In re V.C. et al., Persons Coming Under the Juvenile Court Law.
A166527 (Alameda County Super. Ct. Nos. JD03188201, JD03191801)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 9/6/23
CERTIFIED FOR PUBLICATION
In a previous appeal in these dependency proceedings with respect to V.C. and Z.C., we reversed the juvenile court’s order terminating the parental rights of John C. (father) and Vanity L. (mother) (together, parents) and remanded for a new
BACKGROUND
A more detailed recitation of the facts of these dependency proceedings is contained in our prior unpublished opinion, In re V.C. (Feb. 22, 2022, A163417) [nonpub. opn.]. We set forth only the facts relevant to the ICWA issue raised on appeal.
On December 2, 2019, the agency filed a petition pursuant to
According to the Indian Child Inquiry Attachment form attached to the petitions, each child “has no known Indian ancestry,” and on November 25, 2019, a social worker spoke with both parents, who each “denied any Native American ancestry.”
On December 3, both parents completed and filed “Parental Notification of Indian Status” forms, checking the box to indicate “I have no Indian ancestry as far as I know,” and signing the form under penalty of perjury.
On March 9, 2020, the juvenilе court held combined jurisdiction and disposition hearings with respect to both V.C. and Z.C. The court found the allegations of the petitions true, declared the children dependents, removed them from parental custody, and ordered reunification services. Based on the Parental Notification of Indian Status forms, the court concluded that each child “is not an Indian child and no further notice is required under ICWA.”
On February 22, 2021, a combined six-month and 12-month review hearing was held at which the court terminated reunification services, set a
A
On August 16, mother filed a notice of appeal.
On February 22, 2022, we reversed the termination of parental rights, and remanded for the juvenile court to conduct a new
On October 5, a new
Both parents filed notices of appeal.2
DISCUSSION
Parents’ only argument is that agency failed to comply with ICWA because it was required to, but did not, ask “extended family members” about the children’s potential Indian ancestry.3
Applicable Law
Parents’ argument is based on
“(a) The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under
Section 300 ,601 , or602 may be or has been filed, is or may be an Indian child. The duty to inquire begins with the initial contact, including, but not limited to, asking the рarty reporting child abuse or neglect whether the party has any information that the child may be an Indian child.
“(b) If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 4 or county probation department pursuant toSection 307 , the county welfare department or county probation department has a duty to inquire whether that child is an Indian child. Inquiry 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 Indian custodian is domiciled.“(c) At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.”
The ICWA Duty to Inquire of Extended Family Members Applies Here
As noted, Z.C. was placed into protective custody pursuant to a search and seizure warrant signed on November 26 and served on December 9. The petition for Z.C. was filed on December 11. V.C. was placed into protective custody on November 26. A petition for V.C. was filed on Deсember 2. Thus, both children were presumably taken into protective custody pursuant to
This language that begins
“Despite the large number of recent appeals based on DCFS’s failure to make inquiries of ‘extended family members,’ no case appears to have confronted the question of why the prefatory clause in
section 224.2, subdivision (b) should be interpreted as meaning something other than what it plainly says—that the inquiry obligation expressed in this subdivision is triggered when the child is ‘placed into the temporary custody of a county welfare department pursuant to [s]ection 306.’ (Ibid.) [¶] . . . [¶]“Placing a child into ‘temporary custody of a county welfare dеpartment pursuant to [section] 306’ is fundamentally different from taking a child into ‘protective custody’ under
section 340 . Beyond the obvious feature that one process requires a court order, and the other does not, these provisions are found in entirely different articles of the juvenile law. The two provisions also have different standards that must be met to justify removal.Section 306 requires ‘imminent physical damage or harm’ before a child may be removed without a warrant (id., subd. (c)), butsection 340 does not have such a strict standard (id., subds. (a), (b)). Undersection 340 , a court may issue a warrant without a prior filing of asection 300 petition where ‘[t]here is a substantialdanger to the safety or to the physical or emotional health of the child.’ (§ 340, subd. (b)(2), italics added.) It thus requires neither imminent nor physical harm. As discussed, post, this difference is significant under federal ICWA law because a removal under section 306 is considered an ‘emergency removal’ under ICWA, but a removal pursuant to an order issued undersection 340 is not. This distinction illuminates why the legislative choice to limit the scope ofsection 224.2, subdivision (b) to situations where a child is placed in temporary custody of a county welfare agency pursuant tosection 306 aligns it with federal ICWA guidance.” (Adrian L., supra, at pp. 356-357, fns. omitted (conc. opn. of Kelley, J.).)
