Mother’s counsel requested a continuance,
and the court denied the request because no good cause was shown and it
would not be in Minor’s best interests.
Ultimately, the parties submitted on the Department’s reports without
argument. The court terminated Mother’s reunification services and set the
matter for a section 366.26 hearing. In its orders, the court found, by clear
and convincing evidence, that Mother failed to participate regularly in and
make substantive progress in the court-ordered treatment plan, and this was
prima facie evidence that returning custody to Mother would be detrimental
to Minor.
C. Proceedings Leading Up to the Section 366.26 Hearing,
including the April 12, 2022 Marsden hearing
On July 30, 2021, Mother filed a notice of intent to file a writ petition to
challenge the court’s order setting the section 366.26 hearing, but the petition
was eventually dismissed as abandoned because Mother did not file a writ
petition.
On October 7, 2021, the Department filed a request to modify a court
order pursuant to section 388, seeking to change Mother’s visits to supervised
visits once per month and to reduce phone calls to supervised calls once per
week. Accompanying the request was a report stating that contact with
Mother causes Minor anxiety and confusion and prevents him from bonding
with his resource family. More specifically, Mother was aggressive and
negative towards caregivers, called caregivers nonstop, sent negative text
messages, and consistently tried to dictate Minor’s care. This caused two
prior caregivers to be unwilling to provide permanency for Minor. The
current caregiver was interested in providing Minor a permanent home, but
needed the Department’s support to create boundaries with Mother.
Mother’s negative behavior escalated after her services were terminated: she
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was making demands regarding caregiving decisions, visitation, and phone
calls, and yelling at the current caregiver. She also told Minor he did not
need to listen to his caregiver or talk to his social worker. She spoke
negatively about the Department and made false promises to Minor.
On October 14, 2021, the court heard the Department’s section 388
request to reduce Mother’s contact with Minor. The Department also
indicated it needed to continue the section 366.26 hearing to find another
placement for Minor, as Minor’s caregiver was no longer willing to adopt him
because of the poor relationship with Mother. Mother testified and
essentially denied all allegations about her behavior. The court found there
was clear and convincing evidence to change the visitation orders as
requested by the Department and continued the section 366.26 hearing to
March 2022.
In March 2022, Mother and Father requested a contested
section 366.26 hearing, which the court set for April 19, 2022. At the April 12
readiness conference, Mother requested a one-month continuance for a
bonding study. Both parents indicated they would be asking the court to
make guardianship the permanent plan. After the court denied Mother’s
requested continuance, Mother made a Marsden motion. The following is a
summary of the in camera hearing on the matter.
Mother complained that her “appeal” of the termination of her
reunification services was not correctly filed and so did not get heard. She
denied missing the July 20, 2021, court date for the 12-month contested
hearing, saying she was just across the street in the wrong courthouse
because nobody had told her the courthouse location had changed. Claiming
her counsel said there was not “enough evidence” to ask for reunification,
Mother said she disagreed. In response, Mother’s counsel explained the
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“appeal” that Mother wanted but which was not filed would have been a writ
petition to potentially challenge the termination of services. But because
Mother’s failure to appear at the hearing due to her claimed confusion about
the time and place of the hearing was information that was outside of the
record, the issue could not be raised via writ but would have to be raised on
appeal. Mother responded: “My issues are everything that’s been going on.
And I’m not understanding why I have to wait until after they terminate my
rights to be able to say something.”
The court denied the Marsden motion, finding counsel was providing
competent and effective representation. With regard to the issue of counsel’s
failure to file a writ petition, the court stated: “Regarding the writ and the
appeal issue, unfortunately, that’s the way the law is written, and so the
issues that you might want to raise up will have to be taken up on an appeal
once the case is at a different stage.” The court indicated Mother was free to
hire new counsel and bring them into the case.
