In re EZEQUIEL G., et al., Persons Coming Under the Juvenile Court Law.
B314432
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 7/29/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. 18CCJP01205A); (Los Angeles County Super. Ct. No. CK87298F,G)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. PRISCILLA S., Defendant and Appellant.
Robert McLaughlin, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Timothy M. O‘Crowley, Deputy County Counsel for Plaintiff and
This juvenile dependency appeal is one of many in an increasingly common posture. There is no evidence in the juvenile court record—which began in 2017 and concluded with the termination of parental rights in 2021—that the three children at issue in this case are Indian children within the meaning of the Indian Child Welfare Act (ICWA) (
Until very recently, Courts of Appeal routinely affirmed orders in this posture. Recently, however, some appellate courts have begun returning matters to the juvenile court—even after parental rights have been terminated—because an ICWA inquiry was not made of extended family members referenced in the juvenile court record.2
These reversals unquestionably delay permanency for some of the most vulnerable children in our juvenile court system. Worse, we believe the approach to reviewing ICWA error that drives these reversals is not mandated by the relevant statutes and is ineffective in protecting the interests of the Indian communities and families for whose benefit ICWA was enacted. For these reasons, we decline to follow our fellow appellate courts that return cases to the juvenile courts after parental rights have been terminated on the mere showing that an ICWA inquiry was not made of some members of a child‘s extended family. Instead, as we discuss more fully below, we will review a juvenile court‘s ICWA findings under a hybrid substantial
FACTUAL AND PROCEDURAL BACKGROUND
A. The dependency proceedings.
Mother has ten children: Nic., Ni., and Na., whose father is R.V.; No., De., Na., Ra., and Unique, whose father is Randy C.; and Dominic and Ezequiel, whose father is Ezequiel G., Sr. This appeal concerns Unique, Dominic, and Ezequiel only.
In July 2017, a petition was filed on behalf of Na., No., De., Na., Ra., Unique, and Dominic, alleging physical abuse of the children by Ezequiel Sr. and domestic violence between mother and Ezequiel Sr. The seven children were detained from their fathers in July, and from mother in September 2017. In November 2017, the court sustained allegations of the petition pursuant to
Ezequiel was born in December 2017, and DCFS filed a dependency petition on his behalf in February 2018. In February 2018, the court detained Ezequiel from Ezequiel Sr. and ordered him placed with mother under DCFS supervision.
The juvenile court returned Unique and Dominic to mother‘s custody in 2018. However, in March 2019, the children were detained again after DCFS received a report of further domestic violence between mother and Ezequiel Sr. Dominic and Ezequiel Jr. were placed with maternal uncle, Malik B.; later that year, Unique also was placed with Malik.
In December 2020, the juvenile court terminated mother‘s and Ezequiel Sr.‘s reunification services with respect to Unique, Dominic, and Ezequiel and set a
Mother and Ezequiel Sr. were present at the July 2017 hearing concerning the detention of the older children, including Unique and Dominic. Both parents stated on the record that they did not have Indian ancestry as far as they knew, and mother filled out a Parental Notification of Indian Status (ICWA-020) form, in which she denied Indian ancestry. Randy was not present at the hearing, but the court stated there had been a finding in a prior DCFS case that he did not have Indian ancestry.3 The court therefore found that it had no reason to know the children were Indian children.
Randy appeared at an August 21, 2017 hearing. He denied Indian ancestry on an ICWA-020 form and orally on the record.
At the February 23, 2018 hearing regarding Ezequiel‘s detention, mother again stated that she did not have Indian ancestry, and the court found that it did not have reason to know that Ezequiel was an Indian child.
During subsequent contacts between mother and DCFS, mother consistently denied that she had any Indian ancestry.
DCFS attempted to make further inquiry of Ezequiel Sr. and Randy Sr., but it was not able to make contact with either father.
Throughout the proceedings, DCFS was given contact information for and/or had contact with a variety of extended family members, including paternal grandmother Cynthia G., paternal aunt Kimberly G., paternal aunt Sara R., paternal cousin Sandy T., paternal uncle Christopher C. (Randy C.‘s brother), paternal aunt Marina T., a paternal grandmother (Ezequiel Sr.‘s mother), maternal cousin Manual P., maternal cousin Ralph P., and maternal uncle Malik. There is no indication in the record that an ICWA inquiry was made of any of these extended family members.
DISCUSSION
Mother contends DCFS failed to make an adequate ICWA inquiry because it did not inquire of maternal uncle Malik, maternal cousin Ralph, and paternal aunt Kimberly. Mother urges this failure to make an adequate ICWA inquiry requires a conditional reversal with directions. For reasons not apparent from the record, mother does not allege that DCFS erred by failing to make ICWA inquiries of any of the other extended family members
DCFS contends that because the parents denied Indian ancestry, the juvenile court properly found that ICWA did not apply. Alternatively, DCFS contends that any failure to contact extended family members was harmless error because the parents’ statements were sufficiently reliable to support the juvenile court‘s ICWA finding.
