In re A.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES v. ALEXANDER C.
B312391
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
March 4, 2022
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. 20CCJP01943)
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.
It is undisputed that the Los Angeles County Department of Children and Family Services (DCFS) failed to ask extended family members about Indian ancestry in derogation of state law (
As eloquently summarized in the dissent, recent appellate jurisprudence has adopted a continuum of tests for prejudice stemming from error in following California statutes implementing ICWA ranging from a per se rule that any error is always prejudicial, to a test advocated by the dissent finding no prejudice unless the appealing parent makes a proffer that interviewing extended family members would yield information about potential Indian ancestry. We acknowledge the policy arguments in favor of this latter test not the least of which is preventing the delay caused by remanding a case for additional inquiry into a child‘s Indian status and the resulting inability to comply with competing statutory obligations expeditiously to provide a safe and permanent home for children within the juvenile court‘s jurisdiction.
We conclude, however, under the facts of this case, that DCFS‘s failure to ask extended family members about potential Indian ancestry was prejudicial. The dictates of our high court and mandatory statutory duties of initial inquiry compel this conclusion. Our conclusion, moreover, is consistent with the very purpose of ICWA—to remedy a history of removal of Indian children from their communities and cultural heritage.
Accordingly, we remand the matter with directions for the juvenile court to order DCFS to comply with
1. The Juvenile Court Assumed Jurisdiction Over the Children2
For an undisclosed period prior to her 18th birthday, mother, who was born in 1985, was in foster care. Mother has three children, T.F. (born in 2009), S.F. (born in 2011), and A.C. (born in 2017). Father is A.C.‘s father. At the time the dependency proceedings commenced, the children were living with mother, and mother reported that father helped with A.C.
a. Section 300 petition
DCFS became involved with the family after mother drove while under the influence of alcohol and collided with another vehicle. The children were in mother‘s car during this collision.
DCFS filed a
b. Section 360 petition
On December 18, 2020, DCFS filed a
c. Section 342 petition
On January 12, 2021, DCFS filed a
Following a hearing at which father testified, the court sustained the
2. Background on A.C.‘s Indian Heritage
A DCFS report dated April 8, 2020 indicates that mother “denied the family [has] any known Indian Ancestry . . . .” but DCFS nevertheless concluded for unidentified reasons that ICWA “may apply.” The record does not indicate that social workers asked father about potential Indian ancestry.
Mother completed a form indicating she had no known Indian ancestry. The form states, “Note: This form is not intended to constitute a complete inquiry into Indian heritage. Further inquiry may be required by the Indian Child Welfare Act.” Father also completed a form (different from the one mother completed), checking the box, “None of the above apply.” The “above” unchecked boxes describing Indian ancestry were as follows: (1) “I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe“; (2) “The child is or may be a member of, or eligible for membership in, a federally recognized Indian tribe“; (3) “One or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe“; (4) “I am a resident of or am domiciled on a reservation, rancheria, Alaska Native village, or other tribal trust land“; (5) “The child is a resident of or is domiciled on a reservation, rancheria, Alaska Native village, or other tribal trust land“; (6) “The child is or has been a ward of a tribal court“; and (7) “Either parent or the child possesses an Indian identification card indicating membership or citizenship in an Indian tribe.” Father‘s form also stated, “Note: This form is not intended to constitute a complete inquiry into Indian heritage. Further inquiry may be required by the Indian Child Welfare Act.”
In December 2020, DCFS reported that T.F. and A.C. were placed with a maternal aunt and S.F. was placed with a different maternal aunt. The record does not indicate that social workers asked maternal relatives about Indian ancestry. The January 15, 2021 report indicated that T.F. and A.C. were placed with a maternal cousin and S.F. was placed with a maternal aunt. There is no indication that DCFS interviewed either the maternal cousin or maternal aunt about A.C.‘s potential Indian heritage.
DISCUSSION
Father argues DCFS‘s failure to satisfy its statutory duty of initial inquiry as to extended family members was prejudicial. His argument is well-taken.
A. Legal Background
ICWA is about Indian patrimony. “The ICWA was designed to remedy a unique and longstanding record of child welfare abuses by federal and state officials, state court judges, and private adoption agencies that led to widespread removal of Indian children from their homes and communities. Extensive congressional hearings on the topic of Indian child welfare in the 1970s established that ‘[t]he wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today.’ [Citation.]” (Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance (2002) 51 Emory L.J. 587, 601.) “ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family.” (In re Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.).)