D. The Section 366.26 Report and Hearing
The Department filed reports in advance of the section 366.26 hearing
recommending that the court terminate both parents’ parental rights and
select adoption as Minor’s permanent plan. The Department reported that
Minor’s behavioral issues had subsided and that he stabilized in his
placement after the court decreased his contact with Mother. Also, the
prospective adoptive parent had requested to adopt Minor. Although Minor
wanted to reunify with Mother, if that was not possible, then he wanted his
current caregiver to adopt him.
In an addendum report, the Department noted ongoing concerns with
Mother, including that she had no employment, stable housing, or
transportation, and that she took no responsibility for Minor’s detention.
8
Mother placed the blame solely on Father, despite acknowledging that Minor
needed better care and her failure to step in because of drug use. Father
believed that Minor is not safe with Mother, voicing concerns about Mother’s
association with criminal offenders and her own violent behavior.
The section 366.26 hearing took place on April 19, 2022. Father
appeared, withdrew his contest, and submitted to the termination of his
parental rights. Mother maintained her contest. Minor—who was then 11
years old—testified at the hearing. In short, he wanted to be adopted and
also to continue seeing Mother. When asked how he felt about guardianship
as an option, he indicated that he would both want that and not want that,
and it was difficult to express how he felt. Mother’s counsel asked if, maybe,
in “a year, or two, three, four years from now you might go home, how do you
feel?” Minor responded, “I feel happy.”
Mother testified about her bond with Minor. She denied ever
interfering with his prior placements and indicated she would not interfere
with Minor’s caregiver if the court granted a guardianship. She asserted that
she last used illegal substances two months prior to the hearing, that she
stopped by herself, and that she attends Narcotics Anonymous meetings.
Mother said she was on step one, but she had no sponsor and could not
explain what step one was.
Rocio Diaz-Lara, the Department social worker, testified she had been
assigned to the case since August 2021. Diaz-Lara believed adoption was in
Minor’s best interest because Minor wanted to be adopted and because he
likes his prospective parent and the other children in the home. Adoption
was also a better option because Minor would have permanency and not grow
up in the system. Diaz-Lara felt guardianship would not be in Minor’s best
interest because it would jeopardize permanency, as the Department would
9
have to find Minor a new home or Minor would age out of the system. Diaz-
Lara indicated it is very common for children to be conflicted about wanting
to be adopted versus living with a parent.
Ultimately, the court found that no exception to the termination of
parental rights applied, and it terminated the parental rights of both Father
and Mother. Mother filed a notice of appeal.
DISCUSSION
A. Marsden
Mother contends the juvenile court abused its discretion by denying her
April 12, 2022 Marsden motion. We disagree.
Parents facing termination of parental rights have a right to competent
counsel. (In re A.R. (2021) 11 Cal.5th 234, 245–246, citing § 317.5, subd. (a).)
“ ‘Juvenile courts, relying on the Marsden model, have permitted . . . parents
. . . to air their complaints about appointed counsel and request new counsel
be appointed.’ ” (In re A.H. (2013) 218 Cal.App.4th 337, 342, fn. 5.) When a
defendant seeks to substitute appointed counsel pursuant to Marsden, “ ‘ “the
trial court must permit the defendant to explain the basis of his contention
and to relate specific instances of inadequate performance. A defendant is
entitled to relief if the record clearly shows that the appointed counsel is not
providing adequate representation or that defendant and counsel have
become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result.” ’ [Citation.] ‘A trial court should grant a
defendant’s Marsden motion only when the defendant has made “a
substantial showing that failure to order substitution is likely to result in
constitutionally inadequate representation.” ’ [Citation.] ‘We review the
denial of a Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not
an abuse of discretion “unless the defendant has shown that a failure to
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replace counsel would substantially impair the defendant’s right to assistance
of counsel.” ’ ” (People v. Streeter (2012) 54 Cal.4th 205, 230 (Streeter).)
