In re Juan G. CA2/7

Filed 8/15/22 In re Juan G. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re JUAN G., a Person B316023
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. CK86058)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
CERVANDO G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jean M. Nelson, Judge. Conditionally
affirmed and remanded with directions.
Robert McLaughlin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Senior Deputy
County Counsel, for Plaintiff and Respondent.
________________________
Cervando G., the presumed father of six-year-old Juan G.,
appeals the October 5, 2021 order terminating his parental
rights, contending only that the Los Angeles County Department
of Children and Family Services breached its affirmative and
continuing duty to inquire whether Juan may have Indian
ancestry as defined by the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C. § 1901 et seq.) and related California law.
(Welf. & Inst. Code, § 224.2, subds. (a) & (b).)1 The Department
does not dispute it failed to conduct the required inquiry.
Instead, it argues we lack jurisdiction to consider the issue on
appeal and, alternatively, the error should be deemed harmless
because Cervando has not made an affirmative representation on
appeal that any extended family member possesses meaningful
information about Juan’s possible Indian ancestry.
The Department’s contention we lack jurisdiction to
consider this issue necessarily fails in light of the holding of In re
Isaiah W. (2016) 1 Cal.5th 1, 6 (Isaiah W.) that a parent may
challenge an earlier express finding of ICWA inapplicability in an
appeal from a later order terminating parental rights. And this
court has repeatedly—and recently—rejected the Department’s
overly restricted view of our obligations as an appellate court to
1 Statutory references are to the Welfare and Institutions
Code unless otherwise stated.
2
ensure the Department complies with the robust duty of inquiry
mandated by the Legislature. (See, e.g., In re Rylei S. (2022)
81 Cal.App.5th 309 (Rylei S.); In re Antonio R. (2022)
76 Cal.App.5th 421; In re Y.W. (2021) 70 Cal.App.5th 542.) As
requested by Cervando, we remand the matter for full compliance
by the Department and the juvenile court with the inquiry and, if
appropriate, notice provisions of ICWA and related California
law.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Petition and Termination of Parental
Rights
On June 21, 2017 the Department filed a dependency
petition with respect to Juan, then 19 months old, pursuant to
section 300, subdivisions (a) (nonaccidental serious physical
harm), (b)(1) (failure to protect), and (j) (abuse of sibling), based
on allegations that Juan’s mother, Dorisbeth Z., had physically
abused and inappropriately disciplined Juan’s two half sisters,
Lisett and Litzy, who had been declared dependents of the court
before Juan’s birth, and that Cervando, with Dorisbeth’s
acquiescence, had violated a no-contact order issued in Lisett and
Litzy’s dependency case. On August 16, 2018 the juvenile court
sustained an amended petition pursuant to section 300,
subdivision (j), as to Juan, alleging Lisett had been sexually
abused by a member of the children’s household, placing Juan at
risk of harm. Juan was declared a dependent child of the court
and released to Cervando and Dorisbeth under the supervision of
the Department.2
2 In an appeal of the section 300, subdivision (j), finding as to
him, Cervando acknowledged the juvenile court’s assumption of
dependency jurisdiction over Juan was also based on Dorisbeth’s
conduct, which included her physical abuse of Lisett and Litzy;
3
In December 2018 Juan was removed from Cervando and
Dorisbeth’s custody, and in February 2019 the court sustained a
subsequent petition (§ 342) based on allegations of domestic
violence and general neglect. Family reunification services,
ordered at the disposition hearing in July 2019, were terminated
in September 2020. At a contested selection and implementation
hearing held on October 5, 2021 after several continuances, the
court found Juan adoptable, determined no exception to adoption
existed, terminated Cervando’s and Dorisbeth’s parental rights
and designated Juan’s current caregivers as prospective adoptive
parents.
Juan filed a timely notice of appeal, checking the boxes on
the Judicial Council form (JV-800) for an appeal for an order
made pursuant to section 366.26 terminating parental rights.
