In re Easton V. CA5

Filed 5/16/23 In re Easton V. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EASTON V. et al., Persons Coming Under
the Juvenile Court Law.
KINGS COUNTY HUMAN SERVICES F085320
AGENCY,
(Super. Ct. Nos. 21JD0040,
Plaintiff and Respondent, 21JD0041)
v.
OPINION
M.V.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kings County. Jennifer Lee
Giuliani, Judge.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Diane Freeman, County Counsel, and Risé A. Donlon and Thomas Y. Lin, Deputy
County Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Peña, J. and Smith, J.
INTRODUCTION
M.V. (mother) and C.C. (father) are the parents of sons Easton V. (born
August 2015) and Ethan V. (born March 2020) (collectively, the children). Mother
appeals from the juvenile court’s order terminating her parental rights pursuant to
Welfare and Institutions Code section 366.26.1 She contends the juvenile court erred in
declining to apply the parental-benefit exception to adoption. Additionally, she argues
the Kings County Human Services Agency (agency) and the juvenile court failed to
comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901et seq.) (ICWA) and related California law because extended family members were not
asked about the children’s possible Indian ancestry.2 The agency disagrees the juvenile
court erred in declining to apply the parental-benefit exception, but concedes prejudicial
error occurred as to ICWA.
For the reasons discussed herein, we accept the agency’s concession of ICWA
error. Consistent with our decisions in In re K.H. (2022) 84 Cal.App.5th 566 (K.H.) and
In re E.C. (2022) 85 Cal.App.5th 123 (E.C.), we conclude “the error is prejudicial
because neither the agency 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
pp. 157–158.) In all other respects, we affirm.
1 All further statutory references are to the Welfare and Institutions Code.
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
A. Referral, Petition, and Detention
On March 28, 2021, the agency received a referral on behalf of the children after
then one-year-old Ethan sustained burns to his face, neck, and torso. Maternal aunt
Angelica V. had taken the children to the hospital so Ethan could be examined. Mother
did not accompany them, but informed Angelica that Easton, then five years old, had
poured shampoo over Ethan, causing the burns. Medical staff confirmed it appeared the
burns were caused by a substance being poured over Ethan’s eyes, but it was unlikely to
have been caused by hygiene products. Both children were found to be underweight and
Ethan was diagnosed as failure to thrive. According to Easton, mother’s boyfriend had
poured soap on Ethan’s eyes. The children were detained. Easton was placed with
Angelica and Ethan remained hospitalized.
On March 30, 2021, the agency filed a petition on behalf of the children. As to
Ethan, the petition alleged pursuant to section 300, subdivision (b)(1) (failure to protect)
and (g) (no provision for support), that mother failed to adequately supervise him as he
suffered burns to his face, neck, and torso, and her explanation of the cause was
inconsistent with the injuries. As to Easton, the petition alleged pursuant to section 300,
subdivisions (g) (no provision for support) and (j) (abuse of sibling), that he was at
substantial risk of suffering similar abuse or neglect. Father was incarcerated. The
agency subsequently amended the petition, adding one allegation for both children
pursuant to section 300, subdivision (b)(1) (failure to protect), due to mother’s substance
abuse issues as she had tested positive for benzoylecgonine and cocaine.
On April 1, 2021, the juvenile court held a detention hearing and found a prima
facie showing had been made that the children were described by section 300 and ordered
them detained. Mother was ordered to participate in supervised visits.
3.
B. Jurisdiction and Disposition
The jurisdiction and disposition report stated the children were both placed with
Angelica. Mother was participating in supervised visitation. The agency supervised
five visits. At the beginning of mother and Easton’s first visit, Easton began crying
happy tears and ran to her when he saw her. Overall, the children were happy and
excited during visits. Mother was appropriate, attentive, and affectionate. They played
together and ate. Mother’s visits quickly progressed to third party supervised visits, with
Angelica as the supervising party.
On July 29, 2021, the juvenile court held a combined jurisdiction and disposition
hearing where it found the allegations in the first amended petition true. The disposition
hearing was continued.
