In re DEZI C. et al., Persons Coming Under the Juvenile
S275578
IN THE SUPREME COURT OF CALIFORNIA
August 19, 2024
Second Appellate District, Division Two B317935; Los Angeles County Superior Court 19CCJP08030A and 19CCJP08030B
Justice Evans authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, and Jenkins concurred.
Justice Kruger filed a concurring opinion, in which Justice Corrigan concurred.
Justice Groban filed a dissenting opinion, in which Chief Justice Guerrero concurred.
This opinion follows companion case In re Kenneth D., S276649, also filed this date.
In re DEZI C.
S275578
Opinion of the Court by Evans, J.
In 1978, Congress enacted the Indian Child Welfare Act (ICWA;
We are tasked with determining whether a child welfare agency‘s failure to make the statutorily required initial inquiry under California‘s heightened ICWA requirements constitutes reversible error. California courts have reached differing conclusions on this issue, and we granted review to resolve this conflict. ICWA and Cal-ICWA are unique statutory schemes that are intended to protect Native American heritage, cultural connections between tribes and children of Native American ancestry, the best interests of Indian children, and the stability and security of Indian tribes and families. (See In re Isaiah W. (2016) 1 Cal.5th 1, 7–8 (Isaiah W.);
I. FACTUAL AND PROCEDURAL BACKGROUND
Angelica A. (mother) and Luis C. (father) have two children, Dezi C. (born in May 2016) and Joshua C. (born in April 2018). (In re Dezi C. (2022) 79 Cal.App.5th 769, 775 (Dezi C.).) In 2019, the Los Angeles County Department of Children and Family Services (Department)
Mother and father completed Parental Notification of Indian Status (ICWA-020) forms prior to the detention hearing, and each indicated, “I have no Indian ancestry as far as I know.”
The initial detention hearing was held in December 2019. The court asked the parents about the accuracy of the ICWA-020 forms and whether they had Indian heritage. Mother and father denied having Indian heritage, and the court found this was not an ICWA case. The court ordered the parents to provide the Department with the name, address, and any other identifying information of maternal and paternal relatives but did not explain why this information was necessary.
In February 2020, the juvenile court held a combined jurisdictional and dispositional hearing. It sustained the allegations of the petitions, removed Dezi and Joshua from the custody of their parents, and ordered the Department to provide the parents with family reunification services in accordance with the case plans of each parent.
A six-month review hearing was held in August 2020. At that hearing, the juvenile court concluded mother and father were not in compliance with their case plans, terminated reunification services, and set the matter for a permanency planning hearing pursuant to
At the
In investigating the allegations underlying the dependency petitions, Department social workers spoke with paternal grandparents, maternal grandparents, father‘s siblings, mother‘s siblings, and one of father‘s cousins. (Dezi C., supra, 79 Cal.App.5th at p. 776.) It is undisputed that the social workers did not ask any of these individuals whether mother, father, Dezi, or Joshua had Indian ancestry. (Ibid.) This is despite the facts that: mother, father, and the children resided with paternal grandparents before the court asserted jurisdiction over the children and throughout the dependency proceedings, and
Mother appealed the termination of her parental rights. Her sole contention on appeal was that the Department failed to comply with its duty under ICWA and related California provisions to initially inquire of “extended family members” (
The Court of Appeal noted that “California courts have staked out three different rules for assessing whether a defective initial inquiry is harmless.” (Dezi C., supra, 79 Cal.App.5th at p. 777.) It considered and rejected the rules in favor of its own fourth rule. The Court of Appeal held that if an agency‘s inquiry is deficient, that defect “is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA.” (Id. at p. 779, italics added.) It found this rule “best reconciles the competing policies at issue when an ICWA objection is asserted in later at the final phases of the dependency proceedings” (id. at p. 781), while also respecting the California Constitution‘s requirement that a judgment not be set aside “unless it ‘has resulted in a miscarriage of justice.’ ” (Id. at p. 779, citing
We granted review. Since that time, a number of Courts of Appeal have weighed in on the split of authority, and we have granted review and deferred further action in some of those matters until after this case is decided. (In re G.A. (2022) 81 Cal.App.5th 355, review granted and held Oct. 12, 2022 [following Dezi C. rule and concluding error was harmless]; In re M.M. (2022) 81 Cal.App.5th 61, review granted and held Oct. 12, 2022 [declining to adopt “reversal per se” approach and finding error harmless under all other standards]; In re An. L. (Dec. 8, 2022, B315986) [nonpub. opn.], review granted and held Mar. 22, 2023; In re Athena R. (Dec. 13, 2022, B318751) [nonpub. opn.], review granted and held Mar. 22, 2023; In re D.D. (Dec. 8, 2022,
II. DISCUSSION
The sole question presented in this case is a narrow one: whether a child welfare agency‘s failure to make a proper inquiry under California‘s heightened ICWA requirements constitutes reversible error. This is a question of law that we consider de novo. (Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 652.)
A. Governing Law/ICWA
1. Background of ICWA
Congress enacted ICWA in 1978 in response to “rising concern in the mid–1970‘s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” (Mississippi Choctaw Indians Band v. Holyfield (1989) 490 U.S. 30, 32 (Holyfield); see also
Based on these findings, in enacting ICWA, Congress declared “that it is the policy of this Nation to protect the best interests of Indian children and to
ICWA establishes minimum standards fоr state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes and does not prohibit states from establishing higher standards. (
ICWA gives “Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation.” (W.B., supra, 55 Cal.4th at p. 48.) The tribe also has the power to petition the court to invalidate any action taken in a custody proceeding if the action violated ICWA. (
2. Relevant Provisions of ICWA
The issue of whether ICWA applies in dependency proceedings turns on whether the minor is an Indian child. An “Indian child” is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (
In 2016, new federal regulations were adopted addressing ICWA compliance. (See ICWA Proceedings, 81 Fed.Reg., supra, at p. 38864 [revising
B. California‘s Implementation of ICWA (Cal-ICWA)
1. Background of Cal-ICWA
California struggled to comply with ICWA after its passing. California Indian Legal Services (CILS),4 one of the sponsors of the bill that became Cal-ICWA, expressed concern that “state courts and county agencies in California continue to violate not only the spirit and intent of ICWA, but also its express provisions.” (Sen. Judiciary Cоm., Analysis of Sen. Bill No. 678 (2005–2006 Reg. Sess.) as amended Aug. 22, 2005, p. 6; see also id. at p. 7 [CILS noting a “myriad of appellate court decisions involving ICWA” to support contention that “social workers, courts and other parties still have difficulty complying with ICWA‘s requirements“].) Of particular concern was that tribes were unable “to participate in child custody proceedings because they fail to be properly notified of the proceedings.” (Id. at p. 6.)
