65 Cal.App.5th 1060
Cal. Ct. App.2021Background
- Child A.C. was detained in 2017 for neglect and the mother’s methamphetamine use; mother is an enrolled member of the Confederated Tribes of the Colville Reservation.
- D.M. was identified as the child’s presumed father; he was incarcerated early in the case and later released.
- The juvenile court ordered ICWA-020 forms, and CFS sent ICWA notice naming a different alleged father (E.R.), but CFS never asked D.M. about Indian ancestry nor required him to file ICWA-020.
- The Colville Tribes responded that A.C. was not a member and not eligible for membership; the juvenile court found ICWA did not apply and terminated parental rights.
- The appellate majority finds CFS and the juvenile court erred by failing to inquire of D.M. and document inquiries, but holds the error harmless because D.M. never claimed Indian ancestry; the dissent argues the silence in the record (caused by the agency) makes the error presumptively prejudicial and would remand for inquiry.
Issues
| Issue | Plaintiff's Argument (CFS) | Defendant's Argument (D.M.) | Held |
|---|---|---|---|
| Whether the juvenile court and CFS satisfied their ICWA/state-law duty to inquire into the father’s Indian ancestry | CFS concedes it failed to make a proper inquiry/documentation but contends the error is harmless | Failure to inquire and failure to document prejudiced the process; ICWA inquiry required and can be raised on appeal | Court: error occurred, but harmless because father never claimed any Indian ancestry; affirmed termination |
| Whether appellant must show prejudice by alleging or producing evidence of Indian ancestry (and whether postjudgment evidence is permissible) | Agency/majority: appellant bears burden to show a reasonable probability of a different outcome and must at least claim Indian ancestry on appeal; postjudgment evidence may be considered only in narrow circumstances | Father: record is silent because agency failed to investigate; requiring appellant to produce outside-the-record evidence is unfair and conflicts with precedents protecting ICWA rights | Court: appellate relief not required absent at least a good-faith claim of Indian ancestry; postrecord evidence exceptions are narrow; dissent would place burden on agency/court to show adequate inquiry and would remand |
Key Cases Cited
- In re W.B., 55 Cal.4th 30 (California Supreme Court 2012) (ICWA purpose and notice requirements)
- In re S.B., 130 Cal.App.4th 1148 (Cal. Ct. App. 2005) (California statutes implement and expand ICWA duties)
- In re Rebecca R., 143 Cal.App.4th 1426 (Cal. Ct. App. 2006) (appellant must affirmatively assert Indian heritage to show prejudice)
- In re K.R., 20 Cal.App.5th 701 (Cal. Ct. App. 2018) (agency’s failure to document inquiry can justify exception to normal appellate-record rules)
- In re N.G., 27 Cal.App.5th 474 (Cal. Ct. App. 2018) (where record lacks agency inquiry details, burden shifts to agency/court to show compliance)
- In re Isaiah W., 1 Cal.5th 1 (California Supreme Court 2016) (parent may raise ICWA notice issues for the first time on appeal)
- In re Zeth S., 31 Cal.4th 396 (California Supreme Court 2003) (general prohibition on appellate consideration of postjudgment evidence in termination appeals)
- In re A.B., 164 Cal.App.4th 832 (Cal. Ct. App. 2008) (permissible consideration of certain judicially noticeable postjudgment records to affirm termination)
- Josiah Z. v. Superior Court (In re Josiah Z.), 36 Cal.4th 664 (California Supreme Court 2005) (limited contexts where appellate new evidence may be considered)
- Shinseki v. Sanders, 556 U.S. 396 (U.S. Supreme Court 2009) (party seeking reversal must show prejudice from error)