In re M.C. CA5

Filed 11/23/22 In re M.C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re M.C., a Person Coming Under the Juvenile
Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F084449
SERVICES,
(Super. Ct. No. JD141972-00)
Plaintiff and Respondent,
v. OPINION
M.D.,
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and
Appellant.
Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P. J., Smith, J. and Meehan, J.
INTRODUCTION
M.D. (mother) and Mark D. (father) are the parents of M.C. (born April 2021).
Mother appeals the juvenile court’s order terminating her parental rights pursuant to
Welfare and Institutions Code section 366.26.1 Mother’s sole contention on appeal is
that the Kern County Department of Human Services (department) and the juvenile court
failed to comply with the inquiry requirements of the Indian Child Welfare Act
(25 U.S.C. § 1901 et seq.) (ICWA) and related California law because extended family
members were not asked about M.C.’s possible Indian ancestry.2 The department
concedes the error resulted in an inadequate inquiry, but maintains the error was
harmless.
For the reasons discussed herein, we accept the department’s concession of error.
However, consistent with our recent decisions in In re K.H. (2022) 84 Cal.App.5th 566(K.H.) and In re E.C. (2022) __ Cal.App.5th __ [2022 Cal.App. Lexis 923] (E.C.), we
conclude “the error is prejudicial because neither the [department] 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. ([In re A.R. (2021)] 11 Cal.5th [234,] 252–254 [(A.R.)].)
Accordingly, we conditionally reverse the juvenile court’s finding that ICWA does not
apply and remand for further proceedings consistent with this opinion, as set forth
herein.” (K.H., at p. 591; accord, E.C., at p. __ [2022 Cal.App. Lexis 923, **4–5].)
1 All further statutory references are to the Welfare and Institutions Code.
Additionally, we note that section 366.26 was amended by Assembly Bill
No. 2711 (2021–2022 Reg. Sess.). This amendment, effective January 1, 2023, is not
relevant to the issue raised on appeal.
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
2.
FACTUAL AND PROCEDURAL BACKGROUND 3
I. Petition and Detention
On April 8, 2021, the department filed a petition on behalf of M.C. shortly after he
was born pursuant to section 300, subdivision (b), alleging he was at substantial risk of
suffering serious physical harm or illness due to mother’s substance abuse and her
inability to provide him with adequate shelter. Both mother and M.C. tested positive for
amphetamines at his birth, and mother admitted abusing methamphetamine twice a day
for three years. Additionally, mother lived in a “c-train” that was parked at a used car lot
without running utilities and had a history of homelessness. M.C. was subsequently
placed in protective custody.
On April 14, 2021, mother completed a Parental Notification of Indian Status form
(ICWA-020) and checked the box stating that none of the Indian ancestry questions
applied. That same day, the juvenile court conducted a detention hearing. Only mother
appeared. The juvenile court stated it had received mother’s ICWA-020 form indicating
she did not have Indian ancestry. Mother testified to the same. The court asked mother if
anyone in her family had ever lived on a reservation, been enrolled in or eligible for
enrollment in an Indian tribe, or had ever received benefits from an Indian tribe. Mother
responded “no” to all the questions. Based on mother’s testimony and her ICWA-020
form, the court found ICWA did not apply as to mother. The court instructed mother that
if she obtained any information indicating she may belong to an American Indian or
Eskimo tribe, to let her attorney, social worker, and the court know so that further inquiry
could be conducted. The court found M.C. came within section 300 and ordered him
detained from the parents. The detention hearing as to father was continued to the
following day. Father failed to appear at the continued detention hearing. His
3 Because the sole issue on appeal concerns ICWA, we restrict our facts to those
bearing on that issue or helpful for clarity.
3.
whereabouts were unknown, and the court proceeded to make detention findings and
orders as to father.
II. Jurisdiction and Disposition
A. Jurisdiction
The jurisdiction social study reflected the juvenile court’s prior finding that ICWA
did not apply based on the information mother had provided.
On May 6, 2021, father completed an ICWA-020 form and checked the box
stating that none of the Indian ancestry questions applied. That same day, the juvenile
court conducted a combined jurisdiction and disposition hearing where father made his
first appearance. The court conducted an ICWA inquiry for father. The following
colloquy ensued:
“Q. [Father], it’s my understanding that you’ve informed your
attorney that you do not have any Native American heritage?
