Filed 7/29/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re EZEQUIEL G., et al., Persons B314432
Coming Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. 18CCJP01205A)
FAMILY SERVICES,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. CK87298F,G)
v.
PRISCILLA S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Commissioner. Affirmed.
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 Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
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) (25 U.S.C.
§ 1900 et seq.) and related state laws (Welf. & Inst. Code, § 224 et
seq.).1 To the contrary, the parents affirmatively represented
below that they do not have Indian ancestry, and no parent
objected either to the adequacy of the ICWA inquiry conducted by
the Los Angeles County Department of Children and Family
Services (DCFS) or to the juvenile court’s finding that ICWA did
not apply. Further, the appealing parent, Priscilla S. (mother),
does not suggest on appeal that any of the information provided
about the children’s ancestry was in error or that she has
uncovered new information after parental rights were terminated
suggesting that the children are Indian children. Nonetheless,
mother asks us to reverse the final order terminating parental
rights because there are members of the children’s extended
family of whom an ICWA inquiry was not made.
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
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
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.)
2
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 evidence/abuse of
discretion standard, reviewing for substantial evidence whether
there is reason to know a child is an Indian child, and for abuse
of discretion a juvenile court’s finding that an agency exercised
due diligence and conducted a “proper and adequate” ICWA
inquiry. Further, we will reverse only on a showing that any
ICWA error was prejudicial. Applying this standard here, we
conclude that there is substantial evidence in the record to
support the juvenile court’s finding that the children are not
2 Some of these decisions characterize their dispositions as
conditional reversals and others as conditional affirmances with
directions. Because both kinds of dispositions have the effect of
returning matters to the juvenile court, for simplicity we will
refer to all of these dispositions as reversals, without
distinguishing between conditional reversals and conditional
affirmances.
3
Indian children, and the juvenile court did not abuse its
discretion by concluding that DCFS exercised due diligence and
conducted an adequate ICWA inquiry. We further conclude that
mother has not shown that any error was prejudicial. We
therefore will affirm the orders terminating parental rights.
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 section 300, subdivision (b) and ordered the children
removed from the parents.
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.
4
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 section 366.26 hearing. On
August 17, 2021, the juvenile court terminated parental rights as
to Unique, Dominic, and Ezequiel. Mother timely appealed.
B. ICWA inquiry and findings.
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.
3 A prior dependency petition was filed in April 2011 on
behalf of some of the older children. Juvenile court jurisdiction
was terminated in May 2012, and mother was awarded sole legal
and physical custody of the five children.
5
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 identified above (or to any other extended family
members whose names may appear in the record but who are not
specifically identified in this opinion), or that DCFS’s failure to do
so supports a conditional reversal.
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.
6
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 25 U.S.C. § 1902.)
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” (§ 224.2, subd. (a))––that is, an
“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” (25 U.S.C. § 1903(4); § 224.1, subd. (a) [adopting federal
definition]).
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.” (§ 224.2,
subd. (a).) If a child is removed from parental custody, the county
welfare 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
7
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.” (§ 224.2, subd. (b).) Further, 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”
and “shall instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
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. (§ 224.2, subd. (e).)
Further inquiry “includes, but is not limited to, all of the
following: (A) Interviewing the parents, Indian custodian, and
extended family members . . . . (B) Contacting the Bureau of
Indian Affairs and the State Department of Social Services . . . .
[and] (C) Contacting the tribe or tribes and any other person that
may reasonably be expected to have information regarding the
child’s membership, citizenship status, or eligibility.” (Ibid.)
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 section 224.3, subdivision (a)(5). (§ 224.2,
subd. (f).) There is “reason to know” a child is an Indian child if
any one of six statutory criteria is met—i.e., if the court is
advised that the child “is an Indian child,” the child’s or parent’s
residence is on a reservation, the child is or has been a ward of a
8
tribal court, or either parent or the child possess an identification
card indicating membership or citizenship in an Indian tribe.
(§ 224.2, subd. (d).)
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.” (§ 224.2, subd. (i)(2).)