2. The Department’s Abbreviated ICWA Investigation and
the Juvenile Court’s ICWA Finding
The initial dependency petition concerning Juan filed on
June 21, 2017 included the required Indian Child Inquiry
Attachment (Judicial Council form ICWA-010(A)), on which the
social worker reported Dorisbeth denied Juan had any Native
American heritage. The detention report contained the same
information and stated, “The Indian Child Welfare Act does not
apply.” Both Cervando and Dorisbeth filed Parental Notification
and he conceded he could not contest those findings or the court’s
exercise of jurisdiction over Juan. Cervando did not challenge
any aspect of the court’s disposition orders. Accordingly, we
dismissed the appeal on the ground there was no justiciable
controversy for which we could grant any effective relief. (In re
Juan G. (June 18, 2019, B292260) [nonpub. opn.].)
4
of Indian Status forms (Judicial Council form ICWA-020) stating
to their knowledge they had no Indian ancestry.
At the detention hearing on June 21, 2017, after indicating
it had reviewed the parents’ forms, the juvenile court stated, “I
have no reason to know of any American Indian ancestry, and I
find that the Indian Child Welfare Act does not apply.” The
minute order from the hearing similarly stated, “Court finds no
ICWA as to this case.” The court instructed the parents to notify
the court if they subsequently received any information
indicating they had American Indian ancestry.
The Indian Child Inquiry Attachment included with the
first amended petition filed on November 20, 2017 again
indicated Juan had “no known Indian ancestry.” The
Department’s report for the jurisdiction/disposition hearing
stated the court had found on June 21, 2017 that ICWA did not
apply and Cervando and Dorisbeth in their subsequent contacts
with the Department confirmed they were not aware of any
Indian ancestry. The minute order from the August 16, 2018
jurisdiction/disposition hearing does not mention ICWA.
The jurisdiction/disposition report filed for the hearing on
the section 342 subsequent petition stated ICWA did not apply to
the case, but referred only to a May 2015 finding that had been
made in the earlier filed case involving Juan’s half sisters.
Neither the minute order from the jurisdiction hearing sustaining
the section 342 petition nor the order from the disposition
hearing included an ICWA finding, although the disposition order
formally removed Juan from parental custody.
Subsequent status review reports prepared for the six-
month and 12-month review hearings (§ 366.21, subds. (e) & (f))
and the 366.26 reports prepared for the selection and
5
implementation hearing all simply stated IWCA does not apply.
The October 5, 2021 minute order terminating Cervando’s
parental rights made no reference to ICWA, and the reporter’s
transcript from that hearing is similarly silent as to ICWA.
In sum, nothing in the record indicates that anyone other
than Cervando and Dorisbeth were asked by the Department or
the juvenile court about Juan’s possible Indian ancestry, and the
only ICWA finding was made on June 21, 2017 at Juan’s initial
detention hearing. The Department does not contend to the
contrary.
DISCUSSION
1. ICWA and the Duties of Inquiry and Notice
ICWA and governing federal regulations (25 C.F.R.
§ 23.101 et seq. (2022)) set minimal procedural protections for
state courts to follow before removing Indian children and placing
them in foster care or adoptive homes. (In re Y.W., supra,
70 Cal.App.5th at p. 551.) The statute authorizes states to
provide “‘a higher standard of protection’” to Indian children,
their families and their tribes than the rights provided under
ICWA. (In re T.G. (2020) 58 Cal.App.5th 275, 287-288;
see 25 U.S.C. § 1921.) In addition to significantly limiting state
court actions concerning out-of-family placements for Indian
children (see In re T.G., at pp. 287-288), ICWA permits an Indian
child’s tribe to intervene in or, where appropriate, exercise
jurisdiction over a child custody proceeding (see 25 U.S.C.
§ 1911(c); Isaiah W., supra, 1 Cal.5th at p. 8).
