In re A.H. CA1/4

Filed 12/23/22 In re A.H. CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re A.H., a Person Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Petitioner and Respondent, A164844
v.
(Alameda County
D.D.,
Super. Ct. No. JD033768-
Objector and Appellant. 01)
D.D. (Mother) appeals from a combined jurisdictional and
dispositional order removing her daughter, A.H., from her
custody and ordering family reunification services. Her
contention on appeal is that the Alameda County Social Services
Agency (the Agency) did not comply with requirements of the
Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and
related California law and that the juvenile court erred in ruling
ICWA did not apply. Specifically, she argues that the Agency
failed to satisfy its initial duty to inquire regarding A.H.’s
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possible Indian ancestry under Welfare and Institutions Code1
section 224.2, subdivision (b). The Agency claims that it complied
with its duty of initial inquiry, but alternatively argues that any
error was harmless. We conclude that, because the juvenile court
failed to ensure that the Agency fulfilled its duty of inquiry under
section 224.2, subdivision (b), there was not substantial evidence
supporting the court’s finding that ICWA did not apply, and the
error was not harmless. We conditionally reverse the juvenile
court’s order and remand only for compliance with ICWA and
related California law.
BACKGROUND2
On July 19, 2021, the Agency filed a petition on A.H.’s
behalf pursuant to section 300, subdivisions (b) and (g). It later
filed a first and second amended petition.
In advance of the detention hearing, the social worker
questioned Mother regarding her Indian heritage. Mother denied
any such heritage. At the initial detention hearing, Mother was
present by phone, and paternity findings were deferred. A
continued detention hearing was held the next day with Mother
present by video, along with the maternal grandmother and
maternal aunts.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise stated.
2 Because Mother’s sole contention on appeal is that the
Agency failed to comply with its duty of inquiry under section
224.2, we limit our discussion of the facts and procedural history
to the information necessary to determine that issue.
2
The paternal grandfather contacted the Agency in July
2021 after being notified of the dependency by a maternal
relative. He told the Agency that he had been part of A.H.’s life
since she was an infant, and Mother had left Texas with A.H.
three weeks earlier. He sought placement and missed his
granddaughter.
Father, who lived in Texas, contacted the Agency on
August 3, 2021, and reported that he had Indian ancestry in an
unknown tribe. On the same date, the Agency mailed the ICWA-
030 Notice of Child Custody Proceeding for Indian Child to the
Bureau of Indian Affairs (BIA). The parents’ information was
listed, along with the name of a paternal grandmother, but the
notice contained no other information regarding relatives. On
August 13, 2021, the Agency filed a response from the BIA
stating that the notice contained insufficient information to
determine tribal affiliation.
Some, but not all, of the Agency’s reports during the
dependency contain the statement that, on December 15, 2021,
the Agency resent notice to the BIA. The parties agree that the
record does not include a copy of any documents allegedly sent to
the BIA in December 2021.
At the initial August 10, 2021, jurisdiction hearing, Father
was present by video, and the court elevated him to presumed
father status. The maternal grandmother and a maternal aunt
were present by phone. The maternal grandmother and aunt
participated in some of the hearings and had contact with the
Agency during the dependency. Although Father became
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incarcerated during the dependency, the paternal grandfather
participated in some of the hearings and had contact with the
Agency during the dependency.
The Agency’s reports recommended that the court find that
ICWA did not apply in A.H.’s case, but the recommendations
reflected that they were premised on Mother’s information only.
In March 2022, the court sustained some of the allegations in the
operative petition, declared A.H. to be a dependent, removed her
from Mother’s custody, and ordered reunification services for both
parents. The court found that ICWA did not apply, and no
further notice under ICWA was required.
DISCUSSION
Mother contends that the Agency did not conduct an
adequate inquiry into A.H.’s possible Indian ancestry, and that
the juvenile court failed to ensure the Agency fulfilled its duty
under California law. We agree with these contentions.
I. Applicable Law
Congress enacted ICWA to further the federal policy of
having Indian children remain in the Indian community. (See In
re A.C. (2021) 65 Cal.App.5th 1060, 1068 (A.C.).) “California has
adopted statutes and rules that ‘implement, interpret, and
enlarge upon’ ICWA.” (Ibid.) Under state and federal law,
whenever “the court knows or has reason to know that an Indian
child is involved” in a proceeding that could result in termination
of parental rights, notice of the proceedings must be given to the
relevant tribe or tribes. (25 U.S.C. § 1912(a); accord, § 224.3,
subd. (a); Cal. Rules of Court, rule 5.481(c)(1).)
