20 Cal.App.5th 701
Cal. Ct. App.2018Background
- Three children were declared dependents after a section 300 petition alleging mother’s uncontrolled substance abuse and untreated mental-health issues; father had died of a heroin overdose shortly before the petition.
- Reunification services were provided then terminated; children placed with prospective adoptive parents and parental rights were terminated on October 2, 2017.
- At initial hearings mother stated neither she nor the children had Indian ancestry; court found ICWA did not apply.
- The county later learned of possible Cherokee heritage through the children’s paternal line and sent ICWA notices to three Cherokee tribes and the BIA.
- Two tribes responded that the children were not Indian children; the third tribe later also responded negatively. The juvenile court accepted the notices as proper without inquiry into the county’s investigative steps.
- Mother appealed solely on the ground that DPSS and the court failed to comply with ICWA and California’s parallel statutes in investigating and providing adequate tribal notice.
Issues
| Issue | Plaintiff's Argument (DPSS) | Defendant's Argument (E.K.) | Held |
|---|---|---|---|
| Whether the issue of inadequate ICWA inquiry/notice is cognizable on appeal from the termination order | DPSS implicitly argued mother’s failure to object below and the silent record preclude appellate review | Mother argued juvenile court has continuing ICWA duty and she may raise compliance on appeal even if she did not object below | Court: Cognizable — parent may raise ICWA compliance on appeal; court/agency have ongoing duty (Isaiah W.) |
| Whether DPSS made adequate inquiry into possible Cherokee ancestry and notified tribes with required information | DPSS argued the record’s silence does not show inadequate effort and no obligation to document all investigative steps | Mother argued DPSS failed to interview available relatives (paternal grandmother, aunt, grandfather, great-grandparents) and omitted required identifying information in notices | Court: DPSS’s investigation was insufficiently documented and likely inadequate; agency must meaningfully inquire and report efforts; court failed to verify compliance |
| Whether the juvenile court satisfied its duty to ensure ICWA compliance before accepting notices | DPSS relied on tribes’ negative responses and court’s prior findings | Mother argued the court failed to ascertain what investigative steps DPSS took | Court: Juvenile court erred by not ensuring agency performed adequate inquiry and by accepting notices without confirming compliance |
| Remedy | DPSS implicitly argued no reversible error because tribes responded | Mother sought reversal/remand for compliance | Court: Conditionally reversed and remanded for limited ICWA/Welf. & Inst. Code §§224.2, 224.3 compliance; if tribes again say not Indian, termination order reinstated; if tribe finds children are Indian, proceed accordingly |
Key Cases Cited
- In re Isaiah W., 1 Cal.5th 1 (California Supreme Court) (ICWA and California statutes impose continuing duty to inquire and provide notice)
- In re Michael V., 3 Cal.App.5th 225 (Cal. Ct. App.) (agency must make meaningful efforts to contact extended family for ICWA inquiry)
- Justin L. v. Superior Court, 165 Cal.App.4th 1406 (Cal. Ct. App.) (responsibility for ICWA compliance rests on agency and court)
- In re Marinna J., 90 Cal.App.4th 731 (Cal. Ct. App.) (parent may raise ICWA notice deficiencies on appeal despite failure to object below)
- Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121 (California Supreme Court) (appellant’s burden to produce an adequate record generally)