In re S.S.

Filed 4/14/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re S.S., a Person Coming B318794
Under the Juvenile Court Law.
_______________________________ Los Angeles County
Super. Ct. No. 20CCJP00196B
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
KARLA S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin R. Kesler, Juvenile Court Referee.
Conditionally reversed and remanded with directions.
Roni Keller, under appointment by the Court of Appeal, for
Defendant and Appellant.
1
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
At the behest of tribes seeking redress for a long and
troubled history, the Legislature enacted a statute to help them
identify children who could sustain tribal cultures. But an
agency skipped the low-cost measures the statute required. That
neglect shuts tribes out: they cannot learn about cases where
their interests can be vitally at stake. The agency’s disregard
defeats the statute’s promise, and this broken promise is a
miscarriage of justice. It prejudices tribes.
I
A
The lone issue is the federal Indian Child Welfare Act,
sections 1901 and following of title 25 of the United States Code
(the Act, or ICWA) and its California counterpart. (Welf. & Inst.
Code, § 224 et seq.)
The word “Indian” appears in official statutory titles and
content. (E.g., Welf. & Inst. Code, § 224.1, subd. (a) [defining
“Indian,” “Indian child,” “Indian custodian,” and “Indian tribe”].)
Controversy surrounds this word. (E.g., Wikipedia, Native
American name controversy, [as of April 12, 2023],
archived at < https://perma.cc/W8MM-ELEC>.)
Because statutory text and categories are at the center of
this statutory case, clarity sometimes necessitates using the
legislative word “Indian.”
2
B
In May 2021, the Department of Children and Family
Services detained infant boy S.S. at birth, based on exigency,
alleging his parents abused drugs and S.S. was born testing
positive for opiates, amphetamines, and methamphetamines.
The Department was familiar with these parents: the juvenile
court already had made S.S.’s older brother N.S. a dependent of
the court.
Three of S.S.’s paternal relatives are central to this appeal:
S.S.’s grandfather O.H., aunt L.R., and cousin L.T.
The Department had contact information for all three
paternal relatives.
The record contains the Department’s contact information
for this grandfather and aunt. Presumably the Department also
had contact information for this cousin, for it reported the cousin
had custody of S.S.’s brother N.S., who was under the
Department’s supervision. The father said he wanted the
Department to place S.S. with this cousin.
In May 2021, the juvenile court detained S.S. from his
parents and placed him with his maternal aunt and uncle. The
juvenile court conducted jurisdictional and dispositional hearings
and, on September 21, 2021, ruled that S.S. was a dependent of
the court.
The mother and father both denied Indian ancestry.
The maternal aunt, however, said that the mother might
have Yaqui heritage and that the maternal grandmother would
know more. The maternal grandmother did know more: she said
a DNA ancestry search, as well as information from relatives,
made her think she had Yaqui ancestry through the maternal
great-grandfather. The court ordered the Department to
3
interview the maternal aunt and grandmother. The Department
in turn notified the Pascua Yaqui tribe, which replied S.S. was
not eligible for membership: the tribe would not intervene.
The Department never asked paternal extended family
members about the possibility of Indian ancestry. The
Department concedes this point.
Although the Department had contact information for three
paternal extended family members and never asked them about
Indian ancestry, the court found the Act inapplicable in
September 2021. The court ruled there was no reason to know
S.S. was an Indian child.
In 2022, the court terminated parental rights in favor of a
permanent plan of adoption by the maternal aunt and uncle who
were the caretakers and prospective adoptive parents. The
mother appealed.
II
The crucial statute is the amendment to section 224.2 of
the Welfare and Institutions Code, enacted in 2018 and effective
January 1, 2019. (Stats. 2018, ch. 833 (A.B. 3176), § 5.)
This 2018 amendment requires conditional reversal and a
remand for the Department to ask the three extended paternal
family members for whom the Department had contact
information whether S.S. may have Indian ancestry. This work
should be slight and swift. The slightness of the effort, however,
does not imply the effort is unimportant. To the contrary, the
effort is vital to tribes striving to locate children to sustain tribal
cultures. We reverse and remand for the Department to conduct
this vital work that would take so little effort.
The analysis just stated does not command unanimous
agreement in the California Courts of Appeal, to put it mildly.
4
These courts are amazingly divided on the proper way to handle
the 2018 amendment. (E.g., In re K.H. (2022) 84 Cal.App.5th
566, 611–618 [critically surveying widely divergent approaches].)
Indeed, it is emblematic of this diversity of opinion that in this
very case we have three opinions from three judges.
Our Supreme Court will review this issue. (In re Dezi C.
(2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022,
S275578.)
Pending guidance from the high court, the controversy is
sharp.
Across this riven appellate field, there can be earnest and
heartfelt opposition to allowing ICWA issues to delay agency
efforts to finalize children’s adoptions. One perspective senses
overwhelming futility in this whole and maddeningly persistent
debate, given the slight likelihood that any real good will come
from the ICWA rigamarole. The children, who have heartrending
needs for immediate, stable, and loving adoptions, are at the
center of the proceedings; their circumstances are vivid and their
precious formative years fleeting. By contrast, “tribes” can seem
faraway abstractions—they are nowhere to be seen or heard in
these cases and courts—and ancient injustices to tribes may seem
remote and hardly the fault of hardworking social workers or the
high-minded and committed bench officers trying to solve today’s
dire problems.
From this perspective, ICWA can seem like pointless make
work: a costly diversion of resources from a vital mission
understaffed in the first place. Moreover, the issue often bursts
forth only on appeal, only after years of silence, only after
extended and evident disinterest in the matter.
5
There can be suspicion the whole controversy is just made
up, on behalf of parents who have no connection to indigenous
culture—that the entire thing is but a cynical ploy for delay.
Another perspective is possible. Here, a different view
proceeds in five steps:
1. Legislative history shows tribes are the real parties
in interest, and tribes have explained why asking
only parents is not enough.