Two recent decisions from Division Two of the Fourth District Court of Appeal adopted the reasoning of Judge Kelley’s concurring opinion, holding that the duty to inquire of “extended family members” is not triggered when the children are taken into protective custody with a warrant pursuant to
Both parents appear to accept the premise that inquiry of “extended family members” is required only where the “child is placed into the temporary custody of a county welfare department pursuant to
On July 21, 2023, after briefing in this appeal was completed, Division Two of the Fourth District filed In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.). There, in a 2–1 opinion, Justices Slough and Raphael declined to follow Robert F. and Ja. O., and instead concluded “there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from home.” (Id. at p. 962.) Because “the way a child is initially removed from home has no bearing on the question of whether they may be an Indian child,” Delila D. concluded that “[t]he holding of Robert F. is, in our view, contrary to both the letter and spirit of Assembly
“Even if [Robert F.’s] conclusion that
section 306 excludes removals by protective custody warrant were correct, we would still disagree with its conclusion that the duty described insection 224.2(b) dоes not apply once a child initially removed by warrant is removed from parental custody at the disposition hearing.“First,
section 224.2(b) does not state that the inquiry it describes applies ‘only if’ a child is taken into temporary custody undersection 306 . (See Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827 [it is a ‘cardinal rule’ of statutory interpretation that ‘courts may not add provisions to a statute’].)Section 224.2(b) does not contain the word only or any other language suggesting an intent to limit the inquiry it describes. And where, as here, where [sic] rеmedial legislation is involved, we must interpret the statute broadly to achieve its purpose. (See In re I.F. (2022) 77 Cal.App.5th 152, 163 [the affirmative and ongoing duty to inquire under California law serves a ‘remedial purpose’ requiring us to broadly construe state ICWA statutes]; see also Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1107 [courts must construe statutory provisions ‘in context, keeping in mind the statute’s nature and obvious purposes’ (italics added)].)“Here, the obvious purpose of Assembly Bill [No.] 3176 was to expand the scope of the initial inquiry beyond the parents. Nothing in the text of that amendment or its legislative history suggests an intent to apply the expanded inquiry in some cases but not others. Indeed, Assembly Bill [No.] 3176 itself states that it amends existing law to ‘revise the specific steps a social worker . . . is required to take in making an inquiry of a child’s possible status as an Indian child.’ [(Stats. 2018, ch. 833 (Assembly Bill No. 3176), § 5.)] Nоtably, the Legislature did not say those steps apply only in the subset of dependency proceedings that begin with warrantless removals. We think that if the Legislature intended to so limit the initial inquiry, it would have said so.
“Second, [
California Rules of Court,] rule 5.481 requires social workers to make the inquiry described insection 224.2(b) any time the department is ‘seeking a foster-care placement, . . . termination of parental rights, preadoptive placement, or adoption.’ ([See]rule 5.481(a)(1) [directing the department, in such circumstances, to ask ‘extended family members [and] others who have an interest in the child’ about possible Indian ancestry].) Where, as here, the rule is not inconsistent with the statute, we are required to follow it.(See R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 205 [‘Rules of court have the force of law and are as binding as procedural statutes as long as they are not inconsistent with statutory or constitutional law’]; see also [In re] T.G. [(2020)] 58 Cal.App.5th [275,] 291 [concluding rule 5.481 is ‘entitled to judicial deference’].) “Third and perhaps most importantly, it simply doesn’t make sense to apply different initial inquiries depending on how the child was initially removed from home, as that procedural happenstance has nothing to do with a child’s ancestry.
“For all these reasons, we conclude Robert F.’s interpretation of
section 224.2(b) as ‘crafting [a] narrow inquiry duty’ that applies only to children initially taken into temporary custody without a warrant contravenes the plain language and obvious purpose of Assembly Bill [No.] 3176. (Robert F., supra, 90 Cal.App.5th at p. 503.) We hold instead that the Legislature enactedsection 224.2(b) to impose on departments a broad duty to inquire that applies rеgardless of how a child is initially removed from home.” (Delila D., supra, 93 Cal.App.5th at pp. 974–975.)6
Following supplemental briefing from the parties on Delila D., we write to express agreement with Delila D. on this point, holding that the duty to make ICWA inquiry of “extended family members” applies even if the children here were not taken into “temporary custody” pursuant to
We thus turn to the issue of prejudice.