“A. No.
“Q. Has anyone in your family ever lived on an Indian reservation
or Indian lands?
“A. No. No. I mean maybe my grandma.
“Q. Well, so did your grandma live on an Indian reservation?
“A. Well—well, she—she’s actually [dead], so—well I don’t know
anything about that. So I—I really don’t have—I don’t know her, so I’ll
say no.
“Q. All right. It’s an important question, [father], because the court
needs to figure out if you have any Native American heritage. So did you
hear someone mention that your grandmother lived at an Indian
reservation?
“A. No. I—I—I don’t know. No.
“Q. Well, how did you—why did you make that comment that you
think your mother—your grandmother lived on an Indian reservation.
4.
“A. No. I—I—those are tricky-ass questions ‘cause I really don’t
know. I don’t know, sir. I don’t know. I don’t know. I just thought it was
funny, but, no.
“Q. Has anyone in your family ever been enrolled or eligible for
enrollment in a Native American tribe?
“A. No, sir.
“Q. Okay. At any time, at any family gatherings or family
get-togethers, has anyone in your family ever … mentioned that you might
have some Native American heritage in your family?
“A. No, sir.
“Q. Okay. So you’ve never heard that before from anybody in your
family?
“A. No.”
Based on father’s testimony, the juvenile court found ICWA did not apply as to
father. Jurisdiction and disposition were continued.
On June 16, 2021, the juvenile court conducted a continued jurisdiction and
disposition hearing. Neither mother nor father were present. The court found the
allegations in the petition true and found ICWA did not apply. Disposition was
continued.
B. Disposition
The disposition social study reiterated mother gave no reason to believe ICWA
applied at the detention hearing and stated father had not attended any hearings for an
ICWA inquiry to be made. He had not made himself regularly available to the
department for it to make an ICWA inquiry.4
Additionally, the department reported that since M.C. had been placed in
protective custody, it had been unable to locate any relatives and included documentation
4 The disposition social study incorrectly stated father had not attended any
hearings. Father made his first appearance on May 6, 2021, at a combined jurisdiction
and disposition hearing and the juvenile court conducted an ICWA inquiry at that time.
5.
of its efforts to do so. In April 2021, around the time of the detention hearing, the
department attempted to locate maternal relatives using mother’s name and birth date
through various search programs but was unsuccessful. Thereafter, a social worker
contacted mother and father as part of the family finding process. Mother stated she
wanted M.C. placed with her friend D.C. and provided her phone number. Mother
reported maternal grandmother lived in Sacramento and maternal grandfather was
incarcerated in Oregon. She explained all of her siblings were minors and refused to
provide their names. She did not want any of her family members involved and did not
provide additional information. Father provided paternal grandparents’ names but did not
provide sibling information. He stated, “ ‘They’re in Sacramento,’ ” but would not say
who. He then refused to provide further information. After receiving the information
from the parents, the department attempted to locate the maternal grandmother in
Sacramento and the maternal grandfather in Oregon and on the inmate database but was
unable to locate them.
On August 13, 2021, the juvenile court held a continued disposition hearing.
Neither mother nor father appeared. While making findings and orders the juvenile court
paused and stated, “I want to verify that we have made necessary ICWA findings with
respect to [father].” Counsel for the department confirmed that ICWA inquiry as to
father had been made. The court adjudged M.C. a dependent of the court, ordered him
removed from the parents’ custody, and ordered the parents to participate in reunification
services and supervised visitation.
III. Six-Month Review
The six-month review social study reiterated ICWA was found not to apply and
reported no new information had been provided.
In September 2021, M.C. was placed with paternal aunt S.W.
On February 8, 2022, the juvenile court conducted a six-month review hearing.
Neither mother nor father were present, but S.W. was present. The parents had not made
6.
any efforts to alleviate or mitigate the causes necessitating placement. The court ordered
the parents’ reunification services terminated and set a section 366.26 hearing.
IV. Section 366.26
The section 366.26 social study stated that on March 8, 2021, the juvenile court
found ICWA did not apply.5 M.C. was still in placement with S.W., and she was
committed to adopting him.