On August 10, 2021, the juvenile court held a continued disposition hearing and
ordered mother to participate in reunification services.
C. Six-Month Status Review
The six-month status review report stated the children were now placed with a
nonrelative care provider who was previously married to a maternal uncle and had a
preexisting relationship with the children. This individual was later identified as
maternal great-aunt Kirstyn.3 The children had transitioned well into their new
placement. Mother had been participating in services and secured stable housing. She
finished a parenting class and continued to submit to hair follicle tests, which were still
positive for cocaine with decreasing levels. Overall, she had been in compliance with all
components of her case plan. Additionally, she had been consistently participating in
visits, which were now being supervised by the agency again. Mother and Angelica had
a falling out, and Angelica reported she no longer wanted to supervise the visits. She said
mother was being “ ‘toxic and disrespectful.’ ” Their dispute arose because Angelica felt
3 She was also referred to as “auntie Kristen.”
4.
she could no longer keep the children. The agency described the visits as “supportive and
meaningful.” The agency recommended that mother continue participating in
reunification services.
On February 8, 2022, the juvenile court held a six-month review hearing and
continued mother’s reunification services.
D. Twelve-Month Status Review
The 12-month status review report indicated the children were still in placement
with Kirstyn, who was willing to provide the children with a permanent plan of adoption
or guardianship. Although mother had previously been doing well, during this review
period she had been arrested for driving under the influence and resisting arrest. The
agency reported she had not demonstrated a behavioral change during the review period
and was unable to utilize the skills she had learned through her services. Visits again
progressed to third party visits, supervised by Kirstyn. Kirstyn expressed concerns about
the visits, reporting mother spoke to the children harshly, made inappropriate comments
during one visit like calling someone a “ ‘crack head,’ ” and was on the phone too much.
On one occasion, she snapped at Ethan, telling him, “ ‘[H]urry the f*** up and come on
and stop crying.’ ” When Easton attempted to stop Ethan from running in the street,
mother yelled, “ ‘[W]hat is your f***ing problem, mind your own business.’ ”
Thereafter, visits went back to being supervised by the agency who also reported mother
was on the phone too much during visits and spoke harshly to the children. Due to
mother’s behavior, Kirstyn no longer wished to engage with her. The agency reported
mother had been unable to demonstrate patience with the children, or other adults. She
continued to struggle with self-regulation and the children would “ ‘shut down’ ” when
mother became angry. The agency recommended terminating mother’s reunification
services.
On May 26, 2022, the juvenile court held a 12-month review hearing. The court
terminated mother’s reunification services and set a section 366.26 hearing.
5.
E. Section 366.26
The section 366.26 report stated the children were still in placement with Kirstyn.
Mother was still participating consistently in visitation and had only missed two visits in
2022. The agency had been supervising visits. The children and mother appeared happy
to see each other, enjoyed their time together, and the children transitioned in and out of
visits well. Kirstyn supervised one visit on Easton’s birthday, which went “very well.”
The children were considered adoptable, and Kirstyn was committed to adopting
them. Easton stated that if he could not live with mother, he would want to live with
Kirstyn. Ethan consistently appeared comfortable and happy with her. A social worker
met with Easton and completed an activity in which he had to place activities and people
in pretend houses. He stated he would place Ethan, Kirstyn, “KK,” father, and mother in
his “House of Good Things.” He said mother belonged there because “we love her and
do fun things with her.” No one belonged in his “House of Worries” or the “House of
Dreams.” The agency recommended terminating parental rights with a permanent plan of
adoption.