At the Marsden hearing, Mother argued, in essence, that her attorney
failed to file an appellate challenge—a writ or an appeal—to the outcome of
the 12-month review hearing and, due to counsel’s incompetence,
reunification services were discontinued. Setting aside whether counsel was
mistaken in stating that evidence outside of the record regarding Mother’s
failure to appear at the 12-month review hearing could be presented in this
appeal, Mother made no showing at the Marsden hearing that there was any
evidence that could have or would have caused the juvenile court to rethink
its decision terminating services. Mother presented nothing that
contradicted the Department’s status review report for the 12-month review
hearing, which established that she made little or no progress in major areas
of her reunification plan. For example, she failed to stay sober, to actively
participate in substance abuse treatment until around March 2021, and to
submit to random drug tests. She also failed to participate in mental health
therapy and did not consistently participate in parenting classes. Mother
had no stable housing and sometimes slept in her vehicle, had no
employment, and had failed to avail herself of community resources to secure
a place to live or pay her bills or obtain food. Additionally, she failed to show
she could prioritize Minor’s needs by continuing to do things like telling him
incorrect information about reunification. The Department’s report further
indicated that it remained unclear if Mother even understood the impact of
her drug addiction on Minor and whether she could prioritize Minor’s needs.
After the hearing, the court found, by clear and convincing evidence, that
Mother failed to participate regularly in and make substantive progress in
the court ordered treatment plan.
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And the addendum to the report prepared for the section 366.26
hearing indicated that even at the time of the section 366.26 hearing in April
2022, the Department still had significant ongoing concerns regarding
Mother. For instance, she continued to take no responsibility for Minor’s
detention; she had no employment, housing or transportation; she failed to
develop a support network and failed to work on her sobriety; and she
stopped attending substance abuse services once services were terminated
without successfully completing them. The Department also reported that
Minor’s behavioral issues subsided and that he stabilized in his placement
after the court decreased his contact with Mother. Notably, Mother does not
challenge the court’s decision denying her request for a continuance of the
section 366.26 hearing so a bonding study could be conducted. Nor does she
challenge the juvenile court’s ultimate decision to order adoption as the
permanent plan or its refusal to establish a guardianship.
On this record, we conclude the court did not abuse its discretion in
denying Mother’s Marsden motion. Specifically, Mother made no showing,
substantial or otherwise, that the failure to order substitution of counsel
would likely result in constitutionally inadequate representation. (Streeter,
supra, 54 Cal.4th at p. 230.)
On a final note, we observe that Mother makes an IAC claim as well,
arguing that her attorney performed deficiently by not filing a section 388
petition to present evidence showing that Mother was in the wrong
courthouse at the time of the 12-month review hearing. In her reply brief,
she clarifies that this IAC claim is “not a stand-alone argument which
requests any form of relief”; rather, she wants this court to consider her IAC
claim in evaluating prejudice from the denial of her Marsden motion. But, as
we find no abuse of discretion in the denial of Mother’s Marsden motion, we
12
need not evaluate prejudice arising from the erroneous denial of such a
motion.
In sum, we reject Mother’s claim that the juvenile court abused its
discretion in denying her Marsden motion.
B. ICWA
Mother makes two ICWA contentions, which we address in turn. First,
she argues the juvenile court erred by failing to make findings as to the
adequacy of the Department’s inquiry and whether Minor is an Indian child.
This lacks merit.
A juvenile court must make findings as to the applicability of ICWA
and such findings “may be either express or implied.” (In re Asia L. (2003)
107 Cal.App.4th 498, 506.) When they are implied, the record must “reflect
that the court considered the issue and decided whether ICWA applies.”
(Ibid.) Here, the record reflects the court’s consideration of the issue: it
found that there was reason to believe ICWA may apply, that the department
provided proper notice under ICWA, that there was no reason to know Minor
is an Indian child, and it therefore indicated it would proceed as though
ICWA did not apply. As such, we reject the claim.
