Filed 9/9/22 In re D.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.S., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E078590
Plaintiff and Respondent, (Super.Ct.No. J281854)
v. OPINION
D.S.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Conditionally reversed with directions.
Elizabeth D. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
Tom Bunton, County Counsel, and Kaleigh Ragon, Deputy County Counsel, for
Plaintiff and Respondent.
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INTRODUCTION
D.S. (father) appeals from findings and orders made at a postpermanency planning
hearing involving his son, D.S. (the child). Father claims the juvenile court erred in finding
the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et. seq.) (ICWA) did not apply. He
contends the matter must be conditionally reversed and remanded because the juvenile
court, as well as the San Bernardino County Children and Family Services (CFS), failed to
discharge their duty of inquiry under ICWA and related California law (Welf. & Inst.
Code,1 § 224.2). We agree and conditionally reverse.
PROCEDURAL BACKGROUND
CFS filed a section 300 petition on July 30, 2019, as to the child, who was 14 years
old at the time. The petition alleged that he came within subdivisions (b) (failure to protect)
and (g) (no provision for support). The petition specifically alleged that the child’s mother,
V.S. (mother),2 left the child in father’s care, and father failed to provide proper supervision
for him. It also alleged that mother and father (the parents) had a prior dependency case in
2017-2018, in which they failed to reunify. The petition further alleged that father was
currently hospitalized with no known release date, and mother’s whereabouts were
unknown.
The social worker filed a detention report stating that on July 26, 2019, CFS received
an immediate response referral alleging general neglect to the child and his brother (the
1 All further statutory references will be to the Welfare and Institutions Code unless
otherwise noted.
2 Mother is not a party to this appeal.
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children).3 The referring party alleged that on July 18, 2019, father was taken by ambulance
and admitted to the hospital, and the children were left in a back house to care for
themselves. The property belonged to C.F. and J.F. (the paternal aunt and uncle), who lived
in the front house on the property, and who were believed to be the caregivers for father, as
he had been bedridden for approximately two years. Father’s discharge date was unknown.
On July 27, 2019, the social worker met with father, who was hospitalized for
congestive heart failure. Father stated he had Navajo ancestry and believed mother had
Cherokee ancestry.
The court held a detention hearing on July 31, 2019. The parents were not present,
but the child was. The court asked the child if he had any Native American ancestry, and he
said he thought he had Cherokee and Sioux on mother’s side. The court detained the child.
It also ordered both mother and father to complete a parental notification of Indian status
form (ICWA-020).
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on or around August 16,
2019, recommending that the court sustain the petition, remove the child from the parents,
and order reunification services for father, but not mother. The social worker reported that
on August 13, 2019, father denied Native American ancestry, but thought that maybe
mother had some ancestry. However, on August 15, 2019, mother denied Native American
ancestry. She stated that in her last case, no ancestry was found, so she was not claiming it
3 The child’s brother is not a subject of this appeal.
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now. On August 19, 2019, mother filled out a “Family Find and ICWA Inquiry” form (CFS
030A), stating she had no Native American ancestry. In the portion of the form stating,
“Additional Family Contact Information,” mother listed the names and phone numbers of
three friends.
The court held a jurisdiction/disposition hearing on August 21, 2019. Father was not
present but was represented by counsel. Mother made her first appearance in this case. The
court noted that mother indicated she had no known Indian ancestry and asked her to
confirm. She said, “That’s what I was told at the last hearing when I was last here.” The
court responded, “Well, I don’t know if you have Indian ancestry. Do you?” Mother said,
“Not that I’m aware of.” She submitted an ICWA-020 Parental Notification of Indian
Status form stating she had no known Indian ancestry. Mother’s counsel set the matter for
contest. The court set a pretrial settlement conference for September 12, 2019, and set the
matter for trial on September 17, 2019.