On September 20, 2022, mother testified at the section 366.26 hearing. When
asked why the children should not be adopted, she said she felt like they needed “their
parents.” She said she had “a good bond and connection” with them. She added that it
was going to mentally and physically “mess them up” because they were used to being
with her. They always asked when they would be going back home and did not like to be
with other people. She said, “I just don’t think that it’s right what’s going on. I think I
should get another opportunity. I did all the classes. I’ve drug tested. I did everything
that the [c]ourt has asked me to do and it just wasn’t good enough for you guys. I
shouldn’t be able to never see my kids again until they are 18 or older and, then, have
remorse against me and not like me or hate me as a person because of a situation that
happened that it wasn’t even my fault.” Mother described her visits with the children as
“good.” The children were always happy. They played and talked, and sometimes did
6.
not want to leave. They called her “mom.” When they arrived at visits, they would run
to mother’s car and hug her. When it was time to leave, they would give her a hug and
tell her goodbye.
The assigned social worker testified she assessed the detriment the children would
suffer if parental rights were terminated and believed there was no indication they would
suffer detriment. Ethan, who was two, was too young to articulate his feelings. The
social worker discussed adoption with Easton, explaining he might not see his parents
again while he is a child. In response, Easton stated that “he misses mommy and that he
would be sad not to see mommy or daddy, but that he would be happy because he would
get to stay with auntie [Kirstyn].” She opined that it would not be detrimental to Easton
to terminate parental rights because he was “adapting to the time that [he was] not seeing
his parents. He [was] becoming more stable out of their home.… [He was] developing
like a normal[,] regular[,] happy little kid.…” When they spoke about mother and father,
he would say he was sad but there was not a “dramatic expression of emotion.”
The juvenile court found the children were adoptable and that the parental-benefit
exception did not apply. In ruling, the juvenile court explained the applicable law and
then addressed each prong of the exception as follows:
“As indicated by [county counsel] and [mother’s counsel], the
first prong of the three-prong test, … is that there has been regular
visitation and contact. I don’t believe that it was disputed by anybody that
there has not been regular visitation and contact between the parents and
the children.… [I]t does appear that there has been contact with both
parents. So, certainly, the visitation prong seems to have been met by the
parents.
“The next prong is that the [c]ourt must find a relationship between
the parents and the children, the continuation of which would benefit the
child. I don’t believe there’s any[ ]way that, especially with regard to
Easton, that the [c]ourt cannot find that there is a relationship between the
parents and Easton. It looks like Easton is now seven. He was out of his
mother’s care for about a year, from 2018 to 2019, while she participated in
family reunification services. It looks like the children have been out of
7.
care for about a year-and-a-half now. With regard to [Ethan] it looks like
[Ethan] was about a year old when he was removed from [mother] and it’s
been about a year-and-a-half that he’s been out of [her] care. I believe I can
certainly find that there is a relationship between the parents and the
children.
“With regard to Easton, it is arguable, although I don’t have any
solid evidence—it’s speculation—that Easton certainly would benefit from
continuing that relation[ship]. I agree with [mother’s counsel]. It is sort of
speculative [of] the effect with regard to Ethan as he has been out of care of
both of his parents for longer than he was ever in their care.
“The last prong, which always is the most difficult prong, is that the
[c]ourt must find that termination of the relationship between the parents
and the children would be detrimental to the child. And every parent who
testifies at these kinds of hearings says the exact same thing. They say my
children or our children need to be with their parents. And I don’t have any
doubt that every parent who testifies believes that that is the truth. What
the parents don’t have that the attorneys have what I have [is] the
knowledge, I suppose, of reading all of the cases that come down from the
appellate courts and the Supreme Court that deals with what does detriment
mean. So there are a bunch of cases out there that really talk about what
that has—what do parents have to prove when they are talking about
detriment and it being detrimental to the child. And those cases are pretty
clear that that detriment has to be shown. Not just I think it would be bad.
I think that it would be hard for them. I think that wouldn’t be right for
them. That’s not enough as far as the cases go to support the position that it
would be detrimental to the kids. It’s not enough, according to the cases,
that a child says it’s going to make me sad if I don’t see my parents. [The
social worker] testified today that she talked to Easton and explained that
he may not see his parents again until he is a grown-up, until he’s older,
and he said it made him sad, but making him sad doesn’t meet the
requirements of detriment, according to the law. And I know it feels like
for every parent who testifies that … it should be a no-brainer that
removing or terminating parental rights would be detrimental to a child and
that’s not supported by the cases that have come out of the appellate courts
that have considered that issue.