In 2006, the California Legislature passed Senate Bill No. 678 (2005–2006 Reg. Sess.), which “enacted provisions that affirm ICWA‘s purposes (
ICWA led the Legislature in 2006 to ‘incorporate[] ICWA‘s requirements into California statutory law’ “].)
2. Cal-ICWA‘s Provisions Relating to the Duty of Inquiry
After the federal ICWA regulations were adopted in 2016, California made conforming amendments to Cal-ICWA, including portions of the Welfare and Institutions Code related to ICWA inquiry and notice requirements. (Assem. Bill No. 3176 (2017-2018 Reg. Sess.); Stats. 2018, ch. 833, §§ 4–7; In re A.W. (2019) 38 Cal.App.5th 655, 662, fn. 3.) Among other things, Assembly Bill No. 3176 “revise[d] the specific steps a social worker, probation officer, or court is required to take in making an inquiry of a child‘s possible status as an Indian child.” (Legis. Counsel‘s Dig., Assem. Bill No. 3176 (2017–2018 Reg. Sess.) p. 1; Stats. 2018, ch. 833.) As a result of this amendment, ” ‘agencies now have a broader duty of inquiry and a duty of documentation.’ ” (In re Jerry R. (2023) 95 Cal.App.5th 388, 411;
Section 224.2 codifies and expands on ICWA‘s duty of inquiry to determine whether a child is an Indian child.6 Agencies and juvenile courts have “an affirmative and continuing duty” in every dependency proceeding to determine whether ICWA applies by inquiring whether a child is or may be
Section 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, the duty to inquire “includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child.”7 (See also
While this duty of inquiry is sometimes referred to as the initial duty of inquiry, this is a bit of a misnomer, as the duty “continues throughout the dependency proceedings.” (In re J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.); see also In re K.H. (2022) 84 Cal.App.5th 566, p. 597, fn. 10 (K.H.) [“[c]ourts have recognized it is somewhat inaccurate to refer to the agency‘s ’ ” ‘initial duty of inquiry’ ” ’ “].)
When the agency has “reason to believe” that an Indian child is involved, further inquiry regarding the possible Indian status of the child is required. (
The sharing of information with tribes at this inquiry stage is distinct from formal ICWA notice, which requires a “reason to know” — rather than a “reason to believe” — that the child is an Indian child. Unlike the term “reason to believe,” a “reason to know” exists under any of the following circumstances: “(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child‘s extended family informs the court that the child is an Indian child[;] [¶] (2) The residence or domicile of the child, the child‘s parents, or Indian custodian is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child who is the subject of the proceeding gives the court reason to know [he or she] is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[; and] [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe.” (
If the inquiry establishes a reason to know an Indian child is involved, notice must be provided to the pertinent tribes. (
The juvenile court‘s factual finding that ICWA does not apply is “subject to reversal based on sufficiency of the evidence.” (
C. The Conflict in the Courts of Appeal Regarding the Standard for Prejudice
Against this legal backdrop, California courts have confronted the standard for whether an error in conducting the Cal-ICWA inquiry is prejudicial. Five rules have developed with respect to this issue. At the strictest end of the conceptual spectrum for assessing prejudicial error is the presumptive affirmance rule. Under this rule, error in the initial Cal-ICWA inquiry is harmless unless a parent can demonstrate on aрpeal that further inquiry would lead to a different outcome. (See, e.g., In re A.C. (2021) 65 Cal.App.5th 1060, 1069 [” ‘Where the record below fails to demonstrate and the parents have made no offer of proof or other affirmative assertion of Indian heritage on appeal, a miscarriage of justice has not been established and reversal is not required’ “].)
Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.) held that a defect in the Cal-ICWA inquiry is harmless unless “the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.”
Subsequently, the Court of Appeal below laid out the ” ‘reason to believe’ rule.” (Dezi C., supra, 79 Cal.App.5th at p. 779.) Under this rule, “an agency‘s failure to conduct a proper initial inquiry into a dependent child‘s American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court‘s ICWA finding.” (Ibid.)
Last, the K.H. court concluded prejudice must be assessed from the context of the injury involved, which is the “failure to gather and record the very information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required, and whether ICWA does or does not apply.” (K.H., supra, 84 Cal.App.5th at p. 591.) It noted this injury was not tied to any outcome on the merits and was therefore not amenable to the standard Watson likelihood-of-success test to assess prejudice. (Id. at p. 609.) It also held that “where the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost because there has not been adequate inquiry and due diligence, reversal for correction is generally the only effective safeguard.” (Id. at p. 610.)
D. The Parties’ Positions
Mother argues that we should adopt a reversal per se rule. She maintains an inadequate Cal-ICWA inquiry denies tribes the constitutional due process
Mother alternatively argues that if we do not adopt a per se reversal standard for prejudice, we should adopt the Benjamin M. rule, as elaborated by K.H. Mother notes both cases focus on the adequacy of the investigation and what an adequate inquiry might have revealed, and both reject Watson‘s outcome-focused approach to assessing prejudice. In mother‘s view, “this test would require reversal in every case in which either (1) known, available relatives were not asked about possible Indian ancestry or (2) the parents were not asked if there were any such relatives who could be asked.”
The Department disagrees that a per se reversal rule or the Benjamin M. rule should apply. It advocates for the reason-to-believe rule laid out by the Court of Appeal below. It argues that the reason-to-believe rule is consistent with the California Constitution‘s requirement that a judgment not be set aside unless it results in a miscarriage of justice by affecting the outcome of the case. In its view, an inadequate ICWA inquiry is harmless unless there is a reason to believe a different ICWA finding would have been made had a proper inquiry been conducted. The Department also emphasizes the need for finality in dependency proceedings and argues that the reason-to-believe rule avoids unnecessary delays in achieving permanency for children.
outcome on the juvenile court‘s ICWA finding, and that this rule best reconciles competing policy considerations at play when ICWA inquiry error is asserted late in the proceedings.
