In re E.V.
FACTS1
SSA took the minor into protective custody in October 2020, shortly after her birth. She and her mother (Mother) tested positive for amphetamines. Father was incarcerated and unable to care for the minor. The detention report, dated November 6, 2020, stated Mother and Father “denied any Native American ancestry at this time.”
A social worker attached an ICWA-010 form to the petition, indicating she was unable to complete the inquiry about the minor’s Indian status with Father because he was incarcerated. The social worker noted Mother gave her “no reason to believe the child is or may be an Indian child.” No further explanation was provided.
The assigned social worker determined E.V. could not be placed with the legal guardians of the minor’s older half-siblings. The social worker also spoke with the minor’s maternal great-aunt, C.P., about possible placement. SSA held a team meeting to discuss a plan for E.V. Mother, the minor’s maternal grandmother, and a family friend attended the meeting. There was no discussion or inquiry about Native American heritage.
By the time of the detention hearing on November 9. 2020, the minor was living with C.P. and Father wanted his sister (R.V.) to be assessed for placement. The court’s minute order stated, “Court orders . . . [ICWA] finding deferred.” The hearing was continued, and the court considered the parties’ arguments through video conference software. At the hearing, Father’s counsel stated his client did not “have [ICWA].” Mother’s counsel requested that the court defer the issue because Mother was not attending the video hearing.
In January 2021, the court held the jurisdiction hearing and sustained the petition. The court removed E.V. from her parents’ custody and ordered reunification services. The court did not address ICWA on the record. Its minute order also failed to mention ICWA. However, the court indicated it was adopting SSA’s recommendations, which were attached to the minute order. Those recommendations indicated ICWA did not apply.
The social worker’s April 2021 interim report contained no new information regarding ICWA. The social worker merely noted, “On November 9, 2020, ICWA was reserved.” Due to Covid-19 related court closures, the court accepted the appointed attorneys’ written stipulation waiving their appearance. Based on the stipulation, the court continued reunification services. It made no ICWA findings.
In July 2021, the social worker prepared a report for the six-month review hearing and recommended additional reunification services for Mother. The social worker also requested the court terminate services for Father and ordered ICWA did not apply. The social worker again noted ICWA “was reserved” in November 2020. The report contained no new information regarding ICWA.
At the six-month review hearing, the court’s minute order stated it read and considered the signed stipulation. The court stated it would make orders and findings pursuant to the signed stipulation and ICWA did not apply. It scheduled a hearing on the matter for August 2021. The attached stipulation noted ICWA did not apply.
The court’s minute order for the six-month review hearing noted the court was making orders and findings pursuant to the stipulation signed August 11, 2021. The attached stipulation noted ICWA did not apply. The hearing was continued.
The social worker’s next addendum report for the six-month review hearing noted E.V. was nine months old. The recommendation to terminate parental rights was not changed. The report does not mention ICWA.
After a short continuance, the court held the review hearing in September 2021. The court terminated reunification services and scheduled a permanency hearing. The court did not address ICWA on the record or in its minute order. Rather, the minute order stated the court was making “orders and findings” pursuant to the proposed orders and findings filed September 10, 2021. The proposed orders, signed by counsel, left unchecked all the boxes related to ICWA documentation and findings.
On January 10, 2022, the social worker prepared a final report regarding then one-year-old E.V. The summary recommendation stated the minor was adoptable and the court should terminate parental rights and free her for adoption. E.V.’s caretakers wished to adopt her. In addition, the social worker requested the court “find ICWA does not apply in regard to the child.” Later in her report, the social worker explained that early in the case both parents denied Native American ancestry but the court reserved the issue on November 9, 2020. Before writing her report, the social worker asked Father about ICWA and he replied, “‘I’m not too sure, so I can’t really answer that.’” The social worker tried to contact Mother two times to discuss ICWA, but she had failed to reply.
DISCUSSION
I. Reversible Error
A different panel of this court recently considered an appeal raising ICWA issues remarkably similar to the ones before us. (A.R., supra, 77 Cal.App.5th 197.) In that case, county counsel conceded SSA erred by failing to conduct an adequate inquiry into whether the dependent minors had Native American ancestry. (Id. at p. 201.) County counsel maintained the judgment should be affirmed because the mother failed to demonstrate the error resulted in a manifest miscarriage of justice. (Ibid.)
