88 Cal.App.5th 383
Cal. Ct. App.2023Background
- Mother (D.S.) is the adoptive parent of A.S.; CFS filed a dependency petition (Welf. & Inst. Code § 300) in Sept. 2021 for alleged physical abuse.
- At detention Mother denied Indian ancestry but provided contact info for a maternal aunt, uncle, and grandparents; CFS reports do not show those relatives were contacted about possible Indian status.
- In Jan. 2022 the juvenile court found ICWA did not apply, denied further reunification services, and set a § 366.26 permanency-planning hearing; in May 2022 the matter was continued rather than terminating parental rights.
- Mother filed a § 388 petition (seeking placement back in her home); it was summarily denied and she appealed — but her appellate brief challenges ICWA inquiry and compliance rather than the § 388 denial.
- The Court of Appeal construed the defective/limited appeal as a petition for extraordinary writ, found CFS failed its initial ICWA inquiry (by not contacting known relatives), rejected CFS’s argument that adoptive relatives need not be contacted, and granted a writ directing ICWA inquiry and compliance and vacating/continuing any § 366.26 hearing until compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper procedural vehicle | Treat appeal as writ to secure interlocutory ICWA relief | Appeal from § 388 order is the only proper vehicle | Court exercised discretion to construe appeal as writ and proceed |
| Duty of initial ICWA inquiry | CFS failed to contact known relatives; duty requires asking parents and extended family | CFS contends no duty here because listed relatives are adoptive relatives | Court held record does not show required inquiry; duty not fulfilled |
| Whether adoptive relatives are exempt from inquiry | Mother: statute requires asking "parents" and "extended family" without biological limitation | CFS: relies on pre-2018 Francisco D. to limit ICWA to biological/tribal connection | Court rejected Francisco D. as controlling; section 224.2 requires asking adoptive parents/relatives too |
| Harmless-error analysis for ICWA inquiry failures | Mother: failure to inquire is prejudicial absent record showing otherwise | CFS: any error harmless because Mother denied ancestry and relatives unlikely to have meaningful info | Court applied Benjamin M. test — failure was prejudicial because readily obtainable info from relatives likely would have been meaningful |
Key Cases Cited
- In re Benjamin M., 70 Cal.App.5th 735 (prejudice test: reversal if readily obtainable information likely to bear meaningfully on Indian status)
- In re D.S., 46 Cal.App.5th 1041 (outlines ICWA duties: initial inquiry, further inquiry, notice)
- In re Francisco D., 230 Cal.App.4th 73 (pre-2018 decision limiting ICWA focus to biological connection)
- In re K.R., 20 Cal.App.5th 701 (agency duty to inquire; failure prejudicial when record silent)
- In re N.G., 27 Cal.App.5th 474 (burden on agency/court to make an adequate ICWA inquiry record)
- Dwayne P. v. Superior Court, 103 Cal.App.4th 247 (writ appropriate to compel ICWA compliance)
- Justin L. v. Superior Court, 165 Cal.App.4th 1406 (issuing writ to enforce ICWA inquiry and notice)
- Olson v. Cory, 35 Cal.3d 390 (treating a defective appeal as a writ petition)