E. The Failure to Conduct an Adequate Inquiry Requires Conditional Reversal and Remand with Directions To Comply with Cal-ICWA
We hold that error resulting in an inadequate initial Cal-ICWA inquiry requires conditional reversal with directions for the child welfare agency to comply with the inquiry requirement of
In this case, the sole infirmity in the judgment is the failure to conduct an adequate Cal-ICWA inquiry, which renders it impossible to review for prejudice the trial court‘s implied finding that ICWA does not apply. There is no indication of any error in the dependency proceedings that would justify the outright reversal of the judgment terminating parental rights. Thus, full reversal of the
Upon a conditional reversal, the Department will make additional inquiry and documentation efforts consistent with its duties and the court shall hold a hearing thereafter to determine whether, in light of the outcome of the inquiry as documented, ICWA applies. If the juvenile court determines the inquiry is proper, adequate, and duly diligent and concludes that ICWA does not apply, any inquiry error is сured, and the judgment would be
We reach this conclusion for several reasons. First, ICWA and Cal-ICWA ” ’ “recognize[] that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents” ’ ” and other relatives. (Isaiah W., supra, 1 Cal.5th at p. 9; see also A.R., supra, 77 Cal.App.5th at p. 204 [“As these [statutes] make clear, the primary parties protected under ICWA are the Native American tribes, whose right to intervene in an appropriate case will likely never be discovered absent the statutorily required inquiry and notice procedures“].) That interest is compromised and cannot be protected if the social service agency and the juvenile court fail to perform their inquiry duties. (See G.H., supra, 84 Cal.App.5th at p. 31first uncovered and established, and thus no way of protecting their tribal interests unless child welfare agencies comply with ICWA and then notify the appropriate tribe when the inquiry reveals Native American ancestry.” (A.R., supra, 77 Cal.App.5th at pp. 201–202, italics added.) Thus, in the context of juvenile dependency appeals raising deficiencies in the ICWA inquiry, an appealing parent “is in effect acting as a surrogate for the tribe in raising compliance issues . . . .” (K.R., supra, 20 Cal.App.5th at p. 708.) This is not a conventional scenario in which the harm from error directly and solely affects the appealing party. Conditional reversal to allow inquiry error to be cured best supports the interests of tribes, which are independently protected by ICWA.
Second, this approach best comports with the plain language of the inquiry requirements of
Third, “ensuring a proper, adequate, and duly diligent inquiry at the initial stage of the compliance process is foundational to fulfilling the purpose underlying ICWA and related California law.” (K.H., supra, 84 Cal.App.5th at p. 590.) ICWA was enacted to protect tribal integrity and sovereignty in its membership determinations, which is “central to its existence as an independent political community.” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) “Tribal membership criteria, classifications of membership, and interpretation of membership laws are unique to each tribe and vary across tribal nations.” (In re Dependency of Z.J.G. (2020) 196 Wn.2d 152, 176.) Accordingly, only a tribe can determine whether a child is a member of, or eligible for membership in, that tribe (
While the right to determine a child‘s Indian ancestry belongs to the tribe, at the initial inquiry stage of proceedings, “the tribe is not present, and the agency is charged with obtaining information to make that right meaningful.” (Benjamin M., supra, 70 Cal.App.5th at p. 745, italics added.) When an ICWA inquiry is inadequate, a child‘s potential Indian ancestry is missed, and tribes are prevented from making the final determination that the child is an Indian child. Conditionally reversing to conduct an adequate Cal-ICWA inquiry ensures tribes’ important sovereign right to determine whether the child is a member of, or eligible for membership in, the tribe.
Amici curiae CILS and California Tribal Families Coalition (CTFC) note that as a result of forced assimilation policies, “younger generations lack[] knowledge of their Native American ancestry which may only be reclaimed by conducting [a] proper ICWA inquiry with extended family members and others more knowledgeable.” (Accord, ICWA Proceedings, 81 Fed.Reg., supra, at p. 38780.) Recognizing that parents may not be the best source of information about a child‘s Indian ancestry, the Legislature expressly mandated that, from the outset, child protective agencies expand their investigation of a child‘s possible Indian status beyond the child‘s parents. (
Fourth, our holding is supported by the 2016 implementing regulations of ICWA, which promote “compliance with ICWA from the earliest stages of a child-welfare proceeding.” (ICWA Proceedings, 81 Fed.Reg., supra, at p. 38779.) The regulations emphasize “[i]t is . . . critically important that there be an inquiry into that threshold issue [of whether a child is an Indian child] as soon as possible. If this inquiry is not timely, a child-custody proceeding may not comply with ICWA and thus may deny [ICWA] protections to Indian children and their families. The failure to timely determine if ICWA applies also can generate unnecessary delays, as the court and the parties may need to redo certain processes or findings under the correct standard. This is inefficient for courts and parties, and can create delays and instability in placements for the Indian child.” (
The Court of Appeal expressed concern that reversing whenever an inquiry does not satisfy the requirements of
If, upon review, a juvenile court‘s findings that an inquiry was adequate and proper and ICWA does not apply are found to be supported by sufficient evidence and record documentation as required by California law (
Here, for example, the Department‘s inquiry extended no further than mother and father, both of whom have longstanding issues with substance use disorder, even though their parents, siblings, and father‘s cousin were readily available and had been interviewed by the Department regarding the allegations of the dependency petitions. The Department‘s inquiry falls well short of complying with
According to our dissenting colleagues, we should overcome the inadequate record and assess the juvenile court‘s implied ICWA finding for prejudice by requiring the appealing parent to make a proffer to the Court of Appeal of extra-record evidence tending to show the child is Indian. Contrary to Cal-ICWA, this would improperly shift the burden of proof to the parents and improperly substitute the reviewing court‘s “judgment for that of the juvenile court, which is to make those findings in the first instance.” (Kenneth D., supra, ___ Cal.5th at p. ___ [p. 15].)
In the
Moreover, we have never suggested that when a record is insufficient to ascertain whether error is harmless, we should require an appellant to present new, extra-record evidence pursuant to
Juvenile dependency proceedings “involve the well-being of children, [so] considerations such as permanency and stability are of paramount importance. (
Furthermore, it bears emphasis that “the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.) Agencies are already tasked with investigating the circumstances underlying the child‘s removаl and identifying and locating the child‘s extended family members (
“[A]bsent a reasonable inquiry at the outset, the opportunity to gather information relevant to the inquiry is often missed entirely.” (K.H., supra, 84 Cal.App.5th at p. 615.)