To ensure Indian tribes may exercise their rights in
dependency proceedings as guaranteed by ICWA and related
state law, investigation of a family member’s belief a child may
have Indian ancestry must be undertaken and notice provided to
6
the appropriate tribes. (§ 224.2, subd. (a) [imposing on the court
and child protective services agencies “an affirmative and
continuing duty to inquire whether a child . . . is or may be an
Indian child”]; see In re Charles W. (2021) 66 Cal.App.5th 483,
489.) The duty to inquire “begins with initial contact (§ 224.2,
subd. (a)) and obligates the juvenile court and child protective
agencies to ask all relevant involved individuals whether the
child may be an Indian child.” (In re T.G., supra, 58 Cal.App.5th
at p. 290; accord, In re Antonio R., supra, 76 Cal.App.5th at
p. 429; see § 224.2, subds. (a)-(c).)3
3 The Department’s duty of inquiry, beginning at initial
contact, as now defined in section 224.2, subdivision (b), was
added to the Welfare and Institutions Code by Assembly
Bill No. 3176 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 833, § 5),
effective January 1, 2019. Assembly Bill No. 3176 substantially
revised the provisions of California’s ICWA-related statutes to
conform their language to language in then recently adopted
federal regulations and, recognizing California’s higher standard
for investigating whether a child may be an Indian child, to
specify more clearly the steps a social worker, probation officer
and court are required to take in making an inquiry into a child’s
possible status as an Indian child. (In re T.G., supra,
58 Cal.App.5th at p. 296.)
Although that legislation was not in effect when the initial
dependency petition concerning Juan was filed in 2017, a hearing
that culminates in termination of parental rights or an adoptive
placement—that is, a section 366.26 selection and
implementation hearing—is considered a separate “child custody
proceeding” as to which ICWA and related state law
requirements, including the duty of inquiry, apply.
(See 25 U.S.C. § 1903(1); 25 C.F.R. § 23.2 (2022); Cal. Rules of
Court, rule 5.481(a)(2); see also In re Elizabeth M. (2018)
19 Cal.App.5th 768, 785, fn. 11.) Because Cervando challenges
7
In addition, section 224.2, subdivision (e), imposes a duty of
further inquiry regarding the possible Indian status of the child
“[i]f the court, social worker, or probation officer has reason to
believe that an Indian child is involved in a proceeding, but does
not have sufficient information to determine that there is reason
to know that the child is an Indian child.” (See also Cal. Rules of
Court, rule 5.481(a)(4) [further inquiry must be conducted if the
social worker “knows or has reason to know or believe that an
Indian child is or may be involved”].) Further inquiry includes,
“but is not limited to,” interviewing, as soon as practicable,
extended family members, contacting the Bureau of Indian
Affairs and contacting “the tribe or tribes and any other person
that may reasonably be expected to have information regarding
the child’s membership, citizenship status, or eligibility.”
(§ 224.2, subd. (e)(2).)
If those inquiries result in reason to know the child is an
Indian child,4 notice to the relevant tribes is required. (25 U.S.C.
the implied finding of ICWA inapplicability underlying the order
made at the section 366.26 hearing terminating his parental
rights, California’s ICWA-related statutes and rules of court in
effect in 2021, when that hearing was held, apply in this appeal.
(See In re T.G., supra, 58 Cal.App.5th at p. 289, fn. 13 [“[t]he
parties agree the [state’s ICWA-related statutes] in effect in
January 2020 when the section 366.26 hearings were held appl[y]
to these appeals”]; In re A.M. (2020) 47 Cal.App.5th 303, 321
[“[s]ince Mother is appealing from the findings made at the
September 6, 2019 section 366.26 hearing and not those in 2017
or 2018, the current ICWA statutes apply”].)
4 “For purposes of ICWA, an ‘Indian child’ is an unmarried
individual under age 18 who is either a member of a federally
recognized Indian tribe or is eligible for membership in a
federally recognized tribe and is the biological child of a member
8
§ 1912(a); Welf. & Inst. Code, § 224.3; see In re J.S. (2021)
62 Cal.App.5th 678, 686; In re T.G., supra, 58 Cal.App.5th at
p. 290.)
“The duty to develop information concerning whether a
child is an Indian child rests with the court and the Department,
not the parents or members of the parents’ families.”