Given this history, ICWA and related state legislation collectively impose obligations on the juvenile court and child welfare agencies to cull information from the parents and extended family members about potential Indian ancestry. These are mandatory duties commensurate with the importance of ICWA‘s remedial goals.
California law requires at the outset of a dependency case that the child welfare agency and juvenile court inquire into whether a child is, or may be an Indian child. “The child welfare department‘s initial duty of inquiry includes ‘asking the child, parents, legal guardian, Indian custodian,
Under ICWA, the term “extended family member” is “defined by the law or custom of the Indian child‘s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child‘s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.” (
In this case, DCFS failed to comply with its “obligation to make a meaningful effort to . . . interview extended family members to obtain whatever information they may have as to the child‘s possible Indian status.”3 (In re K.R. (2018) 20 Cal.App.5th 701, 709; see also In re Josiah T. (2021) 71 Cal.App.5th 388, 402 [state law requires DCFS to inquire of extended family members whether child may be Indian child]; In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 [same].) When during the proceedings, the children were placed with mother‘s extended family, DCFS did not ask mother‘s relatives about A.C.‘s potential Indian heritage. Father lived with his mother and brother. DCFS did not ask them either about A.C.‘s potential Indian heritage. Yet early on, these relatives were readily available to consult regarding Indian ancestry.
The juvenile court merely relied on mother‘s and father‘s ICWA forms in concluding A.C. is not an Indian child.4 The
ICWA forms themselves state that the form “is not intended to constitute a complete inquiry into Indian heritage“; this case involved no further inquiry. Here, mother was
The dissent effectively catalogues the different standards of prejudice appellate courts have applied. It thoughtfully sets forth the policy reasons why appellant should be required to make an offer of proof of potential Indian ancestry before remanding a case for the purpose of asking extended family members about Indian ancestry. The dissent cites delay in permanency visited upon children in dependency courts whenever a case is remanded for further ICWA inquiry, and the resulting negative impact on juvenile court funding.
The dissent concludes that to obtain a remand for further ICWA inquiry, appellant must, in effect, make a proffer that a relative has information about Indian ancestry. Indeed, the dissent goes further to argue that it should be the obligation of a parent‘s trial counsel to ask parents and extended family members about Indian ancestry with the implication that imposing this obligation on trial counsel would preclude finding prejudice on appeal.
We do not quarrel with the policy arguments the dissent so elegantly elucidates. These arguments are grist for the legislative mill. They, however, do not detract from our high court‘s guidance in In re Isaiah W. underscoring the importance of ICWA‘s goals despite the delay in permanency caused by enforcing ICWA‘s and related state law requirements. (In re Isaiah W. (2016) 1 Cal.5th 1, 12–15.)
Thus, in Isaiah W., the Supreme Court permitted a parent to challenge ICWA compliance in an appeal from an order terminating parental rights even though the parent did not appeal from an earlier dispositional order finding that ICWA did not apply and placing the child in foster care. (In re Isaiah W., supra, 1 Cal.5th at p. 6.) The Supreme Court remanded the matter for further ICWA inquiry notwithstanding the ensuing delay in a permanent home for the child. (Id. at p. 15.)
As our high court observed: “We are mindful of the child‘s need for a permanent and stable home, and we agree that swift and early resolution of ICWA notice issues is ideal. But the federal and state statutes were clearly written to protect the integrity and stability of Indian tribes despite the potential for delay in placing a child. The provisions of the California statute
Unlike in In re S.S. (Feb. 24, 2022, B314043) __ Cal.App.5th __ [2022 WL 556884] and In re Darian R. (Feb. 24, 2022, B314783) __ Cal.App.5th __ [2022 WL 556905], the record reveals readily obtainable information that was likely to bear meaningfully on whether A.C. was an Indian child. As noted above, mother, as a foster care product, may not know her cultural heritage, but her biological relatives may have that information. As also previously noted, although a detention report indicated A.C. may be an Indian child, the record is devoid of any follow-up on that representation. We thus cannot assume that the parents’ mere denial of Indian ancestry on a form was sufficient to dispel prejudice from DCFS‘s failure to ask A.C.‘s extended family members about potential Indian ancestry.