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 possible Indian ancestry
through father where father’s in-court statement and his
parental notification of Indian status declaration indicated that
he had no Indian ancestry]; In re J.L. (2017) 10 Cal.App.5th 913,
922–923 [no ICWA inquiry error where mother indicated on an
ICWA-020 form that she was not sure whether she had Indian
ancestry and did not know which relatives might have such
9
ancestry]; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 95
[mother did not demonstrate reversible error where she “is not
asserting [on appeal] that she does have American Indian
ancestry”]; In re N.E. (2008) 160 Cal.App.4th 766, 771 [father did
not demonstrate reversible error where he “has not suggested he
in fact has any Indian heritage”]; In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1431 [failure to inquire whether father
had Indian ancestry was not reversible error where father “is
here, now, before this court” but did not represent that he had
Indian ancestry].)
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
10
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
absent from the juvenile court record, the appealing parent need
not demonstrate that any ICWA error was prejudicial. (E.g., In
re J.C., supra, 77 Cal.App.5th at p. 80 [“where, as here, the
Department’s failure to conduct an adequate inquiry makes it
impossible for the parent to show prejudice, we must remand for
a proper inquiry”]; In re Y.W. (2021) 70 Cal.App.5th 542, 556 [“It
is unreasonable to require a parent to make an affirmative
representation of Indian ancestry where the Department’s failure
to conduct an adequate inquiry deprived the parent of the very
knowledge needed to make such a claim.”].) Applying these
analyses, some courts have begun to independently review
compliance with statutory ICWA inquiry requirements and to
reverse, without any showing of prejudice, if they conclude an
agency’s inquiry was deficient.
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,
11
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., Cal. Rules of Court, rule 5.550 [in considering a child’s
interests, “substantial weight [must be given] to a child’s needs
for stability and prompt resolution of custody status, and the
damage of prolonged temporary placements”]; In re Marilyn H.
(1993) 5 Cal.4th 295, 310 [four months “may not seem a long
period of time to an adult, [but] it can be a lifetime to a young
child”]; Adoption of A.B. (2016) 2 Cal.App.5th 912, 924
[“childhood is brief; it does not wait while a parent rehabilitates
himself or herself. The nurturing required must be given by
someone, at the time the child needs it”].) But while courts that
apply a rule of “automatic reversal” (see In re Dezi C. (2022)
79 Cal.App.5th 769, 777) acknowledge that remands for further
ICWA inquiry delay permanence for children, they reason that
the reversals are compelled by the statutory language and are
necessary to protect the interests of Indian families and
communities as ICWA intended. (E.g., In re A.C. (2022)
75 Cal.App.5th 1009, 1016 [“We do not quarrel with the policy
arguments the dissent so elegantly elucidates,” but such
arguments “are grist for the legislative mill.”].)
We do not agree that a rule of automatic reversal is
compelled by the statutory language. While section 224.2
12
describes the persons of whom an ICWA inquiry should be made,
nothing in its express language requires or permits appellate
courts to independently review a juvenile court’s ICWA findings.
To the contrary, the statute provides that a juvenile court’s ICWA
findings should be reviewed for “sufficiency of the evidence.”
(§ 224.2, subd. (i)(2).) And, nothing in the statute’s language
suggests that ICWA error requires reversal in the absence of a
showing of prejudice.
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 (25 U.S.C. §§ 1911, 1912(d), 1915(a))––
require that an adequate ICWA inquiry is done at the earliest
possible stage of a proceeding, ideally before a petition is filed
and children are removed from their parents. (See, e.g.,
25 C.F.R. §§ 23.107 [state courts must make ICWA inquiry “at
the commencement of the proceeding”], 23.120 [court must make
active efforts “[p]rior to ordering an involuntary foster-care
placement”], 23.129 [placement preferences apply in any foster-
care, preadoptive, or adoptive placement].) As the Bureau of
Indian Affairs has explained: “It is . . . critically important that
there be an inquiry into that threshold issue as soon as possible.
If this inquiry is not timely, a child–custody proceeding may not
comply with ICWA and thus may deny IWCA protections to
Indian children and their families.” (Indian Child Welfare Act
13
Proceedings, 81 Fed.Reg. 38778, 38802 (June 14, 2016) (BIA
ICWA Proceedings), italics added.) Consistent with these federal
requirements, California law requires child protective agencies to
make ICWA inquiries before filing juvenile dependency petitions,
and requires juvenile courts to make ICWA inquiries at each
parent’s first appearance. (§ 224.2, subd. (c); Cal. Rules of Court,
rule 5.481(a)(1), (2).)