The ICWA Error Was Not Harmless
The appellate courts are divided on what showing of prejudice warrants reversal for ICWA inquiry errors, the varying standards for prejudice including these four: (1) deficient inquiry necessarily infects the juvenile court’s ruling and reversal is automatic and required (“automatic reversal rule“) (See, e.g., In re G.H. (2022) 84 Cal.App.5th 15, 32; In re A.R. (2022) 77 Cal.App.5th 197, 207; In re J.C. (2022) 77 Cal.App.5th 70, 80; In re Antonio R. (2022) 76 Cal.App.5th 421, 432–437 (Antonio R.); In re Y.W. (2021) 70 Cal.App.5th 542, 556 (Y.W.)); (2) deficient inquiry is harmless unless the record below demonstrates, or the parent on appeal makes an offer of proof or other affirmative assertion of, Indian heritage (“presumptive affirmance rule“) (In re A.C. (2021) 65 Cal.App.5th 1060, 1069); (3) a deficient inquiry requires reversal where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.)); and (4) deficient inquiry is harmless unless the record contains information suggesting a “reason to believe” the child is an Indian child (In re Dezi C. (2022) 79 Cal.App.5th 769, 779, review granted Sept. 21, 2022, S275578 (Dezi C.)).
We weigh in on the issue, and begin by noting that we join with the many other courts that have declined to apply the presumptive affirmance rule, which has been rightly criticized. (See In re K.H. (2022) 84 Cal.App.5th 566, 612–614, citing In re Y.M. (2022) 82 Cal.App.5th 901, 913–915; Dezi C., supra, 79 Cal.App.5th at pp. 777–778; Benjamin M., supra, 70 Cal.App.5th at pp. 743–744.) As explained in In re K.H., a presumptive affirmance rule requiring a parent to demonstrate evidence in the record or make an offer on appeal regarding possible Indian heritage would routinize consideration of new evidence on appeal, which is generally disfavored. It would also shift the burden of investigation onto parents in dependency proceedings and, moreover, disregard the interests of the Native American tribes, because prejudicially deficient inquiries will go uncorrected if an appealing parent is unwilling or unable to make a meaningful proffer on appeal. (See In re K.H., supra, 84 Cal.App.5th at pp. 612–614 [and cases cited].)
We also decline to adopt the “reason to believe” approach in Dezi C. In deeming an agency’s failure to conduct a proper inquiry into a dependent’s Indian ancestry to be harmless unless the “record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA,” (Dezi C., supra, 79 Cal.App.5th at p. 779), the rule in Dezi C. shifts the duty of developing information on Indian ancestry from the agency to the рarents. (See Benjamin M., supra, 70 Cal.App.5th at p. 743 [“Requiring a parent to prove that the missing information would have demonstrated ‘reason to believe’ would effectively impose a duty on that parent to search for evidence that the Legislature has imposed on only the agency“].)
Additionally,
We adopt the standard of
In addition, as noted, mother has filеd a motion to take additional evidence on appeal, attaching her declaration stating that she has “heard through my family over the years that I am Native American through both sides of my family,” including through her mother’s cousin, mother’s nephews, and paternal grandfather, and stating that father also has Native American ancestry though his maternal grandmother. We grant this motion for the limited purpose of considering the issue of prejudice. (See Dezi C., supra, 79 Cal.App.5th at p. 779 & fn. 4 [considering proffers by the appealing parent is appropriate in assessing prejudice under ICWA].) Mother’s proffer further supports our conclusion that the record here “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. 744.)
DISPOSITION
The order terminating parental rights is conditionally reversed. The matter is remanded with directions for the juvenile court to оrder the agency to comply with the duty of initial ICWA inquiry (
Richman, J.
We concur:
Stewart, P.J.
Miller, J.
In re V.C. (A166527)
Trial Court: Alameda County Superior Court
Trial Judge: Honorable Ursula Jones Dickson;
Attorney for Plaintiff and Respondent, Alameda County Social Services Agency: Office of the County Counsel, County of Alameda; Donna R. Ziegler, County Counsel, Samantha Stonework-Hand, Senior Deputy County Counsel, Josephine Miller Williams, Associate County Counsel;
Attorney for Defendant and Appellant, John C.: Christopher R. Booth, under appointment by the Court of Appeal;
Attorney for Defendant and Appellant Vanity L.: Gorman Law Office; Seth F. Gorman, under appointment by the Court of Appeal.
Notes
“(a) Any social worker in a county welfare department, or in an Indian tribe that has entered into an agreement pursuant to
“(1) Receive and maintain, pending investigation, temporary custody of a child who is described in
“(2) Take into and maintain temporary custody of, without a warrant, a child who has been declared a dependent сhild of the juvenile court under
“(b) Upon rеceiving temporary custody of a child, the county welfare department shall inquire pursuant to
“(b) A protective custody warrant may be issued without filing a petition under
“(1) The child is a person described in
“(2) There is a substantial danger to the safety or to the physical or emotional health of the child.
“(3) There are no reasonable means to protect the child‘s safety or physical health without removal.
“(c) Any child taken into protective custody pursuant to this section shall immediately be delivered to the social worker who shall investigate, pursuant to