I. Relevant law.
Congress passed ICWA in 1978 ” ‘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 . . . .’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see
California adopted conforming legislation in 2006 (Sen. Bill No. 678 (2005–2006 Reg. Sess.)), which was amended effective January 1, 2019 (Assem. Bill No. 3176 (2017–2018 Reg. Sess.)). As currently written, the law provides that the court and county welfare department have an affirmative and continuing duty to inquire whether a child for whom a petition may be filed is or may be an “Indian child” (
The state law duty to make an ICWA inquiry “begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.” (
If the initial inquiry provides “reason to believe” that an Indian child is involved in a proceeding—that is, if the court or social worker “has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe“—then the court or social worker “shall make further inquiry” regarding the child‘s possible Indian status as soon as practicable. (
If there is “reason to know” a child is an Indian child, the agency shall provide notice to the relevant tribes and agencies in accordance with
If the juvenile court finds 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 ICWA does not apply to the proceedings, “subject to reversal based on sufficiency of the evidence.” (
II. The automatic reversal approach to asserted ICWA errors.
Appellate courts have struggled with how to review a parent‘s appellate claim that a juvenile court and child welfare agency failed to adequately investigate whether ICWA may apply. Until recently, Courts of Appeal routinely rejected claims of ICWA error where there was no evidence in the juvenile court record that a child was an Indian child and a parent did not affirmatively assert Indian ancestry on appeal. (See, e.g., In re Charles W. (2021) 66 Cal.App.5th 483, 490-492 [juvenile court made an adequate ICWA inquiry where ICWA had been found not to apply in earlier case, and mother‘s counsel, in mother‘s presence, denied that mother had Indian ancestry]; In re Austin J. (2020) 47 Cal.App.5th 870, 887–888 [no duty to make an additional inquiry regarding children‘s
Recently, however, some appellate courts have reversed orders terminating parental rights on the mere showing that relatives identified in the juvenile court record were not asked about the family‘s possible Indian ancestry. The analyses of these courts generally are as follows. First, because the facts of an ICWA inquiry—who was asked about the family‘s Indian ancestry and what answers they gave—typically is undisputed, appellate courts may review ICWA inquiry claims de novo. (E.g., In re I.F. (2022) 77 Cal.App.5th 152, 163 [“Where the facts are undisputed, we independently review whether ICWA‘s requirements have been satisfied“]; In re D.F. (2020) 55 Cal.App.5th 558, 565 [same].) Second, current California law requires that a broad ICWA inquiry be made of a child‘s extended family members, and the failure to do so is error as a matter of law. (E.g., In re J.C. (2022) 77 Cal.App.5th 70, 79 [Department‘s failure to make ICWA inquiry of certain extended relatives “violated the express mandate of section 224.2, subdivision (b)“]; In re Antonio R. (2022) 76 Cal.App.5th 421, 431 [Department‘s position “ignores the express obligation that section 224.2, subdivision (b), imposes on the Department to inquire of a child‘s extended family members“].) Third, because ICWA is intended to protect the interests of tribes, not of parents, a parent‘s failure to raise ICWA error in the juvenile court should not forfeit the error on appeal. (E.g., In re A.R. (2022) 77 Cal.App.5th 197, 204 [parent may raise ICWA error for the first time on appeal because ” ‘[t]he parent is in effect acting as a surrogate for the tribe in raising compliance issues on appeal’ “]; In re K.R. (2018) 20 Cal.App.5th 701, 708 [same].) Finally, because an agency‘s failure to make an ICWA inquiry of particular individuals means that the information those individuals might have provided is
In just the last 12 months, this approach to asserted ICWA error has resulted in, by our count, appellate courts returning more than 100 dependency cases to the juvenile courts with directions to conduct further ICWA inquiries after parental rights were terminated. At best, these reversals significantly delay entry of final judgments releasing children for adoption; at worst, they may result in potential adoptive parents deciding not to adopt. (See In re H.V., supra, 75 Cal.App.5th at p. 442 & fn. 5 (Baker, J., dissenting) [noting that ICWA reversals in appeals from orders terminating parental rights “may throw an adoption off track entirely“].)
