82 Cal.App.5th 166
Cal. Ct. App.2022Background
- Infant S.H. was removed in 2021; mother (S.P.) and an alleged father (Anthony H.) gave mixed answers about Native American ancestry and at one point discussed claiming such ancestry to delay removal.
- Agency asked Mother and Anthony about ICWA; both initially denied clear ancestry but Anthony’s counsel later mentioned possible “Cherokee” on his maternal side.
- The Agency did not interview at least two maternal relatives (mother’s mother/grandmother and the maternal relative placed with the child) despite rule requiring inquiry of extended family; a maternal great-grandmother reported family lore of “Blackfoot Cherokee” with no documentation.
- Juvenile court found ICWA did not apply but made that finding without prejudice and ordered the child placed with a maternal relative.
- On appeal the Agency conceded it failed to satisfy its initial inquiry duties under ICWA (§ 224.2) by not interviewing certain extended family members.
- The Court of Appeal held that although initial ICWA inquiry error occurred, reversal of the early jurisdiction/disposition order was not required because the Agency acknowledged the error and has a continuing duty to inquire and report any new information to the juvenile court.
Issues
| Issue | Plaintiff's Argument (Agency) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Adequacy of initial ICWA inquiry | Agency had made inquiries and reported no reason to know the child was an Indian child; any gaps can be remedied without reversing order | Agency failed to interview available extended maternal relatives as required by § 224.2, so ICWA inquiry was incomplete and juvenile court erred | Agency conceded initial inquiry was incomplete; court agreed error occurred but did not disturb juvenile court order because the Agency acknowledged the duty and must complete ongoing inquiry |
| Appropriate remedy for inquiry error (remand/conditional reversal) | No need to reverse or conditionally reverse; continuing duty to inquire and juvenile court retains power to revisit if new info emerges | Seeks conditional reversal/remand to compel full ICWA inquiry and reporting before dependency order stands | Court declined conditional reversal/remand; affirmed order while requiring the Agency to complete inquiries and report findings, emphasizing continuing duties and court’s power to act if new facts arise |
Key Cases Cited
- In re T.G., 58 Cal.App.5th 275 (2020) (explains ICWA’s purpose and need for adequate investigation of family-reported ancestry)
- In re Isaiah W., 1 Cal.5th 1 (2016) (ICWA notice required where court knows or has reason to know a child is involved)
- In re Daniel M., 110 Cal.App.4th 703 (2003) (ICWA does not apply to alleged fathers whose paternity is unestablished)
- In re Dezi C., 79 Cal.App.5th 769 (2022) (discusses harmless-error approaches to agency ICWA inquiry failures)
- In re A.C., 75 Cal.App.5th 1009 (2022) (analyzes prejudice tests and consequences of incomplete ICWA inquiry)
- In re J.W., 81 Cal.App.5th 384 (2022) (error to omit extended family from ICWA inquiry despite contact with relatives)
- In re A.R., 77 Cal.App.5th 197 (2022) (agency error in ICWA process may warrant conditional reversal but condemns gamesmanship by parents)
- In re Rylei S., 81 Cal.App.5th 309 (2022) (conditionally affirmed disposition and remanded for ICWA compliance in similar circumstances)
- In re Benjamin M., 70 Cal.App.5th 735 (2021) (supports flexible, case-by-case harmless-error analysis)
- People v. Watson, 46 Cal.2d 818 (1956) (standard for assessing whether error was prejudicial)