(In re Antonio R., supra, 76 Cal.App.5th at p. 430; accord, In re
Benjamin M. (2021) 70 Cal.App.5th 735, 742 [“the agency has a
duty to gather information by conducting an initial inquiry,
where the other party—here a parent . . . —has no similar
obligation”]; see also In re K.R. (2018) 20 Cal.App.5th 701, 706
[“[t]he court and the agency must act upon information received
from any source, not just the parent [citations], and the parent’s
failure to object in the juvenile court to deficiencies in the
investigation or noticing does not preclude the parent from
raising the issue for the first time on appeal”].)
2. The Department Failed To Adequately Investigate Juan’s
Possible Indian Ancestry
Regardless of a parent’s responses concerning his or her
possible Indian ancestry on the ICWA-020 Parental Notification
of Indian Status form or when questioned by an investigator from
a child protective services agency or the court at the initial
appearance, if a child has been detained, as Juan was,
section 224.2, subdivision (b), requires the agency to ask not only
the parents but also extended family members and others who
have an interest in the child whether the child is, or may be, an
of a federally recognized tribe.” (In re T.G., supra, 58 Cal.App.5th
at p. 287, fn. 10; see 25 U.S.C. § 1903(4) [definition of “‘Indian
child’”] & (8) [definition of “‘Indian tribe’”]; see also Welf. & Inst.
Code, § 224.1, subd. (a) [adopting federal definitions].)
9
Indian child. (In re Antonio R., supra, 76 Cal.App.5th at p. 429
[“‘[t]he duty to inquire begins with initial contact [citation] and
obligates the juvenile court and child protective agencies to ask
all relevant involved individuals whether the child may be an
Indian child’”]; In re S.R. (2021) 64 Cal.App.5th 303, 314 [same].)
ICWA defines “extended family member,” if not separately
defined by the law or custom of the Indian child’s tribe, as “a
person who has reached the age of eighteen and who is the Indian
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).) Welfare and Institutions
Code section 224.1, subdivision (c), provides “extended family
member” is defined as provided in ICWA.
The Department’s reports disclose its social workers or
investigators had multiple contacts with maternal and paternal
relatives of Juan who are extended family members, yet nothing
in those reports or elsewhere in the record indicates the required
ICWA-related inquiries were made.5 Specifically, a social worker
interviewed Juan’s paternal aunt Georgina A. in December 2018
concerning the substantive allegations that led to the filing of the
section 342 petition and his paternal uncle Elias G. in January
2019. A maternal great-aunt was being assessed to be a monitor,
and placement with maternal aunt Tomasa L. was being
5 Effective January 1, 2020 California Rules of Court,
rule 5.481(a)(5) requires the Department “on an ongoing basis
[to] 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.” The
Department’s conclusory statements that ICWA did not apply to
Juan’s case fall woefully short of satisfying this obligation.
10
evaluated. The Department also had contact information for
Juan’s maternal grandmother, but there apparently was no
interaction with her.
From what appears in the Department’s reports of its
contacts with Cervando’s and Dorisbeth’s family, none of the
relatives was asked about Juan’s possible Indian ancestry. Nor is
there any indication the Department attempted to identify
anyone else who might have pertinent information concerning the
family’s history. As the Department’s appellate counsel
necessarily concedes, the Department failed to satisfy its duty of
inquiry under section 224.2, subdivision (b). (See In re J.C.
(2022) 77 Cal.App.5th 70, 78 [“[t]he Department did not fulfill its
duty to conduct an adequate inquiry into whether J.C. may be an
Indian child because it did not ask any extended family
members—some of whom were readily available—whether J.C.
had any possible Indian ancestry”]; In re Antonio R., supra,
76 Cal.App.5th at pp. 430-431 [Department failed to fulfill duty
of inquiry by failing to ask family members about Indian ancestry
despite multiple contacts with relatives]; In re H.V. (2022)
75 Cal.App.5th 433, 438 [failure to speak to anyone other than
mother about possible Indian ancestry was error]; In re
Y.W., supra, 70 Cal.App.5th at p. 553 [Department failed to
satisfy duty to inquire by failing to contact relatives; “once the
social worker learned of a potentially viable lead to locate
[relatives], she made no effort to pursue it”].)