By remanding here today, we do not advocate a wooden approach to prejudice. In In re Darian R., we held that interviewing extended family members would not have shed meaningful light on whether three dependent children were Indian children when “[t]here was a prior juvenile court finding that two of [the] children [sharing the same biologic parents as the child at issue] are not Indian children, the juvenile court asked mother, father, and paternal aunt about Indian ancestry, both parents eschewed Indian ancestry, and mother was living with extended family members whom she could have asked about potential Indian ancestry.” (Supra, __ Cal.App.5th at p. __ [2022 WL 556905 at p. *1].) Similarly, in In re S.S., we found the failure to interview maternal grandmother was not prejudicial where maternal grandmother requested placement of the dependent child in her care but never revealed any Indian ancestry throughout the dependency proceedings, despite having every incentive to do so. (Supra, __ Cal.App.5th at p. __ [2022 WL 556884 at p. *4].)
Put simply, we are tasked with important, but competing legislative mandates. Prejudice must be viewed through this multi-faceted legislative prism. (See Willis v. State of California (1994) 22 Cal.App.4th 287, 293 [“We must follow the language used by the Legislature ‘whatever may be thought of the wisdom, expediency, or policy of the’ ” law.].)
The jurisdiction and disposition orders concerning A.C. are affirmed with instructions. The case is remanded to the trial court to comply with
CERTIFIED FOR PUBLICATION.
BENDIX, J.
I concur:
ROTHSCHILD, P. J.
CRANDALL, J.,* Concurring and Dissenting.
For the better part of two decades appellate courts have wrestled with the “harmless error” doctrine in the context of inquiries by social workers and juvenile courts regarding a dependent child‘s potential Native American status. What to do when such inquiries fall below enumerated statutory standards presents a complex question positing the explicit commands of California dependency laws against the laudable goals of the Indian Child Welfare Act of 1978 (ICWA;
There are powerful arguments on both sides. On the one hand, our state recognizes that a child needs prompt resolution of his or her custody status and a stable environment, and that prolonged temporary placements are damaging. (
As someone who handled a busy dependency calendar for the three and a half years immediately preceding this assignment, it is hard to understate the havoc, expense, and uncertainty caused by these conflicting mandates.2 The
unlikely possibility of Indian heritage such that the agencies functionally end up trying to prove a negative.” (Id. at p. __ (dis. opn. of Baker, J.) [2022 WL 499730 at p. *4].) His assessment is spot on.
Practically speaking, if we must cast the initial ICWA inquiry far and wide to include “extended family members,” and combine it with the ability to raise a failure of the process at any point in the case (including on appeal), then we must, I propose, continue to apply a “harmless error” standard that places some reasonable burden on the appealing party to show prejudice based upon the Department‘s incomplete ICWA inquiry.3 (People v. Watson (1956) 46 Cal.2d 818.)
This case aptly illustrates the problem of presuming prejudicial error.4 Alexander C. (Father) represented to the court via an ICWA-020 Judicial Council form that neither he, his child, his parents, his
grandparents, or his lineal ancestors were members or eligible for membership of a federally-recognized Indian tribe; that neither he nor his child were residents of or
To carry the point one step further, Father has made no claim, either in the juvenile court or on this appeal that, had the juvenile court or the Department continued to ask him or the mother about A.C.‘s Indian status, or made inquiries of A.C.‘s extended family members about A.C.‘s Indian status, they would have discovered information triggering the need for further ICWA inquiry or notice.
There being no information in the record whatsoever that A.C. might indeed be an Indian child, case law (at least until the recent past) fully supported a finding of an absence of prejudice and, commensurately, “harmless error.” (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [“The burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal“]; In re S.B. (2005) 130 Cal.App.4th 1148, 1162 [“any failure to comply with a higher state standard, above and beyond what the [federal] ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error“]; see also People v. Watson, supra, 46 Cal.2d
at p. 836 [“a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error“]; In re J.F. (2019) 39 Cal.App.5th 70, 79 [“The juvenile court‘s orders are ‘presumed to be correct, and it is [the] appellant‘s burden to affirmatively show error’ “].)