There is no real dispute that delays in finalizing adoptions or other permanent placements for children who cannot safely be returned to their parents do not serve the best interests of the children whom the dependency system is intended to protect. (See, e.g.,
Nor does automatic reversal protect Indian families and communities whose interests are at the heart of ICWA. Indeed, we believe the opposite is true. All of ICWA‘s substantive and procedural safeguards—including establishing exclusive jurisdiction in the tribal courts for proceedings concerning some Indian children, requiring agencies to make “active efforts” to “prevent the breakup of the Indian family,” and placement preferences that favor placing Indian children with members of their extended families (
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. The child protective agencies and the juvenile courts unquestionably have a key role to play in this determination: As many cases have noted, juvenile courts and child protective agencies “have ‘an affirmative and continuing duty to inquire’ whether a dependent child is or may be an Indian child.” (E.g., In re Michael V. (2016) 3 Cal.App.5th 225, 233.) But this does not mean that other participants have no
Further, a Los Angeles County local court rule requires attorneys appointed to represent parents in child dependency cases to “affirmatively inquire of their client as to whether he or she has reason to believe that any child appearing in the dependency court has Indian heritage under the ICWA” and to make “[e]very effort . . . to assist confirmation of a child‘s Indian status and tribal membership.” (Super. Ct. L.A. County, Local Rules, rule 7.17(a); see also id., rule 7.17(e)(3) [at the parent‘s first appearance, his or her attorney should inquire as to the applicability of ICWA and so inform the court].) Parents’ counsel are also required to have “a complete familiarity with the facts of the case by reviewing the court file,” bring appropriate motions, and otherwise conduct an independent investigation. (Id., rule 7.17(e)(5).)
Federal, state, and local law thus recognize that requiring all parties to actively participate in the ICWA inquiry is critical to ensuring that an adequate ICWA investigation is conducted and Indian children are promptly identified at the earliest possible stages of dependency cases. Permitting parents to raise ICWA inquiry errors for the first time in an appeal from an order terminating parental rights has precisely the opposite effect, discouraging parents’ counsel from bringing ICWA inquiry errors to the juvenile court‘s attention and rewarding parents who fail to cooperate with an agency‘s ICWA inquiry—in essence, allowing parents to use ICWA as “a ‘get out of jail free’ card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves.” (In re H.B. (2008) 161 Cal.App.4th 115, 122.)
For all of these reasons, we believe an automatic reversal approach to claims of ICWA inquiry errors is not compelled by the statute, harms the interests of dependent children, and is not in the best interests of Indian communities. We therefore decline to apply it. Instead, as we discuss in the next sections, we believe the statutory language is most faithfully applied, and the interests of children and Indian communities best protected, by reviewing claims of ICWA error under a hybrid substantial evidence/abuse of discretion standard, and reversing only if an appellant demonstrates that an ICWA error was prejudicial.
A. The substantial evidence/abuse of discretion standard.
There are two statutory predicates to a juvenile court‘s finding that ICWA does not apply. First, the court must determine whether there is “reason to know” whether the child is an Indian child. (
The first element—whether there is reason to know whether the child is an Indian child—requires the juvenile court to determine, based on the evidence before it, whether any one of six statutory criteria is met—e.g., (1) the court has been advised that the child “is an Indian child,” (2) the child‘s or parent‘s residence is on a reservation, (3) any participant in the proceeding informs the court that it has discovered information indicating the child is an Indian child, (4) the child gives the court reason to know that he or she is an Indian child, (5) the child is or has been a ward of a tribal court, or (6) either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe. (
This determination is fundamentally a factual determination, and so we believe it should be reviewed for substantial evidence. (In re Caden C. (2021) 11 Cal.5th 614, 639–640 (Caden C.) [factual determinations reviewed for substantial evidence].) In other words, we “should ‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts,’ ” but should uphold the lower court‘s determinations ” ‘if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.’ ” (Id. at p. 640.)
The second element—whether a “proper and adequate further inquiry and due diligence as required in this section have been conducted” (
The need for a juvenile court to exercise discretion in considering whether an ICWA inquiry is adequate is particularly acute because the scope of the inquiry required by state law is not well defined. As noted above,
Because the persons identified in
Plainly, complying with the literal language of the statute—that is, making an initial and further ICWA inquiry of every member of a child‘s extended family, including first and second cousins, plus every other person who has an interest in the child—is absurd at best and impossible at worst. In some cases, parents refuse to provide DCFS with any relative information, making contact with extended family impossible. In other cases, parents provide DCFS with partial information—a relative‘s name and the city where they were last known to have lived, for example, or a phone number that is no longer in service—making it extremely difficult for DCFS to contact the relative, if it is able to do so at all. And in yet other cases, a parent‘s extended family is so large that contacting every person identified in the statute would be neither practical nor useful.
In short, given the statute‘s expansive language and the vagaries of the extended family information parents are willing or able to provide, determining compliance with ICWA requires a significant exercise of discretion. Consider the following scenarios (all of which are based on appeals recently before us):
- Father denies any Indian ancestry when interviewed by a social worker and at his first court appearance. He was removed from his own parents as a young child and raised by his paternal uncle and aunt. His paternal uncle has died, and he does not speak to his paternal aunt or either parent. He has six full brothers and sisters, five maternal half-siblings, and six or seven paternal half-siblings.
- Mother believes she may have Indian ancestry through her father‘s grandmother, but she has not been in contact with her father for many years and does not know if her great-grandmother is still alive. She provides her father‘s first and last name, both of which are very common, but she does not know her father‘s phone number, address, or date of birth. She tells DCFS that last she knew, her father was living in Los Angeles.
