In re Rafael M. CA4/2

Filed 8/25/22 In re Rafael M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re RAFAEL M., a Person Coming
Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E078907

Plaintiff and Respondent, (Super.Ct.No. RIJ2100063)

v. OPINION

M.G.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Christine V. Pate, Judge.

(Retired Judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) Conditionally reversed with directions.

Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and

Appellant.

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 Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and

Respondent.

M.G. (mother) appeals the findings and orders made at the permanency planning

hearing for her son, Rafael M., including the order terminating her parental rights. (Welf.
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& Inst. Code, § 366.26.) She argues the findings and orders must be conditionally

reversed because the Riverside County Department of Public Social Services (the

department) failed to fulfill their duty of initial inquiry under state law implementing the

Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq; Welf. & Inst. Code,

§ 224.2, subd. (b).) We agree and therefore conditionally reverse and remand for a new

ICWA finding.

I

FACTS

In February 2021, after Rafael tested positive for amphetamines at birth, the

department filed a petition under section 300, subdivisions (b)(1), alleging he was at

substantial risk of serious physical harm or illness due to neglect. The petition alleged

mother and father (who is not a party to this appeal) had criminal histories and

unresolved substance abuse issues and lacked appropriate provisions and housing to care

for the child. The department took Rafael into emergency protective custody and placed

him with his maternal aunt.

1 Unlabeled statutory citations refer to the Welfare and Institutions Code.
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 In interviews leading up to the filing of the petition, both mother and father told

the social worker they didn’t know of any Indian ancestry in their families. After those

initial interviews, however, the department was unable to contact or locate either parent

despite various attempts, and neither parent appeared at the jurisdiction and disposition

hearing on March 1, 2021. The court relieved their counsel from further representation,

found ICWA did not apply and found the petition’s allegations true, removed Rafael from

their care, bypassed reunification services on the ground their whereabouts were

unknown (§ 361.5, subd. (b)(1)), and set the permanency planning hearing for a date in

June 2021.

Leading up to the permanency planning hearing, the department recommended

adoption as Rafael’s permanent plan, but not with his current caretaker, the maternal

aunt, due to inconsistencies in her interviews and four outstanding welfare referrals

regarding her home. They requested the hearing be continued to allow them to look for a

suitable prospective adoptive home. The court granted the continuance and ordered the

department to evaluate the maternal great-aunt who was then caring for mother’s two

older children.

The social worker was able to make contact with father in July 2021. During their

phone conversation, father said he may have one relative to consider for placement and

that he would have them contact the social worker if they were interested. At a placement

hearing the following month, the court ordered that Rafael be placed with the maternal

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great-aunt on a temporary basis because she was not interested in adoption, only legal

guardianship.

In October 2021, the department learned mother was in custody in Orange County.

The court appointed counsel for her and continued the permanency planning hearing to a

date in February 2022.

On December 2, 2021, Rafael was placed with a maternal cousin in Texas. The

cousin and her husband had recently moved to Austin and wanted to adopt Rafael. At a

review hearing on December 29, the department and mother filed a stipulation agreeing

to adoption as Rafael’s permanent plan. Among other stipulations in the document was an

agreement that ICWA did not apply.

Leading up to the scheduled permanency planning hearing, the department

informed the court they had also located father; he too was in custody in Orange County.

On the scheduled date of the permanency planning hearing, the court appointed counsel

for him and issued a continuance to allow him to prepare.

The permanency planning hearing took place the following month, on March 29,

2022. Mother and father both appeared. Father’s counsel asked the court to inquire as to

possible Indian ancestry as this was his client’s first appearance in the matter, and in

response to the court’s question, father denied having Indian ancestry. Both parents

objected to termination of their parental rights and asked the court to consider

guardianship as a less permanent plan. The court found ICWA did not apply, terminated

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mother’s and father’s parental rights, and selected the maternal cousin and her husband as

the prospective adoptive parents.

II

ANALYSIS

Mother argues we must reverse the orders terminating her and father’s parental

rights as well as the finding that ICWA does not apply because the department failed to

discharge their duty of initial inquiry under ICWA-related state law. Specifically, she

argues they failed to ask her extended family members about potential Indian ancestry, as

required by section 224.2, subd. (b). We agree.

