95 Cal.App.5th 251
Cal. Ct. App.2023Background
- Children V.C. and Z.C. were removed from parents in Nov–Dec 2019; both parents signed Parental Notification of Indian Status forms denying Native American ancestry and the juvenile court twice found ICWA inapplicable.
- The agency filed dependency petitions; reunification services were provided then terminated; a section 366.26 hearing in 2021 terminated parental rights with adoption as the permanent plan.
- On prior appeal the termination was reversed and remanded under In re Caden C. for re-evaluating the beneficial-relationship exception; on remand the juvenile court again terminated parental rights and again found ICWA inapplicable.
- Parents appealed, arguing the agency failed its ICWA duty under Welfare & Institutions Code § 224.2(b) to ask available extended family members about possible Indian ancestry.
- The Court of Appeal held the agency’s duty to inquire of extended family members applies regardless of whether the child was initially removed under section 306 or via a protective-custody warrant (§ 340), and found the agency failed to make that inquiry here.
- Applying the Benjamin M. prejudice standard, the court concluded the record contained readily obtainable extended-family contacts likely to bear on Indian ancestry (and accepted mother’s limited proffer), and conditionally reversed and remanded for full ICWA inquiry, potential notice to tribes, and appropriate further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 224.2(b) requires inquiry of available "extended family members" only when a child is placed into temporary custody under § 306 | Agency: duty limited to § 306 removals (not § 340 protective-custody warrants) | Parents: duty applies regardless of how child was removed | Court: duty applies regardless; adopts reasoning of In re Delila D.; rejects narrow § 306-only reading |
| Standard for prejudice when initial ICWA inquiry is deficient | Agency: (implicitly) error was harmless or not prejudicial | Parents: deficient inquiry requires reversal here | Court: adopts Benjamin M. standard—reversal required where record shows readily obtainable information likely to bear meaningfully on Indian status |
| Whether agency complied with duty to inquire of extended family here | Agency: did not concede inability to contact but argued duty not triggered | Parents: agency failed to contact numerous available extended relatives who could have relevant information | Court: agency failed to inquire; record lists multiple reachable extended relatives and mother’s proffer supports reversal |
| Remedy on remand | Agency: if ICWA found inapplicable, prior order should stand | Parents: request full ICWA inquiry, notice if required, and further proceedings | Court: conditionally reverses termination; remands for agency to complete extended-family inquiry, further inquiry/tribal notice if applicable; if court finds ICWA does not apply, it shall reinstate termination order |
Key Cases Cited
- In re Caden C., 11 Cal.5th 614 (Cal. 2021) (sets standards for beneficial-relationship exception under § 366.26)
- In re Delila D., 93 Cal.App.5th 953 (Cal. Ct. App. 2023) (holds § 224.2(b) inquiry of extended family applies regardless of removal method)
- In re Robert F., 90 Cal.App.5th 492 (Cal. Ct. App. 2023) (concluded extended-family inquiry not triggered by § 340 removals)
- In re Benjamin M., 70 Cal.App.5th 735 (Cal. Ct. App. 2021) (prejudice standard: reversal required when record shows readily obtainable information likely to bear meaningfully on Indian status)
- In re Isaiah W., 1 Cal.5th 1 (Cal. 2016) (recognizes continuing duty to inquire under ICWA)
- In re Adrian L., 86 Cal.App.5th 342 (Cal. Ct. App. 2022) (addressed scope of extended-family inquiry; concurring view urged narrow § 306 trigger)