“The [c]ourt finds that the parental benefit exception, the parents
have not carried their burden with regard to meeting that exception.…”
Accordingly, the juvenile court terminated parental rights and ordered a permanent
plan of adoption.
8.
On October 20, 2022, mother filed a notice of appeal.
DISCUSSION
I. Parental-Benefit Exception
Mother contends the juvenile court erred in declining to apply the parental-benefit
exception because termination of the relationship was detrimental to the children.
A. Legal Principles
“If the court cannot safely return a dependent child to a parent’s custody within
statutory time limits, the court must set a hearing under section 366.26.” (In re Caden C.
(2021) 11 Cal.5th 614, 630 (Caden C.).) “[T]he goal at the section 366.26 hearing is
‘specifically … to select and implement a permanent plan for the child.’ ” (Ibid.) “At
[the] hearing, the court may order one of three alternatives: adoption, guardianship or
long-term foster care.” (In re S.B. (2008) 164 Cal.App.4th 289, 296.) “According to
[the] procedure [under section 366.26], the court must first determine by clear and
convincing evidence whether the child is likely to be adopted. [Citation.] If so, and if the
court finds that there has been a previous determination that reunification services be
terminated, then the court shall terminate parental rights to allow for adoption. [Citation.]
But if the parent shows that termination would be detrimental to the child for at least
one specifically enumerated reason, the court should decline to terminate parental rights
and select another permanent plan.” (Caden C., at pp. 630–631.) One exception to
adoption is the parental-benefit exception, which requires the parent to establish, by a
preponderance of the evidence, “that the parent has regularly visited with the child, that
the child would benefit from continuing the relationship, and that terminating the
relationship would be detrimental to the child.” (Id. at p. 629; § 366.26,
subd. (c)(1)(B)(i).)
“The first element—regular visitation and contact—is straightforward. The
question is just whether ‘parents visit consistently,’ taking into account ‘the extent
permitted by court orders.’ [Citation.] Visits and contact ‘continue[] or develop[] a
9.
significant, positive, emotional attachment from child to parent.’ [Citation.] Courts
should consider in that light whether parents ‘maintained regular visitation and contact
with the child’ (§ 366.26, subd. (c)(1)(B)(i)) but certainly not to punish parents or reward
them for good behavior in visiting or maintaining contact—here, as throughout, the focus
is on the best interests of the child.” (Caden C., supra, 11 Cal.5th at p. 632.)
“As to the second element, courts assess whether ‘the child would benefit from
continuing the relationship.’ (§ 366.26, subd. (c)(1)(B)(i).) Again here, the focus is the
child. And the relationship may be shaped by a slew of factors, such as ‘[t]he age of the
child, the portion of the child’s life spent in the parent’s custody, the “positive” or
“negative” effect of interaction between parent and child, and the child’s particular
needs.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) “[C]ourts often consider how children
feel about, interact with, look to, or talk about their parents. [Citations.] Doing so
properly focuses the inquiry on the child ….” (Ibid.)
“Concerning the third element—whether ‘termination would be detrimental to the
child due to’ the relationship—the court must decide whether it would be harmful to the
child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at
p. 633.) The court must determine “how the child would be affected by losing the
parental relationship—in effect, what life would be like for the child in an adoptive home
without the parent in the child’s life.” (Ibid.) “[T]he effects [on the child] might include
emotional instability and preoccupation leading to acting out, difficulties in school,
insomnia, anxiety, or depression. Yet … a new, stable home may alleviate the emotional
instability and preoccupation leading to such problems, providing a new source of
stability that could make the loss of a parent not, at least on balance, detrimental.” (Ibid.)
“When the relationship with a parent is so important to the child that the security and
stability of a new home wouldn’t outweigh its loss, termination would be ‘detrimental to
the child due to’ the child’s beneficial relationship with a parent.” (Id. at pp. 633–634.)