It is also true that any finding the trial court makes after remand will be appealable by the parents. As we have noted, however, the juvenile court‘s finding regarding the adequacy of the inquiry and ICWA‘s applicability is subject to a deferential standard of review. Further, child welfare agencies can avoid repeated remands by conducting an adequate inquiry as soon as possible and continuing to abide by their statutory inquiry obligations throughout dependency proceedings. Moreover, while a parent will have a right to appeal from any juvenile court order updating its ICWA findings following conditional reversal, that order will not be stayed pending appeal. (
The Department argues that a clear rule of reversal should be rejected because the Legislature did not require automatic Cal-ICWA appeals and did not designate tribes as real parties in interest to dependency proceedings. The fact that the Legislature has not designated specific procedural paths to ensure Cal-ICWA compliance does not mean that compliance with Cal-ICWA can be sidestepped or is unimportant. Without an adequate inquiry, tribes will not know whether a child is an Indian child and will not receive notice or have standing to intervene in dependency cases.
F. The Department Fails To Persuade that the Reason-to-Believe Rule Should Apply When Cal-ICWA Inquiries Are Inadequate
As we have noted, the Department argues the reason-to-believe rule announced by the Court of Appeal should be adopted because it is consistent with the California Constitution‘s requirement that a judgment not be set aside unless it results in a miscarriage of justice by affecting the outcome (in this case, the juvenile court‘s ICWA finding). The dissent also favors the reason-to-believe rule. The Department maintains this rule best reconciles competing policy considerations at play when Cal-ICWA compliance issues are asserted late in the proceedings, including: (1) the interests of dependent children in permanency, (2) the interest in effectuating the rights of Indian tribes by ensuring a determination of whether a child may be an Indian child, (3) the judicial branch‘s interest in ensuring that the agency gets the message that a proper initial inquiry is critical, and (4) the judicial branch‘s interest in discouraging parents from engaging in gamesmanship and delaying objections to the adequacy of an inquiry until parental rights have been terminated.
We reject the reason-to-believe rule as flawed. By placing the burden on parents to point to something in the record suggesting there is a reason to believe a child might be an “Indian child,” the rule еffectively shifts the obligation to conduct the inquiry away from child welfare agencies and courts to the parents. (See Benjamin M., supra, 70 Cal.App.5th at p. 743; see also In re V.C. (2023) 95 Cal.App.5th 251, 261 [rejecting reason-to-believe rule because it “shifts the duty of developing information on Indian ancestry from the agency to the parents“].) This contravenes the Legislature‘s intent which, as evinced by
The dissent contends that shifting the burden to the parents is appropriate under Watson. (Dis. opn. of Groban, J., post, at pp. 10–11.) The dissent not only ignores that we cannot ascertain whether the error is harmless when an initial Cal-ICWA inquiry is inadequate (see ante, at pp. 20–22 & fn. 11), but also that the Legislature charged child welfare agencies with the obligation to conduct an adequate inquiry. It argues that Cal-ICWA contemplates parents will participate in the determination that a
In addition, the reason-to-believe rule assumes parents are capable of protecting tribal rights (i.e., that they have sufficient knowledge of their Indian heritage to demonstrate a reason to believe the child might be an Indian child) and are interested in doing so. The Legislature has not embraced this assumption, however, which “overlooks recent findings on the impact this country‘s decades-long efforts to destroy Indian families and eradicate Indian history and culture, including through abuses of the child welfare system, may have on a family‘s awareness of its Indian ancestry.” (In re Rylei S. (2022) 81 Cal.App.5th 309, 321–322 (Rylei S.); see also ICWA Proceedings, 81 Fed.Reg., supra, at p. 38780.)
Indeed, there are a number of reasons why parents would not be knowledgeable of, or be uninterested in disclosing, their Indian heritage. The “[o]ral 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.” (T.G., supra, 58 Cal.App.5th at p. 289.) Further, as amici curiae CILS and CTFC observe, “generations who lived through trauma at the hands of state actors pass a lack of self-identification as Native American to younger generations, leaving only the older family members or extended family members with knowledge of” Indian ancestry. (See also ICWA Proceedings, 81 Fed.Reg., supra, at p. 38780.) Parents may simply be estranged from, or have an unfavorable relationship with, extended family. (See, e.g., G.H., supra, 84 Cal.App.5th at pp. 30–31.)
“[W]e also cannot assume a parent‘s interest necessarily aligns with the tribe‘s interest.” (K.H., supra, 84 Cal.App.5th at p. 613.) ” ‘The parents or Indian custodian 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.’ ” (Rylei S., supra, 81 Cal.App.5th at p. 322.) This is unsurprising. “Native communities have endured a legacy of trauma at the hands of State actors who enacted forced removal and assimilation of their children; therefore, Native families are much more likely to harbor a
In addition, by requiring parents to demonstrate in the record that there is a reason to believe the child is an Indian child, the reason-to-believe rule “potentially make[s] enforcement of the tribes’ rights dependent on the quality of the parents’ effort on appeal.” (A.R., supra, 77 Cal.App.5th at p. 207.) This is not what the statutory scheme contemplates. As we have seen, Cal-ICWA does not require parents to inquire about the child‘s Indian ancestry. When a child welfare agency fails to conduct an adequate inquiry, the record of the inquiry is necessarily inadequate. That deficiency may hinder a parent from supporting a claim that a reason to believe Indian ancestry exists. In any event, the duty of inquiry belongs to the agency and may not be shifted to the parent.
The Department and the Court of Appeal maintain that a rule limiting remand to cases in which there is a reason to believe a child is an Indian child “effectuates the rights of the tribes in those instances in which those rights are most likely at risk, which are precisely the cases in which the tribe‘s potential rights do justify placing the children in a further period of limbo.” (Dezi C., supra, 79 Cal.App.5th at p. 782.) They also take the position that “by focusing on what is in the record rather than what is not in the record, [the reason-to-believe rule] largely sidesteps the ‘how can we know what we don‘t know’ and burden of proof conundrums that animate the automatic reversal and presumptive affirmance rules.” (Ibid.)
The Court of Appeal and the Department make much of the fact that mother failed to raise ICWA and Cal-ICWA compliance issues below and denied Indian ancestry. They emphasize that the reason-to-believe rule will encourage parents to raise objections to ICWA inquiry issues earlier and discourage gamesmanship. It is unclear what a parent stands to gain by purposely withholding information regarding a child‘s potential Indian ancestry, or intentionally withholding an objection to an inadequate ICWA inquiry, only to raise the information or objection for the first time on appeal. Neither the Court of Appeal nor the Department identify any benefit a parent would receive from appellate delay for ICWA compliance purposes only, and generally a child‘s placement may not be disturbed during appeal.16 (See In re Caden C. (2021) 11 Cal.5th 614, 630.)
