Filed 11/23/22 In re A.L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.L., a Person Coming Under
the Juvenile Court Law.
D080798
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4600)
Plaintiff and Respondent,
v.
R.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
R.L. (Father) appeals the juvenile court’s order terminating his
parental rights to his daughter, A.L., under Welfare and Institutions Code1
section 366.26.2 The sole issue on appeal is whether the San Diego County
Health and Human Services Agency (Agency) and the juvenile court failed to
conduct an adequate initial inquiry under section 224.2 into A.L.’s possible
Native American ancestry, as defined by the Indian Child Welfare Act
(ICWA; 25 U.S.C. § 1901 et seq.). The Agency concedes error but contends
that the error is harmless. We accept the concession but disagree that the
error is harmless. Rather, applying the standard of prejudice set forth in
In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.), we conclude
that the record reveals the existence of readily obtainable information from
extended family members likely to bear meaningfully on whether the child is
an Indian child. Accordingly, we find the error prejudicial, conditionally
reverse the order terminating parental rights, and remand the matter for
further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND3
In January 2021, the Agency petitioned the juvenile court under section
300, subdivision (b)(1) on behalf of A.L., because the mother used controlled
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 The court also terminated the mother’s parental rights, but the mother
did not appeal this order.
3 Because Father’s sole contention on appeal challenges the Agency’s
compliance with its section 224.2, subdivision (b) initial inquiry duties, we
limit our discussion of the facts and procedural history to information
necessary to determine that issue.
2
substances while pregnant with her. A.L. tested positive for amphetamines
and opiates at birth and suffered numerous withdrawal symptoms. The
Agency attached an undated ICWA-010(A) form to its petition, indicating
that the Agency had no reason to believe the child was an Indian child, but
the form does not identify the factual basis for this statement.
The Agency’s detention report stated that the mother denied having
any Native American ancestry during a January 20, 2021 interview. When
asked if she had any reason to believe A.L. was an Indian child, the mother
said no. At this time, Father was still an alleged father and was not
interviewed, and the mother denied knowing if Father had any Indian
affiliation.
At the January 26, 2021 detention hearing, the attorneys for the
mother and Father denied that either parent had any known Native
American ancestry. The court then found that ICWA did not apply. It
appears from the record that the Agency conducted no further ICWA
inquiries after this hearing. The Agency’s subsequent reports simply indicate
that “[o]n 01/26/2021, the Court found the Indian Child Welfare Act does not
apply.”
As reflected in the Agency’s jurisdiction/disposition report, the Agency
spoke with the paternal grandmother, a paternal nonrelative extended family
member (NREFM) C.B.,4 a maternal great aunt, and a paternal great aunt
about accepting placement of A.L. The Agency also sent letters to three
paternal aunts or uncles, the paternal grandfather, and the maternal
4 This individual’s relationship to A.L. is unclear. The Agency identifies
C.B. as a NREFM. However, during the detention hearing, counsel for
Father described her as “the sister,” and the mother’s counsel referred to her
as “the paternal aunt.”
3
grandfather5 asking if they would be interested in placement. Though the
letters are not included in the record, the report summarizes the placement-
related information relayed to these individuals. There is no indication in the
record on appeal that the Agency ever asked any of these relatives about
A.L.’s possible Native American ancestry.
An addendum report indicates that the Agency also spoke with
Crystal P., whom Father described as his sister, about possible placement.
Nothing in the record suggests the question of Native American ancestry was
raised during this contact.
After the paternal great aunt declined placement, C.B. ceased
responding to telephone calls, and the maternal great aunt and Crystal P.
were deemed ineligible for emergency placement, the Agency focused on
placing A.L. out of state with the paternal grandmother. During a six-month
review hearing in October 2021, the court ordered the Agency to place A.L.
with the paternal grandmother. The paternal grandmother subsequently
participated in two continued section 366.26 hearings and the contested
366.26 hearing, but at no point was the issue of potential Native American
heritage mentioned during any of these proceedings.
The court terminated both parents’ parental rights at the June 2022
contested 366.26 hearing. Father timely appealed from the order,
5 The table listing the names of the individuals the Agency identified as
“potential relatives” and their relationships to A.L. appears to be riddled with
errors, with seemingly male relatives listed as aunts or grandmothers and
apparently female relatives listed as uncles or grandfathers. The individual
subsequently identified as the maternal grandfather is listed as an
unspecified “relative.” The individual listed as the second paternal
grandmother is identified elsewhere in the record as the paternal
grandfather. Another unspecified “relative,” who likely is the maternal
grandmother, also received a letter, but her relationship to A.L. is not
confirmed in the record.
4
challenging only the court’s ICWA finding, made at the time of the detention
hearing.6
DISCUSSION
In dependency proceedings, the juvenile court and the Agency have an
“affirmative and continuing duty to inquire” whether a child “is or may be an
Indian child.” (§ 224.2, subd. (a).) “This continuing duty can be divided into
three phases: the initial duty to inquire, the duty of further inquiry, and the
duty to provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558,
566 (D.F.).) The Agency’s initial inquiry duty, which is at issue in this
appeal, 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
6 Father did not appeal from the juvenile court’s January 2021 detention
order in which the court expressly found that ICWA did not apply.