“When it weighs whether termination would be detrimental, the court is not comparing
10.
the parent’s attributes as custodial caregiver relative to those of any potential adoptive
parent(s).” (Id. at p. 634.) “[T]he section 366.26 hearing is decidedly not a contest of
who would be the better custodial caregiver.” (Ibid.)
B. Standard of Review
The first two elements are reviewed for substantial evidence. (Caden C., supra,
11 Cal.5th at p. 639.) “In reviewing factual determinations for substantial evidence, 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.’ ” (Id. at p. 640.)
“The third element … is somewhat different.” (Caden C., supra, 11 Cal.5th at
p. 640.) “As in assessing visitation and the relationship between parent and child, the
court must make a series of factual determinations. These may range from the specific
features of the child’s relationship with the parent and the harm that would come from
losing those specific features to a higher-level conclusion of how harmful in total that
loss would be. The court must also determine, for the particular child, how a prospective
adoptive placement may offset and even counterbalance those harms. In so doing, it may
make explicit or implicit findings ranging from specific benefits related to the child’s
specific characteristics up to a higher-level conclusion about the benefit of adoption all
told. All these factual determinations are properly reviewed for substantial evidence.”
(Ibid.) “Yet the court must also engage in a delicate balancing of these determinations as
part of assessing the likely course of a future situation that’s inherently uncertain.”
(Ibid.) It requires “assessing what the child’s life would be like in an adoptive home
without the parent in his life.” (Ibid.) “The court makes the assessment by weighing the
harm of losing the relationship against the benefits of placement in a new, adoptive home.
And so, the ultimate decision—whether termination of parental rights would be
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detrimental to the child due to the child’s relationship with his parent—is discretionary
and properly reviewed for abuse of discretion.” (Ibid.)
A court abuses its discretion only when it “ ‘has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination.’ ” (In re
Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) “When 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.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–
479.)
C. Analysis
In order to establish the parental-benefit exception, mother was required to show,
by a preponderance of the evidence, that (1) she regularly visited the children, (2) the
children would benefit from continuing the relationship, and (3) terminating the
relationship would be detrimental to the children. (Caden C., supra, 11 Cal.5th at p. 629;
§ 366.26, subd. (c)(1)(B)(i).) The juvenile court found mother had satisfied the
first two prongs.4 Thus, the only remaining issue is whether she satisfied her burden
under the third prong.
As noted, when it comes to the third element, “the court must decide whether it
would be harmful to the child to sever the relationship and chose adoption.” (Caden C.,
supra, 11 Cal.5th at p. 633.) “[T]he parent must show that terminating [the relationship]
would be detrimental to the child even when balanced against the countervailing benefit
of a new, adoptive home.” (Id. at p. 636.) Here, the juvenile court acted within its
4 Mother argues the juvenile court should have found the second prong satisfied, but
the court did indeed make such a finding. It stated, “The next prong is that the [c]ourt
must find a relationship between the parents and the children, the continuation of which
would benefit the child. I don’t believe there’s any[ ]way that, especially with regard to
Easton, that the [c]ourt cannot find that there is a relationship between the parents and
Easton.… I believe I can certainly find that there is a relationship between the parents
and the children.”
12.
discretion in finding that severing the relationship would not be detrimental to the
children. Although the evidence showed the children had a beneficial relationship with
mother, there was no indication the children would suffer detriment from severing the
relationship within the meaning of the exception. The social worker testified she
explained what adoption meant to Easton. She told him it meant he might not see his
parents while he is a child. Easton stated it would make him sad not to see mother, but
that he would be happy because he would be staying with Kirstyn. Ethan was too young
to provide a statement, but he had spent 18 months out of mother’s care, which was a
majority of his life. Additionally, the social worker testified Easton was adapting to not
seeing mother and was becoming more stable out of her care. When he spoke about
mother and father, he expressed sadness, but there was no “dramatic expression of
emotion.” When asked whether he wanted to live with Kirstyn forever and “for her to be
his mom,” Easton had “a big smile on his face, and he nodded yes.” Indeed, mother
testified the children had no problem separating from her at the end of visits—they would
simply hug her and tell her goodbye. As the court noted, “making [Easton] sad doesn’t
meet the requirements of detriment, according to the law.”