- Father denies Indian ancestry when interviewed by a social worker and in court. He provides a social worker with the name of his mother and stepmother, but he does not have their contact information. He says he will ask them to call DCFS; they do not. He also gives the social worker the name and a phone
None of these scenarios lends itself to a mechanical application of the statute. While the statute requires the social services agency to act with “due diligence,” it does not describe what diligence is required where a parent identifies extended family members but does not provide their accurate contact information. Nor does the statute specify how many extended family members the agency must interview. As a result, a child welfare agency “has no way to reliably know when to say when—i.e., to predict how many interviews of extended family members and others will be enough to satisfy a court that it has discharged its continuing duty to investigate whether a minor could be an Indian child.” (In re H.V., supra, 75 Cal.App.5th at pp. 440–441 [Baker, J., dissenting].)
Some courts that independently review asserted ICWA error dodge this troubling issue by limiting their analyses of the adequacy of an ICWA inquiry to those relatives identified by the parent on appeal. (E.g., In re Antonio R. (2022) 76 Cal.App.5th 421, 430 & fn. 6.) Our dissenting colleague does the same, suggesting that all we need consider in this case is whether DCFS should have inquired of the three extended family members mother identifies on appeal—not of the seven others whose names and contact information appear in the record but whom mother inexplicably does not address. (Dissent, p. 7 [“The issue before us isn‘t whether the statute would, in a hypothetical case, require a child protective agency to track down and interview an overwhelming number of relatives. That issue should be addressed in the future when, if ever, it‘s raised on appeal.“].)
But that approach wields appellate procedure to avoid the difficult question of precisely who DCFS was required to ask about the family‘s ancestry—and it requires significantly less of the appellate courts than it does of the juvenile courts, limiting our own appellate inquiry to those issues (and persons) appellate counsel identify, while presumably requiring the juvenile courts deciding the adequacy of an ICWA inquiry to scour the record for references to any extended family members of whom DCFS may not have made an ICWA inquiry. Further, this approach provides no useful guidance to the child welfare agencies, who are tasked with conducting complete and accurate ICWA inquiries in the first instance. And, it creates a likelihood of successive appeals, all raising purported ICWA errors based on the same record.
The difficulty of describing precisely what the statute requires in a particular case is highlighted by the ambiguity of the remand instructions in cases that independently review alleged ICWA error. Although the reversals
What drives these ambiguous remand instructions is the difficulty of applying the statutory inquiry requirements to the facts of a particular case. Until inquiry is made of an extended family member, a court can‘t know whether that individual will provide names of other knowledgeable family members, thus making further inquiry possible. Similarly, the court can‘t know what difficulties an agency may face on remand if, for example, one of the individuals whom the agency was directed to interview has moved, changed his or her phone number, or died. These are real concerns, and ones we believe highlight the need to review the adequacy of an agency‘s ICWA inquiry for abuse of discretion, leaving it to the juvenile court, not this court, to decide whether an agency has done enough.
B. Applying the abuse of discretion standard in the ICWA inquiry context.
1. Reliability of the ICWA information provided.
” ‘Review for abuse of discretion is . . . focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when ” ‘the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’ ” ’ ([In re Stephanie M. (1994)] 7 Cal.4th [295,] 318.) But ’ ” [w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision
for that of the trial court.’ ” ’ (Id. at p. 319; see also [In re Robert L. (1993)] 21 Cal.App.4th [1057], 1067 [‘The reviewing court should interfere only “if . . . under all the evidence, viewed most favorably in support of the trial court‘s action, no judge could reasonably have made the order that he [or she] did’ ” ‘].)” (Caden C., supra, 11 Cal.5th at p. 641.)
In reviewing a juvenile court‘s ICWA findings for abuse of discretion, we believe the key inquiry should be whether the ICWA inquiry conducted has reliably answered the question at the heart of the ICWA inquiry: Whether a child involved in a proceeding “is or may be an Indian child” (
In evaluating this question, it is important to note that “ICWA does not apply simply based on a child or parent‘s Indian ancestry.” (U.S. Dept. of Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016) (BIA Guidelines), p. 10 <https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf> [as of July 28, 2022], archived at <https://perma.cc/5758-64CA>.) Instead, the “definition of ‘Indian child’ is ‘based on the child‘s political ties to a federally recognized Indian Tribe, either by virtue of the child‘s own citizenship in the Tribe, or through a biological parent‘s citizenship and the child‘s eligibility for citizenship.’ ” (BIA ICWA Proceedings, supra, 81 Fed.Reg. at p. 38795, italics added.)4 In other words, an Indian child is one with a tribal affiliation, not merely Indian ancestry.