Ordinarily, “California follows a ‘one shot’ rule under which, if an order is
appealable, appeal must be taken or the right to appellate review is
forfeited.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761,
fn. 8.) However, because the duty of inquiry under ICWA is a continuing one,
the one-shot rule does not apply here. (See § 224.2, subd. (a); In re Isaiah W.
(2016) 1 Cal.5th 1, 6 [“Because ICWA imposes on the juvenile court a
continuing duty to inquire whether the child is an Indian child, we hold that
the parent may challenge a finding of ICWA’s inapplicability in an appeal
from the subsequent [termination of parental rights] order, even if she did
not raise such challenge in an appeal from the initial [detention] order”].)
5
Indian custodian is domiciled.” (§ 224.2, subd. (b).)7 ICWA defines
“ ‘extended family member’ ” by “the law or custom of the Indian child’s tribe”
or, absent such law or custom, as “a person who has reached the age of
eighteen and who 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) [“ ‘extended family
member’ . . . defined as provided in [§] 1903” of ICWA].)
We review ICWA findings for substantial evidence, “[b]ut where the
facts are undisputed, we independently determine whether ICWA’s
requirements have been satisfied.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1051.)
Here, Father asserts, and the Agency concedes, that the Agency failed
to comply with its initial ICWA inquiry obligations under section 224.2
because it did not question the extended family members available to it about
possible Native American ancestry. We agree.
During the dependency proceedings, the Agency failed to take
advantage of many opportunities to make ICWA inquiries of readily available
relatives. The Agency had telephonic contact with the paternal grandmother
and at least one paternal aunt,8 but did not ask either of these family
7 If the initial inquiry reveals a reason to believe the child is an Indian
child, then further inquiry into whether there is a reason to know the child is
an Indian child is required. (D.F., supra, 55 Cal.App.5th at pp. 566–567.) If
there is reason to know that a child is an Indian child (§ 224.2, subd. (d)),
then notice must be sent to the pertinent tribe to allow the tribe to make a
determination regarding the child’s tribal membership. (D.F., at pp. 567–
568.)
8 Although Agency records are conflicting, it appears Crystal P. is
Father’s sister and C.B. may also be a sister. The Agency spoke with both
women.
6
members whether the child “[was] or may be an Indian child” as required in
an initial ICWA inquiry. (§ 224.2, subd. (b); Benjamin M., supra, 70
Cal.App.5th at p. 744 [failure to ask father’s known relatives about possible
Indian ancestry violated ICWA requirements].) A social worker also spoke
with a maternal great aunt and a paternal great aunt. Although these great
aunts do not fall within the definition of “extended family members,” the duty
of inquiry also extends to “others who have an interest in the child . . . .”
(§ 224.2, subd. (b); see also In re Dominick D. (2022) 82 Cal.App.5th 560, 564,
fn. 2, 567 [requiring initial inquiry of a maternal great-grandfather who
served as the dependent’s caregiver because he was included under “others
who have an interest in the child”]; In re S.R. (2021) 64 Cal.App.5th 303, 314
(S.R.) [“[t]he statute obligates the court and child protective agencies to ask
all relevant involved individuals . . . ‘whether the child is, or may be, an
Indian child’ ”].) Both great aunts were involved in A.L.’s dependency
proceedings as potential placements, and the maternal great aunt informed
the social worker in January 2021 that she was in contact with a “maternal
aunt.” Thus, the Agency should have asked these great aunts whether they
were aware of any Indian ancestry and requested the maternal aunt’s contact
information. (See In re K.R. (2018) 20 Cal.App.5th 701, 707–708 [holding
that “actions [the Agency] was required to undertake” included contacting
paternal grandfather for paternal great-grandfather’s contact information
and contacting great-grandmother for information about paternal
grandfather and paternal great-grandfather].) Finally, the record reflects
that the Agency had mailing addresses for three paternal aunts or uncles, the
paternal grandfather, and the maternal grandfather. Even though each of
these relatives qualifies as an “extended family member,” nothing in the
record suggests the Agency asked any of them about possible Native
7
American heritage. In sum, because the Agency’s initial ICWA inquiry was
inadequate, we conclude there is insufficient evidence to support the juvenile
court’s finding that ICWA did not apply.
The parties dispute whether the error was harmless. The Courts of
Appeal have applied varying analytical frameworks to evaluate whether
ICWA initial inquiry errors are prejudicial or harmless. We need not address
these various approaches because this division has adopted the approach
articulated in Benjamin M., supra, 70 Cal.App.5th 735. (In re Y.M. (2022) 82
Cal.App.5th 901, 916 (Y.M.).)
