In re M.D. CA4/2

Filed 9/13/22 In re M.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 M.D., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E078852

Plaintiff and Respondent, (Super.Ct.No. RIJ2000679)

v. OPINION

S.D. et al.,

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge.

Affirmed with directions.

Sara Vaona, under appointment by the Court of Appeal, for Defendant and

Appellant, D.R.

The Law Office of Christine E. Johnson and Christine E. Johnson, under

appointment by the Court of Appeal, for Defendant and Appellant, S.D.

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 Teresa K.B. Beecham and Catherine E. Rupp, County Counsel for Plaintiff and

Respondent.

The only issue in this appeal following the termination of parental rights is

whether undisputed errors in complying with the duty of initial inquiry under the Indian

Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) are prejudicial. (See In re

Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.).) Because the record reveals

readily obtainable information likely to bear meaningfully on whether the child is an

Indian child through the maternal grandfather, we find the errors prejudicial and
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conditionally affirm and remand with directions.

I. BACKGROUND

In November 2020, plaintiff and respondent Riverside County Department of

Public and Social Services (DPSS) filed a petition pursuant to section 300 for M.D.,

whose parents are defendants and appellants D.R. (Mother) and S.D. (Father). Because

this appeal raises only ICWA compliance, we need not discuss the circumstances leading

to the child’s removal or the parents’ reunification efforts, other than to note that the

juvenile court terminated Mother’s and Father’s parental rights to M.D. in April 2022.

Only Mother’s potential Indian ancestry is at issue in this case. In a report

submitted November 24, 2020, DPSS stated that on November 13 Mother had “claimed

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Undesignated statutory references are to the Welfare and Institutions Code. In
addition, because ICWA uses the term “Indian,” we do the same for consistency, even
though we recognize that other terms, such as “Native American” or “indigenous,” are
preferred by many.

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she had Indian Ancestry” but “was unable to provide any information such as the tribe

name or the name and information of a relative to contact.” The social worker reported

that Mother “indicated that she would send me the information needed via text; however,

she did not provide the information.” The report included the names of Mother’s father

as well as two of Mother’s siblings, among others. As early as November 16, however—

three days after Mother claimed she had Indian ancestry— DPSS stated that “Mother has

No Native American Indian Ancestry” in ICWA notices sent to tribes identified as part of

its inquiry into Father’s potential Indian ancestry.

On December 2, Mother filed a Form ICWA-020 (Parental Notification of Indian

Status), where instead of marking the boxes next to statements suggesting Indian ancestry

such as “I am or may be a member of, or eligible for membership in, a federally

recognized Indian tribe” Mother checked the box next to “None of the above apply.”

Thus, although Mother originally claimed she had Indian ancestry, her response on the

form now suggested otherwise.

At the combined jurisdiction and disposition hearing in January 2021, the juvenile

court noted that ICWA notices had been sent to the Eastern Band of Cherokee Indians

(due to Father’s possible Indian ancestry) and that the tribe responded that Father was

neither registered nor eligible to register as a tribe member. However, there was no

discussion at the hearing about Mother’s potential Indian ancestry or why she was no

longer claiming Indian ancestry. The juvenile court found that “ICWA may apply to the

minor child.”

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 Mother never reported additional information regarding potential Indian status. At

the six-month review hearing, 12-month review hearing, and the section 366.26 hearing

where parental rights were terminated, the juvenile court found that ICWA did not apply.

II. DISCUSSION

Mother and Father (hereinafter appellants) contend on appeal that DPSS failed its

duty of initial inquiry under ICWA by failing to ask five maternal relatives about possible

Indian ancestry. (See In re T.G. (2020) 58 Cal.App.5th 275, 291 [“Non-Indian parents

have standing to raise issues of ICWA compliance on appeal”].) DPSS does not deny

that it erred when performing its initial inquiry of Mother. Rather, it contends that the

errors are not prejudicial. On this record, we find that they are.

“Congress enacted ICWA over 40 years ago 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.”’ [Citation.] . . . As a result, ICWA’s express purpose is ‘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.’” (In re K.T. (2022) 76

Cal.App.5th 732, 740.)