To
Further, there is little indication that the unlikely concern of gamesmanship outweighs, or is on equal footing with, the critical importance of ensuring an adequate and proper inquiry. “Until the inquiry is conducted, and the issue is put to rest, the interests of the Native American tribes have not been adequately protected, and the judgment in this case would remain vulnerable to a potential collateral attack.” (A.R., supra, 77 Cal.App.5th at p. 202.) As we held in Isaiah W., a parent may “challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if [they] did not raise such a challenge in an appeal from the initial order.” (Isaiah W., supra, 1 Cal.5th at p. 6.) We justified this conclusion in part because ICWA permits its notice requirements to “be enforced after the issuance of an order terminating parental rights.” (Id. at p. 13; see also
Ultimately, the reason-to-believe rule discourages full compliance with Cal-ICWA, does not fully acknowledge the history or realities of many current-day tribal communities, and would risk undermining the legislative intent behind section 224.2.17 An adequate initial inquiry ensures that Indian children are identified and ICWA and Cal-ICWA are applied even if tribes do not intervene in the proceedings.
For all these reasons, we reject the reason-to-believe rule. Placing the burden on an appealing parent to demonstrate in the record on appeal a reason to believe the child is an Indian child when the record‘s deficiency is due to the child welfare agency‘s inadequate inquiry undermines the statutory scheme and weakens a tribe‘s ability to discover and ultimately assert its interest in its children.
Last, we explain why we find the presumptive affirmance rule and the rule laid out in Benjamin M. unpersuasive. The presumptive affirmance rule “has been sharply criticized.” (K.H., supra, 84 Cal.App.5th at p. 612.) First, the rule contravenes our holding in Kenneth D. that absent exceptional circumstances, a reviewing court should not make factual findings and consider new evidence on appeal to conclude the initial inquiry error was harmless. (Kenneth D., supra, ___ Cal.5th at pp. ___, ___ [pp. 1, 18].) The rule also “require[s] a parent to make an affirmative representation of Indian ancestry where the [agency‘s] failure to conduct аn adequate inquiry deprived the parent of the very knowledge needed to make such a claim.” (Y.W., supra, 70 Cal.App.5th at p. 556.) As the Court of Appeal below reasoned in rejecting the rule: “By placing the onus solely on the parent to come forward with a proffer of information likely to be obtained on remand, the presumptive affirmance rule not only embraces finality at the expense of the tribe‘s interest
As we have seen, the rule adopted by the Benjamin M. court requires a court to “reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744K.H., supra, 84 Cal.App.5th at p. 617.) As a result, this rule is malleable enough to result in inconsistent outcomes. (Dezi C., supra, 79 Cal.App.5th at p. 786 [uncertainty and breadth of rule means reviewing courts will debate whether information is readily obtainable]; see also In re D.B. (2022) 87 Cal.App.5th 239, 247 [criticizing how the court in In re Y.M. (2022) 82 Cal.App.5th 901, 917–918 applied the Benjamin M. rule]; Antonio R., supra, 76 Cal.App.5th at p. 435 [disagreeing with how Benjamin M. rule was applied in In re S.S. (2022) 75 Cal.App.5th 575 & In re Darian R. (2022) 75 Cal.App.5th 502].)
Moreover, the Benjamin M. test collapses the analysis of whether an inquiry is adequate into the question of whether an inadequate inquiry is harmless. If a child welfare agency fails to obtain meaningful information or pursue meaningful avenues of inquiry — by, for example, failing to discover that a parent was adopted, or failing to inquire further after a parent identified an extended family member with more information about the child‘s potential Indian ancestry — those facts would be relevant to whether the initial Cal-ICWA inquiry is adequate, not whether the inquiry is prejudicial. The conditional reversal rule we adopt today clearly distinguishes between the separate issues of whether an inquiry is adequate and whether inquiry error is harmless.
G. Conclusion
It bears observing that “[t]he required inquiry here could have been conducted in significantly less time than it took to defend this appeal.” ( A.R., supra, 77 Cal.App.5th at p. 202§ 224; 25 U.S.C. § 1902.) We hold our child welfare agencies and courts to these commitments. We do so by requiring a judgment to be conditionally reversed when error results in an inadequate Cal- ICWA inquiry. It is only by conditionally reversing that we can ascertain whether error in the inquiry is prejudicial.18
III. DISPOSITION
The Court of Appeal‘s judgment is reversed with directions to conditionally reverse the order terminating parental rights. The matter is remanded to the juvenile court for compliance with the inquiry and notice requirements of sections 224.2 and 224.3 and the documentation provisions of rule 5.481(a)(5), consistent with this opinion. If the juvenile court thereafter finds a proper and adequate further inquiry and due diligence has been conducted and concludes ICWA does not apply (
EVANS, J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
In re DEZI C.
S275578
Concurring Opinion by Justice Kruger
California law implementing the federal Indian Child Welfare Act of 1978 (ICWA;
This case raises an important question concerning Cal-ICWA‘s initial inquiry requirement. But because the parties have conceded for purposes of
I join the majority in concluding that this rule of conditional reversal follows from the statutory scheme the Legislature set forth in Welfare and Institutions Code section 224.2. I write separately, however, to express my agreement with part II of the dissenting opinion on the threshold question of what constitutes an adequate initial inquiry under Cal-ICWA. Although this question is not squarely presented here, I think it is important to be clear on certain points for purposes of deciding the issue that is currently before us. Specifically, Cal-ICWA does not, as some have assumed, require the juvenile court to leave no stone unturned in an ” ‘open-ended universe of stones,’ ” thereby creating ever-widening circles of mandatory inquiry. (Dis. opn. of Groban, J., post, at p. 23; accord, maj. opn., ante, at pp. 26–27.) Rather, fairly read, the statute requires an initial inquiry that is adequate to reach a reliable conclusion about the applicability of ICWA. This explains why the rule of conditional reversal the majority adopts today will not, as the Court of Appeal had feared, lead to endless rounds of remands for additional inquiry with little or no chance of yielding pertinent information. With this understanding in mind, I agree with my colleagues that the rule the majority announces today makes sense of the Legislature‘s careful efforts to balance the vital interests at stake in this case and others like it. (Maj. opn., ante, at p. 31; accord, dis. opn. of Groban, J., post, at pp. 25–26.)
KRUGER, J.
I Concur:
CORRIGAN, J.
In re DEZI C.