Under this approach, “a court must reverse where 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 Cal.App.5th at p. 744.) This “standard does
not require ‘proof of an actual outcome (that the parent may actually have
Indian heritage).’ [Citation.] The missing information need only be relevant
to the ICWA inquiry, ‘whatever the outcome will be.’ ” (In re Ricky R. (2022)
82 Cal.App.5th 671, 679; id. at p. 680 [applying Benjamin M. standard and
finding reversible initial inquiry error where agency “asked the parents about
Indian ancestry” but “failed to ask extended family members about it”].)
On this record, we cannot say the Agency’s failure to comply with its
initial inquiry duties was harmless. Extended family members were readily
available, and their responses would likely have borne meaningful
8
information, regardless of the outcome of the inquiry.9 (Benjamin M., supra,
70 Cal.App.5th at p. 744.) Furthermore, the fact the parents denied any
Indian heritage does not relieve the Agency of its “broad duty” to inquire of
readily ascertainable extended family members whether the children are
Indian children. (In re Y.W. (2021) 70 Cal.App.5th 542, 554.) A contrary rule
would “ignore[] the reality that parents may not know their possible
relationship with or connection to an Indian tribe.” (Ibid.; S.R., supra, 64
Cal.App.5th at p. 314 [“the children’s parents apparently had no idea of their
family’s connection to the . . . tribe . . . , even though the children’s great-
grandmother was a member”]; see also In re T.G. (2020) 58 Cal.App.5th 275,
295 [noting that ICWA’s “expansive” duty of inquiry “is premised on the
commonsense understanding that, over time, Indian families, particularly
those living in major urban centers . . . , may well have lost the ability to
convey accurate information regarding their tribal status”]; In re Rylei S.
9 The Agency’s mismatched and confusing records documenting the
relatives contacted for possible placement also weigh against a harmless
error finding. As the court said in Benjamin M., “[w]hen assessing whether
ICWA inquiry error was harmless, a court must know enough about the
persons contacted to determine if the agency failed to inquire of persons who
might have helpful information; murky documentation of the agency’s efforts
may support a reasonable inference that it failed to do so.” (Benjamin M.,
supra, 70 Cal.App.5th at pp. 745–746.) Moreover, we are not persuaded by
the Agency’s argument that, because these individuals did not respond to the
placement letters, “[i]t follows that said individuals were similarly
unavailable for ICWA inquiry.” Requesting that individuals disclose any
known Native American ancestry imposes a significantly lower burden than
asking them to take custody of an infant.
9
(2022) 81 Cal.App.5th 309, 321–322 [same].)10 Thus, we conditionally
reverse the juvenile court’s order terminating parental rights for a limited
remand to ensure compliance with the ICWA inquiry obligations.
Given the importance of expediency and need for finality, we encourage
the parties to stipulate to immediate issuance of the remittitur in this case.
(Cal. Rules of Court, rule 8.272(c)(1).)
DISPOSITION
The order issued at the June 27, 2022 contested section 366.26 hearing
is conditionally reversed and the matter is remanded to the juvenile court
with directions that, within 30 days of the remittitur, the Agency must file a
report demonstrating its compliance with the initial inquiry provisions of
10 The Agency analogizes to Y.M., supra, 82 Cal.App.5th 901, in
suggesting that, given the paternal grandmother’s ongoing involvement with
the case and Father, Father could have asked her about the family’s Indian
ancestry. Further, as the individual seeking placement of A.L., the Agency
argues the paternal grandmother, like the paternal grandfather in Y.M., “had
a strong incentive to raise any Indian ancestry in support of that goal.”
(Y.M., at pp. 917–918.)
Though these facts are superficially similar to Y.M., its holding is not
so broad. It is not clear from the record before us that Father or paternal
grandmother had any reason to know or appreciate the significance of Indian
ancestry. In Y.M., by contrast, a social worker met with the father to discuss
whether he had any Indian ancestry. (Y.M., supra, 82 Cal.App.5th at p. 906.)
Here, there is no indication the Agency ever spoke with Father about ICWA
or that the importance of disclosing Indian heritage was ever explained by
the Agency or the court during one of the many hearings Father and paternal
grandmother attended. The record does not include an ICWA-010(A) or
ICWA-020 form from Father, and the only reference to ICWA with regard to
him is his attorney’s assertion that “Father indicates no Indian ancestry.”
Therefore, we are not persuaded that the ICWA inquiry error was harmless
as to the paternal grandmother. Moreover, a finding of harmless error as to
the paternal grandmother still would not resolve the issue, as the Agency
additionally failed to make ICWA inquiries of other readily available
extended family members, including maternal relatives.
10
section 224.2, subdivision (b), and, if required, conduct further inquiry under
section 224.2, subdivision (e). Within 45 days of the remittitur, the juvenile
court must conduct a hearing to determine whether the Agency’s
investigation satisfied its affirmative duty to investigate. The juvenile court
has the discretion to adjust these time periods on a showing of good cause.
If neither the Agency nor the juvenile court has reason to believe or to
know that the child is an Indian child, the order issued at the June 27, 2022
contested section 366.26 hearing shall be reinstated by the juvenile court.
Alternatively, if after completing the inquiry the Agency or the juvenile court
has reason to believe that the child is an Indian child, the court shall proceed
accordingly.
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
11