On June 8, 2022, the juvenile court conducted the section 366.26 hearing. Mother
and S.W. were present. The court found there was clear and convincing evidence M.C.
was likely to be adopted and terminated parental rights.
Mother subsequently filed a timely notice of appeal.
DISCUSSION
I. ICWA
A. Background
“ ‘ICWA is a federal law giving Indian tribes concurrent jurisdiction over state
court child custody proceedings that involve Indian children living off of a reservation’
[citations], in furtherance of ‘federal policy “ ‘that, where possible, an Indian child should
remain in the Indian community’ ” ’ [citations]. ‘ICWA establishes minimum federal
standards, both procedural and substantive, governing the removal of Indian children
from their families’ [citations], and ‘[w]hen ICWA applies, the Indian tribe has a right to
intervene in or exercise jurisdiction over the proceeding.’ ” (K.H., supra, 84 Cal.App.5th
566, 594, fn. omitted; accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis
923, *9–10], fn. omitted.)
“ ‘In 2006, California adopted various procedural and substantive provisions of
5 Nothing in the record shows the court made such a finding on March, 8, 2021.
The petition had not even been filed by that date as it was filed on April 8, 2021. On
April 14, 2021, the juvenile court found ICWA did not apply as to mother. On May 6,
2021, the juvenile court found ICWA did not apply as to father.
7.
ICWA.’ [Citations.] The Legislature’s ‘primary objective … was to increase
compliance with ICWA. California Indian Legal Services (CILS), a proponent of the
bill, observed that courts and county agencies still had difficulty complying with ICWA
25 years after its enactment, and CILS believed codification of [ICWA’s] requirements
into state law would help alleviate the problem. [Citation.]’ ” (K.H., supra, 84
Cal.App.5th at p. 595; accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis
923, *10].)
“ ‘In 2016, new federal regulations were adopted concerning ICWA compliance.
[Citation.] Following the enactment of the federal regulations, California made
conforming amendments to its statutes, including portions of the Welfare and Institutions
Code related to ICWA notice and inquiry requirements. [Citations.] Those changes
became effective January 1, 2019 .…’ [Citation.] Subsequently, the Legislature
amended section 224.2, subdivision (e), to define ‘reason to believe,’ effective
September 18, 2020.” (K.H., supra, 84 Cal.App.5th at pp. 595–596, fn. omitted; accord,
E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *10–11].)
B. Summary of Duties of Inquiry and Notice
“[W]hether a child is a member, or is eligible for membership, in a particular tribe
is a determination that rests exclusively with the tribe, and neither the [department] nor
the court plays any role in making that determination. [Citations.] ‘ “Because it typically
is not self-evident whether a child is an Indian child, both federal and state law mandate
certain inquiries to be made in each case.” ’ ” (K.H., supra, 84 Cal.App.5th at p. 596;
accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *11–12].)
“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of
notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the
8.
[Bureau of Indian Affairs].’ ”6 (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California
law imposes “an affirmative and continuing duty [on the court and the county welfare
department] to inquire whether a child for whom a petition under [s]ection 300, … may
be or has been filed, is or may be an Indian child.” (§ 224.2, subd. (a).)
“The [state law] duty to inquire begins with the initial contact, including, but not
limited to, asking the party reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.” (§ 224.2, subd. (a).) “If a child is
placed into the temporary custody of a county welfare department pursuant to
[s]ection 306 … the county welfare department … has a duty to inquire whether that
child is an Indian child. Inquiry includes, but is not limited to, asking 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 and where the child, the parents, or Indian custodian is domiciled.”
(§ 224.2, subd. (b).)7 Additionally, “[a]t 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).)
6 Section 224.2, subdivision (k), was amended by Assembly Bill No. 2960 (2021–
2022 Reg. Sess.). This amendment, effective January 1, 2023, is not relevant to our
discussion in this case.