2. The 2018 amendment’s requirement of
communicating with extended family members is not
some costly new mandate; rather, it usually
piggybacks economically on the Department’s
preexisting duty and current practice of investigating
extended family members.
3. The added effort here would have been slight, which
accords with legislative intent: the 2018 amendment
should not cause a workload increase for county
caseworkers.
4. Courts properly interpret the concept of prejudice
under the 2018 amendment in light of its legislative
purpose of redressing a long and troubling history we
should not forget.
5. Tribes suffer prejudice when the Department had
contact information for extended paternal family
members but did nothing with it, thus denying tribes
the benefit of the 2018 statutory promise.
A
Tribes are the real parties in interest under this statute.
The 2018 amendment imposed a duty the federal Act does
not. That new state duty requires the Department and similar
6
agencies to ask “extended family members” whether a child has
Indian ancestry. (Welf. & Inst. Code, § 224.2, subd. (b).) By
statute, then, asking only the parents is not enough.
This 2018 amendment was tribal in origin and purpose.
By way of summary, California tribal leaders gathered
narratives and data about the failure of implementation of the
Act. They issued a report that generated the 2018 amendment:
the Legislature embraced the tribal proposal swiftly and without
opposition. The resulting law required the Department to ask
“extended family members” whether the child may be an Indian
child.
Let us flesh out this summary by tracing the law’s origin
and purpose in more detail.
The 2018 amendment originated in a 2017 report by the
ICWA Compliance Task Force. (See California ICWA
Compliance Task Force, Report to the California Attorney
General’s Bureau of Children’s Justice, 2017 [as of Feb. 1, 2023],
archived at (Tribal Report).)
“In November 2015, the California Department of Justice’s
Bureau of Children’s Justice created the first ICWA Compliance
Task Force in California. The Task Force was independent of the
Department of Justice, made up of tribal representatives and
advocates, and operates under the direction of tribal leadership.
Its purpose was to gather information and data to inform the
Bureau of Children’s Justice of the status of compliance with
California laws related to Native American children in California,
and provide recommendations regarding changes necessary to
decrease violations of these laws across the many state and
county systems that impact tribal families in the dependency
system. The Task Force’s work culminated in a 2017 Report to
7
the California Attorney General’s Bureau of Children’s Justice.
Subsequent to the Task Force, the [California Tribal Families
Coalition] was created, which is the sponsor of this measure.”
(Cal. Health and Human Services Agency, Enrolled Bill Rep. on
Assem. Bill No. 3176 (2017-2018 Reg. Sess.) prepared for
Governor Brown (Aug. 31, 2018 & Sept. 4, 2018) p. 5 (Enrolled
Bill Report).)
This information is from an enrolled bill report. These
reports instruct us about legislative purpose and effect.
Government departments write these reports to help the
Governor decide whether to sign the bill into law—a necessary
and final step in the legislative process. The departmental
authors usually write their reports within days of the statute’s
passage. (People v. Ruiz (2018) 4 Cal.5th 1100, 1111, fn. 3.)
These reports thus can be a relevant and synoptic view of an
enrolled bill the Governor signs into law; they encapsulate the
bill to help the Governor decide its fate.
Returning to the Tribal Report, it explained why relying on
parents alone for the initial inquiry does not necessarily protect
the rights of the tribe. (Tribal Report, supra, p. 28.)
“When parents are the sole target of the initial inquiry, it
should be understood that there are a variety of reasons why
relying on the parents does not necessarily protect the child’s best
interests, or the rights of the tribe. Parents may simply not have
that information, or may possess only vague or ambiguous
information. [⁋] The parents or Indian custodian may be fearful
to self-identify, and social workers are ill-equipped to overcome
that by explaining the rights a parent or Indian custodian has
under the law. Parents may even wish to avoid the tribe’s
8
participation or assumption of jurisdiction.” (Tribal Report,
supra, p. 28, fns. omitted, italics added.)
To the extent the law has been interpreted to restrict
inquiry to parents, the Tribal Report explained, “it should be
amended.” (Tribal Report, supra, p. 27.)
This case illustrates that point: extended family members
can have tribal information the parents lack, or have forgotten, or
refuse to divulge. As recounted above, S.S.’s mother denied
having Indian ancestry, but her extended relatives had more
information: the maternal aunt reported the possibility of Yaqui
ancestry and said the maternal grandmother would know more.
This grandmother did know more, from a DNA test as well as
from other relatives. Had the Department never asked these
maternal extended family members, this possible Yaqui ancestry
would have remained hidden. This illustrates why tribes sought
inquiry beyond the parents alone. This inquiry successfully
revealed information then transmitted to Yaqui authorities, who
made a sovereign decision about S.S. That served the purpose of
the 2018 amendment: the tribe was notified and had an
opportunity to be heard. The law and its mandated inquiry
allowed the tribe to be part of the process.
Further illustrating the tribal origin of the 2018
amendment is the fact that the California Tribal Families
Coalition was the amendment’s sponsor and source. (Assem.
Com. on Judiciary, Rep. on Assem. Bill No. 3176 [2017-2018 Reg.
Sess.] April 17, 2018, pp. 1 & 10.)
What is this Coalition?