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 ICWA
obligations. To the contrary, parents 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.” (Judicial Council of Cal., Form ICWA-020
[rev. Mar. 25, 2020]; see also § 224.2, subd. (c) [at each party’s
first appearance, the court shall ask whether the child is an
Indian child, and shall instruct the parties to inform the court if
they subsequently receive information that provides reason to
know the child is an Indian child]; 25 C.F.R. § 23.107(a) [same].)
14
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.)
15
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.
III. In an appeal from an order terminating parental
rights, appellate courts should review asserted ICWA
inquiry errors under a hybrid substantial
evidence/abuse of discretion standard, and should
reverse only if 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. (§ 224.2, subd. (i)(2).) Second, the court must
decide whether a “proper and adequate further inquiry and due
diligence as required in this section have been conducted.” (Ibid.)
If the court finds an adequate inquiry has been conducted and
there is no reason to know a child is an Indian child, “the court
may make a finding that the federal Indian Child Welfare Act of
1978 (25 U.S.C. § 1901 et seq.) does not apply to the proceedings.”
(Ibid.)
16
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. (§ 224.2, subd. (d).) If none of
these six factors is met, the court must make a finding that there
is no reason to know the child is an Indian child.
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” (§ 224.2, subd. (i)(2))––is somewhat different.
Deciding whether an inquiry was “adequate” and an agency acted
with appropriate diligence requires more of a court than simply
17
applying a statutory checklist to undisputed facts. Instead, it
requires the court to “engage in a delicate balancing” (Caden C.,
supra, 11 Cal.5th at p. 640), to assess whether an ICWA inquiry
was appropriate and sufficient in light of the facts of a particular
case. In short, the statute directs the juvenile court to perform a
quintessentially discretionary function, and thus we believe our
review should be for abuse of discretion. (E.g., People v. Jurado
(2006) 38 Cal.4th 72, 136 [whether prosecution provided
defendant “timely and adequate” notice that it would pursue the
death penalty reviewed for abuse of discretion]; People v. Wilson
(2005) 36 Cal.4th 309, 352 [trial court’s finding that defendant
did not exercise due diligence to secure witness’s attendance at
trial reviewed for abuse of discretion]; Carter v. City of Los
Angeles (2014) 224 Cal.App.4th 808, 819 [whether class notice
was adequate was subject to abuse of discretion review]; People v.
Shane (2004) 115 Cal.App.4th 196, 203 [applying an abuse of
discretion standard of review to trial court’s due diligence
determination].)
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, section 224.2, subdivision (b)
requires the county welfare department to “inquire whether [a
dependent child] is an Indian child,” and it says that 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 . . . .” (§ 224.2, subd. (b).) An “extended family member” is
(unless otherwise defined by an Indian child’s tribe) an adult who
18
is “the Indian child’s grandparent, aunt or uncle, brother or
sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin or stepparent.” (25 U.S.C. § 1903(2); § 224.1,
subd. (c) [adopting federal definition].)
Because the persons identified in section 224.2, subdivision
(b) are connected by the word “and,” not “or,” and because
“extended family member” is broadly defined, the statute facially
requires that, in every case, initial inquiry be made of at least all
of the following: (1) the child, (2) the parents, (3) the legal
guardian (presuming there is one, although the statute doesn’t
say that explicitly), (4) the Indian custodian (again presuming
there is one, although again the statute doesn’t say that), (5) all
grandparents, (6) all aunts and uncles, (7) all adult siblings,
(8) all siblings-in-law, (9) all nieces and nephews, (10) all first
cousins, (11) all second cousins, (12) the reporting party, and
(13) all others who have an interest in the child. The statute
then requires that if the initial inquiry gives rise to reason to
believe a child is an Indian child, a further inquiry shall be made
that “includes, but is not limited to” interviewing the parents,
Indian custodian, and extended family members (§ 224.2,
subd. (e)(2)(A))––that is, all the same individuals the statute says
should be interviewed as part of the initial inquiry.
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
19
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
20
number for his grandmother, but the phone number is no longer
in service. The social worker contacts father again to try to get
additional contact information for his parents and grandmother,
but father does not return the call.