ICWA establishes minimum federal standards a state court must follow before

removing Indian children from their families. (In re T.G. (2020) 58 Cal.App.5th 275,

287.) California law implementing ICWA also imposes requirements to protect the rights

of Indian children, their families, and their tribes. (See §§ 224-224.6.) An Indian child is

any unmarried person under 18 who is either “a member of an Indian tribe or 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. (b).)

At the heart of ICWA is the requirement to provide notice of the dependency

proceedings to the relevant Indian tribe or tribes when there is “reason to know” the child

is an Indian child. (25 U.S.C. § 1912(a); § 224.3, subd. (a).) The purpose of this

requirement is to enable the tribes “to determine whether the child involved in a

dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise

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jurisdiction over, the matter.” (In re T.G., supra, 58 Cal.App.5th at p. 288.) Because

ICWA defines “Indian child” in terms of tribal membership, not race or ancestry, “the

question of membership is determined by the tribes.” (Id. at pp. 275, 294; see also Santa

Clara Pueblo v. Martinez (1978) 436 U.S. 49, 65-66, fn. 21, [the Indian tribe is final

arbiter of its membership rights].) Notice to the tribes is therefore “central to effectuating

ICWA’s purpose” because it enables the tribe “to determine whether the child involved in

a dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise

jurisdiction over, the matter.” (In re T.G., at pp. 275, 288.)

However, “[b]ecause it typically is not self-evident whether a child is an Indian

child, both federal and state law mandate certain inquiries to be made in each case.” (In

re Benjamin M. (2021) 70 Cal.App.5th 735, 741 (Benjamin M).) These inquiries,

collectively referred to as the duty of inquiry, are a precursor to the notice requirement—

they are designed to enable the department and the juvenile court to determine whether

notice to the tribes is necessary. (In re Austin J. (2020) 47 Cal.App.5th 870, 884-883.)

The duty to inquire consists of two phases—the duty of initial inquiry and the duty

of further inquiry. (In re T.G., supra, 58 Cal.App.5th at p. 290.) Our case involves the

duty of initial inquiry only. Federal regulations require state courts to ask each participant

“at the commencement” of a child custody proceeding “whether the participant knows or

has reason to know that the child is an Indian child.” (25 C.F.R. § 23.107(a).) California

law requires the court to make the same inquiry of each participant at their “first [court]

appearance.” (§ 224.2, subd. (c).) California law also requires the department, when

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taking a child into temporary custody, to ask “the child, parents, legal guardian, Indian

custodian, extended family members, others who have an interest in the child,” and the

reporting party whether the child is or may be an Indian child. (§ 224.2, subd. (b), italics

added.) Extended family members include adults who are the child’s stepparents,

grandparents, siblings, siblings-in-law, aunts, uncles, nieces, nephews, and first or second

cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)

To ensure that tribes receive notice when required, the duty of initial inquiry

applies to both the department and the juvenile court on an “affirmative and continuing”

basis. (§ 224.2, subd. (a).) It “begins with initial contact” and applies through termination

of parental rights “and obligates the juvenile court and child protective agencies to ask all

relevant involved individuals whether the child may be an Indian child.” (In re T.G.,

supra, 58 Cal.App.5th at p. 290.)

As we recently held in Benjamin M., a failure to discharge the duty of initial

inquiry is prejudicial, and we will therefore conditionally reverse, if “the record indicates

that there was readily obtainable information that was likely to bear meaningfully upon

whether the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.)

Notably, this standard does not require “proof of an actual outcome (that the parent may

actually have Indian heritage)”; rather, the missing information need only be relevant to

the ICWA inquiry, “whatever the outcome will be.” (Id. at pp. 743-744.)

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 In this case, the department failed to discharge the duty of initial inquiry because

they asked only the parents about Indian ancestry, despite being in contact with at least

three extended family members and interested relatives on mother’s side—the maternal

aunt, great-aunt, and cousin. Additionally, the record contains no indication they asked

father for contact information for any of his extended family members or attempted in

some other way (e.g., by reviewing the dependency file from the Orange County

proceeding) to obtain the contact information.