The Coalition “was formally organized in May 2017 to
continue to press for the implementation of the Task Force 2017
Report recommendations. The [Coalition] Board of Directors is
9
comprised of thirteen Tribal Council leaders from across the
State, including five of the seven co-chairs of the Task Force. [⁋]
The [Coalition] is organized as a 501(c)(4) nonprofit membership
corporation to promote social welfare, and to promote and protect
the health and welfare of tribal children and families through
litigation, legislation, regulations, and policy initiatives. The
initial road map for the organization lies in the recommendations
contained in the Task Force Report. The [Coalition] Board of
Directors has established a multi-pronged approach to advance
its mission which includes: regional meetings of tribal social
workers and ICWA advocates; convening an attorney advisory
panel of tribal attorneys in the state; and the establishment of
the Children's Commission, a high-level executive body of tribal
leaders, judges, and subject matter experts to provide the Board
of Directors with a broad perspective and recommendations to
better protect the health, safety and welfare of tribal children
and families.” (Enrolled Bill Report, supra, p. 6; see also
California Tribal Families Coalition [as of April 12, 2023], archived at [“The California Tribal Families Coalition was
established by tribal leaders from across the state to provide a
strong and unified voice on behalf of tribal children. Formed in
2017 to implement the comprehensive findings of the California
ICWA Compliance Task Force, CTFC has worked with its
member tribes to successfully pass key legislation that helps
protect Native children and tribal sovereignty . . . .”].)
So, tribes wrote a report demanding legislative action, and
the California Tribal Families Coalition sponsored a bill and
pressed for its passage. The California Legislature passed the
bill swiftly, and the Governor signed it straight away. There was
10
no opposition. (Sen. Rules Com., Report on Assem. Bill No. 3176
[2017-2018 Reg. Sess.] August 20, 2018, p. 8.) The votes at every
stage were unanimous. (Enrolled Bill Report, supra, at p. 8; see
also History of AB-3176 Indian children,
[as of April 12, 2023], archived at
.)
In sum, this uncontroversial law was tribal in origin and
purpose. Tribes are the real parties in interest in cases applying
the 2018 amendment.
B
Investigating “extended family members” is a well
established and familiar duty for agencies like the Department.
(See In re K.H., supra, 84 Cal.App.5th at p. 619.) By long-
standing practice, the Department routinely searches for and
communicates with a child’s extended family members—for
reasons that existed before the 2018 amendment.
The simple and compelling idea is that it might be good to
place a child within a family structure, and to do that you must
learn about the family structure.
Under the statute at hand, extended family members
include the child’s stepparents, grandparents, siblings, brothers-
or sisters-in-law, aunts, uncles, nieces, nephews, and first or
second cousins. (25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1,
subd. (c).)
Predating the 2018 amendment and apart from a tribal
purpose, many different laws have required the Department to
identify and to contact extended family members, simply to carry
out the Department’s day-to-day work. (E.g., Welf. & Inst. Code,
§§ 300.2 [focus shall be on the preservation of the family], 309
11
[social worker shall immediately investigate the circumstances of
the child and attempt to maintain the child with the child’s
family], 358 [court shall make a finding as to whether the social
worker has exercised due diligence in conducting the
investigation to identify, locate, and notify the child’s relatives],
361.3 [preferential consideration shall be given to a request by a
relative of the child for placement of the child with the relative],
361.4 [the county welfare department shall conduct an in-home
inspection to assess the ability of the relative or nonrelative
extended family member to care for the child’s needs], 361.45
[when sudden unavailability of a foster caregiver requires a
change in placement, if a relative or a nonrelative extended
family member is available and requests temporary placement of
the child, the county welfare department shall assess that
person’s suitability], 366.22 [requiring a review of contact
between children and their parents and other members of the
extended family].)
The 2018 amendment in most cases requires the
Department—when performing this routine duty—simply to add
a topic to the agenda in these already-occurring investigations.
This topic is “to inquire whether that child is an Indian child.”
(Welf. & Inst. Code, § 224.2.) The Department must ask
“whether the child is, or may be, an Indian child . . . .” (Ibid.)
In short, the 2018 amendment’s basic mandate of
communicating with extended family members does not require
some novel and expensive departure for the Department. The
amendment instead merely adds an item to the Department’s
preexisting duty of investigating extended family members.
12
C
The 2018 amendment required added agency effort that
here is slight. For instance, when you already are having or
planning a conversation, how long does this additional question
take: “Might this child be an Indian child?”
The slightness of this burden accords with the 2018
amendment.
The legislative history states the 2018 amendment “should
not significantly change the administrative work required of
county agencies and caseworkers . . . .” (Enrolled Bill Report,
supra, p. 3
The fiscal impact of the 2018 amendment would be “None.
This bill would not result in a workload increase for a county
caseworker.” (Enrolled Bill Report, supra, p. 7, italics added.)
Nowhere in the legislative history is there any indication
that legislators anticipated or wanted the 2018 amendment to
require child welfare agencies like the Department to embark on
significantly expensive or time-consuming new investigations to
find extended family members simply to ask about Indian
ancestry.
Early in the legislative process, there was uncertainty
about the bill’s fiscal impact. (E.g., Assem. Com. on Human
Servs., Rep. on Assem. Bill No. 3176 [2017-2018 Reg. Sess.] April
10, 2018, pp. 7 [“FISCAL EFFECT: Unknown.”].) Elsewhere,
legislative analysts estimated a likely cost increase from
providing “all case file information to all tribes that acknowledge
that they are the child’s tribe, from providing services such as
qualified expert witnesses, and from developing emergency
proceedings required by the bill.” (Assem. Com. on Approps, Rep.
on Assem. Bill No. 3176 [2017-2018 Reg. Sess.] May 23, 2018, p.
13
1.) Another possible cost was to conform with the new federal
standards. (Sen. Rules Com., Report on Assem. Bill No. 3176
[2017-2018 Reg. Sess.] August 23, 2018, p. 6.) Any costs would be
“minor and absorbable.” (Dept. of Finance, Enrolled Bill Rep. on
Assem. Bill No. 3176, [2017-2018 Reg. Sess.], August 12, 2018, p.
2.)
All these estimates are consistent with the statement that
“[t]his bill would not result in a workload increase for a county
caseworker.” (Enrolled Bill Report, supra, p. 7, italics added.)