In light of these circumstances, we cannot conclude the juvenile court abused its
discretion in finding that the benefit of a stable home outweighed any detriment the
children would suffer as a result of severing the relationship.
II. ICWA
Mother next contends the juvenile court and the agency failed to comply with the
inquiry requirements of ICWA and related state law because extended family members
were not asked about the children’s possible Indian ancestry.
A. Additional Background
Prior to the petition being filed, mother denied having Indian ancestry. Father was
incarcerated and the agency had been unable to inquire of him. However, in a prior
dependency case involving Easton, the juvenile court had found ICWA did not apply.
13.
When the agency filed the petition in the current case, it attached an Indian Child Inquiry
Attachment (ICWA-010(A)) form stating the agency conducted inquiries with mother
and father and they gave no reason to believe the children could be Indian children.
On April 1, 2021, mother filed a Parental Notification of Indian Status
(ICWA-020) form denying Indian ancestry. At the detention hearing that same day, an
inquiry was conducted with mother, and she again denied having Indian ancestry. The
juvenile court found ICWA did not apply.
On April 28, 2021, father filed an ICWA-020 form denying Indian ancestry.
On July 29, 2021, father filed another ICWA-020 form denying Indian ancestry.
That same day at a continued jurisdiction and disposition hearing, the juvenile court
acknowledged receipt of father’s ICWA-020 form. The agency conducted an inquiry
with father in court. Father testified he did not have Indian ancestry.
The jurisdiction and disposition report, the six-month status review report, and the
12-month status review report stated ICWA did not apply.
The section 366.26 report stated no additional information had been provided by
the parents to suggest the children were or could be Indian children and, therefore, a new
inquiry was not necessary. The agency recommended the juvenile court reiterate its
previous findings that ICWA did not apply.
On September 20, 2022, at the section 366.26 hearing, the juvenile court signed
and filed a “FINDING REGARDING ICWA INQUIRY IN ACCORDANCE WITH
[CALIFORNIA RULES OF COURT,] RULE 5.481(a),” stating that an inquiry had been
completed and ICWA did not apply.5
B. Legal Principles
“ ‘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’
5 All further references to rules are to the California Rules of Court.
14.
[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
at p. 594, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 138, fn. omitted.)
“ ‘In 2006, California adopted various procedural and substantive provisions of
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.’ ” (K.H., supra, 84 Cal.App.5th at
p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138–139.)
“ ‘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, 85 Cal.App.5th at p. 139.)
1. 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 agency 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
15.
certain inquiries to be made in each case.” ’ ” (K.H., supra, 84 Cal.App.5th at p. 596;
accord, E.C., supra, 85 Cal.App.5th at pp. 139–140.)
“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
[Bureau of Indian Affairs].’ ” (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
agency 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 [agency] pursuant to
[s]ection 306 … the county welfare [agency] … 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).) 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).)
“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
16.
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).)
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
and when this information was provided to the relevant tribes. Whenever new
information is received, that information must be expeditiously provided to the tribes.”
(Rule 5.481(a)(5).)
C. Analysis
1. Summary of ICWA Inquiry and Notice
In the present case, mother filed an ICWA-020 form denying Indian ancestry. The
disposition report stated father was incarcerated and had not been interviewed, but ICWA
was found not to apply in Easton’s prior dependency case. At the disposition hearing, an
inquiry was conducted of mother where she again denied having Indian ancestry, and the
17.
juvenile court found ICWA did not apply. Before the jurisdiction and disposition
hearing, father completed two ICWA-020 forms denying Indian ancestry. Father’s first
appearance was at a jurisdiction and disposition hearing. An ICWA inquiry was
conducted in court at that time, and he again denied having Indian ancestry. At the
section 366.26 hearing, the court reiterated that ICWA did not apply.