The most compelling arguments in favor of the “presumed prejudice” approach are that: (1) knowledge of Indian ancestry is not a matter wholly within an appealing parent‘s knowledge, and the Department‘s failure to conduct an adequate inquiry should not inure to its benefit (Benjamin M., supra, 70 Cal.App.5th at p. 743 [stating parents cannot always easily obtain such information]; In re Y.W. (2021) 70 Cal.App.5th 542, 554 [citing cases acknowledging parents “may not know their possible relationship with or connection to an Indian tribe“]; In re A.C. (2021) 65 Cal.App.5th 1060, 1075 (dis. opn. of Menetrez, J.) [disagreeing that knowledge of any Indian connection is wholly within the appealing parent‘s knowledge]); (2) “it is in part the tribe‘s right to a determination of a child‘s Indian ancestry, but the tribe is not present, and [thus,] the agency[, not the parent,] is charged with obtaining information to make that right meaningful” (In re Benjamin M., supra, at p. 745); and (3) appellate courts are not supposed to consider facts outside the lower court record. (In re A.C., supra, at p. 1077 (dis. opn. of Menetrez, J.) [citing In re Zeth S. (2003) 31 Cal.4th 396, 492 for the proposition that an appellate court should not look to postjudgment evidence to reverse a judgment because doing so undermines ” ‘the state‘s strong interest in the expeditiousness and finality of juvenile dependency proceedings’ “]; see also In re H.V., supra, __ Cal.App.5th at p. __ [2022 WL 499730 at p. *3] [“[The m]other does not have an affirmative duty to make a factual assertion on appeal that she cannot support with citations to the record“].)
Whatever may be said of the Department‘s affirmative duty to investigate, we should also expect parents’ counsel to actively pursue a child‘s Native American status, both in juvenile court and on appeal, by timely inquiring of their own client and contacting any “extended family members” that either they or their client might identify. If these efforts were expected of counsel, the Watson standard likely could be met in situations where the child had a reasonable chance of actual tribal membership. However, in terms of fundamental fairness, it is untenable gamesmanship to allow a parent to stand idly by and then raise a “winning” ICWA issue on appeal merely by pointing out the Department‘s error in not speaking with a single extended family member.
Some have posited that appellate counsel are not paid to conduct investigations of facts outside the record. This questionable assumption could be readily mitigated if parents’ trial counsel actively participated in identifying information relevant to the Indian child inquiry and making it part of the appellate record. After all, juvenile dependency proceedings are special proceedings (In re Chantal S. (1996) 13 Cal.4th 196, 200) for which “[t]he goal of . . . both trial and appellate [courts], is to safeguard the welfare of California‘s children.” (In re Josiah Z. (2005) 36 Cal.4th 664, 673.) Dependency proceedings are collaborative to the extent that counsel for all parties understand that “[t]he best interests of the child are paramount.” (Ibid.; see Cal. Rules of Court, rule 5.660(d)(1) [parties entitled to competent counsel, who have adequate knowledge of “the purposes and goals of dependency proceedings“].) Because “it is in the best interests of the child to retain tribal ties and cultural heritage” (In re Desiree F., supra, 83 Cal.App.4th at p. 469), parents’
Neither should we fret about appellate courts receiving evidence outside the lower court record. This restriction is not absolute. (
We must remain mindful that ICWA‘s laudable purpose is rarely furthered by a remand where (as here) each parent has already affirmed that neither they, their child, their parents, grandparents, or lineal ancestors are or may be a member of an Indian tribe or eligible for membership in an Indian tribe, and no party raised any ICWA concerns in the juvenile court. Further, the ICWA definition of an Indian child is narrow, requiring either that the child or the child‘s biological parent be a member of an Indian tribe (
It also must be plainly stated that the presumption of prejudice (including Benjamin M.‘s “third option” of “sometimes prejudice“), considered in conjunction with the Department‘s extraordinarily broad inquiry duty, provides parents with a last-minute, readily-available delay tactic. In this regard it is sometimes true that the temptation of
a parent, or a parent‘s relative, to invent
Balancing the often-conflicting interests of the child dependency statutory scheme against the ICWA, as well as the costs, and the limited utility of a remand, the better approach is to continue to place a burden on the appealing parent to make an affirmative representation of “a reason to believe” that the child is an Indian child. Without some offer of proof from Father that a “reason to believe” exists, the juvenile court‘s error was harmless, and remand is unwarranted.
Therefore, while I concur with the jurisdiction and disposition orders concerning A.C., I respectfully dissent with respect to the instructions and remand.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.