In A.R., this court held, which bears repeating, the following: “The interests protected by ICWA include the broad interest of Native American tribes in maintaining cultural connections with children of Native American ancestry. Those tribes have no standing to intervene in a dependency case unless Native American ancestry is first 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. [¶] That is why the law requires that an ICWA inquiry be conducted in every case. The tribes have a compelling, legally protected interest in the inquiry itself. It is only by ensuring that the issue of Native American ancestry is addressed in every case that we can ensure the collective interests of the Native American tribes will be protected. Thus, the failure to conduct the inquiry in each case constitutes a miscarriage of justice. [¶] What troubles us about county counsel’s position, and by extension, SSA’s, is that it seems to reflect a belief that the inquiry into Native American ancestry is not important. That cannot be the case. Until the inquiry is conducted, and the issue is put to rest, the interests of the Native American tribes have
A.R. is but one of many published cases involving errors regarding the required ICWA inquiries. Although the law is well settled, this particular problem keeps surfacing in appeals with alarming frequency. As discussed in A.R., the published cases discussing whether the error is reversable “fall into three groups.” (A.R., supra, 77 Cal.App.5th at p. 205.) “[T]he first concludes that the conceded error warrants reversal in every case because the duty to inquire was mandatory and unconditional. [Citations.] [¶] . . . [¶] The second group concludes that the error does not warrant reversal unless a ‘miscarriage of justice’ is demonstrated to have occurred as a consequence of the failure to inquire about Native American heritage. [Citations.] . . . [¶] The third option is the self-described ‘middle ground’ approach taken in [In re] Benjamin M. [(2021) 70 Cal.App.5th 735], in which the appellate court would determine, on a case by case basis, whether the record reflects there are known relatives identified by the child welfare agency, who appear to have been able to shed light on the issue of Native American heritage.” (Ibid.)
This court determined there were problems with all of these approaches. (A.R., supra, 77 Cal.App.5th at pp. 205-206 [analysis rejecting each option].) “In our view, the correct approach is to focus on the wider interest at play—i.e., the federal and state public policy of ensuring that potential Native American heritage is considered, and thus inquired about, in every dependency case.” (Id. at p. 206.) Adopting “a rule requiring reversal in all cases where ICWA requirements have been ignored is consistent with the recognition that parents are effectively acting as ‘surrogate[s]’ for the interests of Native American tribes when raising this issue on appeal. . . . ‘[A]ppellate review of procedures and rulings that are preserved for review irrespective of any action or inaction
Thus, in this case we follow our reasoning in A.R. and adopt a clear rule of reversal because, as county counsel concedes, several ICWA inquiry rules were not followed. “The duty to inquire in every case is the key to” protection of the tribes’ interests. (A.R., supra, 77 Cal.App.5th at p. 207.) For the reasons stated in A.R., we reject county counsel’s argument Father must show prejudice from the lack of initial inquiry. Father’s failure to make affirmative representation about possible Indian heritage does not render the error harmless.
We note county counsel’s concession in this case extends only to recognizing SSA erred with respect to its duties to contact extended family members. It argues the court satisfied inquiry requirements with respect to the minor’s parents, and even if there was a small error, it was harmless. We disagree with the notion this error can be disregarded, and we are also not convinced SSA’s errors and the court’s errors were insignificant.
As county counsel acknowledges, the court failed to obtain Parental Notification of Indian Status (form ICWA-020) and did not ask the parents questions about their heritage on the record as required by the
“[S]ection 224.2 creates three distinct duties regarding ICWA.” (See In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) County Counsel’s record references related to the first duty, arising during SSA’s initial contact with the minor and her family. (
The court is obligated to “instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” (
County counsel’s argument also ignores Father’s statement to the social worker that he was “not too sure” about his heritage or his later assertion he had Apache tribe relatives. Contrary to county counsel’s contention, Father did not consistently deny American Indian heritage. The judicial counsel developed ICWA-010 form, to assist SSA with its initial duty of inquiry (
II. Motion to Take Additional Evidence
Seeking an affirmance, county counsel moves this court to receive additional evidence not before the juvenile court that allegedly demonstrates ICWA did not apply, or alternatively any error was harmless. It asserts this court in A.R. suggested an appellate court should take additional evidence if SSA belatedly fulfils its statutory obligation. County counsel has misconstrued the A.R. opinion.
In A.R., this court plainly stated SSA and the court’s failure to comply with its duties under ICWA is presumed to be prejudicial. “[A] rule requiring reversal in all cases where ICWA requirements have been ignored is consistent with the recognition that parents are effectively acting as ‘surrogate[s]’ for the interests of Native American tribes when raising this issue on appeal.” (A.R., supra, 77 Cal.App.5th at p. 207.) This court
To the contrary, in the last section of the A.R. opinion, this court analyzed why implementing a clear rule of reversal will not run afoul with the goal of prompt resolution of dependency cases. This court explained any delay created by reversal will not be a significant one. We anticipated that after establishing “a clear rule that requires reversal in all cases” there would be no reason for SSA not “to conduct such an inquiry at its earliest opportunity to do so.” (A.R., supra, 77 Cal.App.5th at p. 207.) In other words, because we have eliminated the possibility of a “harmless error” ruling, SSA can start fulfilling its statutory obligation as soon as it has notice of error. As we observed in the A.R. opinion, SSA can likely complete its ICWA obligation before the briefing on appeal is complete, resulting in very little delay when the matter is remanded to the juvenile court.
This case involved errors by both the juvenile court and SSA regarding ICWA obligations. Whether SSA complied with its inquiry duty under ICWA should be considered by the juvenile court in the first instance. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 703 [“Making the appellate court the trier of fact is not the solution”].) And as mentioned, SSA’s remedial efforts do not supplant the court’s own ICWA obligations. For all the above reasons, we deny county counsel’s request we consider additional evidence.
DISPOSITION
The judgment is conditionally reversed and remanded to the juvenile court for the limited purpose of allowing SSA to comply with the ICWA. After complying with applicable inquiry and notice requirements, if it is determined that ICWA does not
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.