In re Antonio R.
Andre F.F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
Ashley R. (Mother) appeals from the order terminating her parental rights to four-year-old Antonio R. under
The juvenile court found ICWA did not apply as to either Mother or Father (Antonio V.) based on Mother‘s, Father‘s, and paternal great-grandmother‘s denials of Indian ancestry. However, the Department failed to inquire of maternal grandmother and maternal grandfather, whom the court designated as Antonio‘s prospective adoptive parents, or of other extended maternal relatives who were present in the courtroom during the disрosition hearing, whether Antonio is or may be an Indian child. We agree with Mother that
FACTUAL AND PROCEDURAL BACKGROUND
On August 7, 2018 the Department received a referral alleging caretaker absence, incapacity, and general neglect as to then-one-year-old Antonio. On August 20 the social worker interviewed Mother. Mother stated she and her family do not have any Indian ancestry. On the same day the social worker interviewed the maternal grandmother about the allegations, but the social worker did not inquire whether maternal grandmother knew if Antonio had Indian ancestry or whether other family members may have information on Antonio‘s possible Indian ancestry.
On October 25, 2018 the Department filed a petition on behalf of Antonio pursuant to
On October 26, 2018 Mother filed a parental notification of Indian status form (ICWA-020), on which she checked the box stating, “I have no Indian ancestry as far as I know.”
At the October 26, 2018 detention hearing, the juvenile court found ICWA did not apply as to Mother. Father was not present. The court asked paternal great-grandmother whether Father had any Indian ancestry “that [she is] aware of?” Paternal great-grandmother answered, “No.” The court then stated, “The court does not believe [the Department] has the responsibility to make further inquiries, but the court can make preliminary findings, has little information to believe that this case falls under ICWA as far as Father is concerned.” The court stated in its minute order, “The Court does not have a reason to know that ICWA applies as to Mother. The determination of ICWA status is deferred for [F]ather‘s appearаnce.” The juvenile court removed Antonio from Mother‘s custody and ordered the Department to provide family reunification services.
In its jurisdiction and disposition report, the Department noted Mother had a good relationship with maternal grandfather, with whom she continued to have contact by phone, and Mother provided the Department the telephone number for maternal grandfather. The Department reported that on December 4, 2018 paternal great-grandmother denied having Indian ancestry on her side of the family and on December 5 Mother stated to her knowledge Father had no Indian ancestry.
Father first appeared by telephone at the jurisdiction hearing held on February 15, 2019. Father denied having Indian ancestry. The juvenile court found ICWA did not apply as to either parent. The juvenile court sustained the allegations in the petition and found Antonio was a person described under
On September 24, 2019 the Department filed a subsequent petition under
At the August 16, 2021 selection and implementation hearing (
Mother timely appealed from the order terminating her parental rights.4
DISCUSSION
A. ICWA Inquiry and Notice Requirements
ICWA provides as to dependency proceedings, “[W]here the court knows or has reason to know thаt an Indian child is involved, the party seeking . . . termination of parental rights to . . . an Indian child shall notify the parent or Indian custodian and the Indian child‘s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (
The juvenile court and the Department “have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child.” (
“The duty to inquire begins with initial contact (
“State law also expressly requires the juvenile court to ask participants who appear before the court about the child‘s potential Indian status. (
The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents’ families. (In re Elizabeth M., supra, 19 Cal.App.5th at p. 785; see In re K.R. (2018) 20 Cal.App.5th 701, 706 [“The court and the agency must act upon information received from any source, not just the parent [citations], and the parent‘s failure to object in the juvenile court to deficiencies in the investigation or noticing does not preclude the parent from raising the issue for the first time on appeal . . . .“].)
B. The Juvenile Court Failed To Ensure the Department Complied with ICWA and Related California Law
On appeal, Mother contends the Department should have inquired of maternal grandmother, maternal grandfather, the maternal aunts, and a maternal uncle about Antonio‘s possible Indian ancestry.6 We agree the Department failed to satisfy its initial duty of inquiry under
Antonio‘s extended family members regarding his possible Indian ancestry, and it was error for the Department to fail to do so.
Information relevant to Antonio‘s possible Indian ancestry was readily obtainable from several of his extended family members. The Department interviewed maternal grandmother at the outset of the case on August 20, 2018. The court later placed Antonio with maternal grandmother and grandfather. Additionally, maternal grandmother testified under oath at the August 16, 2021 selection and implementation hearing, and at that hearing the juvenile court designated maternal grandmother and grandfather as the prospective adoptive parents of Antonio. Further, at the June 19, 2019 disposition hearing, the maternal aunts and a maternal uncle were present.
Despite these multiple оpportunities, the Department failed to inquire of any of these maternal extended family members as to Antonio‘s possible Indian ancestry, and the court erred in failing to ensure that the Department satisfied its duty of inquiry and in finding ICWA did not apply absent an adequate inquiry. Although
The Department contends substantial evidence supports the juvenile court‘s finding ICWA did not apply because Mother, Father, and paternal great-grandmother denied Indian ancestry. This position ignores the express obligation that
As the California ICWA Compliance Task Force Report to the California Attorney General‘s Bureau of Children‘s Justice observed in recommending California law be amended to require inquiry of family members beyond the parents, “The parents or Indian сustodian may be fearful to self-identify, and social workers are ill-equipped to overcome that by explaining the rights a parent or Indian custodian has under the law. Parents may even wish to avoid the tribe‘s participation or assumption of jurisdiction.” (Cal. ICWA Compliance Task Force, Rep. to Cal. Atty. Gen.‘s Bur. of Children‘s Justice (2017) p. 28.)