On September 12, 2019, the social worker filed a CFS 6.7 Additional Information to
the Court memorandum (hereinafter, CFS 6.7 report), informing the court that the child
moved into a foster home, and father remained at a rehabilitation center with an unknown
discharge date. The social worker recommended reunification services for mother as well as
numerous other findings, including that the court find the child did not come within the
provisions of ICWA, that father was the presumed father, and that the child be removed
from the parents’ custody.
At the pretrial settlement conference on September 12, 2019, the court found that the
child came within section 300, subdivisions (b) and (g), and sustained the petition. The
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court found that ICWA did not apply in this case. It then declared the child a dependent,
removed him from the parents’ custody, placed him in CFS’s custody and control, and
ordered reunification services for the parents.
Six-month Status Review
The social worker filed a six-month status review report on March 4, 2020, and
recommended that the parents’ services be continued. The social worker continued to report
that ICWA did not apply.
The court held a six-month review hearing on March 12, 2020, and set the matter for
contest at the request of both parents. The contested hearing was continued multiple times.
The contested six-month review hearing was held on July 15, 2020. The court
adopted the recommended findings and orders.
Twelve-month Status Review
The social worker filed a 12-month status review report and recommended that the
court terminate reunification services and order the plan of placement in foster care with a
permanent plan of legal guardianship. The social worker again noted that ICWA did not
apply.
The court held a 12-month review hearing on August 28, 2020, and adopted the
recommended findings and orders. It then set a permanency planning review (PPR) hearing.
PPR
The social worker filed a PPR status review report dated September 1, 2021, and
recommended the permanent plan for the child to be another planned permanent living
arrangement (PPLA). The social worker continued to report that ICWA did not apply.
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The court held a PPR hearing on September 1, 2021, and father did not appear but
was represented by counsel. The court continued the child as a dependent, maintained him
in the same foster home, and granted father supervised visitation.
On February 22, 2022, the social worker filed a PPR status review report and
continued to report that ICWA did not apply. The social worker recommended the
permanent plan for the child to be another PPLA.
The court held a PPR hearing on March 1, 2022, adopted the findings and orders
stated in the status review report, and set a PPR hearing for September 1, 2022.
DISCUSSION
Father claims the juvenile court’s ICWA finding must be reversed and the matter
remanded to permit additional ICWA compliance. He specifically contends that CFS failed
to discharge its initial duty of inquiry to contact extended family members to inquire of the
child’s possible status as an Indian child. We agree.
A. Applicable Law
ICWA establishes minimum federal standards that state courts are required to follow
before they may lawfully place an Indian child in foster care or terminate parental rights to
an Indian child. (25 U.S.C. §§ 1902, 1912(a); In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah
W.); In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) ICWA requires that notice of the state
court proceedings be given to Indian tribes “where the court knows or has reason to know
that an Indian child is involved, . . .” (25 U.S.C. § 1912(a); see Isaiah W., supra, 1 Cal.5th
at p. 8; In re Benjamin M. (2021) 70 Cal.App.5th 735, 740-741 (Benjamin M.).) ICWA’s
notice requirement, which is also codified in California law (§ 224.3), “enables a tribe to
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determine whether the child is an Indian child and, if so, whether to intervene” in the state
court proceeding or exercise its own jurisdiction in the matter. (Isaiah W., at p. 5; see In re
Y.W. (2021) 70 Cal.App.5th 542, 551 (Y.W.).) The tribe has the right to determine whether
the child is eligible for membership and, thus, whether the child is an Indian child. (In re
K.T. (2022) 76 Cal.App.5th 732, 742.)
Although “ICWA itself does not impose a duty on courts or child welfare agencies to
inquire as to whether a child in a dependency proceeding is an Indian child,” federal
regulations implementing ICWA “require that state courts ‘ask each participant in an
emergency or voluntary or involuntary child-custody proceeding whether the participant
knows or has reason to know that the child is an Indian child.’ [Citation.] The court must
also ‘instruct the parties to inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.’ ” (In re Austin J. (2020)
47 Cal.App.5th 870, 882-883 (Austin J.); see 25 C.F.R. § 23.107(a) (2022).)
California law imposes a similar duty of inquiry on courts. The juvenile court and
CFS have “an affirmative and continuing duty to inquire whether a child for whom a
petition under Section 300 . . . may be or has been filed, is or may be an Indian child.”
