82 Cal.App.5th 671
Cal. Ct. App.2022Background
- Two children (Ricky, age 10; Jayden, age 8) were the subject of a dependency petition filed by Riverside DPSS in Oct. 2019; parents alleged to have substance abuse/criminal history and neglect; father initially missing.
- At detention and at subsequent hearings mother repeatedly denied any Indian ancestry; DPSS checked parents but did not ask available extended family members about Indian ancestry.
- Juvenile court found DPSS’s ICWA inquiry sufficient, took jurisdiction, ordered reunification (later terminated) and ultimately terminated parental rights at a section 366.26 hearing.
- DPSS later placed the children with a relative and, while the termination appeal was pending, submitted postjudgment social-worker declarations reporting varied family statements about Indigenous ancestry (including an uncertain reference to the Cora people in Mexico).
- On appeal mother argued DPSS failed to perform the required initial ICWA inquiry (notably of extended family), DPSS conceded the initial inquiry lapse but argued harmlessness and moved to dismiss the appeal as moot based on the postjudgment declarations.
- The Court of Appeal held DPSS prejudicially failed its initial ICWA duty, denied DPSS’s motion to dismiss and to consider postjudgment declarations on appeal, conditionally reversed the termination order, and remanded for the juvenile court to complete the ICWA inquiry and (if needed) give notice to tribes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DPSS satisfied the duty of initial inquiry under ICWA/state law | DPSS failed to ask readily available extended family members, so initial inquiry incomplete | DPSS had asked parents and later sought family info; error harmless | Held: DPSS erred prejudicially; must contact extended family and juvenile court must reassess ICWA compliance |
| Whether appellate court may consider postjudgment social-worker declarations / dismiss appeal as moot | Mother: appellate court should not admit postjudgment evidence; juvenile court must evaluate evidence first and mother must be allowed to challenge it | DPSS: postjudgment declarations show inquiries completed and no Indian ancestry, so appeal moot; urged judicial notice/augmentation or CCP §909 relief | Held: Denied—declinations to take judicial notice or augment record; declined to take additional evidence under CCP §909 because juvenile court should first evaluate and allow mother to contest; appeal not dismissed |
Key Cases Cited
- In re Benjamin M., 70 Cal.App.5th 735 (initial-ICWA inquiry standard; readily obtainable information may be meaningful)
- In re T.G., 58 Cal.App.5th 275 (ICWA inquiry and notice duties explained)
- In re Abbigail A., 1 Cal.5th 83 (California statutory incorporation of ICWA requirements)
- In re Austin J., 47 Cal.App.5th 870 (initial inquiry required in every dependency proceeding)
- In re M.B., 80 Cal.App.5th 617 (limits on appellate courts taking postjudgment ICWA evidence; juvenile court should make findings first)
- In re Allison B., 79 Cal.App.5th 214 (discussing when appellate court may consider postjudgment ICWA evidence; distinguished here)
- In re J.C., 77 Cal.App.5th 70 (juvenile court may not find ICWA inapplicable without full initial inquiry)
- In re Josiah Z., 36 Cal.4th 664 (procedure for taking additional evidence on appeal discussed)