Some have rightly decried a “limitless inquiry into whether
a child might be an Indian child.” (In re A.C. (2022) 86
Cal.App.5th 130, 137, italics added [dis. opn. of Baker, J.]; see
also id. at p. 141 [“How is a court or social services agency to
decide who else has an interest in a child such that ICWA-related
questions must be posed? Do family friends qualify? Therapists?
Pastors? Teachers? Coaches? Doctors? Dentists?”]; In re K.H.,
supra, 84 Cal.App.5th at pp. 591 fn. 6, 602–603.)
Limitless inquiries consume scarce resources otherwise
devoted to the pressing needs of children and families. (See In re
H.V. (2022) 75 Cal.App.5th 433, 441 [dis. opn. of Baker, J.]
[“ordering a child services agency to try to run down suggestions
of possible Indian heritage has real costs to the agency’s core
mission of keeping children healthy and safe—there are only so
many hours in a day and only so many child services agency
employees on the payroll”].)
Courts should not interpret the 2018 amendment as
creating a limitless or even a significantly burdensome new duty.
(See In re K.H., supra, 84 Cal.App.5th at pp. 603–604.) That
would be contrary to the Legislature’s intent.
14
By the same token, courts also, and rightly, caution
appellants against “repeated appeals on this issue,” which would
be “to the detriment of all and would come at an intolerably high
cost to the child’s interest in permanency and stability.” (In re
K.H., supra, 84 Cal.App.5th at p. 620.)
The Legislature’s intent thus was that agency caseworkers
ask an added question of extended family members whom
caseworkers often already are investigating in their usual course
of work. That added question is whether the child may be an
Indian child. Courts should interpret the 2018 amendment in
light of this legislative intent.
D
When considering the 2018 amendment, the California
Legislature was aware of the “long and troubling history of
separation of Native American children from their families and
their tribes . . . .” (Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 3176 [2017-2018 Reg. Sess.] April 17, 2018, p. 1, italics
added; cf. In re K.H., supra, 84 Cal.App.5th at pp. 588–590
[ICWA is a remedial statute].)
Courts should interpret the 2018 amendment in light of its
legislative purpose. (E.g., Apple Inc. v. Superior Court (2013) 56
Cal.4th 128, 135 [fundamental task is to ascertain the intent of
the lawmakers so as to effectuate the statute’s purpose].)
This purpose shows that, although costs may be slight, the
payoff can be large for tribes, whose children carry their cultures
into the future. The inquiry required by the 2018 amendment is
vital—literally: it can help keep cultures alive. This inquiry
indispensably serves the goal of preserving and transmitting
native cultures because there is a chance extended family
15
members may have otherwise-unavailable information the child
has Indian ancestry.
Admittedly, and in all likelihood, the chance of discovering
a child with Indian ancestry is very small, for historical reasons.
Those historical reasons go right to the heart of the issue.
Before surveying those historical reasons, it is helpful to
recall that courts consider whatever materials are appropriate in
construing statutes. (Cal. Law Revision Com. com., West's Ann.
Cal. Evid. Code (2022 ed.) foll. § 450; Cabral v. Ralphs Grocery
Co. (2011) 51 Cal.4th 764, 775, fn. 5.)
For instance, courts must be familiar with legislative facts
about American history. Legislative facts, like whether George
Washington was our first president, are fundamentally different
from adjudicative facts, like whether a party did or did not run a
red light.
Courts commonly consult historical sources to gain
understanding. (E.g. McGirt v. Oklahoma (2020) 140 S.Ct. 2452,
2463–2473 [citing historical works to comprehend Native
American history]; id. at p. 2483 [dis. opn. of Roberts, C.J.]
[same].)
No material from a case record is needed to know, for
instance, that indigenous people were here before Europeans
arrived, or, for that matter, that Juan Rodríguez Cabrillo landed
in California in 1542. (See Weber, The Spanish Frontier in North
America: The Brief Edition (2009) p. 34 (Frontier).)
We likewise know that, today, the odds that a given child
has Indian ancestry are very small. (Cf. In re K.H., supra, 84
Cal.App.5th at pp. 590, 619 [vast majority of inquiries will not
locate an Indian child].)
16
The chance is very small because, in the California of the
modern era, the demographic percentage of Native Americans is
very small. (Starr, California: A History (2005) p. 318 (hereafter
California) [American Indian and Alaska Native individuals
made up 0.5% of California population according to Census
2000].)
The fact this percentage is very small today represents
enormous change. Five centuries ago—before Cabrillo came—
100% of the people living in California had indigenous heritage.
There are many reasons for this precipitous decline from
100% to a very small percentage.
There is a long and troubling history.
“From Native American viewpoints, Europeans came as
predators. . . . To indigenous peoples . . . it must have seemed
inconceivable Europeans had discovered them or had a right to
push into their lands and claim sovereignty over them. . . . As
Spaniards moved into lands almost invariably occupied by
natives, the first meetings between discoverer and discovered
were brutal.” (Frontier, supra, p. 26-28.)
Theodore Roosevelt said, “I don’t go so far as to think that
the only good Indians are dead Indians, but I believe nine out of
every ten are, and I shouldn’t like to inquire too closely into the
case of the tenth.” (Dyer, Theodore Roosevelt and the Idea of
Race (1980) p. 86.)
Roosevelt’s comment reflected a history of deadly attacks
on tribes. (E.g., Hedgpeth, This was the worst slaughter of
Native Americans in U.S. history. Few remember it., [as of April 12, 2023],
archived at < https://perma.cc/UE3U-HN7Y>.)
17
The pre-contact prophecy of a Spokan Indian was this:
“ ‘Soon,’ warned the prophet, ‘there will come from the rising sun
a different kind of man from any you have yet seen, who will
bring with them a book and will teach you everything, and after
that the world will fall to pieces.’ ” (Calloway, New Worlds For
All: Indians, Europeans, and the Remaking of Early America p.
xiii (2d ed. 2013) (New Worlds).)
