Riverside Cnty. Dep't of Pub. Soc. Servs. v. E.K. (In re K.R.)
20 Cal. App. 5th 701
Cal. Ct. App. 5th2018Background
- Three children were removed in 2016 after mother’s history of heroin use and the father’s overdose; dependency petition under Welf. & Inst. Code § 300; reunification services later terminated and children placed for adoption.
- Parental rights were terminated October 2, 2017; mother appealed.
- Mother initially told the court neither she nor the children had Indian ancestry; court found ICWA did not apply at jurisdiction/disposition.
- After learning of possible Cherokee heritage through the father’s line, DPSS sent notices to three Cherokee tribes and to the BIA; two tribes replied the children were not Indian children, the third later replied similarly.
- Mother raised on appeal that DPSS failed to conduct adequate ICWA inquiries (failed to interview extended relatives) and that notices omitted required biographical details; she argued the court had a continuing duty to ensure compliance.
- The appellate court found the issue cognizable despite no trial-court objection and held DPSS and the juvenile court failed to demonstrate adequate inquiry; ordered conditional reversal and limited remand for ICWA/Welf. & Inst. Code §§ 224.2–224.3 compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA and California statutes required further inquiry/adequate notice when possible Cherokee ancestry was alleged | McKinster: DPSS failed to meaningfully interview extended relatives and omitted required biographical info in notices; court must ensure ongoing ICWA inquiry | DPSS: Record is silent about investigatory steps; absence of documentation defeats challenge on appeal; no duty to produce a contact-log | Court: Issue is reviewable on appeal; agency and court bear affirmative duty to inquire and ensure meaningful efforts and adequate notice |
| Whether the juvenile court erred by accepting notices without asking about DPSS’s investigation | McKinster: Court should have ascertained what efforts DPSS made to contact relatives | DPSS: Court could rely on notices; parent bears burden to produce record of error | Court: Juvenile court must verify agency compliance; it erred by not inquiring into DPSS’s efforts |
| Whether silence in the record precludes appellate review of ICWA compliance | McKinster: Parent can raise ICWA compliance on appeal as surrogate for tribe; record silence should not bar review | DPSS: Appellant must show error with an adequate record; silence defeats claim | Court: ICWA creates special circumstances; agency must document meaningful efforts and cannot hide behind a silent record; remand required |
| Appropriate remedy for deficient ICWA compliance | McKinster: Remand for full statutorily required inquiry and proper notice | DPSS: (implied) no reversal warranted without proof of prejudice | Court: Conditionally reverse and remand for compliance; if tribes then say children are not Indian, reinstatement of termination order; if tribe claims status, proceed accordingly |
Key Cases Cited
- Isaiah W. v. Superior Court, 1 Cal.5th 1 (Cal. 2016) (ICWA and California statutes impose ongoing inquiry and notice duties; purpose is to enable tribe to determine status and intervene)
- In re Michael V., 3 Cal.App.5th 225 (Cal. Ct. App. 2016) (agency must make meaningful effort to contact extended family for ICWA info)
- In re Marinna J., 90 Cal.App.4th 731 (Cal. Ct. App. 2001) (parent may raise ICWA notice/inquiry defects on appeal despite no trial objection)
- In re Samuel P., 99 Cal.App.4th 1259 (Cal. Ct. App. 2002) (same principle: appellate review of ICWA compliance not foreclosed by lack of objection)
- Justin L. v. Superior Court, 165 Cal.App.4th 1406 (Cal. Ct. App. 2008) (responsibility for ICWA compliance rests squarely on agency and court)
- In re Gerardo A., 119 Cal.App.4th 988 (Cal. Ct. App. 2004) (discusses appellant’s burden to produce adequate appellate record)
- In re Charlotte V., 6 Cal.App.5th 51 (Cal. Ct. App. 2016) (addresses evidentiary record and ICWA-compliance challenges)
- Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121 (Cal. 1999) (general principle that appellant must provide an adequate record to demonstrate reversible error)