The juvenile court also erred in failing to ensure the
Department satisfied its duty of inquiry and in finding ICWA did
not apply absent an adequate inquiry. (See In re J.C., supra,
77 Cal.App.5th at p. 79 [“The juvenile court, too, did not satisfy
its duty to ensure the Department adequately investigated
11
whether J.C. may be an Indian child. There is no indication in
the record that, after the detention hearing, the juvenile court
gave ICWA another thought in the almost three years of this
dependency case”]; In re Antonio R., supra, 76 Cal.App.5th at
p. 431 [“[a]lthough section 224.2, subdivision (b), places on the
Department the duty to inquire, including of extended family
members, section 224.2, subdivision (a), makes clear that the
‘affirmative and continuing duty to inquire’ whether a child is or
may be an Indian child rests with both the Department and the
court”].)
3. The Department’s Jurisdiction Argument Lacks Merit
The juvenile court in Isaiah W., supra, 1 Cal.5th 1 made a
finding in January 2012 at the disposition hearing that ICWA did
not apply to the case. Ashlee, the child’s mother, did not appeal
the ICWA finding following entry of the disposition order. (Id. at
p. 10.) The juvenile court in April 2013 terminated Ashlee’s
parental rights. Ashlee appealed, contending the juvenile court
erred in concluding there was no reason to know Isaiah was an
Indian child and ICWA notice was unnecessary in the case. The
court of appeal held, because Ashlee failed to timely appeal from
the ICWA finding subsumed in the disposition order, she was
foreclosed from raising the issue in an appeal from the order
terminating her parental rights. (Id. at p. 7.)
The Supreme Court reversed, explaining, “[T]he juvenile
court had a continuing duty to inquire whether Isaiah was an
Indian child in all dependency proceedings, including a
proceeding to terminate parental rights. In light of this
continuing duty, the April 2013 order terminating Ashlee’s
parental rights was necessarily premised on a current finding by
the juvenile court that it had no reason to know Isaiah was an
12
Indian child and thus ICWA notice was not required. . . .
Properly understood, Ashlee’s present appeal does not seek to
challenge the juvenile court’s finding of ICWA’s inapplicability
underlying the January 2012 dispositional order. It instead
seeks to challenge the juvenile court’s finding of ICWA’s
inapplicability underlying the April 2013 order terminating her
parental rights. Ashlee’s inaction in the face of the earlier order
does not preclude her from now claiming in this appeal that the
juvenile court erred in finding ICWA notice unnecessary.”
(Isaiah W., supra, 1 Cal.5th at p. 10.) Later in its opinion the
Court restated its holding, “Although the juvenile court in this
case found ICWA inapplicable at the January 2012 dispositional
hearing, the court had an affirmative and continuing duty to
determine ICWA’s applicability at the April 2013 hearing to
terminate Ashlee’s parental rights. The court’s April 2013
termination order necessarily subsumed a present determination
of ICWA’s inapplicability, and Ashlee brought a timely appeal
from the April 2013 order, challenging that determination. The
fact that Ashlee did not allege ICWA notice error in an appeal
from the January 2012 dispositional order does not preclude her
from raising the claim in this appeal.” (Id. at p. 15.)
Cervando’s challenge to the Department’s failure to conduct
the inquiry mandated by statute and necessary to support the
juvenile court’s finding that ICWA did not apply to Juan parallels
Ashlee’s situation in Isaiah W., supra, 1 Cal.5th 1. Although
Cervando appealed the juvenile court’s August 2018 jurisdiction
finding and disposition order, he did not at that time challenge
the court’s ICWA finding. He does so now in his appeal from the
order terminating his parental rights. His appeal is properly
before us: As was true in Isaiah W., in light of the juvenile
13
court’s affirmative and continuing duty to inquire whether a child
for whom a petition under section 300 has been filed is or may be
an Indian child, the court’s order terminating parental rights was
necessarily premised on a current (albeit implied) finding that
the court had no reason to know Juan was an Indian child.6
The Department, which appears to only grudgingly accept
the holding of Isaiah W., supra, 1 Cal.5th 1,7 nonetheless argues
we lack jurisdiction to consider the ICWA-inquiry issue raised by
Cervando because he “failed to designate Indian ancestry on his
notice of appeal.” In support it cites the general principle of
appellate law that a notice of appeal must identify the particular
judgment or order being appealed. (See, e.g., In re Joshua S.