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
21
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 in these cases are
based on an agency’s failure to make an ICWA inquiry of
particular named individuals, the remand instructions typically
are not limited to these individuals, but instead send cases back
to juvenile courts with instructions to ensure ICWA compliance,
without specifying exactly what that entails. (See, e.g., In re J.C.,
supra, 77 Cal.App.5th at p. 84 [conditionally affirming “with
directions to ensure the Department fully complies with the
inquiry and, if necessary, notice provisions of ICWA and related
California law, including interviewing Cheryl, Kathryn, and any
other extended family members they may identify”]; In re
Antonio R., supra, 76 Cal.App.5th at pp. 436–437 [conditionally
22
affirming with directions “for the Department and the court to
comply with the inquiry and notice provisions of ICWA and
California law consistent with this opinion, including inquiring of
the maternal extended family members”]; In re H.V., supra,
75 Cal.App.5th at pp. 438–439 [conditionally affirming with
directions to the juvenile court “to order the Department to
comply with ICWA,” including by “conduct[ing] an inquiry
investigation into the child’s Indian ancestry, including making
diligent efforts to interview the child’s extended family members
. . . including at least mother, maternal great-grandmother, C.W.,
and maternal great-grandfather”].)
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.
23
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” (§ 224.2, subd. (a))––
that is, whether he or she 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.” (25 U.S.C.
§ 1903(4); see also § 224.1, subds. (a)–(b); BIA ICWA Proceedings,
supra, 81 Fed.Reg. at p. 38795 [“The statute specifies that if the
child is not a Tribal member, then the child must be a biological
child of a member and be eligible for membership, in order for the
24
child to be an ‘Indian child.’ ”].) In other words, the focus of the
court’s analysis should not be on the number of individuals
interviewed, but on whether the agency’s ICWA inquiry has
yielded reliable information about a child’s possible tribal
affiliation.
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
[as of July 28, 2022], archived at
.) 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
[as of July 28, 2022], archived at
4 The terms “citizen” and “citizenship” are synonymous with
“member” and “membership” in the context of Tribal government.
(BIA ICWA Proceedings, supra, 81 Fed.Reg. at p. 38795.)
25
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 laws generally include provisions requiring the parent or
legal guardian of a minor to apply for Tribal citizenship on behalf
of the child. [Citation.] Tribes also often require an affirmative
act by the individual seeking to become a Tribal citizen, such as
the filing of an application. [Citation.] As ICWA is limited to
children who are either enrolled in a Tribe or are eligible for
enrollment and have a parent who is an enrolled member, that
status inherently demonstrates an ongoing Tribal affiliation.”
(Ibid., italics added; see also BIA Guidelines, supra, at p. 10
[“Most Tribes require that individuals apply for citizenship and
demonstrate how they meet that Tribe’s membership criteria.”].)5
5 See also, for example, Cheyenne and Arapaho Tribes,
Requirements for Tribal Enrollment
(as of July 28, 2022), archived at
https://perma.cc/C8RG-E9EZ [requiring membership application
to be submitted with required documentation attached, to be
reviewed by Enrollment Committee]; Hopi Tribe, Application for
Hopi Membership
(as of July 28, 2022), archived at https://perma.cc/42Q2-NWF3
[requiring submission of Application for Hopi Membership and
certified copies of applicant’s birth certificate and social security
card, after which the Hopi Enrollment Office determines whether
membership criteria have been met and refers the request for
membership to the Hopi Tribal Council for approval]; Pascua
26
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.” (§ 224.2, subd. (h).) But a parent typically will know
whether she has applied for membership for herself or her child—
and her disclosure that she has not will, in most cases, reliably
establish that a child is not an Indian child within the meaning of
ICWA.
For the same reason, we disagree with the suggestion made
in some recent appellate decisions that a parent may not have
Yaqui Tribe, Membership Criteria and Requirements
(as of July 28, 2022), archived at
https://perma.cc/ST6W-U8XP [membership in the Pascua Yaqui
Tribe requires, among other things, that an individual “[a]pplies
for and is granted membership under the laws of the Pascua
Yaqui Tribe and consistent with this section”].
6 Of course, we leave it to the juvenile court to determine
whether an inquiry is adequate in a particular case.
27
reliable information about tribal membership because “over time,
Indian families, particularly those living in major urban centers
like Los Angeles, may well have lost the ability to convey
accurate information regarding their tribal status.” (See, e.g. In
re T.G. (2020) 58 Cal.App.5th 275, 295.) It is indisputable that
federal policies that forced or encouraged Indians to leave their
traditional lands and assimilate into the general population had
the tragic effect of separating many Indian families from their
communities, resulting in many families now being unaware of
their Indian ancestry. (See id. at p. 295 & fn. 19.) But as we
have said, ICWA does not apply based merely on a child or
parent’s Indian ancestry––there must be a political relationship
to a tribe. Because such relationship requires an affirmative act
by an individual or her parent, we believe it will be rare that a
parent is unaware of her own or her child’s tribal membership.