S275578
Dissenting Opinion by Justice Groban
Prompt and permanent placement of a child in dependency proceedings is critically important. (In re Christopher L. (2022) 12 Cal.5th 1063, 1081–1082 (Christopher L.).) The statutory scheme makes clear that courts must “give substantial weight to a minor‘s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (
I agree with the majority that the Indian Child Welfare Act of 1978 (ICWA;
I also write to highlight that the majority does not foreclose — and indeed quite rightly expressly leaves room for — an alternate route that gives appellate courts greater flexibility going forward. Even though the majority, wrongly in my view, adopts a rule requiring automatic conditional reversal when there is error in conducting a Cal-ICWA inquiry, this does not prevent appellate courts from giving substantial deference to a juvenile court‘s finding that the inquiry was, in fact, adequate. Though my colleagues deprive appellate courts from taking a commonsense approach where there was a failure to comply with Cal-ICWA at the trial level, appellate courts can still
I. Standard of Prejudice for Cal-ICWA Error
The parties agree that the juvenile court complied with federal ICWA, but not Cal-ICWA. Though the majority largely ignores this distinction, the difference is crucial. Under federal ICWA, the court must ask both participants (i.e., the parents) at the commencement of proceedings “whether the participant knows or has reason to know that the child is an Indian child.” (
The requirements of Cal-ICWA, however, impose additional duties of inquiry on a child welfare department, which “includes, but is not limited to,” not just asking the parents about Indian ancestry, but also asking the child, the “legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.” (
Where there has been a violation of state law, the standard of review has been well established for almost 70 years: Under People v. Watson (1956) 46 Cal.2d 818 (Watson), reversal is appropriate only where the petitioner can show that “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Id. at p. 836.) As we explained in Watson, this standard is
I would not so lightly dispense with our precedent or our Constitution. Instead, I would apply Watson in this case by adopting the Court of Appeal‘s “reason to believe” standard. (See Dezi C., supra, 79 Cal.App.5th at p. 779.) Under the “reason to believe” standard, “an agency‘s failure to conduct a proper initial inquiry into a dependent child‘s Americаn Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court‘s ICWA finding. For this purpose, the ‘record’ includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal.” (Ibid.) This standard appropriately balances the interests of the child in avoiding delay and instability in permanent placement while at the same time requiring reversal if a threshold showing can be made that further ICWA or Cal-ICWA inquiry would be useful. But it avoids condemning children to further delay and instability in cases where there is zero evidence that the child is Indian. “By limiting a remand for further inquiry to those cases in which the record gives the reviewing court a reason to believe that the remand may undermine the juvenile court‘s ICWA finding, the ‘reason to believe’ rule effectuates the rights of the tribes in those instances in which those rights are most likely at risk, which are precisely the cases in which the tribe‘s potential rights do justify placing the children in a further period of limbo.” (Dezi C., at pp. 781–782.)
The majority asserts that it is not holding that an inadequate inquiry is structural error, but rather that the record is insufficient when the inquiry is inadequate to determine whether the error is harmless under Watson. (Maj. opn., ante, at p. 22, fn. 11.) Though I agree with the majority that “the juvenile court‘s fact-specific determination that an inquiry is adequate, proper,
The majority also argues that it is “impossible to review for prejudice the trial court‘s implied finding that ICWA does not apply.” (Maj. opn., ante, at p. 21.) However, here and in In re Kenneth D. (August 19, 2024, S276649) ___ Cal.5th ___ (Kenneth D.), the majority also rightly acknowledges that Code of Civil Procedure section 909 allows for the submission of postjudgment evidence in exceptional circumstances. (See Kenneth D., at p. ___ [p. 22].) This situation clearly fits the bill: where a delay of even a few months “can be a lifetime to a young child” (Marilyn H., supra, 5 Cal.4th at p. 310), then it is appropriate to ask parents to come forward with at least some information showing that there would be a reason to justify further delay. This requirement need not be onerous — if a parent can proffer any document, or any declaration, tending to show that the child might be Indian, then this would likely be sufficient to require reversal so that further inquiry can be made. But this is the very common sense and practical solution that my colleagues in the majority refuse to embrace. If we are going to delay permanent placement for a child who has already been through an unimaginable trauma — the loss of one or both of his parents as permanent caregivers — we should make sure that there is at least a glimmer of hope that such delay might be beneficial. Imagine a situation on appeal, like this one, where the parents have already submitted signed ICWA forms indicating that they have no Indian ancestry and confirmed as much to the juvenile court. And imagine a situation, like here, where the parents have not adduced one iota of evidence on appeal that they or their children are members of, or eligible for membership in, a federally recognized Indian tribe. Now assume that, after the juvenile court order was final, the Department spoke to all the people required under Cal-ICWA and presented declarations on appeal in which each of these persons stated the child had no Indian ancestry. Would the majority still require reversal? I fear the answer is “yes.”
The majority worries that if the interpretation advocated for here were adopted “the exception would swallow the rule we have laid out in Kenneth D. that reviewing courts may not generally consider previously unadmitted evidence for the first time on appeal to conclude initial ICWA inquiry error is
The majority offers a variety of other reasons for requiring automatic conditional reversal, stating that “Cal-ICWA ‘broadly imposes on social services agencies and juvenile courts (but not parents) an “affirmative and continuing duty to inquire” ’ ” (maj. opn., ante, at p. 23, original italics); “ICWA was enacted to protect tribal integrity and sovereignty” (id. at p. 24); adequate initial inquiry “maximizes the chances that potential Indian children are discovered and tribes are notified” (id. at p. 26); and that the ICWA implementing regulations state that early inquiry is ” ‘critically important’ ” (ibid.). These arguments redound to: “Because we think Cal-ICWA is a very important piece of legislation, and because we think a state actor failed in its duty to follow the law, we are going to require automatic conditional reversal when the statute is violated.” But until today, it had been our longstanding practice to inquire, in accordance with our state Constitution (
In every Watson case, an important interest is at stake (see cases below involving the rights of a criminal defendant to admit evidence at trial; cases
For illustration, in instructional error cases like Breverman, this means that we determine what we think the jury would have concluded had it possessed information that was never imparted to it. In cases like Gutierrez, we applied Watson, even though the jury never heard evidence in the defendant‘s favor that it should have. Moreover, though this arises in a different context, courts routinely apply a prejudice analysis when an attorney has failed to notify a client of immigration consequences resulting from the plea. (People v. Vivar (2021) 11 Cal.5th 510, 529 (Vivar).) We do not find the error to be structural, but instead require the defendant to affirmatively come forward with evidence that the plea would be different. (Ibid.) Similarly, though again arising in a different context, we routinely apply a prejudice analysis when foreign nationals are not informed, pursuant to the Vienna Convention, of their right to consular notification within two hours of arrest, booking, or detention. (People v. Vargas (2020) 9 Cal.5th 793, 832 (Vargas).)