From indigenous perspectives, the prophecy came true.
California’s state librarian wrote that “first Europe and
then the United States invaded their lands, wiped out their food
supply, uprooted their culture, and decimated their numbers.
After twenty-five generations, the First Californians would soon
be encountering social forces, diseases, and genocidal violence
that would bring them to the brink of extinction.” (California,
supra, p. 16.)
A multitude of other accounts describe this long and
troubling history. [E.g., Kroeber, Ishi in Two Worlds: A
Biography of the Last Wild Indian in North America (1961) pp.
40–114 [recounting the extinction of the Yana, down to the final
survivor, Ishi]; Brown, Bury My Heart At Wounded Knee: An
Indian History of the American West (1970) p. 449 [quoting Red
Cloud: “They made us many promises, more than I can
remember, but they never kept but one; they promised to take
our land, and they took it”]; Phillips, The Enduring Struggle:
Indians in California History (1990) pp. 14–78; Phillips, Indians
and Intruders in Central California, 1769-1849 (1993) pp. 32–
165; Rawls, Indians of California: The Changing Image (1984) pp.
171–201; Fagan, Before California: An Archaeologist Looks at
Our Earliest Inhabitants (2003) pp. 357–361; Frontier, supra,
passim; New Worlds, supra, passim.)
18
A more specific and relevant history likewise describes
interference with tribal children. A continent-wide program
removed tribal children by force. Tribes have known about this
program. Tribes were direct victims for a century and a half.
The federal government conceived of Indian schools as an
alternative to warfare against tribes. A goal was the cultural
assimilation of Indian children. (Fear-Segal & Rose, Carlisle
Indian Industrial School: Indigenous Histories, Memories, &
Reclamations pp. 6–7 (2016) (Carlisle); Davis, American Indian
Boarding School Experiences: Recent Studies from Native
Perspectives, (Winter 2001), OAH Magazine of History, at pp. 20-
22.)
The federal government embraced the Indian school
program partly because it was more economical than military
warfare against tribes. “The rationale for choosing cultural
rather than physical genocide was that it was more humane as
well as economically pragmatic. Secretary of the Interior
Schurz concluded that it would cost a million dollars to kill an
Indian in warfare, whereas it cost only $1,200 to school an
Indian child for eight years.” (Carlisle, supra, p. 7.)
The founder of the Indian school program identified his
ambition: “Kill the Indian in him, and save the man.” (R.H.
Pratt, Speech to the Proceedings of the National Conference of
Charities and Correction, June 23-29, 1892, p. 46,
[as of April 12,
2023], archived at < https://perma.cc/EAL5-BCGH>.) The goal
was to “plant[] treason to the tribe and loyalty to the nation at
large.” (Id. p. 57.)
19
A federal report summarizes recent investigation by the
United States Department of the Interior. (Federal Indian
Boarding School Initiative Investigative Report (May 2022),
[as of April 12,
2023], archived at < https://perma.cc/FF4L-W6X6> (Indian School
Report); see also U.S. Dept. Interior, Federal Indian Boarding
School Initiative, < https://www.bia.gov/service/federal-indian-
boarding-school-initiative> [as of April 12, 2023], archived at
(Indian School Initiative).)
“[F]rom 1819 to 1969, the federal Indian boarding school
system consisted of 408 federal schools across 37 states or then
territories . . . .” (Indian School Initiative.) The Federal
government created Indian schools throughout the nation,
including in the American West. Twelve schools were in
California, 48 in Arizona, three in Nevada, 10 in Oregon, 15 in
the State of Washington, and 45 in New Mexico. (Indian School
map, pp. 8, 6, 31, 40, 50, and 34, respectively, [as of April 12, 2023], archived at < https://perma.cc/
V6MS-23JA>.)
“Systematic identity-alteration methodologies employed by
Federal Indian boarding schools included renaming Indian
children from Indian names to different English names; cutting
the hair of Indian children; requiring the use of military or other
standard uniforms as clothes; and discouraging or forbidding the
following in order to compel them to adopt western practices and
Christianity: (1) using Indian languages, (2) conducting cultural
practices, and (3) exercising their religions.” (Indian School
Report, supra, p. 53, fns. omitted.)
20
Indian schools enforced rules through corporal punishment,
solitary confinement, withholding food, and flogging. (Indian
School Report, supra, p. 54.)
Some Indian children fled the schools. Federal officials at
the time reported “[t]he children who have run away from school
have been promptly brought back and punished, and judicious
punishment has in all instances proved very salutary.” The
“habit, being of longstanding, was not entirely overcome; but I am
convinced that a prompt returning of the runaways and a
whipping administered soundly and prayerfully, helps greatly
toward bringing about the desired result.” (Indian School Report,
supra, p. 55, fns. omitted.)
Indian children in the schools experienced rampant
overcrowding, disease, malnourishment, and physical, sexual,
and emotional abuse. (Indian School Report, supra, p. 56.)
“The United States’ creation of the Federal Indian boarding
school system was part of a broader policy aimed at acquiring
collective territories from Indian Tribes . . . . From the earliest
days of the Republic, the United States’ official objective—based
on Federal and other records—was to sever the cultural and
economic connection between Indian Tribes . . . and their
territories. The assimilation of Indian children through the
Federal Indian boarding school system was intentional and part
of that broader goal of Indian territorial dispossession for the
expansion of the United States.” (Indian School Report, supra, p.
93.)
“The intentional targeting and removal of American Indian
. . . children to achieve the goal of forced assimilation of Indian
people was both traumatic and violent. Based on initial research,
the Department [of the Interior] finds that hundreds of Indian
21
children died throughout the Federal Indian boarding school
system. The Department expects that continued investigation
will reveal the approximate number of Indian children who died
at Federal Indian boarding schools to be in the thousands or tens
of thousands. Many of those children were buried in unmarked
or poorly maintained burial sites far from their Indian Tribes . . .
and families, often hundreds, or even thousands, of miles away.
