71 Cal.App.5th 388
Cal. Ct. App.2021Background:
- Josiah T. (born Oct. 2017) was removed from parental custody after petitions alleging domestic violence, failure to protect, and related allegations; siblings were also declared dependents in Nov. 2017.
- Father was largely uncooperative and often unlocated; DCFS nonetheless had early contact information and multiple known paternal relatives (grandmother, grandfather, aunt, uncle) and explored placement with paternal grandmother.
- DCFS repeatedly reported to the juvenile court it did not know whether ICWA applied as to Father but delayed any ICWA inquiry of paternal relatives for roughly 18 months.
- In April 2019 paternal grandmother told a social worker she had Cherokee ancestry through her grandmother; she later denied Indian ancestry in Nov. 2019. DCFS failed to disclose the April 2019 statement to the court in multiple reports and largely did not follow up or notify tribes promptly.
- The juvenile court found no reason to know ICWA applied (Jan. 4, 2021); parental rights were terminated under Welfare & Institutions Code § 366.26. The Court of Appeal conditionally reversed and remanded, finding DCFS did not satisfy its ICWA inquiry/notice duties and had withheld material information from the court.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DCFS satisfied its initial ICWA duty to inquire | DCFS failed to timely ask the child’s parents, extended family, and others despite known paternal relatives and thus did not perform the required initial inquiry | DCFS contends inability to locate Father justified its limited inquiries and delayed efforts | Court: DCFS’s delay was unreasonable; it should have timely asked available paternal relatives and therefore failed the initial inquiry duty |
| Whether DCFS satisfied its duty of further inquiry/notice after paternal grandmother’s April 2019 Cherokee disclosure | April 2019 disclosure (Cherokee through grandmother) was specific enough to trigger further inquiry and tribe/BIA contact; DCFS failed to follow up | DCFS argues the later November 2019 denial by paternal grandmother negated any duty to pursue Cherokee ancestry further | Court: The April disclosure created a "reason to believe" and required further inquiry; the November denial, unexplained, did not absolve DCFS of follow-up or notice obligations |
| Whether DCFS adequately disclosed ICWA-related information to the juvenile court | Mother: DCFS repeatedly omitted the April 2019 disclosure and its inquiry steps from section 366.26 materials, depriving the court of necessary facts to rule on ICWA | DCFS implied its reports and later actions (contacting Choctaw tribes re: paternal grandfather) were sufficient | Court: DCFS violated court rules by failing to report the April disclosure and other inquiry steps; the omissions prevented an informed judicial ICWA determination — reversal and remand |
Key Cases Cited
- In re Austin J., 47 Cal.App.5th 870 (discusses the court’s and agency’s continuing duty to inquire about ICWA)
- In re D.S., 46 Cal.App.5th 1041 (a relative’s statement of possible tribal ancestry can trigger further inquiry)
- In re D.F., 55 Cal.App.5th 558 (framework: initial inquiry, further inquiry, and formal notice duties)
- In re Gabriel G., 206 Cal.App.4th 1160 (conflicting relative statements require clarification and further inquiry)
- In re L.S., 230 Cal.App.4th 1183 (agency must document ICWA inquiries and provide information to the court)
- In re Louis S., 117 Cal.App.4th 622 (burden on agency to obtain all possible information about potential Indian ancestry)
- In re D.T., 113 Cal.App.4th 1449 (agency must make at least some inquiry into information needed for ICWA notice)
- In re J.S., 62 Cal.App.5th 678 (finding ICWA does not apply implies agency fulfilled inquiry duties)