While the majority asserts that the “reason to believe” rule is flawed because it “effectively shifts the obligation to conduct the inquiry away
(maj. opn., ante, at p. 35), this is how Watson works: even in the face of a blatant and admitted error by a state actor that violated the party‘s rights, the party still must show that the error made a difference in the outcome. And, in many of these cases requiring a showing of prejudicial error, the party relies on evidence in the record or actually attempts to come forward with new evidence to show prejudice. (See Vivar, supra, 11 Cal.5th at p. 530 [“In a declaration submitted with his
I suppose we could have quite easily concluded in countless of these cases that automatic reversal was required because the statute that was violated ” ‘broadly imposes’ ” a duty on the state actor (maj. opn., ante, at p. 23); we could have highlighted that the burden to act was imposed on the state and not upon the party (ibid.); we could have noted that requiring compliance with the statute that was violated is ” ‘foundational to fulfilling [its] purpose’ ” (id. at p. 24); and we could have cited to implementing regulations that stated that compliance with the statute is ” ‘critically important’ ” (id. at p. 26). But that is not what our Constitution requires. (See
The majority attempts to distinguish these cases that require a showing of prejudice by noting that “[n]one of the cases cited in the dissent allowed the introduction of new evidence on appeal to determine whether the asserted error was prejudicial.” (Maj. opn., ante, at p. 29.) First, it is noteworthy that, in some of these cases, though the evidence was not presented for the first time on appeal, the court did use evidence that was submitted only after the trial had concluded in order to determine whether there was prejudicial error. (See Vivar, supra, 11 Cal.5th at p. 530 [relying upon a declaration submitted with the
The majority‘s conclusion is all the more confounding because we have routinely rejected claims that other state statutory violations in dependency proceedings constitute structural error, explaining that the interest in providing an expedited proceeding to resolve the child‘s status without further delay “would be thwarted if the proceeding had to be redone without any showing the new proceeding would have a different outcome.” (Jesusa V., supra, 32 Cal.4th at p. 625.) We stated that “the price that would be paid [by treating error as structural], in the form of needless reversals of dependency judgments, is unacceptably high in light of the strong public interest in prompt resolution of these cases so that the children may receive loving and secure home environments as soon as reasonably possible.” (In re James F. (2008) 42 Cal.4th 901, 918; see also In re A.R. (2021) 11 Cal.5th 234, 249 [“We emphatically agree that dependent children have a critical interest in avoiding unnecessary delays to their long-term placement“]; Christopher L., supra, 12 Cal.5th at p. 1081 [“[I]n the dependency context, automatic reversal for errors that do not invariably lead to fundamental unfairness would exact a particularly steep cost. ‘There is little that can be as detrimental to a child‘s sound development as uncertainty over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged’ “].)
As we said in Celine R. in the context of a failure to appoint separate counsel for siblings in an adoption proceeding: “We add another reason criminal cases [and per se reversal] are inapt. In a criminal case, reversal of a criminal judgment is virtually always in the defendant‘s best interest. The situation in a dependency case is often different. Reversal of an order of adoption, for example, might be contrary to the child‘s best interest because it would delay and might even prevent the adoption. . . . The delay an appellate reversal causes might be contrary to, rather than in, the child‘s best interests. Thus, a reviewing court should not mechanically set aside an adoption order because of error in not giving that child separate counsel; the
The majority also justifies its automatic reversal rule because ICWA protects the rights of nonparties, i.e., the tribe. (Maj. opn., ante, at p. 24.) But the entire scheme at play here is structured so that other entities — the parents, the Department, and the court — seek to vindicate the rights of the tribe through adequate inquiry. We do not change any of the other applicable rules, e.g., what evidence is admissible, the burden of proof, the relevant statutory deadlines, simply because the rights of a third party (the tribe) may be implicated. The rules are what the rules are. It therefore seems very strange to conclude that though Watson has typically provided the standard of review for state law error for almost 70 years, we will dispense with Watson because a Cal-ICWA violation might implicate the rights of a non-party. This is especially odd since the Watson standard is routinely applied when the rights of a criminal defendant have been violated. Are we prepared to hold that where the statutory rights of a criminal defendant are violated, harmless error review is appropriate, but where the rights of a third-party in a non-criminal proceeding are implicated, then automatic reversal is required? Apparently so.
The majority concedes that it is not “concerned with the outcome” of the inquiry, i.e., whether the child is or may be an Indian child. (Maj. opn., ante, at p. 32; see also id. at pp. 38–39.) However, the outcome of the inquiry goes to the heart of ICWA, which, as the majority also emphasizes, is designed ” ‘to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .’ ” (Maj. opn., ante, at p. 7, quoting
Though the majority resists requiring parents to affirmatively come forward with information on appeal involving their Indian ancestry, the entire ICWA structure places affirmative requirements upon parents to assist the court in establishing Indian ancestry. “Because early identification of Indian children is critical to ICWA‘s proper implementation, we believe the statute must be interpreted in a way that requires all participants — child protective agencies, the parents, all counsel, and the juvenile courts — to work together to determine whether children are Indian children.” (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1002 (Ezequiel G.).) “[P]arents are required at their first appearances to fill out ICWA-020 forms in which they declare their Indian status under penalty of perjury, and they are instructed that if they get new information, they must ‘let [their] attorney, all the attorneys on the case, and the social worker . . . know immediately.’ ” (Id. at p. 1003, citing Judicial Council of Cal., Form ICWA-020 [rev. Mar. 25, 2020].) Cal-ICWA also requires parents, per court instruction, to notify the court if they receive subsequent information that provides a reason to know the child is an Indian child. (
The majority also offers a series of speculative reasons for rejecting the “reason to believe” rule: the parents’ knowledge of their ancestry may be hampered by translation issues from Indian languages to English (maj. opn., ante, at p. 36); parents may be fearful to self-identify and social workers may be ill-equipped to address these fears (id. at p. 37); the parents may view the tribe as competition for custody (ibid.); and the parents may be represented by unscrupulous attorneys (ibid.). This strikes me as a lot of conjecture about why the parents may be ill-equipped to know if they have Indian ancestry without a word of discussion about whether delay and uncertainty will have a negative impact on the child.2 It also fails to explain why parents would be fearful of self-identification during juvenile court proceedings — but not оn appeal.
Moreover, there are published cases describing parents seeking to delay the removal of their children from the home by claiming Indian heritage. In In re S.H. (2022) 82 Cal.App.5th 166, 172 (S.H.), the Court of Appeal described a voicemail received by a social worker from the father, who apparently accidentally left his phone on after he completed his intended message. “In the apparent unintended portion of the recording, he discussed with [m]other a plan to claim that the minor had Indian ancestry to delay the Agency‘s removal of her from the home.” (Ibid.)
