75 Cal.App.5th 1009
Cal. Ct. App.2022Background
- A.C., born 2017, became subject to juvenile dependency after mother drove under the influence with children in the car; the juvenile court sustained section 300, 360 and 342 petitions and removed A.C. from parental custody.
- Mother and father each completed ICWA inquiry forms (ICWA-020) indicating no known American Indian heritage; the forms warned they were not a complete inquiry.
- DCFS did not interview available extended family members (maternal aunts/cousins or father’s mother/brother) about possible Indian ancestry, despite state law (§ 224.2) requiring initial inquiry to include extended family.
- The juvenile court found ICWA did not apply based primarily on the parents’ denial on the ICWA-020 forms and made jurisdictional and dispositional orders.
- On appeal father challenged only DCFS’s failure to ask extended family members about Indian ancestry and argued that omission was prejudicial; the Court of Appeal majority concluded the failure was prejudicial and remanded for compliance with § 224.2.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DCFS’s failure to interview available extended family about potential Indian ancestry was prejudicial | DCFS/respondent (and dissent) contended the error was harmless because both parents denied Indian ancestry on ICWA-020 forms and appellant made no proffer of potential Indian heritage | Father argued the statutory duty of initial inquiry required interviewing extended family and DCFS’s omission was prejudicial regardless of the parents’ form denials | Majority: Remand ordered — DCFS’s failure was prejudicial under these facts; juvenile court must direct DCFS to interview extended family and report within 30 days of remittitur |
| What showing of prejudice is required when DCFS fails to conduct extended-family inquiry under § 224.2 | DCFS (and concurring/dissenting judge) argued appellant should bear burden to proffer that further inquiry would likely reveal Indian ancestry (harmless-error/Watson standard) | Father argued statutory duties and ICWA’s protective purpose mean remand is required where DCFS did not meaningfully inquire of extended family, without requiring a parent proffer | Held: Majority did not adopt a strict proffer requirement; under the facts (readily obtainable relatives, equivocal records) the failure was prejudicial and remand warranted; concurrence/dissent would have required a proffer and affirmed without remand |
Key Cases Cited
- In re Isaiah W., 1 Cal.5th 1 (Sup. Ct. 2016) (remand for ICWA compliance appropriate despite permanency concerns)
- In re Benjamin M., 70 Cal.App.5th 735 (Cal. Ct. App. 2021) (discussing prejudice tests when DCFS fails to investigate Indian ancestry)
- In re K.R., 20 Cal.App.5th 701 (Cal. Ct. App. 2018) (agency must make meaningful effort to interview extended family about possible Indian status)
- People v. Watson, 46 Cal.2d 818 (Cal. 1956) (harmless error standard articulated)
- In re Rebecca R., 143 Cal.App.4th 1426 (Cal. Ct. App. 2006) (parent’s affirmative representation of Indian heritage required to show prejudice)
- In re Zeth S., 31 Cal.4th 396 (Cal. 2003) (limits on appellate consideration of new evidence outside the record)
- In re Josiah T., 71 Cal.App.5th 388 (Cal. Ct. App. 2021) (state law requires DCFS inquiry of extended family members)