82 Cal.App.5th 901
Cal. Ct. App.2022Background
- Dependency petition filed Oct 2019 under Welf. & Inst. Code § 300(b)(1) for Y.M. (born 2019); allegations involved parental drug abuse and domestic violence.
- Mother completed Form ICWA‑020 and denied any Native American/Indian ancestry; Father initially unreachable but later denied Indian ancestry.
- The Agency repeatedly contacted paternal relatives (grandmother, grandfather, uncle) but did not ask those extended family members about possible Indian ancestry.
- Juvenile court made interim findings that ICWA did not apply and in March 2022 terminated parental rights and selected adoption as the permanent plan.
- On appeal Father challenged the Agency’s failure to comply with its § 224.2(b) duty of initial inquiry; the Agency conceded the inquiry omission but argued the error was harmless.
- The Court of Appeal accepted the Agency’s concession of error, adopted the Benjamin M. prejudicial‑error standard, found the omission harmless on these facts, and affirmed the March 9, 2022 order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Agency complied with its § 224.2(b) initial‑inquiry duty to ask extended family about possible Indian ancestry | Agency conceded it failed to ask extended family but argued error was harmless | Father argued the Agency failed to make required initial inquiry (failure to ask extended family) and the ICWA finding is unsupported | Court: Agency failed § 224.2(b) duty; juvenile court’s implied no‑ICWA finding was not supported by substantial evidence (error acknowledged) |
| Whether the § 224.2(b) error requires reversal (standard and prejudicial effect) | Agency urged a harmless‑error review and proposed Dezi C./presumptive‑affirmance approaches; urged affirmance under Benjamin M. | Father urged reversible‑per‑se approach (Y.W.) or at least reversal under Benjamin M. standard | Court: rejected reversible‑per‑se and presumptive‑affirmance standards; adopted Benjamin M. middle standard and held error harmless on these facts (affirmed termination) |
Key Cases Cited
- In re Benjamin M., 70 Cal.App.5th 735 (adopted intermediate prejudice test: reverse when readily obtainable missing info likely would meaningfully bear on Indian status)
- In re Y.W., 70 Cal.App.5th 542 (concluded initial‑inquiry failures are prejudicial per se)
- In re Dezi C., 79 Cal.App.5th 769 (criticized per‑se rule; urged record‑based showing a reason to believe)
- In re Isaiah W., 1 Cal.5th 1 (explains ICWA purposes and notice obligations)
- In re Zeth S., 31 Cal.4th 396 (generally prohibits taking postjudgment evidence on appeal except in rare cases)
- In re Charlotte V., 6 Cal.App.5th 51 (substantial‑evidence review of ICWA inquiry/notice compliance)