Tribal membership criteria are set forth in tribal constitutions, articles of incorporation, or ordinances, and vary from tribe to tribe. (U.S. Dept. of Interior, A Guide to Tracing American Indian & Alaska Native Ancestry, p. 4 <https://www.bia.gov/sites/bia.gov/files/assets/public/pdf/idc-002619.pdf> [as of July 28, 2022], archived at https://perma.cc/JN6Y-74G9.) Significantly, “Tribal citizenship (aka Tribal membership) is voluntary and typically requires an affirmative act by the enrollee or her parent.” (BIA ICWA Proceedings, 81 Fed. Reg. at p. 38783, italics added.) Specifically, “Tribal
Because tribal membership typically requires an affirmative act by the enrollee or her parent, a child‘s parents will, in many cases, be a reliable source for determining whether the child or parent may be a tribal member. We therefore believe a juvenile court may find an ICWA inquiry was adequate even if an agency has not interviewed some available family members.6
The dissent suggests that a parent is not a reliable source of membership information because only a tribe may determine whether a child or his or her parent is a member. (Dissent, pp. 7-8.) We do not dispute the latter assertion, but we disagree wholeheartedly with the former. The tribe undoubtedly sets its own membership criteria and is the keeper of membership records, and thus its determination “that a child is or is not a member of, or eligible for membership in, that tribe . . . shall be conclusive.” (
The dissent also suggests that the statute should be interpreted with reference to the California ICWA Compliance Task Force Report (Report), which the dissent says was the catalyst for the Legislature‘s 2018 amendments to sections 224.2 and 224.3. (Dissent, p. 10.) Our review of the reports prepared for members of the Legislature in connection with Assembly Bill 3176, however, does not reveal a single reference to the Report or its recommendations. (See Assem. Com. on Human Services, Analysis of Assem. Bill No. 3176 (2017–2018 Reg. Sess.) as introduced Apr. 2, 2018; Assem. Com. on Judiciary, Analysis of Assem. Bill No. 3176 (2017–2018 Reg. Sess.) as amended Apr. 11, 2018; Assem. Com. on Appropriations, Analysis of Assem. Bill No. 3176 (2017–2018 Reg. Sess.) as amended Apr. 11, 2018; Assem. Off. of Research, 3d reading analysis of Assem. Bill No. 3176 (2017–2018 Reg. Sess.) May 25, 2018; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3176 (2017–2018 Reg. Sess.) as amended June 18, 2018; Sen. Com. on Appropriations, Analysis of Assem. Bill No. 3176 (2017–2018 Reg. Sess.) as amended June 18, 2018; Sen. Com. on Appropriations, Analysis of Assem. Bill No. 3176 (2017–2018 Reg. Sess.) as amended Aug. 16, 2018; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 3176 (2017–2018 Reg. Sess.) as amended Aug. 17, 2018; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 3176 (2017–2018 Reg. Sess.) as amended Aug. 22, 2018; Conc. in Sen. Amends., Assem. Bill No. 3176 (2017–2018 Reg. Sess.) as amended Aug. 22, 2018.) Indeed, the California Health and Human Services Agency enrolled bill report to which the dissent cites was prepared not for the Legislature, but for the Governor, and is part of the Governor‘s Chaptered Bill File. While the Report thus may have been part of the impetus for introduction of Assembly Bill 3176, we are not aware of evidence suggesting
For the foregoing reasons, we believe inquiry of the parents will, in many cases, yield reliable information about a child‘s possible tribal affiliation. In other cases, inquiry of extended family members will be necessary, either because parents do not appear in the dependency proceedings, refuse to answer ICWA inquiries, or give answers that are deemed unreliable by the juvenile court. Whether an ICWA inquiry is sufficient in a particular case is a matter we leave to the sound discretion of the juvenile court, to be exercised in light of the statutory requirements and the facts of the case.
2. Whether an objection was made below to the adequacy of an ICWA inquiry.
In the context of an appeal from an order terminating parental rights, we believe the abuse of discretion standard must also consider whether an objection was made below to the adequacy of an ICWA inquiry. As we have discussed, ICWA works as intended only if Indian children are identified at the earliest possible stages of a dependency proceeding. This unquestionably requires child protective agencies to conduct thorough ICWA inquiries prior to filing petitions or removing children from their parents’ custody, as well as to continue to explore possible tribal connections as new information becomes available. But we believe it also requires all counsel to critically review the agency‘s ICWA inquiry at every stage of the proceedings and to alert the juvenile court if an inquiry is inadequate.
Consider the present case. Based on the parents’ representations to DCFS and the court, the juvenile court found that ICWA did not apply in February 2018. Subsequent to that finding, DCFS filed reports every six months that revealed the agency had contact with many members of the extended family but so far as we know did not make an ICWA inquiry of those individuals. Had the parents’ counsel objected to the ICWA inquiry based on these reports, the juvenile court could have decided whether to order a further
If juvenile courts are to ensure that ICWA inquiries are complete and accurate, they must be able to rely on counsel to review the agency‘s reports and bring to the court‘s attention if the agency has not done enough. While juvenile courts have the ultimate responsibility to order ICWA compliance, we cannot reasonably expect them to scour agency records—which may be hundreds or thousands of pages long—to search for names of relatives of whom an ICWA inquiry could have been but was not made. That should be the responsibility of counsel. (See In re A.C., supra, 75 Cal.App.5th at pp. 1022–1023 (dis. opn. of Crandall, J. [parents’ and children‘s counsel “should be expected to fully and timely participate in the ongoing ICWA inquiry“].) And if counsel do not identify any ICWA errors below, that fact should be a relevant consideration in evaluating whether a juvenile court abused its discretion in finding that an ICWA inquiry was sufficient.