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
28
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 that the
Report was before the Legislature or reflects its intent. (See
Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1218, fn. 3
[enrolled bill reports prepared for the Governor, “do not take
precedence over more direct windows into legislative intent such
as committee analyses, and cannot be used to alter the substance
of legislation,” although they may be “ ‘instructive’ in filling out
the picture of the Legislature’s purpose”]; People v. Allen (2001)
88 Cal.App.4th 986, 995, fn. 19 [enrolled bill reports prepared by
the executive branch for the Governor “do not necessarily
demonstrate the Legislature’s intent,” although they can
“corroborate the Legislature’s intent, as reflected in legislative
reports”]; K.C. v. Superior Court (2018) 24 Cal.App.5th 1001,
1008, fn. 2 [same].)
29
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
30
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 inquiry, taking into account
the relationship of the identified individuals to the children, the
extent of DCFS’s prior inquiry, and the adequacy of the contact
information provided. The court also could have monitored
DCFS’s compliance with its order and ordered further inquiry as
appropriate. Significantly, moreover, it could have done so
without delaying permanency for these children.
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
31
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 reviewed or
whether a parent’s failure to object to such errors below was
relevant to that analysis. Nor did the court consider whether a
failure to object to an ICWA finding may be a relevant factor––
albeit not the conclusive factor––in evaluating abuse of
discretion.
32
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.)
33
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.
We further conclude that the juvenile court did not abuse
its discretion by finding that DCFS made a proper and adequate
inquiry and acted with due diligence. Each of the parents
unequivocally denied Indian ancestry, and mother has not
identified any evidence in the record that would support an
inference that she or the children’s fathers might unknowingly be
members of an Indian tribe. Indeed, the evidence is to the
contrary: All of the parents appear to have been in contact with
their extended families, and thus the possibility that they might
unknowingly be members of a tribe appears trivially small.
(Compare In re Y.W. (2021) 70 Cal.App.5th 542, 548 [mother was
adopted and did not have information about her biological
relatives]; In re Benjamin M., supra, 70 Cal.App.5th at pp. 740,
745 [father never appeared and mother had no reason to know
father’s ancestry]; In re A.C., supra, 75 Cal.App.5th at p. 1017
[“mother, as a foster care product, may not know her cultural
heritage”].) Further, notwithstanding multiple opportunities to
do so, no parent ever objected below to the adequacy of the ICWA
inquiry or the juvenile court’s conclusion that ICWA did not apply
to this case. Accordingly, we find mother has not demonstrated
that the juvenile court’s ICWA findings were in error.
34
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.
35
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 (25 U.S.C. § 1901 et seq.)
(ICWA) are clear that a child protective agency must interview a
child’s extended relatives as part of its initial inquiry, regardless
of whether the child’s parents affirm or deny knowledge of Indian
ancestry. (See Welf. & Inst. Code, § 224.2, subd. (b); Cal. Rules of
Court, rule 5.481(a)(1).)1 And here it is undisputed that the Los
Angeles County Department of Children and Family Services
(Department) failed to ask the children’s identified family
members—including maternal uncle M.B., maternal cousin R.P.,
and paternal aunt K.G.—about the family’s possible Indian
ancestry.2 Accordingly, I would conclude that the Department did
not fulfill its duty of initial inquiry and substantial evidence did
not support the juvenile court’s finding that ICWA did not apply.
I would also conclude that mother’s failure to make affirmative
representations about possible Indian heritage does not render
the error harmless. Thus, I would conditionally affirm the orders
terminating mother’s parental rights and remand the matter to
the juvenile court for full compliance with the inquiry provisions
of ICWA and related California law.
1All undesignated statutory references are to the Welfare and
Institutions Code and all undesignated rule references are to the
California Rules of Court.
2Although the Department was given contact information for and/or
had contact with a variety of extended family members, M.B., R.P.,
and K.G. are the only relatives mother contends the Department
should have interviewed under ICWA.
1
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.