Next, though Mother does not complain about lack of ICWA inquiry
into her ancestry, she contends the Department failed to fulfill its duty of
inquiry under ICWA by failing to ask Father or any other paternal relatives
about their potential Native American ancestry. In response, the
Department does not argue that it satisfied its duty of inquiry as to Father or
paternal relatives. Instead, the Department argues that any error was
harmless. We examine this claim in more detail below.
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1. Additional Facts
(a) Summary of the Department’s notice and inquiry efforts
At the outset of this case, the detention report indicated the
Department had no contact with Father, who was in hiding and actively
being sought by law enforcement. The report, however, indicated the
Department had spoken to Mother and her adult daughter, who both denied
any Indian ancestry on either side of the family. At the March 2020
detention hearing, Father was absent but Mother was present and asserted
she had Native American descent, specifically naming the Winnebago tribe in
Wisconsin. Mother asserted neither she nor the Minor was enrolled, but her
great-grandfather (W.V.L.)—the father of her grandmother (S.V.L.)—was
enrolled in the tribe. The jurisdiction and disposition report noted the
maternal grandmother provided the name of her mother who may have had
Native American ancestry.
In March 2020, the Department served ICWA-030, the Judicial Council
Form Notice of Child Custody Proceeding for Indian Child (hereafter ICWA
notice) by certified mail to the Secretary of the United States Department of
the Interior, to the Sacramento Area Director of the Bureau of Indian Affairs,
and to representatives of multiple tribes.4 The ICWA notice included Minor’s
name, birthdate, and place of birth; Mother’s legal and maiden names,
4 The following tribes were noticed: the Assiniboine/Sioux Tribes of the
Fort Peck Reservation, Crow Creek Sioux Tribe, Cheyenne River Sioux Tribe,
Flandreau Santee Sioux Tribe, Lower Brule Sioux Tribe, Oglala Sioux Tribe,
Rosebud Sioux Tribe, Shakopee Mdewakanton Sioux Community of
Minnesota, Lower Sioux Indian Community of Minnesota, Prairie Island
Indian Community, Santee Sioux Nation, Sisseton-Wahpeton Oyate of the
Lake Traverse Reservation, Spirit Lake Tribe, Upper Sioux Community of
Minnesota, Winnebago Tribe of Nebraska, Standing Rock Sioux Tribe, and
Yankton Sioux Tribe.
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aliases, current and former addresses, birthdate, purported tribes or bands
and locations, purported tribal membership, and the fact that Mother is not
deceased; Minor’s maternal grandmother K.J.’s name and maiden name,
alias, current address, her date and place of birth and the fact that K.J. is not
deceased; Minor’s maternal great-grandmother S.V.L.’s name; Minor’s great-
great-great-grandfather W.V.L.’s name; and the names and birth dates of
Minor’s half siblings. The ICWA notice also included Father’s name, current
and former addresses, birthdate, and the fact that he is not deceased.5
Thereafter, the Department filed ICWA compliance documents showing
receipt of the ICWA notices and responses from the tribes.
At the 6-month review hearing, the court found that there was reason
to believe ICWA may apply, but that the Department noticed multiple
organizations and tribes, that all recipients but the Oglala Sioux Tribe and
BIA had responded, and there was no evidence Minor was a member or
eligible for membership in a tribe. Finding no reason to know that Minor was
an Indian child, the court indicated it would proceed as if ICWA did not
apply. This remained the order of the court at subsequent hearings.
(b) The Department’s inquiry of Father and his
participation in the dependency proceedings
For the first half of this case, Father was neither present at the
hearings nor in contact with the Department. Father did not attend the May
2020 jurisdiction and disposition hearing or the 6-month review hearing in
November 2020.
5 Over the course of the case, the Department provided additional ICWA
notices to the tribes; the information in these notices remained largely
unchanged from the initial notice. We observe, however, that the ICWA
notices sent only to the Oglala Sioux Tribe for 12-month review hearing and
subsequent hearings did not include Minor’s maternal great-grandmother
S.V.L.’s name, as it had in prior notices.