7 “Courts have recognized it is somewhat inaccurate to refer to the agency’s
‘ “ ‘initial duty of inquiry’ ” ’ [citation] because the duty ‘ “begins with the initial
contact” (§ 224.2, subd. (a)) and continues throughout the dependency proceedings’
[citation]. However, in this case, like many others, an ICWA inquiry was made only of
the parents and after the juvenile court found ICWA did not apply at the detention
hearing, no further information was gathered. Given that our discussion on error …
focuses on the first step of the inquiry and does not involve the duty of further inquiry or
notice, we use the term duty of initial inquiry.” (K.H., supra, 84 Cal.App.5th at p. 597,
fn. 10.)
9.
“If the initial inquiry provides ‘reason to believe’ that an Indian child is involved
in a proceeding—that is, if the court or 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’—then the court or social worker ‘shall make further inquiry’ regarding
the child’s possible Indian status as soon as practicable.” (In re Ezequiel G. (2022) 81
Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) “Further inquiry
‘includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents,
Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of
Indian Affairs and the State Department of Social Services[; and] [¶] (C) 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.’ ” (Ezequiel G., at
p. 999.)
“If there is ‘reason to know’ a child is an Indian child, the agency shall provide
notice to the relevant tribes and agencies in accordance with section 224.3,
subdivision (a)(5).” (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2,
subd. (f).) “There is ‘reason to know’ a child is an Indian child if any one of six statutory
criteria is met—i.e., if the court is advised that the child ‘is an Indian child,’ the child’s or
parent’s residence is on a reservation, the child is or has been a ward of a tribal court, or
either parent or the child possess an identification card indicating membership or
citizenship in an Indian tribe.” (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)
II. Analysis
A. Summary of ICWA Inquiry
The record reflects mother filed an ICWA-020 form denying Indian ancestry and
that at her first appearance in court, she testified to the same. The court instructed mother
to inform her attorney, social worker, and the court if she subsequently received
information indicating otherwise and found ICWA did not apply as to her. Father also
filed an ICWA-020 form denying Indian ancestry, but during the court’s inquiry, he
10.
testified his grandmother may have lived on an Indian reservation. He then said he did
not know and that she had died. When asked why he made the statement about his
grandmother, he said those were “tricky” questions and he thought it was “funny.” He
denied anyone in his family was enrolled in, or eligible for enrollment, in an Indian tribe.
He never heard anyone in his family mention there was Indian ancestry in his family.
The juvenile court found ICWA did not apply as to father, but did not instruct him to
inform the court if he received new information indicating M.C. might be an Indian child.
There is no indication ICWA inquiries were made of anyone else, even though S.W., the
child’s prospective adoptive parent and paternal aunt, was in contact with the department
and appeared at the six-month review and section 366.26 hearings.8 Mother argues the
department and the juvenile court failed to comply with their duties of inquiry under
ICWA and specifically identifies S.W. as an extended family member who should have
been inquired of. The department concedes error, but argues the error was harmless and
urges us to apply the “reason to believe approach” articulated in In re Dezi C. (2022) 79
Cal.App.5th 769, 779, review granted September 21, 2022, S275578.
Recently, in K.H. and E.C., we addressed ICWA error at the inquiry stage. There,
we explained our decision not to follow the four general approaches articulated by other
appellate courts for determining whether ICWA error requires reversal and concluded
that the Supreme Court’s decision in A.R. supplies the appropriate framework for
assessing prejudice in this context. (K.H., supra, 84 Cal.App.5th at pp. 607–608, citing
A.R., supra, 11 Cal.5th at pp. 252–254; accord, E.C., supra, __ Cal.App.5th __ [2022
8 In addition, we note that early in the proceedings the department was in contact
with D.C., mother’s long-time friend who wanted to obtain guardianship of M.C.
Although mother does not argue the department should have inquired of D.C., she was an
interested party because she wanted to obtain guardianship over M.C. (§ 224.2, subd. (b)
[the department’s duty of inquiry included asking “others who have an interest in the
child” about the child’s Indian ancestry].) The record does not reflect whether the
department asked D.C. whether M.C. had possible Indian ancestry.
11.
Cal.App. Lexis 923, *33–34].) Applying the standards we articulated in K.H. and E.C.,
as we will discuss below, we conclude the department’s error is prejudicial and remand
for the department to conduct a proper, adequate, and duly diligent inquiry is necessary.