We cannot conclude this analysis without addressing the Supreme Court‘s decision in Isaiah W., supra, 1 Cal.5th at page 9. There, the court considered whether a parent who failed to appeal from the juvenile court‘s dispositional order, which included a finding that ICWA notice was unnecessary, could raise the ICWA notice issue on appeal from an order terminating parental rights. (Id. at p. 6.) The court held that because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, a parent may challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order. (Ibid.)
Our conclusion that counsel‘s failure to object to the adequacy of an ICWA inquiry is relevant to the juvenile court‘s asserted abuse of discretion is not inconsistent with Isaiah W. The issue in Isaiah W. was whether an appellate court could examine the ICWA issue at all if an ICWA finding had been made at an earlier hearing from which no appeal had been taken. (Isaiah W., supra, 1 Cal.5th at p. 9 [“The issue presented here is whether [mother]—having brought no timely challenge to the January 2012 foster care placement order, which subsumed a finding by the juvenile court that ICWA notice was unnecessary—may now challenge the April 2013 order terminating her parental rights on the ground that the juvenile court erred in finding ICWA notice unnecessary.“].)Isaiah W. thus had no occasion to consider—and did not consider—the standard by which purported ICWA errors should be
As our Supreme Court has recognized in another context, encouraging parties to raise errors for the first time on appeal is not sound policy because it denies trial courts the opportunity to correct such errors and delays final resolution of litigated matters. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138.) In the present context, it permits parents to raise ICWA error for the first time in an appeal from an order terminating parental rights, thus significantly delaying permanency for their children—and then to remain silent if further ICWA errors occur on remand, and appeal again. Such an approach is “clearly unproductive” in any context (ibid.), and is especially problematic here, where the rights of dependent children and Indian communities are at issue.
C. Prejudicial error.
Finally, as our colleagues in Division Two have recently suggested, we believe that where an appeal is taken from an order terminating parental rights, ICWA inquiry error should require reversal only if prejudicial—that is, if “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.” (In re Dezi C., supra, 79 Cal.App.5th at p. 779.) As Division Two has explained, this test is “outcome focused,” asking whether “it is reasonably probable that an agency‘s error in not conducting a proper initial inquiry affected the correctness (that is, the outcome) of the juvenile court‘s ICWA finding,” and 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.” (Id. at pp. 781–782, italics added.)
IV. Application of these standards to the present case.
With these standards in mind, we turn to the facts of the present case. Here, mother and both fathers told the court that their families did not have Indian ancestry, and mother and Randy signed ICWA-020 forms attesting that, to their knowledge, they had no Indian ancestry. No contrary evidence appeared in the record. We therefore conclude that the juvenile court‘s finding that there was no reason to know the children are Indian children was supported by substantial evidence.
Finally, we conclude that even if the juvenile court erred by finding DCFS‘s inquiry adequate, that error was not prejudicial. Nothing in the record gives us a reason to doubt the accuracy of the parents’ denial that they or their children were members of or eligible for membership in an Indian tribe, and thus it is not reasonably probable that the children are Indian children within the meaning of ICWA.
For all the foregoing reasons, we will affirm the orders terminating parental rights.
DISPOSITION
The orders terminating parental rights are affirmed.
CERTIFIED FOR PUBLICATION
EDMON, P. J.
I concur:
EGERTON, J.
LAVIN, J., Dissenting:
I disagree with the majority‘s analysis and conclusion. The California statutes and rules of court that implement the Indian Child Welfare Act (ICWA) of 1978 (
DISCUSSION
1. ICWA and the Inquiry and Notice Requirements
Congress enacted ICWA to protect Indian children and to promote the stability and security of Indian tribes and families. (
ICWA and its related federal regulations set a floor for minimal procedural protections for Indian children, their families, and their tribes. (T.G., supra, 58 Cal.App.5th at p. 288.) But states are expressly authorized to set “a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under” the federal statute and regulations. (
When a child is placed into temporary custody, the child protective agency has a duty of initial inquiry under section 224.2, subdivision (b), which requires the agency to ask certain individuals related to the child and the proceedings “whether the child is, or may be, an Indian child . . . .” If the initial inquiry provides the agency or the court “reason to believe that an Indian child is involved in a proceeding,” then the agency or the court must conduct a “further inquiry regarding the possible Indian status of the child.” (
Once there is “reason to know” that an Indian child is involved, formal notice must be sent to the child‘s parents or legal guardians, Indian custodian, if any, and the child‘s tribe. (
A juvenile court may conclude ICWA doesn‘t apply to a child‘s proceeding if it finds the child protective agency has satisfied its duty of inquiry and there is no reason to know that the child is an Indian child. (
This case requires us to interpret section 224.2, subdivision (b) to determine whether a child protective agency must ask, as part of its initial inquiry, extended family members about a child‘s possible Indian ancestry. Courts independently interpret statutes. (John v. Superior Court (2016) 63 Cal.4th 91, 96 (John).)