(2007) 41 Cal.4th 261, 272; Cal. Rules of Court, rule 8.405(a)(3).)
6 Unlike the juvenile court in Isaiah W., which repeated at
the section 366.26 selection and implementation hearing its prior
finding that it had no reason to know Isaiah was an Indian child
(Isaiah W., supra, 1 Cal.5th at p. 10), the juvenile court in the
case at bar ignored its affirmative obligation to address ICWA
once again at the hearing at which it terminated Cervando’s
parental rights. (See id. at p. 15; see also Cal. Rules of Court,
rule 5.481(a)(2).) The absence of an express ICWA finding does
not affect Cervando’s right to appeal from the termination order,
which, as the Isaiah W. Court explained, “necessarily subsumed a
present determination of ICWA’s inapplicability.” (Isaiah W., at
p. 15.)
7 The Department in the opening paragraph of its
respondent’s brief emphasizes the several years gap between the
initial detention hearing at which Juan’s possible Indian ancestry
was formally addressed and the current timely appeal following
termination of parental rights—an entirely irrelevant datum in
light of Isaiah W., supra, 1 Cal.5th 1.
14
Cervando did just that. His notice of appeal identified the
October 5, 2021 order terminating his parental rights—the order
he is challenging as defective because necessarily premised on an
ICWA finding made without an adequate inquiry by the
Department. Yet the Department argues his notice of appeal is
not sufficient because Cervando did not separately designate the
ICWA finding in the notice. Lacking any legal support for this
novel proposition, the Department points out that in Isaiah W.,
supra, 1 Cal.5th at page 15, the Supreme Court emphasized that
Ashlee “brought a timely appeal from the April 2013 order,
challenging that [ICWA] determination.” The Department insists
this language must mean the ICWA finding was expressly
identified in Ashlee’s notice of appeal and then extrapolates from
that premise that the failure to separately designate the ICWA
finding deprives an appellate court of jurisdiction to hear the
issue. On its face the language quoted from the Supreme Court—
which appears after the Court’s explanation that a current ICWA
finding is necessarily subsumed in an order terminating parental
rights—imposes no such requirement. (See Welf. & Inst. Code,
§ 395 [orders subsequent to the disposition order may be
appealed in the same manner as an order after judgment]; Code
Civ. Proc., § 906 [upon appeal from a postjudgment order, the
reviewing court may review any intermediate ruling that
necessarily affects the order being appealed].)
Moreover, the pertinent portions of the notice of appeal
filed in the court of appeal in In re Isaiah W., B250231, are
identical to the notice of appeal filed by Cervando: On the
printed Judicial Council form JV-800 the boxes in each notice are
checked for an appeal from an order pursuant to section 366.26
15
terminating parental rights.8 Nowhere on the notice in In re
Isaiah W., B250231, is ICWA mentioned. Nor need it be.