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“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. The court shall instruct the parties to inform the
court if they subsequently receive information that provides
reason to know the child is an Indian child.” (§ 224.2, subd. (c).)
Additionally, under state law, the juvenile court and the
social services agency “have an affirmative and continuing duty
to inquire whether a child for whom a [dependency]
petition . . . may be or has been filed, is or may be an Indian
child.” (§ 224.2, subd. (a).) As part of this duty, when a child is
placed in its temporary custody, the social services agency must
ask, not only the parents, but also the child’s extended family
members, whether the child may be an Indian child. (§ 224.2,
subd. (b).) “If the parent . . . does not appear at the first hearing,
or is unavailable at the initiation of a proceeding, the court must
order the [social services agency] to use reasonable diligence to
find and inform the parent . . . that the court has ordered the
parent . . . to complete . . . form ICWA-020[ ].” (Cal. Rules of
Court, rule 5.481(a)(3).) The social services agency “must on an
ongoing basis include in its filings a detailed description of all
inquiries, and further inquiries it has undertaken, and all
information received pertaining to the child’s Indian status . . . .”
(Cal. Rules of Court, rule 5.481(a)(5).)
“[W]e 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
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ICWA finding. (In re Dezi C. (2022) 79 Cal.App.5th 769, 777,
rev. granted Sept. 21, 2022, S275578 (Dezi C.).)
II. Compliance with California Law
There is no evidence in the record to show that the Agency
inquired with available extended family members about A.H.’s
potential Indian ancestry. The Agency argues that its inquiry
was sufficient because, although Father said he had Indian
ancestry, he did not name a tribe or relative who may have
information. At the same time, however, the Agency concedes
that “there is no documentation in the record before this court
that the extended family that were involved in the case were
asked about potential Indian ancestry.” There is evidence that
A.H.’s paternal grandfather, maternal grandmother, and
maternal aunt were available and participated in this
dependency, even in its early stages. The Agency’s duty to make
an initial inquiry into A.H.’s possible Indian ancestry applies to
these “extended family members.” (§ 224.1, subd. (c) [“extended
family member” is defined as provided in 25 U.S.C. § 1903];
25 U.S.C. § 1903(2) [“extended family member” includes child’s
aunts and grandparents].) The Agency thus failed to comply with
its duty of initial inquiry. (Cf. In re J.C. (2022) 77 Cal.App.5th
70, 78–79 (J.C.) [error in finding ICWA did not apply where
agency had regular contact with paternal grandmother and
maternal grandmother was readily accessible, but it did not ask
them about possible Indian ancestry].) Further, the reporter’s
transcript of Father’s first appearance does not reflect that the
court made the requisite inquiries of him under subdivision (c) of
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section 224.2.3 Accordingly, we conclude that the juvenile court
erred in making its March 22, 2022, ICWA findings.
III. Harmless Error
Having found state law error, we next consider whether the
error was harmless. (Dezi C., supra, 79 Cal.App.5th at p. 777.)
The parties and various appellate courts dispute the test that
applies to assess harmless error. There appear to be at least four
different rules4 used by appellate courts to determine whether an
ICWA inquiry error was harmless. (Dezi C., at p. 777 [reviewing
three tests and proffering a fourth].)
At one end of the continuum is the “automatic reversal”
rule, which mandates reversal if the agency’s initial inquiry is
deficient and thus infects the juvenile court’s ICWA finding.
(Dezi C., supra, 79 Cal.App.5th at p. 777; see J.C., supra,
77 Cal.App.5th at pp. 80–82.) “Under this test, reversal is
required no matter how ‘slim’ the odds are that further inquiry on
remand might lead to a different ICWA finding by the juvenile
court.” (Dezi C., at p. 777.) At the opposite end of the continuum
is the “presumptive affirmance” rule. (Dezi C., at p. 777; see
3 The record does not include the transcript from Mother’s
first appearance in July 2021.