15
Father surfaced later in the case, however. Prior to the 12-month
review hearing, the Department indicated it obtained updated contact
information for Father and spoke to him in April 2021 while he was out on
bail in a criminal matter. But the record contains no indication that the
Department contacted Father to make an inquiry under ICWA. Although
Father appeared via Zoom at the 12-month review hearing in May 2021, the
Department did not ask him about ICWA at that hearing.
In its section 366.26 report, the Department indicated that Father was
in a residential program as part of his probation, that Father had “checked-
in” with the Department about Minor once in February 2022, and that he and
Mother visited with Minor in January 2022. An addendum report filed in
April 2022 showed Father had a phone call with the Department in late
March 2022 and went to the Department’s office in April 2022. But again,
there is no indication in these reports that the Department asked Father
about possible Native American ancestry. And though Father appeared at
the contested section 366.26 hearing in April 2022, as well as the April 12,
2022 readiness conference and the March 29, 2022 hearing when Father
initially requested a contested section 366.26 hearing, the record of those
hearings does not reflect the Department asked him about possible Native
American ancestry.
2. Analysis
“ICWA reflects a congressional determination to protect Indian
children and to promote the stability and security of Indian tribes and
families by establishing minimum federal standards a state court must follow
before removing an Indian child from his or her family.” (In re T.G. (2020) 58
Cal.App.5th 275, 287.) In addition to federal law, California law implements
ICWA. (In re Isaiah (2016) 1 Cal.5th 1, 8–9.)
16
Presently, section 224.2 sets forth the state law requirements for ICWA
inquiry. It provides that the court and county welfare department 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).) “ ‘The duty to inquire consists of two phases—the
duty of initial inquiry and the duty of further inquiry.’ ” (In re K.H. (2022) 84
Cal.App.5th 566, 597 (K.H.).) “ ‘The duty of initial inquiry applies in every
dependency proceeding. [Citation.] Federal regulations require state courts
to ask each participant “at the commencement” of a child custody proceeding
“whether the participant knows or has reason to know that the child is an
Indian child.” ’ ” (Ibid.) State law provides: “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 know that the child is an
Indian child.” (§ 224.2, subd. (c), italics added.)
After an initial inquiry, if a social worker has “reason to believe” an
Indian child is involved in a proceeding but does not have enough information
to determine that there is reason to know the child is an Indian child, then
the court or social worker must make further inquiry regarding the possible
Indian status of the child. (§ 224.2, subd. (e); see id., subd. (e)(1) [reason to
believe a child is an Indian child exists whenever the court or a social worker
“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”].) Further
inquiry includes interviewing parents and extended family members to
gather certain information. (§ 224.2, subd. (e)(2)(A).)
In this case, there is no dispute that the Department erroneously failed
to conduct an inquiry of Father or any other paternal relatives when Father
17
finally surfaced in the case.6 Instead, the dispute centers on whether the
error was harmless. Thus, we first address the applicable standard for
assessing prejudice.
Recently, courts have employed varying standards when assessing
deficiencies in the duty of inquiry, holding for instance that: (1) deficient
initial inquiry is reversible per se (In re Y.W. (2021) 70 Cal.App.5th 542, 556;
see K.H., supra, 84 Cal.App.5th at pp. 617–618 [characterizing these cases as
“involv[ing] records so undeveloped that the inadequacy of the inquiry is
readily apparent and there simply is no basis on which to find substantial
evidence would support a contrary conclusion”]); (2) deficient inquiry requires
reversal where the record reveals there was readily obtainable information
that was likely to bear meaningfully on whether the child was an Indian
child (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.));
(3) deficient inquiry is harmless unless the “record”—including a proffer an
appealing parent makes on appeal—contains information suggesting a reason
to believe a child is an Indian child (In re Dezi C. (2022) 79 Cal.App.5th 769,
779 (Dezi C.), review granted Sept. 21, 2022, S275578); and (4) deficient
inquiry requires reversal if the record below demonstrates an affirmative
assertion of Indian heritage or an appellant makes an offer of proof or other
affirmative assertion of Indian heritage on appeal. (In re A.C. (2021) 65
Cal.App.5th 1060, 1069.)