The Department’s research revealed at least 53 different burial
sites across the Federal Indian boarding school system and leads
to an expectation that there are many more burial sites that will
be identified with further research. The deaths of Indian
children while under the care of the Federal Government, or
federally supported institutions, led to the breakup of Indian
families and the erosion of Indian Tribes . . . .” (Indian School
Report, supra, p. 93.)
Targeting Indian children for assimilation contributed to
loss of life, loss of physical and mental health, and loss of
territories and wealth. The policy also contributed to the loss of
tribal and family relations and the use of tribal languages. It
eroded tribal religious and cultural practices over many
generations. (Indian School Report, supra, p. 94.)
“In the final analysis, the boarding school story constitutes
yet another deplorable episode in the long and tragic history of
Indian-white relations. For tribal elders who had witnessed the
catastrophic developments of the nineteenth century—the
bloody warfare, the near-extermination of the bison, the scourge
of disease and starvation, the shrinking of the tribal land base,
the indignities of reservation life, the invasion of missionaries
and white settlers—there seemed to be no end to the cruelties
perpetrated by whites. And after all this, the schools. After all
22
this, the white man had concluded that the only way to save
Indians was to destroy them, that the last great Indian war
should be waged against children. They were coming for the
children.” (David Wallace Adams, Education for Extinction:
American Indians and the Boarding School Experience, 1875–
1928 (1995) pp. 336–337.)
The memory of Indian schools is not lost in the past.
United States Secretary of the Interior Deb Haaland
recently stated, “Federal Indian boarding school policies have
touched every Indigenous person I know.” (Murphy, ‘I will never,
ever forgive this school for what they did’: Native American elders
share painful memories from government-backed boarding
institutions, (July 11, 2022) L.A Times p. A2.) “Some are
survivors. Some are descendants. But we all carry the trauma in
our hearts.” (Ibid.; see also Becenti, “I can take this”: Former
boarding school students tell Haaland about abuse, mistreatment,
Arizona Republic, January 27, 2023, [as of April
12, 2023], archived at < https://perma.cc/35KY-Z3CT>.)
“From the very earliest period in my life that I can
remember, there was always a family reunion in August and we
always had empty chairs. I remember as a child I tried to sit in
one of the chairs, and my aunts would scold me. ‘Don’t sit in the
chair please, there is someone there.’ And I would ask, ‘Mom,
there’s no one there?’ and my mum would say, ‘But there is, you
just can’t see them, we have them in our heart, we have them in
our memory, and until the day we find them and we find out
where they’re at, and we come to help them and bring them
23
home, we’ll put out a chair for them.’ ” (Carlisle, supra, at pp.
352–353.)
E
The Department’s failure prejudices tribes. The
Department had contact information for three extended paternal
family members but did nothing with it, thus denying tribes the
benefit of the statutory promise. It would be a miscarriage of
justice to deny tribes the benefit of this legislation.
In light of a long and troubling history, there is no good
reason for the Department to fail to ask about Indian ancestry
when the cost is slight. When low-cost inquiries yield fruit, the
Department can notify the relevant tribes, which can decide
whether and how to involve themselves with a child. The
information can thereby be a vital link connecting Indian
children with their tribes, which helps preserve a future for
cultures the Legislature sought to protect. (See In re K.H., supra,
84 Cal.App.5th at p. 609.)
Placing this child with maternal family members does not
dispel prejudice to tribes. (In re Oscar H. (2022) 84 Cal.App.5th
933, 938–940 [portion of opn. not joined by a second justice].)
Even in such cases, tribes may assert tribal jurisdiction or may
formally intervene in state court. (Ibid.)
A “tribe’s rights are independent of the rights of other
parties.” (Tribal Report, supra, p. 71.) A parent cannot waive the
tribes’ rights. (Ibid.; In re Isaiah W. (2016) 1 Cal.5th 1, 13 [given
the protections the Act affords Indian children and tribes,
parental inaction is not waiver].)
When a relative does not acknowledge a tribe, that relative
cannot be expected to carry forward a tribal heritage.
24
The protection of the tribal interest is at the core of ICWA
and our state counterpart, which recognize that a tribe has an
interest in the child that is distinct from, but on a parity with,
the interest of the parents. This relationship between Indian
tribes and Indian children is one many non-Indians find difficult
to understand and that non-Indian courts are slow to recognize.
(Miss. Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30,
52.)
The relevant rights belong to Indian tribes. They have a
statutory right to receive notice where an Indian child may be
involved so that they authoritatively may determine for
themselves that child’s status. “It necessarily follows that the
prejudice to those rights lies in the failure to gather and record
the very information the juvenile court needs to ensure accuracy
in determining whether further inquiry or notice is required, and
whether ICWA does or does not apply.” (In re K.H., supra, 84
Cal.App.5th at p. 591.)
The question of membership is determined by the tribes,
not by courts or child protective agencies. (In re T.G. (2020) 58
Cal.App.5th 275, 294 [citing Santa Clara Pueblo v. Martinez
(1978) 436 U.S. 49, 65, fn. 21 & Welf. & Inst. Code, § 224.2, subd.
(h)].)
In sum, the Department’s violation of the 2018 amendment
is prejudicial.
III
Courts have grappled with the 2018 amendment in the
utmost good faith and with pure motives. All abhor injustices of
the past. All want children like S.S. to achieve stability and
finality as soon as possible. All lament delay and uncertainty
that the debate over this amendment has thrust into the lives of
25
these children and the people who love them. We all share these
attitudes and goals.
Courts are united in these respects but disagree about how
to apply the 2018 amendment.
Nothing is stopping the Department from taking the slight
efforts required to comply with the 2018 amendment. The sooner
the Department begins complying with the law consistently, the
sooner this unfortunate and regrettably persistent issue will be
resolved.
