70 Cal.App.5th 542
Cal. Ct. App.2021Background
- LA DCFS filed dependency petitions for two children (Y.W., Y.G.) after parental marijuana use; children detained and later found adoptable and parental rights terminated at a §366.26 hearing.
- Father (Deshawn) reported possible Cherokee ancestry through his grandmother; mother (Clairessa) said she had no known Indian ancestry and is adopted; DCFS spoke with Clairessa’s adoptive mother (Maxcine), who said she could provide the biological father’s name and an aunt’s contact.
- DCFS mailed ICWA-030 notices to three Cherokee tribes and BIA but omitted certain biographical data about Deshawn’s grandmother (birthplace in the first notice; date/place of death in the second) and did not follow up to obtain contact information for Clairessa’s biological relatives.
- The juvenile court found ICWA notice “proper and complete,” concluded there was no reason to know the children were Indian children, and proceeded to terminate parental rights.
- The Court of Appeal held DCFS failed its duty of inquiry regarding Clairessa’s biological family (an extended family source) and sent defective ICWA notices for Deshawn’s claimed ancestry; it conditionally affirmed the termination orders but directed the court and DCFS to cure the ICWA inquiry/notice defects and reissue complete notices.
Issues
| Issue | Plaintiff's Argument (DCFS) | Defendant's Argument (Deshawn/Clairessa) | Held |
|---|---|---|---|
| Whether DCFS satisfied its initial and further duty to inquire under ICWA regarding possible Indian ancestry through Clairessa’s biological family | DCFS: No further inquiry required because Clairessa and her adoptive mother denied Indian ancestry; no viable lead justified more investigation | Parents: DCFS should have pursued the lead from Maxcine (name of biological father and aunt contact) because they are extended family and could have relevant information | Held: DCFS and the juvenile court failed to make adequate inquiry; DCFS must follow up with Maxcine to obtain biological relatives’ information and pursue further inquiry |
| Whether ICWA notices to Cherokee tribes contained required biographical information about identified ancestors | DCFS: Omissions were immaterial; some facts were only "possible" or unknown and omission was harmless | Parents: Notices omitted known/available data (birthplace, date/place of death) about Deshawn’s grandmother, undermining tribes’ ability to investigate | Held: Notices were incomplete in violation of federal regs and §224.3; omissions were not shown harmless and require new, complete notices |
| Whether any ICWA inquiry/notice error was harmless | DCFS: Any error harmless because parents did not assert a substantive Indian connection and tribes responded negatively | Parents: Failure to inquire deprived them of the information needed to assert ancestry; notice omissions could have changed tribe responses | Held: Error not harmless; appellate court cannot assume tribes would reach same conclusion without complete inquiry/notice; remediation required |
Key Cases Cited
- In re Austin J., 47 Cal.App.5th 870 (2020) (held limited duty to pursue further inquiry when parent expressly denied ancestry; Court of Appeal here disagreed as to scope)
- In re A.C., 65 Cal.App.5th 1060 (2021) (applied a broad harmless-error approach to ICWA failures; Court here declined to follow that breadth)
- In re Isaiah W., 1 Cal.5th 1 (2016) (California Supreme Court: courts and agencies have an affirmative, continuing duty to determine ICWA applicability)
- In re J.S., 62 Cal.App.5th 678 (2021) (discusses federal implementing regulations requiring courts to ask participants about Indian status)
- In re D.S., 46 Cal.App.5th 1041 (2020) (explains the three phases of ICWA duty: initial inquiry, further inquiry, and formal notice)
- In re Breanna S., 8 Cal.App.5th 636 (2017) (emphasizes need to provide tribes as much ancestral information as possible and strict construction of ICWA notice requirements)
- In re E.H., 26 Cal.App.5th 1058 (2018) (stresses that notices must include identifying information about lineal ancestors to allow meaningful tribal review)