“When ICWA applies, the Indian tribe has a right to intervene in or exercise

jurisdiction over the proceeding. [Citation.] If the tribe does not assume jurisdiction, the

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state court must nevertheless follow various heightened procedural and substantive

requirements, such as stricter removal standards and mandatory placement preferences

that promote keeping Indian children with family members of members of their tribe.”

(In re K.T., supra, 76 Cal.App.5th at p. 741.) “Violations of ICWA ‘“render[] 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.”’”

(Benjamin M., supra, 70 Cal.App.5th at p. 741.)

ICWA’s concern is with Indian children, and “[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. These requirements are sometimes collectively

referred to as the duty of initial inquiry.” (Benjamin M., supra, 70 Cal.App.5th at p. 741.)

“The duty of initial inquiry arises, in part, from federal regulations under ICWA

stating that ‘[s]tate courts must ask each participant in an . . . involuntary child-custody

proceeding whether the participant knows or has reason to know that the child is an

Indian child’ and that ‘[s]tate courts must instruct the parties to inform the court if they

subsequently receive information that provides reason to know the child is an Indian

child.’ [Citation.] Thus, the federal regulation places a duty on only ‘courts’ to inquire

or instruct ‘participants’ and ‘parties’ to a case.” (Benjamin M., supra, 70 Cal.App.5th at

p. 741.)

“State law, however, more broadly imposes on social services agencies and

juvenile courts (but not parents) an ‘affirmative and continuing duty to inquire’ whether a

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child in the dependency proceeding ‘is or may be an Indian child.’ [Citation.] When the

agency takes the child into temporary custody, its duty to inquire ‘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.’ [Citation.] State law also

expressly requires the juvenile court to ask participants who appear before the court about

the child’s potential Indian status.” (Benjamin M., supra, 70 Cal.App.5th at pp. 741-

742.)

“If the initial inquiry gives the juvenile court or the agency ‘reason to believe’ that

an Indian child is involved, then the juvenile court and the agency have a duty to conduct

‘further inquiry’ [citation], and if the court or the agency has ‘reason to know’ an Indian

child is involved, ICWA notices must be sent to the relevant tribes.” (Benjamin M.,

supra, 70 Cal.App.5th at p. 742.)

Here, neither the duty of further inquiry nor ICWA’s notice provisions are at issue

because no one has contended there is “reason to believe” M.D. is an Indian child

through Mother. Rather, appellants focus on the effect of DPSS’s alleged failures during

its initial inquiry to gather information that could have triggered additional duties.

In Benjamin M., this court concluded that prejudice exists when “the record

demonstrates that the agency has not only failed in its duty of initial inquiry, but where

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

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Cal.App.5th at p. 744.) Although other cases both before and after Benjamin M. have

sometimes taken other approaches (see, e.g., In re Dezi C. (2022) 79 Cal.App.5th 769),

we apply the Benjamin M. standard here.

Appellants contend that the error here stems from DPSS’s knowledge of five

maternal relatives and its failure to ask any of them about possible Indian ancestry. The

five relatives at issue are Mother’s two siblings, mother, aunt, and uncle.

In its briefing on appeal, DPSS does not dispute that these relatives were never

asked about potential Indian ancestry prior to the termination of appellants’ parental

rights. However, along with the respondent’s brief, DPSS submitted an affidavit from a

social worker describing interviews with and attempts to interview Mother’s mother and
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Mother’s aunt, all of which occurred while the appeal was pending.

Citing the affidavit, DPSS moved to dismiss the appeal as moot and in the

alternative requested judicial notice of the affidavit. At various points in the motion,

DPSS called the motion an application to augment the record and cited to Code of Civil

Procedure section 909, which allows appellate courts to “take additional evidence of or

concerning facts occurring at any time prior to the decision of the appeal” “in the

interests of justice.”

As an initial matter, we note that neither dismissing the appeal as moot, nor taking

judicial notice, nor augmenting the record is warranted here. “An appeal should be

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The affidavit also contended that Mother’s uncle was related to Mother by
marriage and that any information he had pertaining to M.D.’s Indian ancestry would not
differ from information provided by Mother’s aunt, to whom the uncle was married.

