82 Cal.App.5th 1027
Cal. Ct. App.2022Background
- Minor born prematurely and tested positive for amphetamines; Placer County Dept. of Health and Human Services filed a section 300 dependency petition based on mother's substance abuse.
- At emergency detention hearing mother said she might have Native American ancestry on her father's side but denied tribal enrollment or eligibility; court found ICWA did not apply.
- Father J.T. was identified and later confirmed biologically paternally but the juvenile court and Department did not inquire about his Native American status before termination.
- At the March 22, 2022 section 366.26 hearing the court terminated parental rights and did not make an express new ICWA finding; prior ICWA finding was incorporated by reference.
- After termination, the Department investigated (augmented record): father said he might have Cherokee ancestry; father’s mother said any "Native heritage" was Mexican (Culiacán, Sinaloa); the Bureau confirmed Mexican indigenous ancestry does not trigger ICWA.
- Appellate court concluded mother’s statements provided substantial evidence ICWA did not apply, found the Department’s failure to inquire of father was harmless, and affirmed the termination order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether juvenile court and Dept. satisfied initial/continuing ICWA inquiry duties for mother and father | Dept.: mother consistently denied tribal membership; no reason to believe child was Indian; posttermination inquiry confirmed no tribal nexus | J.T.: Dept. and court failed to ask father about Indian status and inadequately investigated mother, requiring reversal | Court: mother’s repeated denials and corroboration by maternal grandmother supported finding ICWA did not apply; failure to ask father was error but harmless because later investigation showed no reason to believe child was an Indian child |
| Whether posttermination ICWA investigation/remedial efforts may be considered and can cure pre-termination noncompliance | Dept.: appellate court may consider posttermination investigation in the augmented record; it shows no ICWA nexus and cures any prejudice | J.T.: posttermination evidence should not cure pre-termination defects; error is presumptively prejudicial | Court: considered posttermination evidence in the appellate record and held the error was not prejudicial; affirmed termination |
Key Cases Cited
- In re Isaiah W., 1 Cal.5th 1 (2016) (ICWA issue cognizable on appeal from termination of parental rights)
- In re A.W., 38 Cal.App.5th 655 (2019) (purpose and scope of ICWA protection)
- In re G.A., 81 Cal.App.5th 355 (2022) (standards for reviewing adequacy of ICWA inquiry)
- In re A.M., 47 Cal.App.5th 303 (2020) (substantial-evidence review and affirmance standard)
- In re D.S., 46 Cal.App.5th 1041 (2020) (three-tiered duties under section 224.2)
- In re Dezi C., 79 Cal.App.5th 769 (2022) (harmlessness analysis for ICWA inquiry failures)
- In re Allison B., 79 Cal.App.5th 214 (2022) (consideration of posttermination ICWA investigation in appellate review)
- In re M.B., 80 Cal.App.5th 617 (2022) (discusses limits on posttermination cures—court here declined to follow)
- In re E.V., 80 Cal.App.5th 691 (2022) (argues presumptive prejudice for ICWA errors—court here declined to adopt)