(§ 224.2, subd. (a); see Isaiah W., supra, 1 Cal.5th at pp. 9, 11-12.) The Welfare and
Institutions Code “creates three distinct duties regarding ICWA in dependency proceedings.
First, from the [department’s] initial contact with a minor and his family, the statute imposes
a duty of inquiry to ask all involved persons whether the child may be an Indian child.
[Citation.] Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian
child, then the [department] ‘shall make further inquiry regarding the possible Indian status
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of the child, and shall make that inquiry as soon as practicable.’ [Citation.] Third, if that
further inquiry results in a reason to know the child is an Indian child, then the formal notice
requirements of section 224.3 apply.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052; see §
224.2.) The agency’s duty of inquiry includes asking “extended family members” whether
they know or have reason to know that the child is an Indian child. (§ 224.2, subd. (b).)
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).) A juvenile court’s finding that ICWA does not apply includes an implicit finding
that social workers fulfilled their duty of inquiry. (Austin J., supra, 47 Cal.App.5th at p.
885.) “[W]e review the juvenile court’s ICWA findings under the substantial evidence test,
which requires us to determine if reasonable, credible evidence of solid value supports the
court’s order.” (In re A.M. (2020) 47 Cal.App.5th 303, 314; Austin J., at p. 885 [implicit
finding, reviewed for substantial evidence, that social workers fulfilled their duty of
inquiry].)
B. The Juvenile Court’s ICWA Finding Is Not Supported by Substantial Evidence
We first observe that father does not argue the juvenile court erred in failing to
question him or mother about potential Indian ancestry. The social worker interviewed
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father and mother, and both denied any Indian ancestry.4 The focus of father’s claim is that
CFS failed in its initial inquiry under section 224.2 since the social worker did not make any
effort to contact his or mother’s extended family members—specifically, the paternal aunt
and uncle and the three maternal relatives named on mother’s Family Find and ICWA
Inquiry Form—about Indian ancestry. As to the alleged three maternal relatives, respondent
points out that mother’s Family Find and ICWA Inquiry Form identified three friends; thus,
there were no relatives to contact as to mother’s potential Indian ancestry. In his reply brief,
father concedes that he incorrectly described the friends as family. As to the paternal aunt
and uncle, nothing in the record suggests CFS inquired of them about the child’s potential
status as an Indian child. The record indicates that CFS had the ability to communicate with
these extended family members, as CFS reported they lived on the same property as father
and the child, and they were believed to be father’s caregivers. Such record cannot support
a finding that CFS discharged its initial duty of inquiry under ICWA.
Respondent concedes the record does not indicate the paternal aunt and uncle were
ever asked about the child’s possible Indian ancestry, but argues the error was harmless, as
father denied Indian ancestry and does not argue otherwise on appeal; further, there is
nothing to suggest the relatives would have any valuable information about the child’s
4 Although father initially informed the social worker he had Navajo ancestry,
approximately two weeks later, he stated he did not have any Indian ancestry. Father points
out, in his reply brief, that mother informed the court that she did not believe she had Native
American ancestry since “she was told” that in a prior dependency case, and he asserts that
“her belief based on what she was told on a prior case was not dispositive.” To the extent
father is disputing that mother denied she had Native American ancestry, the record clearly
shows that on August 15, 2019, mother denied Native American ancestry and stated that in
her last case, no ancestry was found, so she was not claiming it now.