(25 U.S.C. § 1902.) The law establishes minimum federal
standards that a court must follow before removing Indian
children from their families. (Ibid.; see also In re T.G. (2020) 58
Cal.App.5th 275, 287 (T.G.).) These standards were enacted to
address “ ‘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.’ ” (In re Isaiah W. (2016) 1 Cal.5th
1, 7 (Isaiah W.).) Congress found that states exercising
jurisdiction over Indian child custody proceedings, “ ‘ “have often
failed to recognize the essential tribal relations of Indian people
and the cultural and social standards prevailing in Indian
communities and families.” ’ ” (In re K.T. (2022) 76 Cal.App.5th
732, 740 (K.T.).)
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. (25 U.S.C. § 1921.) Where a state standard is
higher than the related federal law, courts must apply the higher
state standard. (Ibid.)
California has enacted such higher standards. (T.G., supra,
58 Cal.App.5th at pp. 289–290.) Our statutes impose on courts
and child protective agencies “an affirmative and continuing duty
2
to inquire whether a child [in a dependency proceeding] is or may
be an Indian child.” (§ 224.2, subd. (a).) The duty to inquire
begins at the outset of a child’s dependency case and requires the
juvenile court and child protective agencies to ask all relevant
individuals who are involved with the case whether the child may
be an Indian child. (§ 224.2, subd. (c); T.G., at p. 290.) “[T]he
burden of coming forward with information to determine whether
an Indian child may be involved and [the extent of] ICWA notice
required in a dependency proceeding does not rest entirely—or
even primarily—on the child and his or her family.” (In re
Michael V. (2016) 3 Cal.App.5th 225, 233.) That is, the burden
rests “squarely on the courts and child [protective] agencies.” (In
re A.R. (2022) 77 Cal.App.5th 197, 207 (A.R.).)
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.” (§ 224.2, subd. (e).)
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.
(§§ 224.2, subd. (f) & 224.3, subd. (a).) Formal notice requires
providing the tribe with, among other things, “extensive
biographical data” about a child’s relatives, including parents,
grandparents, and great-grandparents. (T.G., supra, 58
Cal.App.5th at p. 294; see § 224.3, subd. (a)(5)(C).)
3
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. (§ 224.2, subd. (i)(2); rule
5.481(b)(3)(A).) An ICWA violation “ ‘renders the dependency
proceedings, including an adoption following termination of
parental rights, vulnerable to collateral attack if the dependent
child is, in fact, an Indian child.’ ” (In re E.H. (2018) 26
Cal.App.5th 1058, 1072 (E.H.); see also 25 U.S.C. § 1914.)
2. The Department failed to conduct an adequate inquiry
into the children’s possible Indian ancestry.
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.” (§ 224.2, subd. (b).) An extended family member
under ICWA is an adult who is, unless otherwise defined by the
law or custom of the child’s tribe, “the Indian child’s grandparent,
aunt or uncle, brother or sister, brother-in-law or sister-in-law,
niece or nephew, first or second cousin, or stepparent.” (25 U.S.C.
4
§ 1903(2); § 224.1, subd. (c) [adopting the federal definition of an
extended family member].)
“ ‘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 governing inquiry and
notice requirements—provides that when removing a child from
his or her parent’s custody, the agency “must ask the child, if the
child is old enough, the parents, Indian custodian, or legal
guardians, extended family members, others who have an interest
in the child, and where applicable the party reporting child abuse
5
or neglect, whether the child is or may be an Indian child.”
(Italics added.) (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.”].) Neither
section 224.2, subdivision (b) nor rule 5.481(a)(1) condition the
requirement to interview extended family members on whether a
parent affirms or denies knowledge of possible Indian ancestry.
Because I don’t see any ambiguity in section 224.2,
subdivision (b)’s language, and the majority doesn’t identify any,
I would apply section 224.2, subdivision (b)’s plain language to
the facts of this case. (Jarrow Formulas, Inc. v. LaMarche (2003)
31 Cal.4th 728, 736 [“ ‘Where, as here, legislative intent is
expressed in unambiguous terms, we must treat the statutory
language as conclusive.’ ”].) Indeed, numerous published
decisions interpreting section 224.2, subdivision (b) have adopted
a similar plain reading of the statute, holding that a child
protective agency must interview extended family members as
part of the agency’s initial inquiry. (See, e.g., In re Antonio R.