B. Standard of Review
“The juvenile court’s finding that ICWA does not apply to the proceeding rests on
two elemental determinations, ‘subject to reversal based on sufficiency of the
evidence.’ ” (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2));
accord, E.C., supra, __ Cal.App.5th __ [2022 Cal.App. Lexis 923, *17].) First, “[t]he
court must find there is ‘no reason to know whether the child is an Indian child,’ which is
dependent upon whether any of the six circumstances set forth in subdivision (d) of
section 224.2 apply.” (Ibid.) Second, “[t]he juvenile court must … find a ‘proper and
adequate further inquiry and due diligence .…’ ” (K.H., at p. 601, quoting § 224.2,
subd. (i)(2)); accord, E.C., at p. __ [2022 Cal.App. Lexis 923, *18].)
Under the substantial evidence standard, “ ‘a reviewing court should “not reweigh
the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.”
[Citation.] The determinations should “be upheld if … supported by substantial
evidence, even though substantial evidence to the contrary also exists and the trial court
might have reached a different result had it believed other evidence.” ’ [Citations.] The
standard recognizes that ‘[t]rial courts “generally are in a better position to evaluate and
weigh the evidence” than appellate courts’ [citation], and ‘an appellate court should
accept a trial court’s factual findings if they are reasonable and supported by substantial
evidence in the record’ [citation]. ‘[I]f a court holds an evidentiary hearing, it may make
credibility determinations, to which an appellate court would generally defer.’ ” (K.H.,
supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, __ Cal.App.5th at p. __ [2022
Cal.App. Lexis 923, *18].)
The juvenile court’s finding on the second element, however, “is ultimately
discretionary because it requires the juvenile court to ‘engage in a delicate balancing of’
12.
various factors in assessing whether the agency’s inquiry was proper and adequate within
the context of ICWA and California law, and whether the agency acted with d ue
diligence.” (K.H., supra, 84 Cal.App.5th at p. 601, quoting In re Caden C. (2021) 11
Cal.5th 614, 640; accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923,
*19]; Ezequiel G., supra, 81 Cal.App.5th at pp. 1004–1005.) Therefore, we employ a
hybrid standard and review the court’s determination for substantial evidence and abuse
of discretion. (K.H., at p. 601; accord, E.C., at p. __ [2022 Cal.App. Lexis 923, *18–19];
Ezequiel G., at pp. 1004–1005.)
“ ‘Review for abuse of discretion is subtly different [from review for substantial
evidence], focused not primarily on the evidence but the application of a legal standard.
A court abuses its discretion only when “ ‘ “the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ”
[Citation.] But “ ‘ “[w]hen two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court” ’ ” [Citations.] [¶] While each standard here fits a distinct type of determination
under review, the practical difference between the standards is not likely to be very
pronounced.’ ” (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, __
Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *19].)
“Review of the juvenile court’s findings under the foregoing standards is
deferential, but ‘ “an appellate court [nevertheless] exercises its independent judgment to
determine whether the facts satisfy the rule of law.” ’ [Citations.] Where the material
facts are undisputed, courts have applied independent review to determine whether
ICWA’s requirements were satisfied.” (K.H., supra, 84 Cal.App.5th at p. 602; accord,
E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *19–20].)
13.
C. Department and Juvenile Court Erred
1. Duties
As previously mentioned, “[a]t 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).)
Moreover, when “a child is placed into the temporary custody of a county welfare
department …, the county welfare department … has a duty to inquire whether [the] child
is an Indian child. Inquiry includes, but is not limited to, asking 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 and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2,
subd. (b).) Extended family members include adult grandparents, siblings, brothers- or
sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C.
§ 1903(2); § 224.1, subd. (c).)
“If the court[ or the department] 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, the court[ or the department] shall
make further inquiry regarding the possible Indian status of the child, and shall make that
inquiry as soon as practicable.” (§ 224.2, subd. (e).) “There is reason to believe a child
involved in a proceeding is an Indian child whenever the court, social worker, or
probation officer 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.” (Id., subd. (e)(1).)
County welfare departments “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, as well as evidence of how
14.
and when this information was provided to the relevant tribes. Whenever new
information is received, that information must be expeditiously provided to the tribes.”
