Filed 11/8/22 In re M.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 M.G., et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E079180
Plaintiff and Respondent, (Super.Ct.Nos. J279786/87)
v. OPINION
M.G.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Conditionally reversed.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel for
Plaintiff and Respondent.
1
The only issues in this appeal from the termination of parental rights are whether
there was an adequate inquiry into the children’s ancestry under the Indian Child Welfare
Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and whether any error was prejudicial.
We find prejudicial error under the standard articulated in In re Benjamin M. (2021) 70
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Cal.App.5th 735 (Benjamin M.) and therefore conditionally reverse the judgment.
BACKGROUND
Defendant and appellant M.G. is the mother of the two children in this dependency
matter, one born in February 2006, the other in July 2013, both of whom share mother’s
initials. Plaintiff and respondent San Bernardino County Children and Family Services
(CFS) filed section 300 petitions regarding the children in February 2019. The children’s
father initially participated in the dependency proceedings, but he died in May 2019.
In advance of the February 2019 detention hearing, both mother and father
responded “No” on a CFS form inquiring if they “have/may have Native American
Ancestry.” At the disposition hearing in February 2019, both mother and father
confirmed they had “no known Indian ancestry.” On CFS forms, the children’s maternal
grandmother and maternal aunt also denied any Indian ancestry. Both the maternal
grandmother and maternal aunt attended the detention hearing, and both confirmed their
earlier responses.
1
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.
2
For more than a year, from April 2020 to August 2021, the children were placed
with a paternal aunt and uncle who lived in Oklahoma. CFS reported to the juvenile
court that the paternal aunt had “denied Native American ancestry and did not provide
any other relatives that may have Native American ancestry or information regarding
possible Native American ancestry in the family.” The record does not demonstrate,
however, that CFS asked other paternal relatives who were part of the children’s “safety
network” about possible Indian ancestry. Such relatives include “the paternal
grandmother, the paternal great-grandmother, cousins, [and] other aunts and uncles.”
In June 2022, after reunification efforts were unsuccessful, the juvenile court
terminated mother’s parental rights to the children and selected adoption as their
permanent plan.
DISCUSSION
Mother contends on appeal that CFS did not fulfill its duty of initial inquiry under
ICWA because it failed to ask certain paternal relatives about possible Indian ancestry.
CFS denies error and, in the alternative, contends that any arguable error is not
prejudicial. Applying Benjamin M., we find prejudicial error and therefore conditionally
reverse the judgment.
“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
state court must nevertheless follow various heightened procedural and substantive
requirements, such as stricter removal standards and mandatory placement preferences
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that promote keeping Indian children with family members or members of their tribe.”
(In re K.T. (2022) 76 Cal.App.5th 732, 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 laws 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
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
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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 the children are Indian children.
Rather, mother focuses on CFS’s alleged failure during its initial inquiry to gather
information that could have triggered additional duties.
The paternal aunt in Oklahoma with whom the children were placed for a time was
asked about possible Indian ancestry. As mother emphasizes, however, although CFS
had some contact with the children’s paternal grandmother on other issues, there is no
indication in the record that she was asked about potential Indian ancestry. We also note
that it does not appear the paternal uncle (paternal aunt’s husband) was asked about
possible Indian ancestry. As well, the social worker identified several other relatives,
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including “a paternal great-grandmother, cousins, [and] other aunts and uncles” as part of
the children’s “safety network.” There is also no evidence that CFS asked these
individuals about potential Indian ancestry. CFS therefore did not satisfy its duty of
initial inquiry, which includes the duty to ask extended family members whether the child
is, or may be, an Indian child. (Benjamin M., supra, 70 Cal.App.5th at p. 741; § 224.2,
subd. (b).)
CFS cites In re Ezequiel G. (2022) 81 Cal.App.5th 984 for the proposition that
“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.” (Id. at p. 1006.) CFS suggests that we should “reject a strict
reading of section 224.2” and find the inquiry that it conducted close enough to count as
no error, even though only some, but not all, of the children’s extended family members
were asked about possible Indian ancestry. For the reasons discussed in the dissent in In
re Ezequiel G., among others, we are not persuaded. (See In re Ezequiel G., supra, 81
Cal.App.5th at p. 1020 (J. Lavin, dissenting) [finding majority’s analysis “misguided”
and stating “There is nothing absurd or unworkable about applying the statute to the facts
of this case”].)
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
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meaningfully upon whether the child is an Indian child.” (Benjamin M., supra, 70
Cal.App.5th at p. 744.) Other cases both before and after Benjamin M. have sometimes
taken other approaches, and the issue is now pending before our Supreme Court. (See In
re Dezi C. (2022) 79 Cal.App.5th 769, 777-778, review granted Sept. 21, 2022, S275578
[“California courts have staked out three different rules for assessing whether a defective
initial inquiry is harmless . . . we propose a fourth rule for assessing harmlessness”].) We
apply the Benjamin M. standard here.
It appears from the record that there were several paternal relatives—the paternal
grandmother, in particular, as well as the paternal uncle with whom the children lived for
more than a year—with whom CFS was in direct contact, but who were never asked
about any potential Indian ancestry. We also infer that CFS likely had contact
information for the “paternal great-grandmother, cousins, [and] other aunts and uncles”
whom it identified as part of the children’s “safety network,” or at least had leads on
where to obtain such contact information. While we cannot know how these extended
family members would answer an ICWA inquiry, their answers would likely bear
meaningfully on the determination of whether the children are Indian children. CFS’s
error of failing to ask them was therefore prejudicial.
CFS attempts to distinguish Benjamin M. on its facts, noting that the father in that
case “never made an appearance in juvenile court and was never asked about any Indian
heritage, and CFS never inquired of his extended family members despite having their
information.” Here, in contrast, father did appear and stated that there was no Indian
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ancestry, and CFS did inquire of some, albeit not all, of the children’s extended family
members. It is not apparent, however, why that factual distinction should make a
difference. Father may or may not have been fully aware of his own ancestry, and the
same is true of his sister, the paternal aunt. Other extended family members may or may
not have had different information, but that cannot be known until CFS asks them.
DISPOSITION
The orders terminating parental rights to the children are 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 (and,
if applicable, the notice provisions as well), consistent with this opinion. If, after
completing the initial inquiry, neither CFS nor the court has reason to believe or to know
that the children are Indian children, the orders terminating parental rights as to them
shall be reinstated. If CFS or the court has reason to believe that the children are Indian
children, 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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