(2022) 76 Cal.App.5th 421, 430 (Antonio R.) [even though the
parents denied Indian ancestry, it was error for the child
protective agency not to ask extended family members about
ICWA]; In re J.C. (2022) 77 Cal.App.5th 70, 78–80 [same]; In re
A.C. (2022) 75 Cal.App.5th 1009, 1015 [same]; In re Darian R.
(2022) 75 Cal.App.5th 502, 509 [same]; In re H.V. (2022) 75
Cal.App.5th 433, 438 (H.V.) [same]; In re E.V. (June 30, 2022,
G061025) __ Cal.App.5th __, [pp. 2–6, 8]; In re Benjamin M.
(2021) 70 Cal.App.5th 735, 742–746 [same]; In re Y.W. (2021) 70
Cal.App.5th 542, 552–555 [same].)
6
Under a plain reading of section 224.2, subdivision (b), the
Department did not fulfill its duty to conduct an adequate inquiry
into whether Unique, Dominic, and Ezequiel Jr. may be Indian
children because it did not ask their identified and readily
available family members about possible Indian ancestry. Indeed,
as the majority acknowledges, the Department was given contact
information for and/or had contact with a variety of extended
family members, including M.B., R.P., and K.G. (Maj. opn. ante,
at p. 6.) The Department’s failure to interview these readily
available relatives about the children’s possible Indian ancestry
violated the express mandate of section 224.2, subdivision (b).
(Antonio R., supra, 76 Cal.App.5th at pp. 431–432.)
The majority declines to follow section 224.2, subdivision
(b)’s language, reasoning that strict application of the statute “is
absurd at best and impossible at worst.” (Maj. opn. ante, at p. 19.)
According to the majority, because the statute “facially requires
that, in every case, inquiry be made of at least all” the extended
family members defined in 25 U.S.C. § 1903(2), child protective
agencies in certain cases will face a difficult task of tracking
down large numbers of extended relatives, some of whom may be
hard to locate due to the parents’ refusal or inability to provide
complete contact information. (Maj. opn. ante, at pp. 19–20.) The
majority, like the dissenting justice in H.V., supra, 75
Cal.App.5th at pp. 439–442 (dis. opn. of Baker, Acting P. J.),
believes such a hypothetical scenario is unworkable.
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
7
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 section 224.2, subdivision (h), a lack of information about a
child’s enrollment or eligibility for enrollment in a tribe is not
dispositive of the child’s membership status “unless the tribe also
confirms in writing that enrollment is a prerequisite for
membership under tribal law or custom.” (Italics added.)
8
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 inquiry or to provide formal
notice to tribes. (See § 224.2, subds. (b) [initial inquiry], (e)
[further inquiry] & (f) [notice].) The threshold for triggering the
duty of further inquiry—the step that often comes after the
initial inquiry—is low: a child protective agency must conduct a
further inquiry whenever the court or the child protective agency
has a “reason to believe” that a child “is or may be” an Indian
child, which exists whenever the court or agency “has information
suggesting that either the parent or the child is a member or may
be eligible for membership in an Indian tribe.” (§ 224.2, subd.
(e)(1).) A “reason to believe” exists when anyone interviewed
during the initial inquiry provides information that might “
‘ “imply,” “hint,” “intimate,” [or] “insinuate,” ’ ” that a child is an
Indian child. (I.F., supra, 77 Cal.App.5th at p. 163.) Thus, it’s
clear the Legislature did not intend for agencies or courts to be
able to determine whether a child is a member of an Indian tribe
based only on the results of the initial inquiry.
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)
9
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
3The majority rejects the assertion that parents may not always
provide reliable answers about possible Indian ancestry. (Maj. opn.
ante, at p. 28.) Yet the majority justifies its decision not to follow
section 224.2, subdivision (b)’s plain language because in some cases
“parents refuse to provide [a child protective agency] with any relative
10
The Report is an important resource for interpreting
section 224.2, as it was a catalyst for the Legislature’s 2019
amendments to sections 224.2 and 224.3. (See Cal. Health &
Human Services Agency, Enrolled Bill Rep. on Assem. Bill 3176
(2017–2018 Reg. Sess.) Sept. 4, 2018, pp. 5–6 [the California
Tribal Families Coalition, which was created “to press for the
implementation of the Task Force 2017 Report recommendations”
sponsored the measure leading to the amendments’ enactment];
see also Rep. to Judicial Council of Cal., Indian Child Welfare Act
(ICWA): Implementation of AB 3176 for Indian Children (Sept. 5,
2019) pp. 4–5 [“On September 27, 2018, Governor Brown signed
A.B. 3176 to (1) address issues identified in the task force report
…”].)
