90 Cal.App.5th 694
Cal. Ct. App.2023Background
- Infant S.S. was detained at birth (May 2021) based on parental drug use; an older brother was already a court dependent.
- DCFS had contact information for three paternal relatives (grandfather O.H., aunt L.R., cousin L.T.) but conceded it never asked them about possible Indian ancestry.
- Maternal relatives reported possible Yaqui ancestry; DCFS notified the Pascua Yaqui Tribe, which replied the child was not eligible for membership.
- The juvenile court found no reason to know ICWA applied; later it terminated parental rights and approved adoption by the maternal aunt and uncle.
- On appeal the court reviewed compliance with the 2018 amendment to Welf. & Inst. Code §224.2 (requiring inquiry of extended family), conditionally reversed the ICWA finding, and remanded for DCFS to ask the three known paternal relatives whether S.S. may be an Indian child; all other orders were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DCFS had a duty under the 2018 amendment to ask known extended paternal relatives about Indian ancestry | DCFS must inquire of extended family members when it has contact information; the 2018 amendment added this state duty to existing practice | Mother argues DCFS failed this duty by not contacting known paternal relatives | Court: DCFS violated §224.2 by not asking the three known paternal relatives and must inquire on remand |
| Whether the added inquiry imposes a significant new administrative burden | DCFS/Respondent contends compliance should be practical and limited; duty is consistent with existing family searches | Appellant emphasizes statutory requirement and that failure prejudices tribes | Court: Inquiry is usually slight, piggybacks on routine family-investigation duties and was intended not to significantly increase workload |
| Whether DCFS’s error was prejudicial (miscarriage of justice) requiring reversal | DCFS argued placement with maternal relatives and termination for adoption made any error harmless | Mother argued failure denied tribes information and opportunity to assert rights; tribal interests are independent | Court: Error was prejudicial to tribes; conditional reversal and remand to ask the three paternal relatives; if inquiry shows ICWA applies, vacate orders and proceed under ICWA; otherwise reinstate ICWA finding |
| Whether placement with maternal relatives defeats tribal prejudice | DCFS/Respondent and dissent say existing maternal placement and continuity favor harmless error because placement is with extended family | Appellant and majority stress tribal rights are independent and notification/verification must come from inquiry; tribal choice matters even if child is with maternal relatives | Court: Placement with maternal family does not eliminate prejudice; tribes retain distinct rights and must be given the chance to determine status |
Key Cases Cited
- In re K.H., 84 Cal.App.5th 566 (Cal. Ct. App. 2022) (surveys divergent approaches to the 2018 §224.2 amendment and provides framework for assessing prejudice)
- In re Dezi C., 79 Cal.App.5th 769 (Cal. Ct. App. 2022) (review granted by California Supreme Court on issues concerning the 2018 amendment)
- In re Isaiah W., 1 Cal.5th 1 (Cal. 2016) (explains ICWA’s purpose and Congressional findings)
- Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (U.S. 1989) (tribes’ interests and tribal jurisdiction are distinct from parents’)
- In re T.G., 58 Cal.App.5th 275 (Cal. Ct. App. 2020) (tribal membership and status determinations are for tribes)
- In re K.R., 20 Cal.App.5th 701 (Cal. Ct. App. 2018) (California’s statutes implementing and paralleling ICWA)
- In re A.C., 86 Cal.App.5th 130 (Cal. Ct. App. 2022) (criticizes potentially limitless inquiry; raises concerns about administrative burden)
- People v. Ruiz, 4 Cal.5th 1100 (Cal. 2018) (discusses the evidentiary value of enrolled bill reports and legislative purpose)