The record shows the agency was in contact with several extended family
members. Initially, the children were placed with maternal aunt Angelica. A few months
later, the children were moved to placement with maternal great-aunt Kirstyn. Maternal
grandmother, maternal great-grandmother, and maternal great-great-grandmother all
participated in visits. Additionally, father provided information for the paternal
grandparents and paternal uncles. There is no indication the agency asked these relatives
about the children’s possible Indian ancestry. Mother contends the agency’s failure to
conduct inquires with the extended family members resulted in prejudicial error. The
agency concedes.
In K.H. and E.C., we addressed ICWA error at the inquiry stage. There, we
explained our decision not to follow the 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, 85 Cal.App.5th at p. 152.) Applying the standards
we articulated in K.H. and E.C., as we will discuss below, we agree with the parties and
conclude the agency’s error is prejudicial and remand for the agency to conduct a proper,
adequate, and duly diligent inquiry is necessary.
2. 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,
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E.C., supra, 85 Cal.App.5th at pp. 142–143.) 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.” (K.H., at
p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.) 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. 143.)
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, 85 Cal.App.5th at p. 143.)
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’
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 due
diligence.” (K.H., supra, 84 Cal.App.5th at p. 601, quoting Caden C., supra, 11 Cal.5th
at p. 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; 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 pp. 143–144; Ezequiel G., at pp. 1004–1005.)
19.
“ ‘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, 85
Cal.App.5th at pp. 143–144.)
“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, 85 Cal.App.5th at p. 144.)
3. Agency and Juvenile Court Erred
As previously mentioned, when “a child is placed into the temporary custody of a
county welfare [agency] …, the county welfare [agency] … 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).)
20.
Here, the agency inquired only of mother and father, which fell short of complying
with the plain language of section 224.2, subdivision (b), which required the agency to
inquire of extended family members. “[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 agency 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 agency’s inquiry was proper, adequate,
and duly diligent on the specific facts of the case.” (K.H., at p. 589; accord, E.C., supra,
85 Cal.App.5th at p. 157.) Accordingly, 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).)
4. Prejudice
“Where, as here, the deficiency lies with the agency’s duty of […] 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, 85 Cal.App.5th at p. 151.)
“ ‘[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
21.
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, 85
Cal.App.5th at pp. 151–152.)
However, in A.R., the Supreme Court “recognized that while we generally apply a
Watson[6] 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, 85
Cal.App.5th at p. 154.) 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. 608; accord, E.C., at pp. 152–153.) 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. 153.) Further, the
ultimate determination whether a child is an Indian child rests with the tribe, not with a
parent, the agency, or the juvenile court. (K.H., at p. 590; accord, E.C., at pp. 139–140.)
6 People v. Watson (1956) 46 Cal.2d 818, 836.
22.
“[W]here 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., at p. 610, citing A.R., supra, 11 Cal.5th at pp. 252–254; accord, E.C.,
at p. 155.)
Here, the agency’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., supra, 85 Cal.App.5th at
p. 156, quoting K.H., supra, 84 Cal.App.5th at p. 620), and “[a] 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. 155, 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 agency 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, 85 Cal.App.5th at p. 157, 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 [the children]’ 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 [agency]. 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., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 84 Cal.App.5th at p. 621.)
23.
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 agency to
comply with the inquiry and documentation provisions set forth in section 224.2,
subdivisions (b) and (e), and rule 5.481(a)(5). The juvenile court is directed to comply
with inquiry provisions of section 224.2, subdivision (c). If, after determining that an
adequate inquiry was made consistent with the reasoning in this opinion, the court finds
that ICWA applies, the court shall vacate its existing order and proceed in compliance
with ICWA and related California law. If the court instead finds that ICWA does not
apply, its ICWA finding shall be reinstated. In all other respects, the juvenile court’s
order is affirmed.
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