DISPOSITION
We conditionally reverse the juvenile court’s finding that
ICWA does not apply and remand the matter to the juvenile court
with directions to order the Department to inquire, if reasonably
possible, of the three paternal extended family members
previously identified whether S.S. may be an Indian child. These
three paternal relatives are grandfather O.H., aunt L.R., and
cousin L.T. If this inquiry produces information showing ICWA
applies, the court shall vacate its existing order and proceed in
compliance with ICWA and related California law. If, on the
basis of these three inquiries, the court instead finds that ICWA
does not apply, its ICWA finding shall be reinstated. In all other
respects, we affirm the court’s orders terminating parental rights.
WILEY, J.
26
VIRAMONTES, J., Concurring.
I concur with the majority opinion’s holdings that the
juvenile court erred in finding that the Indian Child Welfare Act
of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) did not apply and that
the error was prejudicial. I also concur in the holding that
placement with maternal family relatives does not preclude
prejudice to the tribes. I write separately to express my
agreement with the analytical framework set forth in In re K.H.
(2022) 84 Cal.App.5th 566 (K.H.) for assessing prejudice when the
Los Angeles County Department of Children and Family Services
(Department) fails to inquire of extended family members. In
this case, the Department’s failure to make any inquiry of known
paternal extended family members left the juvenile court without
sufficient evidence upon which to find that the inquiry was
proper, adequate, and duly diligent. As in K.H., this error was
prejudicial because “the inquiry fell well short of that required to
gather the information needed to meaningfully safeguard the
rights of the tribes, as intended under ICWA and California law.”
(Id. at p. 620.) Remand for an adequate inquiry in the first
instance is accordingly required.
VIRAMONTES, J.
1
STRATTON, P. J., Dissenting
Mother Karla S. appeals the juvenile court’s order
terminating parental rights to son S.S. (born May 2021). She
does not challenge the juvenile court’s decision to terminate her
rights. Mother’s contention is that the Los Angeles Department
of Children and Family Services (DCFS) did not comply with its
initial duty of inquiry under Welfare and Institutions Code1
section 224.2, subdivision (b) in that DCFS failed to ask available
extended paternal family members whether S.S. is an “Indian
child” within the meaning of section 1903 of the federal Indian
Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
DCFS erred in failing to question extended paternal family
members despite having contact information for them. However,
I conclude the error was harmless because S.S.’s designated
prospective adoptive parents are his maternal aunt and uncle.
BACKGROUND
S.S. was taken into protective custody by DCFS at the time
of his birth. Within days thereafter, DCFS filed a section 300
petition alleging Mother had a history of substance abuse and
tested positive for opiates at the time of S.S.’s birth; S.S.’s older
brother N.S. was already a dependent of the juvenile court due to
Mother and Father’s neglect and substance abuse; and Father
suffered from mental health problems, including suicidal ideation
and diagnosed bipolar depression, for which he failed to take his
prescribed medication. It was alleged all these circumstances
placed S.S. at risk of serious physical and emotional damage. On
May 19, 2021, the juvenile court detained infant S.S. from his
1 Undesignated statutory references are to the Welfare and
Institutions Code.
1
parents and eventually placed him with his maternal aunt and
uncle. The juvenile court ultimately conducted contested
separate jurisdictional and dispositional hearings and on
September 21, 2021, found S.S. a dependent of the court based on
toxicology reports positive for opioids at birth, Mother’s drug
abuse, and Father’s mental illness which had been previously
documented in the older son’s dependency case.
On February 14, 2022, when S.S. was nine months old, the
juvenile court terminated all parental rights in favor of a
permanent plan of adoption by his caretaker maternal aunt and
uncle, who were designated his prospective adoptive parents.
ICWA
As for inquiries into S.S.’s possible Indian ancestry, at the
May 19, 2021 detention hearing, Mother submitted ICWA-020
form denying Indian ancestry. However, the juvenile court was
informed by minor’s counsel (who had spoken to the maternal
aunt) that Mother might have Yaqui Native American heritage.
DCFS also reported it had interviewed maternal grandmother
who believed she had Yaqui ancestry through the maternal great
grandfather. The court ordered DCFS to investigate this claim,
including by interviewing the maternal aunt and maternal
grandmother.
On June 23, 2021, DCFS gave notice to the Pascua Yaqui
tribe, which replied by letter dated July 8, 2021 that S.S. was not
eligible for membership in the tribe and the tribe would not
intervene in the matter. During this time, contact information
for a paternal cousin, paternal aunt, and paternal grandfather
became known to DCFS. Father also completed an ICWA-020
form stating he was unaware of Indian ancestry. DCFS did not
contact any of the family members on the paternal side.
2
On September 21, 2021, the juvenile court found both
parents had denied Indian ancestry. The court also found ICWA
inapplicable because there was no reason to know S.S. is an
Indian Child within the meaning of the statute. Mother’s appeal
followed.
DISCUSSION
Mother contends the order terminating parental rights
should be reversed because DCFS did not inquire of paternal
extended family members about S.S.’s possible Indian ancestry.
In enacting ICWA, Congress found “that an alarmingly
high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high
percentage of such children are placed in non-Indian foster and
adoptive homes and institutions.” (25 U.S.C. § 1901(4).) ICWA
reflects the intent of Congress “to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their
families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture, and
by providing for assistance to Indian tribes in the operation of
child and family service programs.” (25 U.S.C. § 1902.) The
court is obligated to ask each “participant” in the proceedings
whether they have reason to believe the child is an Indian child
and to instruct the parties to inform the court if they
subsequently receive information that provides a reason to know
the child is an Indian child. (In re Austin J. (2020)
47 Cal.App.5th 870, 882–883, superseded by statute on other
3
grounds as stated in In re E.C. (2022) 85 Cal.App.5th 123, 147;
see 25 C.F.R. § 23.107(a) (2022).)