Section 224.2, subdivision (b) provides that once a child is placed into temporary custody, the child protective agency “has a duty to inquire whether the child is an Indian child,” which “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 and where the child, the parents, or the Indian custodian is domiciled.” (
” ‘Our primary task in interpreting a statute is to determine the Legislature‘s intent, giving effect to the law‘s purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent. [Citation.]’ ” (John, supra, 63 Cal.4th at pp. 95–96.) If the language is clear, we ” ‘must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.’ ” (Busker v. Wabtec Corp. (2021) 11 Cal.5th 1147, 1157.) We should also give meaning to every word in the statute and avoid a construction that makes any word surplusage, unless doing so would defeat the clear statutory purpose. (Toulumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1039.) And where, as here, remedial legislation is involved, we must interpret the statute broadly. (In re I.F. (2022) 77 Cal.App.5th 152, 163 (I.F.) [the affirmative and ongoing duty to inquire under California law serves a “remedial purpose” requiring us to broadly construe state ICWA statutes].)
On its face, section 224.2, subdivision (b) requires a child protective agency to ask, as part of its initial inquiry, a family‘s extended relatives whether a child is or may be an Indian child. In addition to this statutory mandate, rule 5.481(a)(1)—one of the rules adopted by the Judicial Council
Because I don‘t see any ambiguity in
Under a plain reading of
The majority‘s analysis is misguided. The issue before us isn‘t whether the statute would, in a hypothetical case, require a child protective agency to track down and interview an overwhelming number of relatives. That issue should be addressed in the future when, if ever, it‘s raised on appeal. All mother argues is that the Department was required to interview three of the children‘s family members: M.B., R.P., and M.P. There is nothing absurd or unworkable about applying the statute to the facts of this case. (See Antonio R., supra, 76 Cal.App.5th at p. 436 [rejecting position raised by dissent in H.V. because “[t]he so-called burden on the Department (to satisfy its responsibilities) cannot justify the potential to break up Indian families given the country‘s history of doing just that“].) Indeed, asking each of the identified relatives about the family‘s possible Indian ancestry would have taken little time and effort—likely only a handful of questions that could‘ve been asked and answered in a matter of minutes.
Nor do I agree with the majority‘s narrow framing of the purpose of an ICWA inquiry. Contrary to the majority‘s suggestion, the purpose of the initial inquiry is not to enable courts or child protective agencies to determine at the outset of a dependency proceeding whether a child has a tribal affiliation. (Maj. opn. ante, at pp. 25–27.) That determination can only be made by a tribe after the child protective agency and the court have complied with their inquiry and notice duties. (See Isaiah W., supra, 1 Cal.5th at p. 8; see also T.G., supra, 58 Cal.App.5th at p. 294 [“the question of membership is determined by the tribes, not the courts or child protective agencies“], citing Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 65, fn. 21.) In fact, under
Rather, the initial inquiry is intended only to yield information about a child‘s possible Indian ancestry that may trigger the duties to conduct further
The majority‘s narrow framing of the inquiry‘s purpose reflects a misconception common among courts and child protective agencies. As the California ICWA Compliance Task Force (Task Force) pointed out in its 2017 report to the Attorney General, “[a] common mistake by agencies, county counsels, court-appointed attorneys and the courts themselves is to conflate the issues of: (a) whether ICWA applies [i.e., whether ICWA‘s substantive provisions apply] and (b) whether notice is required under the ICWA [i.e., whether ICWA‘s and related state law‘s procedural provisions apply].” (Cal. ICWA Compliance Task Force, Rep. to Cal. Atty. Gen.‘s Bur. of Children‘s Justice (2017) p. 32 (Report).) The California Supreme Court provided guidance on this point in Isaiah W., when it explained that the initial question in a child custody proceeding is “not whether the evidence ... supports a finding that the minor[] [is an] Indian child[]; it is whether the evidence triggers the notice requirement of ICWA so that the tribes themselves may make that determination.” (Isaiah W., supra, 1 Cal.5th at p. 15.)