As a result of this failure, the juvenile court’s finding that ICWA did not apply is

not supported by the record. (In re J.C. (2022) 77 Cal.App.5th 70, 79-80.) “[T]he court

had a duty either to require [the department] to provide a report with complete and

accurate information regarding the results of [their] inquiry . . . or to have the individual

responsible for notice to testify in court regarding the inquiry made . . . . Only then could

the court determine whether [ICWA] applied.” (In re L.S. (2014) 230 Cal.App.4th 1183,

1198.)

We conclude the error is prejudicial. Mother’s extended family members and

interested relatives were readily available—they each acted as Rafael’s caretaker at

various points in the case—and their responses would “shed meaningful light on whether

there is reason to believe” he is an Indian child. (Benjamin M., supra, 70 Cal.App.5th at

p. 744.) Though it appears they had no contact information for father’s extended family

members, it also appears the department made no attempts to obtain such information. As

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a result, we have no idea how difficult it would be to get it. On remand, they should make

an attempt to do so.

The department raise a number of arguments why remand is unnecessary, all of

which we reject. First, they claim mother waived her challenge to the March 29, 2022

ICWA finding when she filed the December 29, 2021 stipulation to adoption that also

contained a stipulation that ICWA did not apply. But there is simply no support for this

position. As our Supreme Court has explained, ICWA and the California laws

implementing it protect interests of the Indian tribes “that are separate and distinct” from

those of the parents, and as a result, a parent cannot waive a right that inures to the tribes’

benefit. (In re Isaiah W. (2016) 1 Cal.5th 1, 13 (Isaiah W.); see also In re K.R. (2018) 20

Cal.App.5th 701, 706 [“the parent’s failure to object in the juvenile court to deficiencies

in the investigation or noticing does not preclude the parent from raising the issue for the

first time on appeal . . .”].) No case has held that a parent can waive the tribes’ right to

notice. (See Benjamin M., supra, 70 Cal.App.5th at p. 745 [because the tribe is not

present, “the agency is charged with obtaining information to make” the tribe’s right to a

determination of a child’s Indian ancestry “meaningful”]; see also In re M.M. (July 12,

2022, B315997) ___Cal.App.5th ___, [2022 WL 2679301] dis. opn. of Wiley, J. [“The

right here belongs to the tribes . . . [who] have no idea their rights are on the line in these

cases”].)

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 In any event, even if mother’s stipulation could constitute a waiver, it would not

apply to the ICWA finding issued several months after the stipulation, at the permanency

planning hearing. This is because the department and the court are under a continuing

duty to inquire about the family’s Indian ancestry “throughout the dependency

proceedings,” and as such, the court was required to make a “current finding . . . that it

had no reason to know [Rafael] was an Indian child and thus ICWA notice was not

required” before terminating parental rights. (Isaiah W., supra, 1 Cal.5th at p. 10.)

Next, they argue we should decline to follow Benjamin M.—our division’s most

recent precedent on the prejudice standard—and instead use the standard we applied in In

re A.C. (2021) 65 Cal.App.5th 1060, which requires a parent to “make an affirmative

representation of Indian heritage on appeal.” (Id. at p. 1069, italics added.) But, as we

explained in Benjamin M., we think that standard inappropriately shifts the burden of

inquiry to the parents, to the detriment of potentially interested tribes. (See Benjamin M.,

supra, 70 Cal.App.5th at p. 745.) They attempt to distinguish our case from Benjamin M.

on the ground that only one parent denied Indian ancestry there, whereas both did here.

But as section 224.2, subdivision (b) makes clear, the parents are not the end of the

inquiry. “By requiring the Department to inquire of a child’s extended family members as

to the child’s possible Indian ancestry, the Legislature determined that inquiry of the

parents alone is not sufficient.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 431.)