As our Supreme Court has recognized, “Congress enacted
ICWA in 1978 in response to ‘rising concern in the mid-1970’s
over the consequences to Indian children, Indian families, and
Indian tribes of abusive child welfare practices that resulted in
the separation of large numbers of Indian children from their
families and tribes through adoption or foster care placement,
usually in non-Indian homes.’ ” (In re Isaiah W. (2016) 1 Cal.5th
1, 7.) In enacting these provisions, “ ‘Congress was concerned not
solely about the interests of Indian children and families, but also
about the impact on the tribes themselves of the large numbers of
Indian children adopted by non-Indians.’ ” (Id. at p. 9.)
The concern about separating Indian children from their
Indian families, heritage and culture was the topic of extensive
Congressional hearings when ICWA was enacted. As one
commentator wrote, the “ ‘wholesale separation of Indian
children from their families is perhaps the most tragic and
destructive aspect of American Indian life today.’ ” (Atwood,
Flashpoints Under the Indian Child Welfare Act: Toward a New
Understanding of State Court Resistance (2002) 51 Emory L.J.
587, 601, cited in In re A.C. (2022) 75 Cal.App.5th 1009, 1014.)
ICWA authorizes states to provide even more protection
than the federal statute provides. In 2006, the California
legislature enacted parallel statutes to affirm ICWA’s purposes
and mandate compliance with ICWA in all Indian child custody
proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.)
In California, the child protection agency is obligated to ask “the
child, parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
4
reporting child abuse or neglect, whether the child is, or may be,
an Indian child.” (§ 224.2, subd. (b); In re Dominick D. (2022)
82 Cal.App.5th 560, 566.)
Here, DCFS did not fulfill its duties under section 224.2 as
it did not ask extended paternal family members about Indian
ancestry, despite having their contact information. This was a
violation of law. But the next question is whether the error was
prejudicial. A prerequisite to reversal of a trial court’s decision
under California law is s showing of a miscarriage of justice.
(Cal. Const., art. VI, § 13.)
I find no miscarriage of justice, or, in other words,
prejudice. ICWA itself sets out placement priorities. Section
1915 of title 25 of the United States Code provides that in any
adoptive placement of an Indian child under state law, “a
preference shall be given, in the absence of good cause to the
contrary, to a placement with [¶] (1) a member of the child’s
extended family; [¶] (2) other members of the Indian child’s tribe;
or [¶] (3) other Indian families.” (25 U.S.C. § 1915(a).) Extended
family under ICWA includes aunts and uncles. (25 U.S.C.
§ 1903(2).) By its terms, the statute does not mandate placement
with the Indian side of the family where, as here, one side of the
“extended family” is not Indian.
In this case, S.S. was detained immediately after birth and
eventually placed with his maternal aunt and uncle. He has
remained with them throughout the proceedings. He is now
almost two years old, having lived with his aunt and uncle since
birth. DCFS reported to the court that S.S. has built a bond with
the aunt and uncle as “this is the only family placement he has
had.” His older brother N.S. is also living with the same
caregivers so S.S. has also been able to build what DCFS
5
characterizes as a “lifelong connection to his brother.” It is
expected these familial bonds will continue to grow because
maternal aunt and uncle, with two young daughters of their own
who are S.S.’s first cousins, have applied to adopt both brothers.
The prospective adoption by maternal aunt and uncle
contrasts with the parents’ failure to visit S.S. on a regular basis.
They also failed to follow through with telephone contact with
S.S. even though calls were scheduled for every Sunday at 11
a.m. Placement with the aunt and uncle has provided S.S. with
“regular contact with his extended family members. The
maternal grandmother sees the child almost every week, while
another maternal aunt lives nearby and is in contact. In
addition, the caregivers have contact with paternal aunt who
recently spoke to the sibling for his birthday.” “The current
caregivers’ home is adoption ready and there are no impediments
to adoption.”
The juvenile court implemented ICWA’s first preference by
designating S.S. adoptable by his maternal aunt and uncle, a
logical finding given S.S.’s lifelong placement with them and their
close geographic proximity and social connection to extended
family members of both Mother and Father. S.S. is in no danger
of being separated from his biological family, the evil ICWA was
enacted to prevent. (In re J.W. (2022) 81 Cal.App.5th 384, 391.)
Moreover, even if a tribe had intervened, it would be bound by
the placement priorities of the statute if, as the court found here,
the first placement priority was in the minor’s best interest.
Given that the placement chosen by the juvenile court is clearly
in S.S.’s best interests and also promotes rather than eviscerates
S.S.’s connection to his biological family, I am hard pressed to say
that a tribe’s inability to participate warrants delaying S.S.’s
6
permanent unification with, not separation from, his biological
family.
I cannot find that ICWA and its California counterpart
were intended to elevate a tribe’s right to participate over the
child’s interest in a secure and safe placement within the bosom
of the child’s biological family. Tribes are included in the
proceedings to ensure that no unreasonable and unjustified
separation from biological family members occurs. Nothing like
that happened here. That the tribe may be the official real party
in interest does not supersede the child’s best interests, and no
one in this proceeding argues that placement within S.S.’s
extended family does not serve his best interests. Do we want to
unwind this biological-family adoption by the only parents S.S.
has ever known so that a tribe can come in and suggest someone
else within the first preference category? I do not.
Mother does not argue that her son’s proposed adoption by
his aunt and uncle is contrary to his best interests or lacks good
cause. Nor could she credibly oppose the proposed adoption as
the prospective adoptive parents have created a biologically-
based family unit which Mother and Father could not do. S.S.
has now spent his entire life of two years with the same
caregivers who are also part of his own biological family. He is
entitled to the security and stability of the adoptive home that is
awaiting him, a disposition with which appellant does not
quarrel. There is no miscarriage of justice.
STRATTON, P. J.
7