4 Our colleagues in Division One recently adopted a fifth
approach. In re S.H. (2022) 82 Cal.App.5th 166, 171, held that
“when a social services agency accepts its obligation to satisfy its
inquiry obligations under ICWA, a reversal of an early
dependency order is not warranted simply because a parent has
shown that these ongoing obligations had not yet been satisfied
as of the time the parent appealed.” The rule from S.H. would
not apply here because the Agency does not concede its inquiry’s
invalidity or indicate that it will undertake an acceptable inquiry.
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A.C., supra, 65 Cal.App.5th at pp. 1065, 1073.) Under this rule, if
the agency’s initial inquiry is deficient, the defect will be treated
as harmless unless the parent comes forward with a proffer on
appeal as to why the further inquiry would lead to a different
ICWA finding. (A.C., at p. 1069.) In between these rules is the
self-described “third option,” which has been termed the “readily
obtainable information” rule, whereby a defect in the agency’s
initial inquiry is harmless unless “the record indicates that there
was readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child” and that
the “probability of obtaining meaningful information is
reasonable.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744
(Benjamin M.); see Dezi C., supra, 79 Cal.App.5th at p. 778.)
Dezi C., supra, 79 Cal.App.5th 769 adopted a fourth rule.
There, the court found that failure to conduct a proper initial
inquiry under ICWA 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.” (Dezi C., at p. 779; In re Ezequiel G. (2022)
81 Cal.App.5th 984, 1014 [endorsing this part of Dezi C.’s test].)
As explained in Dezi C., this test is “outcome focused,” asking
whether “it is reasonably probable that an agency’s error in not
conducting a proper initial inquiry affected the correctness (that
is, the outcome) of the juvenile court’s ICWA finding,” and
limiting a remand for further inquiry “to those cases in which the
record gives the reviewing court a reason to believe that the
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remand may undermine the juvenile court’s ICWA finding.”
(Dezi C., at pp. 781–782.)
Mother urges us to adopt the “automatic reversal” rule or
the middle ground under Benjamin M., and the Agency
champions the Dezi C. rule. We need not decide between the
rules urged by the parties because the error was not harmless
under any of the standards they advance. Unlike Dezi C., where
both parents signed ICWA-020 notices attesting that they had no
Indian ancestry (Dezi C., supra, 79 Cal.App.5th at p. 786), the
record here contains no such form from Father, and the Agency’s
recommendations to the court for its ICWA findings were
premised on Mother’s ICWA-020 form alone. Moreover, Father
informed the Agency that he had Indian heritage, although he
did not know the tribal affiliation. Under the “automatic
reversal” rule, the error was clearly prejudicial. Under the
Benjamin M. approach, the paternal grandfather was available,
the record indicates that there was readily obtainable
information that was likely to bear meaningfully upon whether
A.H. is an Indian child, and the probability of obtaining
meaningful information is reasonable. (Benjamin M., supra,
70 Cal.App.5th at p. 744.) And under Dezi C., there is reason to
believe that remand may undermine the juvenile court’s ICWA
finding. (Dezi C., at p. 779 [“a reviewing court would have
‘reason to believe’ further inquiry might lead to a different result
if the record indicates that someone reported possible American
Indian heritage and the agency never followed up on that
information.”].)
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The finding of prejudice from the error as to the ICWA
inquiry for Father requires remand. However, we also observe
that, while the Agency’s reports state that Mother completed the
ICWA-020 form, the record does not include that form. Given
that remand is required for the Agency to complete a reasonable
initial inquiry of A.H.’s paternal family members, in the interest
of completeness and to avoid any possible further delays in the
case, we also instruct the juvenile court on remand to order the
Agency to file Mother’s completed ICWA-020 form for the record
and to ensure that the Agency conducts any further inquiry of
maternal relatives that may be necessary to satisfy ICWA and
California law.
DISPOSITION
The jurisdictional and dispositional order is conditionally
reversed, and the matter remanded to the juvenile court for the
limited purpose of ensuring compliance with the inquiry
provisions of section 224.2 and, if necessary, the notice provisions
of section 224.3. If the juvenile court issues an order determining
that ICWA does not apply, the jurisdictional and dispositional
order shall be reinstated. If the court determines ICWA does
apply, it shall proceed in conformity with ICWA and related state
law.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
GOLDMAN, J.
In re A.H. (A164844)
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