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dismissed as moot when the occurrence of events renders it impossible for the appellate

court to grant appellant any effective relief.” (Cucamongans United for Reasonable

Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479.) DPSS has

made no attempt to argue why the new affidavit would make it impossible for us to grant

parents effective relief by reversing the order terminating appellants’ parental rights, and

we see no reason why that might be so. In addition, although this court may take judicial

notice of documents, the affidavit is not a proper subject of judicial notice under any

available option. (See Evid. Code, §§ 451-453, 459.) Finally, “[t]he augmentation

procedure cannot be used to bring up matters occurring during the pendency of the appeal

because those matters are outside the superior court record.” (In re K.M. (2015) 242

Cal.App.4th 450, 456.) We construe the motion as a motion to consider new evidence

under Code of Civil Procedure section 909. (See In re M.B. (2022) 80 Cal.App.5th 617,

627 [doing same].)

There is currently a split in the Court of Appeal on the propriety of taking

additional evidence under Code of Civil Procedure section 909 to resolve ICWA appeals.

(Compare In re M.B., supra, 80 Cal.App.5th at pp. 627-628 [“a child protective services

agency cannot remedy a defective ICWA investigation by conducting further interviews

while the termination order is being reviewed on appeal”] with In re Allison B. (2022) 79

Cal.App.5th 214, 219 [considering such evidence because doing so has “‘the beneficial

consequence’ of ‘“expedit[ing] the proceedings and promot[ing] the finality of the

juvenile court’s orders and judgment”’”].)

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 In In re Ricky R. (Aug. 25, 2022, E078646) __Cal.App.4th__ [2022 Cal.App.Lexis

733], this court recently decided against considering additional evidence under Code of

Civil Procedure section 909, stating that “the juvenile court should consider in the first

instance whether DPSS discharged its duties under ICWA and related state law.” (In re

Ricky R., supra, at p. *13.) We follow In re Ricky R. here and note additionally that we

would find prejudice in this case even if we were to consider the social worker's affidavit.

The affidavit states that the two family members actually interviewed, Mother’s mother

and Mother’s aunt, both reported no Indian ancestry “on the maternal side of the family.”

There is little to no information, however, on whether M.D. might have Indian ancestry

stemming from Mother’s father, or the paternal side of Mother’s family. There is no

indication in the record that Mother’s father has ever been contacted , and the same goes

for Mother’s two siblings. Additionally, Mother’s mother told the social worker that, to

her knowledge, there was no Indian ancestry through Mother’s father, but she also told

the social worker that “they have not spoken in a long time,” that she does not have his

contact information, and that he resides in Oklahoma.

Perhaps the best source for the uncertainty over M.D.’s possible Indian ancestry

from Mother’s side would have been Mother herself. It was Mother, after all, who

initially informed a social worker that she had Indian ancestry before later suggesting

otherwise on a form. If Mother had a good reason for this apparent inconsistency—she

learned new information about her parents in the interim, for instance—then additional

information may well have been unlikely to shed meaningful light on M.D.’s possible

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Indian ancestry. (See In re C.A. (2018) 24 Cal.App.5th 511, 519 [duty of inquiry

satisfied where a parent “initially indicated that he may have had Native American

heritage [but later] explained that he had learned new information about his parents and

did not have any Native American heritage”].) However, neither DPSS nor the juvenile

court ever asked Mother for a possible explanation as to why her answers about Indian
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ancestry appear to have been inconsistent.

Accordingly, we find DPSS’s errors prejudicial on this record.

III. DISPOSITION

The motion to dismiss the appeal or alternatively request judicial notice is denied.

The order terminating parental rights to M.D. is conditionally affirmed. 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 (and, if applicable,

the notice provisions as well), consistent with this opinion. If, after completing the initial

inquiry, neither DPSS nor the court has reason to believe or reason to know that M.D. is

an Indian child, the order terminating parental rights will remain in effect. If DPSS or the

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Relatedly, the juvenile court never asked Mother at the detention hearing
whether she knows or has reason to know that M.D. is an Indian child. (See 25 C.F.R.
§ 23.107(a) (2016) [“State courts must 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. The inquiry is made at the commencement of the
proceeding and all responses should be on the record”]; Benjamin M., supra, 70
Cal.App.5th at p. 741.) Nevertheless, appellants have not raised the apparent violation or
briefed whether a violation of federal regulations under ICWA is prejudicial here, so we
do not address the issue.

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court has reason to believe that M.D. is an Indian child, the court shall proceed

accordingly.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL
J.

We concur:

CODRINGTON
Acting P. J.

FIELDS
J.

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