(Cal. Rules of Court, rule 5.481(a)(5).)9
2. Juvenile Court’s Finding Unsupported by Substantial Evidence
Here, the department inquired only of mother and father, which fell short of
complying with the plain language of section 224.2, subdivision (b). “We recognize the
frustration with the sheer volume of cases suffering from this fundamental defect given
that the vast majority of inquiries will not result in a finding that a child is or may be an
Indian child. However, ‘[t]he judiciary, in reviewing statutes enacted by the Legislature,
may not undertake to evaluate the wisdom of the policies embodied in such legislation;
absent a constitutional prohibition, the choice among competing policy considerations in
enacting laws is a legislative function.’ [Citation.] [County welfare departments] and
lower courts are, by now, on very clear notice of the problems caused when little to no
inquiry is made. While we are not persuaded that compliance with section 224.2 will
prove onerous once [county welfare departments] provide a record of their efforts for the
juvenile court to review, we may not interpret the law to relieve either one of the burden
of complying with the plain directives of the statute.” (K.H., supra, 84 Cal.App.5th at
pp. 619–620, fn. omitted.)
“[T]he law demands more than merely inquiring of [m]other and [f]ather” (K.H.,
supra, 84 Cal.App.5th at p. 620, citing In re Antonio R. (2022) 76 Cal.App.5th 421, 431;
accord, In re M.M. (2022) 81 Cal.App.5th 61, 74, review granted Oct. 12, 2022, S276099
(dis. opn. of Wiley, J.)), a point the department does not dispute. There may be cases in
which there is no one else to ask, but if that is so, the record must be developed to reflect
that fact and supported by documentation. (Rule 5.481(a)(5).) “On a well-developed
record, the court has relatively broad discretion [in such cases] to determine [that] the
9 All further references to rules are to the California Rules of Court.
15.
[department’s] inquiry was proper, adequate, and duly diligent on the specific facts of the
case.” (K.H., at p. 589; accord, E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App.
Lexis 923, *43].)
Under these circumstances, the department did not fulfill its statutory duty of
inquiry. (§ 224.2, subds. (b) & (e).) As a result, the juvenile court’s finding that ICWA
did not apply was not supported by substantial evidence, and its contrary conclusion was
an abuse of discretion. (§ 224.2, subd. (i)(2).)
D. Prejudice
“Where, as here, the deficiency lies with [a department’s] duty of initial inquiry
and a juvenile court’s related finding of ‘proper and adequate further inquiry and due
diligence’ (§ 224.2, subd. (i)(2)), the error is one of state law ([In re] Benjamin M., supra,
70 Cal.App.5th at p. 742). Under the California Constitution, ‘[n]o judgment shall be set
aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of
the improper admission or rejection of evidence, or for any error as to any matter of
pleading, or for any error as to any matter of procedure, unless, after an examination of
the entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)”
(K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, __ Cal.App.5th at p. __
[2022 Cal.App. Lexis 923, *32–33].)
“ ‘[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must
clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of
justice’ [citations], and California law generally interprets its constitutional miscarriage
of justice requirement ‘as permitting reversal only if the reviewing court finds it
reasonably probable the result would have been more favorable to the appealing party but
for the error.’ ” (K.H., supra, 84 Cal.App.5th at pp. 606–607; accord, E.C., supra, __
Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *33].)
16.
However, in A.R., the Supreme Court “recognized that while we generally apply a
Watson[10 ] likelihood-of-success test to assess prejudice, a merits-based outcome-focused
test is not always appropriate because it cannot always adequately measure the relevant
harm. [Citation.] In other words, where the injury caused by the error is unrelated to an
outcome on the merits, tethering the showing of prejudice to such an outcome misplaces
the measure, at the expense of the rights the law in question was designed to protect.”
(K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
As we explained in K.H., “ ‘ICWA compliance presents a unique situation .…’ ”
(K.H., supra, 84 Cal.App.5th at p. 608.) “ICWA is not directed at reaching, or
protecting, a specific outcome on the merits.” (Id. at p. 609; accord, E.C., supra, __
Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *37].) Rather, “ ‘[t]he purpose of ICWA
and related California statutes 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’ [citation], and an adequate initial inquiry facilitates the information
gathering upon which the court’s ICWA determination will rest.” (K.H., at p. 609;
accord, E.C., at p. __ [2022 Cal.App. Lexis 923, *34].) Yet, “while the appealing party is
usually a parent, parents do not bear the burden of gathering information in compliance
with ICWA [citations], and parents may raise the claim of error for the first time on
appeal.” (K.H., at p. 608; accord, E.C., at p. __ [2022 Cal.App. Lexis 923, *34–35].)