In its Report, the Task Force also urged California lawmakers to address the exact problem raised in this appeal: that child protective agencies often neglect to interview extended relatives once a child‘s parents deny knowledge of Indian ancestry. The Task Force warned that “[w]hen parents are the sole target of the initial inquiry, it should be understood that there are a variety of reasons why relying on the parents does not necessarily protect the child‘s best interests, or the rights of the tribe. Parents may simply not have that information, or may possess only vague or ambiguous information. [¶] 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. Parents may even wish to avoid the tribe‘s participation or assumption of jurisdiction.” (Report, supra, at p. 28; see, e.g., Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 38–41 [mother gave birth at hospital “some 200 miles” from reservation to avoid tribal jurisdiction].)3
The Report is an important resource for interpreting
Before 2019, the duty of inquiry was defined in former section 224.3. (See
The 2019 amendments addressed the Task Force‘s express concerns that California law failed to ensure child protective agencies were contacting extended relatives while conducting ICWA inquiries. (See Report, supra, at p. 27, fn. 80 [“It is reported that the parents are frequently the only persons asked [about ICWA], and unfortunately the courts have at times affirmed this approach.“].) Specifically, the Legislature made substantive changes to the inquiry requirements and moved them to
Notably, the 2019 amendments did not limit the duty to interview extended relatives only to when the court or the child protective agency had “reason to know” an Indian child might be involved in a dependency proceeding. Nor did the amendments include any language relieving child protective agencies from having to interview extended relatives once a child‘s parents deny knowledge of Indian ancestry or tribal membership. (See
The Legislature voted unanimously in favor of adopting these statutory changes.4 (Sen. J. (2017–2018 Reg. Sess.) p. 5894 [39-0 in favor]; Assem. J. (2017–2018 Reg. Sess.) p. 6751 [80–0 in favor].)
I also disagree that we should defer to a juvenile court‘s finding that ICWA doesn‘t apply in cases, like this one, where the child protective agency does not dispute it failed to interview identified extended family members. The legal principles that govern a court‘s discretionary action are derived from the applicable law under which the discretion is conferred. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 495.) Thus, a trial court‘s discretion to make decisions concerning statutorily created rights and protections “is always delimited by the statutes governing the particular issue.” (Ibid.) A finding or ruling that ” ‘transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ ” (Ibid.)
Here, the scope of a juvenile court‘s authority to find ICWA doesn‘t apply to a child‘s dependency proceeding is defined by
Not surprisingly, many courts have declined to defer to a finding that ICWA doesn‘t apply where, as here, the juvenile court failed to ensure the child protective agency complied with its inquiry duties. (See, e.g., In re N.G. (2018) 27 Cal.App.5th 474, 482–485 (N.G.) [rejecting agency‘s argument that substantial evidence supported court‘s ICWA findings and remanding matter for ICWA compliance because the agency did not document what efforts, if any, it made to ask extended family members about the child‘s possible Indian ancestry]; K.T., supra, 76 Cal.App.5th at p. 744 [court shouldn‘t have found ICWA didn‘t apply because child protective agency failed to conduct an adequate inquiry into children‘s possible Indian ancestry]; Josiah T., supra, 71 Cal.App.5th at p. 408 [reversed order terminating parental rights because the lack of evidence concerning the child‘s Indian status stemmed from the agency‘s failure to conduct a proper and adequate inquiry under
Because the Department did not comply with its duty to interview the children‘s identified family members about their families’ possible Indian ancestry, the juvenile court should not have found that ICWA doesn‘t apply to Ezequiel‘s, Dominic‘s, and Unique‘s proceedings. I therefore wouldn‘t defer to its ICWA finding.
Additionally, I would find prejudice in this case. Nothing in the record shows how the children‘s extended family members would have responded to questions about the children‘s possible Indian ancestry. Since the Legislature placed the burden to interview those relatives squarely on child protective agencies and courts, and not on parents or parents’ counsel, any rule requiring parents to demonstrate prejudice on appeal in cases like this would be inconsistent with
Certainly, remanding the matter for ICWA compliance would delay finalizing the children‘s permanent plan of adoption. The required inquiry here, however, could have been conducted in significantly less time than it took to defend this appeal. In any event, delaying the matter now to ensure ICWA compliance is preferable to potentially exposing a finalized adoption to collateral attack. (See E.H., supra, 26 Cal.App.5th at p. 1072.) As our Supreme Court explained in Isaiah W., the goal to provide children permanent and stable homes cannot override the “importance of properly determining a child‘s Indian status.” (Isaiah W., supra, 1 Cal.5th at p. 12.)
I conclude by noting that, to date, California appellate courts have developed at least four different approaches to evaluating whether error at the inquiry stage is prejudicial. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 777–782.) This confusion benefits no one. Because the issues raised in this appeal are of substantial importance to dependent children, the children‘s families, and Indian tribes, I urge the Supreme Court to review this decision and expedite briefing and preference in setting the date of oral argument. (See
LAVIN, J.
Notes
Because ICWA uses the term “Indian,” we will do the same for consistency, even though we recognize that “other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.) All undesignated statutory references are to the Welfare and Institutions Code and all undesignated rule references are to the California Rules of Court.