Further, parents may lack knowledge of a child‘s Indian ancestry even where the child‘s extended family members possess strong evidence of the child‘s possible Indian ancestry. (See In re S.R. (2021) 64 Cal.App.5th 303, 314 [“[T]he children‘s parents apparently had no idea of their family‘s connеction to the Yaqui tribe of Arizona, even though the children‘s great-grandmother was a member and still lived with the grandparents in Colorado.“]; In re T.G., supra, 58 Cal.App.5th at p. 289 [“Oral transmission of relevant information from generation to generation and the vagaries of translating from Indian languages to English combine to create the very real possibility that a parent‘s or other relative‘s identification of the family‘s tribal affiliation is not accurate.“].)
Although paternal great-grandmother‘s denial of Indian ancestry provided some confirmation of Father‘s denials, the Department never interviewed any extended family members on the maternal side regarding Antonio‘s possible Indian ancestry. Thus, the record does not support the juvenile court‘s finding that ICWA does not apply given the Department‘s failure to satisfy its initial duty of inquiry as to maternal extended family members, and the court‘s failure to ensure that the Department met its duty. (See In re N.G. (2018) 27 Cal.App.5th 474, 484 [“In the absence of an appellate record affirmatively showing the court‘s and the agency‘s efforts to comply with ICWA‘s inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court‘s finding that proper and adequate ICWA notices were given or that ICWA did not apply.“].)
The Department argues in the alternative that any error in failing to inquire of Antonio‘s extended family members was harmless because “any
We recognize the Courts of Appeal are divided as to whether a parent must make an affirmative showing of prejudice to support reversal where the Department failed fully to perform its initial duty of inquiry. One line of cases requires that in order to demonstrate prejudice, “a parent asserting failure to inquire must show—at a minimum—that, if asked, he or she would, in good faith, have claimed some kind of Indian ancestry.” (In re A.C. (2021) 65 Cal.App.5th 1060, 1069; accord, In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.) We rejected this approach in In re Y.W., supra, 70 Cal.App.5th at page 556, explaining, “It is unreasonable to require a parent to make an affirmative representation of Indian ancestry where the Department‘s failure to conduct an adequate inquiry deprived the parent of the very knowledge needed to make such a clаim.” (Ibid.; accord, In re H.V., supra, ___ Cal.App.5th at p. ___ & fn. 4 [2022 Cal. App. LEXIS 132, at *6] [failure to discharge initial duty of inquiry was prejudicial error because “[m]other does not have an affirmative duty to make a factual assertion on appeal that she cannot support with citations to the record” and the absence of information in the record about the child‘s possible Indian ancestry resulted from the Department‘s failure to discharge its duty of inquiry]; Benjamin M., supra, 70 Cal.App.5th at p. 743 [“Requiring a parent to prove that the missing information would have demonstrated ‘reason to believe’ would effectively impose a duty on that parent to search for evidence that the Legislaturе has imposed on only the agency.“].)
Similarly, in In re Darian R., supra, ___ Cal.App.5th ___ [2022 Cal. App. LEXIS 155, at *11-12], the same court concluded the mother failed to show prejudice from the Department‘s failure to inquire of extended maternal family members where mother lived with those family members during the dependency proceedings and the juvenile court in 2015 dependency proceedings had determined ICWA did not apply to two of the three biological siblings.8 Thus, the Darian R. court concluded, additional interviews of mother‘s father and sister would not have “meaningfully elucidated the children‘s Indian ancestry.” (Id., at p. ___ [2022 Cal. App. LEXIS 155, at *12].)9
We disagree
was harmless because there were “slim” odds the information in the possession of the extended maternal relatives would show Antonio is qualified for membership in an Indian tribe. The Department‘s position would require us to engage in precisely the type of speculation we consider inappropriate.
To conclude otherwise would frustrate the purpose of ICWA and California law. In enacting ICWA, Congress expressly found “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children“; “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions“; and “the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian
We also reject the suggestion by the dissent in In re H.V., supra, ___ Cal.App.5th at page ___ [2022 Cal. App. LEXIS 132, at *9-10] (dis. opn. of Baker, J.) that the Welfare and Institutions Code imposes a “Byzantine scheme of inquiry” and “further inquiry” that burdens the Department such that “the costs swamp the benefits when courts read the statutory sсheme to require child services agencies to undertake exhaustive efforts to run down even the most remote, unlikely possibility of Indian heritage such that the agencies functionally end up trying to prove a negative.” All the Department needed to do was to inquire of the maternal relatives—identified by Mother and later present in the courtroom—whether Antonio is or may be an Indian child. (
Nor can the sakе of efficiency justify applying a relaxed harmless error standard. Indeed, it is the failure of the Department to satisfy its obligations during the dependency proceeding that creates uncertainty and potential delay because a juvenile court judgment is subject to collateral attack based on later-discovered information that a child is an Indian child. (Benjamin M., supra, 70 Cal.App.5th at p. 745; see
DISPOSITION
The August 16, 2021 order terminating Mother‘s and Father‘s parental rights is conditionally affirmed.11 We remand to the juvenile court for the Department and the court to comply with the inquiry and notice provisions of ICWA and California law consistent with this opinion, including inquiring of
California law has reason to believe that Antonio is an Indian child, the court shall vacate the order terminating Mother‘s and Father‘s parental rights and proceed consistent with this opinion and the inquiry and notice provisions of ICWA and California law.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.