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possible Indian status. We disagree that the error was harmless. “[S]ection 224.2,
subdivision (b), imposes [an obligation] on the Department to inquire of a child’s extended
family members—regardless of whether the parents deny Indian ancestry.” (In re Antonio
R. (2022) 76 Cal.App.5th 421, 431 (Antonio R.).) “[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 parent may not have.” (Y.W., supra, 70 Cal.App.5th at
p. 556; see also, id. at p. 554 [“parents may not know their possible relationship with or
connection to an Indian tribe”].)
C. The Record Does Not Permit Us to Conclude CFS’s Error Was Harmless
We acknowledge that the standard of prejudice requiring reversal in cases involving
ICWA is unsettled in the Courts of Appeal. (Antonio R., supra, 76 Cal.App.5th at p. 433
[“Courts of Appeal are divided as to whether a parent must make an affirmative showing of
prejudice to support reversal . . . .”].) However, this court recently adopted a standard of
prejudice in Benjamin M., supra, 70 Cal.App.5th 735, that rejects both an automatic rule of
reversal or a rule that places the burden squarely on the parents to show the likelihood of
obtaining a more favorable result. (Id. at pp. 743-745.) Instead, we explained that reversal
is required “where the record indicates that there was readily obtainable information that
was likely to bear meaningfully upon whether the child is an Indian child.” (Id. at p. 744.)5
In considering the prejudicial effect of a social services agency’s failure to discharge its duty
5 In adopting this standard of prejudice, this court expressly disagreed with the
standard articulated in In re A C. (2021) 65 Cal.App.5th 1060. (Benjamin M., supra, 70
Cal.App.5th at p. 745.) Accordingly, we find CFS’s reliance on that case unpersuasive.
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to inquire under ICWA, this court has repeatedly held that the failure to comply with an
initial duty of inquiry is deemed prejudicial in the absence of information in the record to
suggest otherwise. (In re K.R. (2018) 20 Cal.App.5th 701, 709; In re N.G. (2018) 27
Cal.App.5th 474, 484; Benjamin M., supra, 70 Cal.App.5th at pp. 744-745.) As this court
has previously explained: “[W]here the record does not show what, if any, efforts the
agency made to discharge its duty of inquiry [citations], . . . the burden of making an
adequate record demonstrating the court’s and the agency’s efforts to comply with ICWA’s
inquiry and notice requirements must fall squarely and affirmatively on the court and the
agency. . . . [A]s a general rule, we will find the appellant’s claims of ICWA error
prejudicial and reversible.” (In re N.G., at p. 484.) This remains true even under our
recently articulated standard of prejudice in Benjamin M. (Benjamin M., at p. 745 [failure to
make an initial inquiry of an extended family member is prejudicial because, “[w]hile we
cannot know how [an extended family member] would answer the inquiry, his answer is
likely to bear meaningfully on the determination at issue.”].)
Here, the record is devoid of any indication that CFS made efforts to contact the
paternal aunt and uncle, or any other extended relatives, for the purpose of making an initial
ICWA inquiry. Nor does the record suggest this was merely a failure by CFS to adequately
document its efforts, as CFS’s reports contained no substantive information related to
ICWA. Given such a silent record, under the general rule we expressed in In re N.G., supra,
27 Cal.App.5th 474, and our articulation of what constitutes prejudicial error in Benjamin
M., supra, 70 Cal.App.5th 735, we cannot conclude CFS’s failure to comply with its initial
duty of inquiry under the ICWA was harmless.
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DISPOSITION
The finding that ICWA did not apply is conditionally reversed. The matter is
remanded to the juvenile court with directions to comply with the inquiry provisions of
ICWA and of Welfare and Institutions Code sections 224.2 and 224.3. If, after completing
the initial inquiry, neither CFS nor the juvenile court has reason to believe or reason to
know the child is an Indian child, the finding that ICWA did not apply shall be reinstated.
If, however, CFS or the juvenile court discovers a reason to believe that the child is an
Indian child, the juvenile court shall proceed as required under ICWA and related California
statutes.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.
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