Here, the Department argues we should apply the standard adopted by
the A.C. court because it promotes finality while serving the purposes of
6 Mother argues about the failure to conduct an inquiry of “other
paternal relative[s]” but does not specify any such paternal relatives other
than the paternal aunt and her spouse, with whom Minor was placed with for
a period of time.
18
ICWA. Mother appears to contend we should apply any standard other than
the A.C. standard, noting it has been criticized.
Case law has indeed criticized the A.C. approach, noting that it would
routinize consideration of new evidence on appeal, which is generally
disfavored; that it shifts the burden of investigation onto parents in
dependency proceedings; and that it does not sufficiently serve the interests
of the Native American tribes because prejudicially deficient inquiries will go
uncorrected if an appealing parent is unwilling or unable to make a
meaningful proffer on appeal. (K.H., supra, 84 Cal.App.5th at pp. 612–614,
and cases cited.) These criticisms are well taken and so we move on to
examine the error under the other standards. Ultimately, we need not choose
among the remaining standards because—under any of them—the error here
cannot be said to be harmless.
Under the reversible per se approach, reversal of course would be
warranted. Next, under the approach in Benjamin M., the Department’s
failure to conduct an inquiry of Father or other paternal relatives was not
harmless. Father was available and, ostensibly, so was the paternal aunt in
whose home Minor lived. Their responses would have borne meaningful
information, regardless of the outcome of the inquiry. (Benjamin M., supra,
70 Cal.App.5th at pp. 744–745.) The error also would not be harmless under
the approach in Dezi C., which stated that “an agency’s failure to conduct a
proper initial inquiry into a dependent child’s American Indian heritage is
harmless unless the record contains information suggesting a reason to
believe that the child may be an ‘Indian child’ within the meaning of ICWA,
such that the absence of further inquiry was prejudicial to the juvenile court’s
ICWA finding. . . . To illustrate, a reviewing court would have ‘reason to
believe’ further inquiry might lead to a different result . . . if the record
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indicates that the agency never inquired into one of the two parents’ heritage
at all . . . .” (Dezi C., supra, 79 Cal.App.5th at p. 779, original italics and
italics added.)
Finally, as Mother stresses in her reply brief, “where the opportunity to
gather the relevant information critical to determining whether the child is
or may be an Indian child is lost because there has not been adequate inquiry
and due diligence, reversal for correction is generally the only effective
safeguard.” (K.H., supra, 84 Cal.App.5th at p. 610.) Under this standard,
too, the error here cannot be said to be harmless.7
A conditional reversal is therefore appropriate so that the Department
may properly fulfill its duty of inquiry under ICWA.
DISPOSITION
The order terminating parental rights is conditionally reversed. The
juvenile court is directed to order the Department to conduct additional
inquiry (§ 224.2) of Father and other available paternal relatives. If, after
determining that an adequate inquiry was made consistent with the
reasoning in this opinion, the court finds that ICWA applies, the court shall
vacate its existing order and proceed in compliance with ICWA and related
California law. If the court instead finds that ICWA does not apply, its ICWA
finding shall be reinstated. In all other respects, the court’s orders
terminating Mother’s parental rights are affirmed.
7 In reaching this conclusion, we note the record indicates that Father
had a prior dependency case involving another child, M.S. Unfortunately, the
documents in the record concerning this prior dependency case do not inform
the ICWA issue in the present case, because they do not show that Father
ever previously spoke to the Department regarding potential Native
American ancestry.
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FUJISAKI, ACTING P.J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
Napa Co. HHS v. J.M. (A165112)
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