While it is understandable that a parent may seek to forestall such a heartbreaking result as the termination of parental rights, this scenario makes it all the more clear why a rule of automatic conditional reversal is ill advised. Where a parent may be raising Cal-ICWA noncompliance solely to delay termination of parental rights; where there is no evidence at all that the child is or may be an Indian; and where the appealing parent herself or himself may have previously attested (like they did here) that the child has no Indian ancestry, then a rule of automatic reversal makes little sense.
II. Deference to the Adequacy of Cal-ICWA Inquiry
As described above, there are two ways that appellate courts can appropriately resolve issues related to Cal-ICWA compliance without needlessly
The majority rightly leaves room for this approach, explaining that “the juvenile court‘s fact-specific determination that an inquiry is adequate, proper, and duly diligent is ‘a quintessentially discretionary function’ ([Ezequiel G., supra,] 81 Cal.App.5th [at p.] 1005) subject to a deferential standard of review” (maj. opn., ante, at p. 27); and “[i]f, upon review, a juvenile court‘s findings that an inquiry was adequate and proper and ICWA does not apply are found to be supported by sufficient evidence and record documentation as required by California law ([
First, as the majority explains, a juvenile court‘s finding that the child welfare department met its inquiry requirements under Cal-ICWA is entitled to substantial deference on appeal. (In re S.R. (2021) 64 Cal.App.5th 303, 312.) The statutory scheme specifically provides for a sufficiency of the evidence standard for reviewing the adequacy of the inquiry, stating: “If the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that the federal [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence.” (
Second, Cal-ICWA itself confers significant discretion on juvenile courts in determining whether an inquiry was adequate. (See Ezequiel G., supra, 81 Cal.App.5th at pp. 1006–1007.) In my view, Cal-ICWA does not require an inquiry of every single extended family member and person listed in the statute.
I, like other courts which have interpreted the same language, do not read the statute as requiring that an initial Cal-ICWA inquiry be made of every member of a child‘s extended family, including every first and second cousin, every single niece and nephew, all aunts and uncles, all siblings-in-law, plus every other person who has an interest in the child. (Ezequiel G., supra, 81 Cal.App.5th at pp. 1005–1006.) Such a reading is “absurd at best and imрossible at worst” (id. at p. 1006) and “creates an open-ended universe of stones, the rule ostensibly empowers the party to obtain a remand to question extended family members, then a second remand to question the family babysitter, and then a third remand to question longtime neighbors, and so on and so on.” (Dezi C., supra, 79 Cal.App.5th at p. 785.) In fact, the majority appears to agree, at least to an extent, emphasizing its holding “does not require reversal in all cases in which every possible extended family member has not been asked about the child‘s Indian ancestry.”4 (Maj. opn., ante, at p. 27.)
Indeed, the list in
This kind of flexibility in interpreting the requirements of Cal-ICWA is crucial. Imagine a case where the Department had interviewed every single person enumerated by the statute, so assume that the Department interviewed 40 people, and all of them had said the child had no Indian ancestry, but the Department failed to speak to one of the child‘s eight aunts. Under this hypothetical it would be absurd to conclude that the inquiry was inadequate аnd automatic conditional reversal was required. Or let us imagine a case involving a child who, with his entire family, recently immigrated from Ukraine, thereby making it highly improbable that the child is a member of, or may be eligible for membership in, a federally recognized Indian tribe. Any court would be hard pressed to find that the Department‘s inquiry regarding his or her Indian ancestry was inadequate because it did not ask his or her entire extended (Ukrainian) family about Indian descent. The same would be true for a case where the Department had recently completed an
In sum, in reviewing a juvenile court‘s Cal-ICWA findings for abuse of discretion, I believe “a proper application of the governing substantial evidence standard of appellate review mitigates some of the flaws in the statutory scheme.” (H.V., supra, 75 Cal.App.5th at p. 441 (dis. opn. of Baker, J.).) I further believe “the focus of the court‘s analysis should not be on the number of individuals interviewed, but on whether the agency‘s [Cal-ICWA] inquiry has yielded reliable information about a child‘s possible tribal affiliation.” (Ezequiel G., supra, 81 Cal.App.5th at p. 1009; accord, In re E.W. (2023) 91 Cal.App.5th 314, 322.) In order to appropriately balance the importance of Cal-ICWA compliance with the best interest of children in the dependency system, appellate courts should bear in mind that a juvenile court‘s finding that Cal-ICWA inquiry was satisfied and that ICWA does not apply is entitled to substantial deference and that the requirements imposed by Cal-ICWA are flexible.5
III. Conclusion
This case is a prime example of why adhering to our traditional review of claims of state law error on appeal is necessary. Dependency proceedings were initiated when Dezi C. was three and a half years old and her brother, Joshua C. was one and a half years of age. The children are now over eight and six years old. They have spent most of their short lives in the dependency system. The juvenile court sustained allegations that the minors were at risk of harm in the custody of mother and father due to the parents’ substance abuse and domestic violence issues. Their paternal grandparents have provided a safe and stable environment and stand ready to permanently adopt them, but the majority today ensures that this crucial permanent placement will again be delayed. The instability and uncertainty caused by removing Dezi C. and Joshua C. from their parents and delaying permanent placement
GROBAN, J.
I Concur:
GUERRERO, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Dezi C.
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 79 Cal.App.5th 769
Review Granted (unpublished)
Rehearing Granted
Opinion No. S275578
Date Filed: August 19, 2024
Court: Superior
County: Los Angeles
Judge: Robin R. Kesler
Counsel:
Karen J. Dodd and John L. Dodd, under appointments by the Supreme Court, for Defendant and Appellant.
Suzanne Nicholson, Sean Angele Burleigh and Christopher Blake for California Appellate Defense Counsel as Amicus Curiae on behalf of Defendant and Appellant.
Dorothy Alther, Hannah Reed, Laura Pedicini, Sheila Quinlan; Kimberly Cluff and Shunya Wade for California Indian Legal Services and California Tribal Families Coalition as Amici Curiae on behalf of Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Henning; Claudia G. Silva, County Counsel (San Diego), Lisa M. Maldonado, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel, for the California State Association of Counties as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
John L. Dodd
Attorney at Law
17621 Irvine Boulevard, Suite 200
Tustin, CA 92780
(714) 731-5572
Stephen Watson
Deputy County Counsel
500 West Temple Street, Suite 648
Los Angeles, CA 90012
(213) 808-8774