Before 2019, the duty of inquiry was defined in former
section 224.3. (See former § 224.3.) That statute included
language like that now found in section 224.2, subdivision (a),
imposing on courts and child protective agencies an “affirmative
and continuing duty to inquire whether a child … is or may be an
Indian child in all dependency proceedings … if the child is at
risk of entering foster care or is in foster care.” (Former § 224.3,
subd. (a).) But unlike the current statute, former section 224.3
did not include a separate provision describing what is now
known as the duty of initial inquiry. (Compare former § 224.3
with § 224.2, subd. (b).) Rather, it detailed a duty of further
information, making contact with extended family impossible.” (Maj.
opn. ante, at p. 19.) I don’t see why, as a general rule, we should defer
to parents’ responses to inquiries about their knowledge of possible
Indian ancestry but, at the same time, question parents’ willingness to
provide accurate responses seeking contact information for extended
relatives.
11
inquiry, requiring a child protective agency to interview “the
parents, Indian custodian, and extended family members” only
when the court or agency knew or had “reason to know that an
Indian child is involved.” (Former § 224.3, subd. (c); see also id.,
subd. (b) [describing circumstances “that may provide reason to
know the child is an Indian child”].)
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 section 224.2, while moving the notice requirements to
section 224.3. (Assem. Bill No. 3176 (2017–2018 Reg. Sess.).) The
amendments added, among other provisions, section 224.2,
subdivision (b), which now describes the duty of initial inquiry
and requires, as part of that inquiry, child protective agencies to
interview parents and extended family members. (§ 224.2, subd.
(b).) The amendments also lowered the threshold for triggering
the duty of further inquiry from a “reason to know” that an
Indian child is involved in a dependency proceeding to a “reason
to believe” that an Indian child is involved. (Compare § 224.2,
subd. (e) with former § 224.3, subd (c).)
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
12
having to interview extended relatives once a child’s parents deny
knowledge of Indian ancestry or tribal membership. (See § 224.2.)
Instead, the amendments greatly expanded the inquiry duty,
requiring the agency to interview extended relatives whenever “a
child is placed into the [agency’s] temporary custody.” (§ 224.2,
subd. (b).)
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
section 224.2, subdivision (i)(2). Under that provision, an ICWA
4In 2020, the Judicial Council amended rule 5.481 to align with the
changes made to section 224.2. (See rule 5.481(a)(1), amended eff. Jan.
1, 2020.)
13
finding is subject to substantial evidence review if the court first
determines that “proper and adequate further inquiry and due
diligence as required in this section [i.e., section 224.2] have been
conducted and there is no reason to know whether the child is an
Indian child.” (Italics added.) In other words, reviewing courts
should only defer to a juvenile court’s ICWA finding if the child
protective agency has complied with its duties established by
section 224.2, including the initial inquiry duty to ask parents,
extended relatives, and other interested persons about the child’s
possible Indian ancestry. (See In re Josiah T. (2021) 71
Cal.App.5th 388, 402, 408 (Josiah T.) [“the court may not find
that ICWA does not apply when the absence of evidence that a
child is an Indian child results from [an agency’s] inquiry that is
not proper, adequate, or demonstrative of due diligence”].)
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
14
adequate inquiry under section 224.2]; see also cases applying
plain language of section 224.2, subd. (b), cited ante, at pp. 8–9.)
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 section 224.2’s purpose and
leave the interests of Indian tribes unprotected. (A.R., supra, 77
Cal.App.5th at pp. 202, 207; see also N.G., supra, 27 Cal.App.5th
at p. 484 [a child protective agency can’t neglect its inquiry duties
and “ ‘then claim that the sufficiency of its efforts cannot be
challenged on appeal because the record is silent’ ”].) Indeed,
those tribes have no standing to intervene in a dependency case
unless Indian ancestry is first uncovered and established, and
thus no way of protecting their tribal interests unless child
protective agencies comply with ICWA and then notify the
appropriate tribe when the inquiry reveals Indian ancestry.
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
15
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 rule 8.512(c); § 395, subd. (a)(1).)
LAVIN, J.
16
In re Ezequiel G.
Combined Opinion