Further, the ultimate determination whether a child is an Indian child rests with the tribe,
not with a parent, the department, or the juvenile court. (K.H., at p. 590; accord, E.C., at
p. __ [2022 Cal.App. Lexis 923, *11–12].)
“Although the duty of inquiry is a continuing one (§ 224.2, subd. (a)), as we have
seen in countless cases, including here, if the inquiry is inadequate at the outset, the
likelihood that the opportunity to gather relevant information will present itself later in
10 People v. Watson (1956) 46 Cal.2d 818, 836.
17.
the proceeding declines precipitously.” (K.H., supra, 84 Cal.App.5th at p. 609; accord,
E.C., supra, __ Cal.App.5th at p. __ [2022 Cal.App. Lexis 923, *37–38].) “Thus, ‘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[, under a standard Watson analysis]. 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 [in the context of ICWA and consistent with A.R.,] 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. Many cases do not proceed beyond the inquiry at
the first stage in the compliance process and, therefore, ensuring adequacy and accuracy
at this step is critical’ ” (E.C., at p. __ [2022 Cal.App. Lexis 923, *38], quoting K.H., at
p. 591), and “ ‘requiring adequacy as the law directs “is generally the only meaningful[ ]
way to safeguard the statutory right[s]” as intended under ICWA and related California
law [citation]. If this step is disregarded, the protection Congress and the state
Legislature intended to afford tribes goes unrealized.’ ” (E.C., at p. __ [2022 Cal.App.
Lexis 923, *38–39], quoting K.H., at p. 609.)
As we explained in K.H., “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, citing
A.R., supra, 11 Cal.5th at pp. 252–254; accord, E.C., supra, __ Cal.App.5th at p. __
[2022 Cal.App. Lexis 923, *40].) Here, the department’s inquiry, limited only to mother
and father, “ ‘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’ ” (E.C., at p. __ [2022 Cal.App. Lexis 923, *42], quoting K.H., at p. 620), and “[a]
18.
finding of harmlessness on this record would necessarily require speculation and ‘is at
odds with the statutory protections that ICWA and California law intend to afford Indian
children and Indian tribes.’ ” (E.C., at p. __ [2022 Cal.App. Lexis 923, *41], quoting
K.H., at p. 611.) Therefore, the error is prejudicial and reversal is required.
Accordingly, the juvenile court’s finding that ICWA does not apply is
conditionally reversed and the matter is remanded. The juvenile court is instructed to
ensure the department conducts “ ‘a proper, adequate, and duly diligent inquiry under
section 224.2, subdivision[s] (b) [and (e)], and document its inquiry in the record in
compliance with rule 5.481(a)(5).’ ” (E.C., supra, __ Cal.App.5th at p. __ [2022
Cal.App. Lexis 923, *44], quoting K.H., supra, 84 Cal.App.5th at p. 621.) “ ‘This should
not be interpreted as requiring an exhaustive search for and questioning of every living
relative of [M.C.]’ but ‘[w]e leave that determination for the juvenile court in the first
instance because it is better positioned to evaluate the evidence provided by the
[d]epartment. So long as the court ensures the inquiry is reasonable and of sufficient
reach to accomplish the legislative purpose underlying ICWA and related California law,
the court will have an adequate factual foundation upon which to make its ICWA finding.
(§ 224.2, subd. (i)(2).)’ ” (E.C., at p. __ [2022 Cal.App. Lexis 923, *44–45], quoting
K.H., at p. 621.)
DISPOSITION
The juvenile court’s finding that ICWA does not apply is conditionally reversed ,
and the matter is remanded to the juvenile court with directions to order the department to
comply with the inquiry and documentation provisions set forth in section 224.2,
subdivisions (b) and (e), and rule 5.481(a)(5). 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
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ICWA finding shall be reinstated. In all other respects, the juvenile court’s order
terminating parental rights is affirmed.
20.