4. The Department’s Failure To Comply with Its
Affirmative Duty of Inquiry Was Not Harmless Error
The Department recognizes that, on this record, its failure
to inquire of any of Juan’s extended family members about the
child’s possible Indian status as mandated by section 224.2,
subdivision (b)—including family members it actually
interviewed about Dorisbeth’s inappropriate parenting or
evaluated for purposes of serving as a monitor or potential
placement for Juan—requires reversal under the governing
harmless error standard we articulated in In re Antonio R.,
supra, 76 Cal.App.5th 421 and In re Y.W., supra, 70 Cal.App.5th
542. As we held in In re Antonio R., “Where the Department fails
to discharge its initial duty of inquiry under ICWA and related
California law, and the juvenile court finds ICWA does not apply
notwithstanding the lack of adequate inquiry, the error is in most
circumstances, as here, prejudicial and reversible. . . . [I]n
determining whether the failure to make an adequate initial
inquiry is prejudicial, we ask whether the information in the
hands of the extended family members is likely to be meaningful
in determining whether the child is an Indian child, not whether
the information is likely to show the child is in fact an Indian
8 On June 30, 2022 we notified the parties that the court
intended to take judicial notice of the notice of appeal filed in
In re Isaiah W., B250231—a case in which the Department was
the respondent in both Division Three of this court and the
Supreme Court—and provided a copy of the notice. No party has
objected. (See Evid. Code, §§ 452, subd. (d), 455, subd. (a), 459,
subds. (a) & (c).) We now judicially notice the In re Isaiah W.
notice of appeal.
16
child.” (In re Antonio R., at p. 435; see In re Benjamin M., supra,
70 Cal.App.5th at pp. 744, 745 [“a court must reverse 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”; “[w]hile
we cannot know how Father’s brother would answer the inquiry,
his answer is likely to bear meaningfully on the determination at
issue about his brother”].)
Recycling the arguments it made last month in Rylei S.,
supra, 81 Cal.App.5th 309, the Department once again attempts
to persuade us to excuse its wholesale noncompliance with its
statutory obligations by mischaracterizing our decisions as
improperly applying the doctrine of structural error to its failures
to comply with its duty under section 224.2, subdivision (b), to
contact extended family members about a child’s possible Indian
status; and asserting (with quotations from a case from this
Division decided more than a decade before the current version of
section 224.2 was enacted) that, absent some affirmative
representation on appeal by a parent that further inquiry would
reveal information sufficient to invoke ICWA, any error in failing
to conduct the ICWA-related inquiry mandated by the
Legislature must be deemed harmless.
We explained in detail in Rylei S. why neither argument
had merit. In brief, as to the Department’s objection that we are
applying an impossible-to-meet structural error analysis, we
provided an example of when failure to interview an extended
family member would be harmless error and emphasized that, at
the least, the Department must make “a genuine effort to
investigate the child’s Indian status by complying in good faith
17
with the mandate of section 224.2, subdivisions (b) and (e).”
(Rylei S., supra, 81 Cal.App.5th at p. 325.) No such good faith
effort was made in this case.
The Department’s second contention—any error should be
deemed harmless unless the parent on appeal makes an
affirmative representation sufficient to invoke ICWA—is
premised on the faulty notion that parents will necessarily know
whether their family is entitled to the protections of ICWA. As
we have repeatedly explained, the Department’s position ignores
the Legislature’s determination in 2018 with the adoption of
section 224.2, subdivision (b), that child protective agencies may
not limit their investigation of a child’s possible Indian status to
the child’s parents—a determination reflecting evidence-based
findings on the severe impact on a family’s awareness of its
Indian ancestry resulting from this country’s decades-long efforts
to destroy Indian families, force assimilation, and eradicate
Indian history and culture. (Rylei S., supra, 81 Cal.App.5th at
pp. 321-322; In re Antonio R., supra, 76 Cal.App.5th at pp. 431-
432; see In re T.G., supra, 58 Cal.App.5th at p. 295.) We adhere
to our previously expressed position: A parent “does not need to
assert he or she has Indian ancestry to show a child protective
agency’s failure to make an appropriate inquiry under ICWA and
related law is prejudicial. . . . It is unreasonable to require a
parent to make an affirmative representation of Indian ancestry
where the Department’s failure to conduct an adequate inquiry
deprived the parent of the very knowledge needed to make such a
claim.” (In re Y.W., supra, 70 Cal.App.5th at p. 556; accord, In re
Antonio, at p. 435; see Rylei S., at pp. 320-321.)
18
DISPOSITION
The October 5, 2021 section 366.26 order terminating
Cervando’s parental rights is conditionally affirmed. The matter
is remanded to the juvenile court for full compliance with the
inquiry and notice provisions of ICWA and related California law
and for further proceedings not inconsistent with this opinion.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
19