“[T]he point of the statutory requirement that the social worker ask all relevant

individuals whether a child is or may be an Indian child” is “to obtain information the

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parent may not have.” (In re Y.W. (2021) 70 Cal.App.5th 542, 556, italics added; see also

In re J.C., supra, 77 Cal.App.5th at pp. 70, 78-80 [same]; In re Darian R. (2022) 75

Cal.App.5th 502, 509 [same]; In re H.V. (2022) 75 Cal.App.5th 433, 438 [same].) We are

unmoved by the request to return to a prejudice standard we have expressly disapproved.

Finally, the department argue mother’s ICWA challenge has been mooted by their

postappeal investigation and have filed a motion to dismiss the appeal on the basis of a

declaration from the social worker describing the inquiries he made after mother filed her

opening brief. They argue we may consider this evidence under Code of Civil Procedure

section 909, which “permits an appellate court to take additional evidence and make

independent factual findings on appeal,” in appropriate cases, “to determine whether an

issue on appeal is moot.”2 (In re M.B., (2022) 80 Cal.App.5th 617, 627, citing In re

Josiah Z. (2005) 36 Cal.4th 664, 676.) In her opposition to the motion to dismiss, mother

argues the juvenile court should consider the evidence in the first instance, not the

reviewing court. She also argues she should be afforded the opportunity to question the

accuracy of the statements in the declaration by cross-examining the social worker and

presenting witnesses of her own.

2 The statute says: “In all cases where trial by jury is not a matter of right or where
trial by jury has been waived, the reviewing court may make factual determinations
contrary to or in addition to those made by the trial court. . . . The reviewing court may
for the purpose of making the factual determinations or for any other purpose in the
interests of justice, take additional evidence of or concerning facts occurring at any time
prior to the decision of the appeal, and may give or direct the entry of any judgment or
order and may make any further or other order as the case may require.” (Code Civ.
Proc., § 909.)
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 There appears to be a split of authority on how to handle postjudgment evidence of

an agency’s investigatory efforts under ICWA. In support of their approach, the

department cite In re Allison B. (2022) 79 Cal.App.5th 214, in which the appellate court

considered postjudgment evidence of the agency’s post-appeal investigation under Code

of Civil Procedure section 909 when reviewing the juvenile court’s ICWA finding. The

sounder approach, in our view, is the one taken by our division as well as the majority of

courts to consider the issue, and it requires the juvenile court to consider the evidence and

allow the parent an opportunity to challenge it. (In re Ricky R. (Aug. 25, 2022,

E078646); see also, e.g., In re E.V. (2022) 80 Cal.App.5th 691; In re Jennifer A. (2002)

103 Cal.App.4th 692; In re M.B., supra, 80 Cal.App.5th 617; In re K.M. (2015) 242

Cal.App.4th 450, 458.) Where, as here, both the agency and the juvenile court failed to

follow state law implementing ICWA, “[m]aking the appellate court the trier of fact is

not the solution.” (In re Jennifer A., at p. 703.) Instead, the juvenile court should consider

in the first instance whether the department remedied their failure and fulfilled the duty of

initial inquiry. (In re E.V., supra, 80 Cal.App.5th 691.)

As a final point in response to the department’s position on appeal, we echo the

words of our colleagues in Division Three. Where, as here, the ICWA error is clear,

“[t]he most expeditious and efficient way to solve th[e] problem is for the parties to

stipulate to a limited reversal and an expedited remittitur.” (In re K.M., supra, 242

Cal.App.4th at p. 458.)

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 III

DISPOSITION

We deny the motion to dismiss the appeal, and we conditionally reverse the March

29, 2022 ICWA finding and orders terminating parental rights. On remand, the juvenile

court shall order the department to comply with the duty of initial inquiry (§ 224.2, subd.

(b)) and, if applicable, the duty of further inquiry (§ 224.2, subd. (e)) and the duty to

provide notice to the pertinent tribes (25 U.S.C. § 1912(a); § 224.3). If the court

determines ICWA does not apply, the order terminating parental rights shall be

reinstated. If the court determines ICWA does apply, the court shall proceed in

conformity with ICWA and related California law.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.

We concur:

RAMIREZ
P. J.

McKINSTER
J.

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