In re S.K. CA5 ( 2023 )

Filed 1/27/23 In re S.K. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re S.K., a Person Coming Under the Juvenile
Court Law.
FRESNO COUNTY DEPARTMENT OF F084582
SOCIAL SERVICES,
(Super. Ct. No. 03CEJ300077-2)
Plaintiff and Respondent,
v. OPINION
D.K.,
Defendant and Appellant.
THE COURT *
APPEAL from orders of the Superior Court of Fresno County. Todd Eilers,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Franson, J. and Peña, J.
INTRODUCTION
D.K. (mother) and M.R. (father) are the parents of S.K. (born September 2017).
Mother appeals from the juvenile court’s jurisdictional and dispositional findings and
orders pursuant to Welfare and Institutions Code section 360. 1 Mother’s sole contention
on appeal is that the Fresno County Department of Social Services (the department) and
the juvenile court failed to comply with the inquiry requirements of the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because
mother and extended family members were not asked about S.K.’s Indian ancestry.2 The
department concedes error, but argues mother was not prejudiced because proceedings
are ongoing and the error can be cured without disturbing the jurisdictional and
dispositional findings and orders. Alternatively, the department submits to a limited
remand for compliance with ICWA.
For the reasons discussed herein, we accept the department’s concession of error.
However, consistent with our recent decisions in In re K.H. (2022) 84 Cal.App.5th 566(K.H.) and In re E.C. (2022) 85 Cal.App.5th 123 (E.C.), we conclude “the error is
prejudicial because neither the [department] nor the court gathered information sufficient
to ensure a reliable finding that ICWA does not apply and remanding for an adequate
inquiry in the first instance is the only meaningful way to safeguard the rights at issue.
([In re A.R. (2021)] 11 Cal.5th [234,] 252–254 [(A.R.)].) Accordingly, we conditionally
reverse the juvenile court’s finding that ICWA does not apply and remand for further
proceedings consistent with this opinion, as set forth herein.” (K.H., at p. 591; accord,
E.C., at pp. 157–158.)
1 All further statutory references are to the Welfare and Institutions Code.
2 “[B]ecause 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.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
2.
FACTUAL AND PROCEDURAL BACKGROUND 3
I. Petition
On April 27, 2022, the department filed a petition on behalf of S.K. pursuant to
section 300, subdivision (b) (failure to protect). S.K. had already been detained and
placed with Melissa G. who was her former foster mother and a long-time friend of
mother. The petition contained an Indian Child Inquiry Attachment (ICWA-010(A))
form indicating a social worker conducted an ICWA inquiry with father and he gave no
reason to believe S.K. was or could be an Indian child.
II. Detention
The detention report stated ICWA may or may not apply. Father denied Indian
ancestry, but it was unknown whether mother had Indian ancestry. An ICWA inquiry
had not been made with mother because she was hospitalized. The department noted that
in a prior dependency case ICWA had been found inapplicable and it would provide
further information in the jurisdiction report.
On April 28, 2022, the juvenile court held the detention hearing. Father was
present, but mother was not. The court asked father if he had Indian ancestry. Father
responded, “Not that I know of.” At the conclusion of the hearing, the court found S.K.’s
continued detention was necessary.
III. Jurisdiction and Disposition
The jurisdiction and disposition report stated ICWA did not apply. Father had
denied Indian ancestry.4 The department recommended that the juvenile court find that
ICWA did not apply.
3 Because the sole issue on appeal concerns ICWA, we restrict our facts to those
bearing on that issue or helpful for clarity.
4 The report also contained an erroneous statement that mother orally denied Indian
ancestry at the detention hearing. However, at the combined jurisdiction and disposition
hearing, the department informed the court that mother was not present at the detention
hearing and struck the comment from the report.
3.
On June 14, 2022, the juvenile court held a combined jurisdiction and disposition
hearing. Neither parent was present. The court found ICWA did not apply and sustained
the allegations.
On June 29, 2022, mother filed a notice of appeal.
DISCUSSION
I. ICWA
A. Background
“ ‘ICWA is a federal law giving Indian tribes concurrent jurisdiction over state
court child custody proceedings that involve Indian children living off of a reservation’
[citations], in furtherance of ‘federal policy “ ‘that, where possible, an Indian child should
remain in the Indian community’ ” ’ [citations]. ‘ICWA establishes minimum federal
standards, both procedural and substantive, governing the removal of Indian children
from their families’ [citations], and ‘[w]hen ICWA applies, the Indian tribe has a right to
intervene in or exercise jurisdiction over the proceeding.’ ” (K.H., supra, 84 Cal.App.5th
566, 594, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 138, fn. omitted.)
“ ‘In 2006, California adopted various procedural and substantive provisions of
ICWA.’ [Citations.] The Legislature’s ‘primary objective … was to increase
compliance with ICWA. California Indian Legal Services (CILS), a proponent of the
bill, observed that courts and county agencies still had difficulty complying with ICWA
25 years after its enactment, and CILS believed codification of [ICWA’s] requirements
into state law would help alleviate the problem. [Citation.]’ ” (K.H., supra, 84
Cal.App.5th at p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138–139.)
“ ‘In 2016, new federal regulations were adopted concerning ICWA compliance.
[Citation.] Following the enactment of the federal regulations, California made
conforming amendments to its statutes, including portions of the Welfare and Institutions
Code related to ICWA notice and inquiry requirements. [Citations.] Those changes
became effective January 1, 2019 .…’ [Citation.] Subsequently, the Legislature
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amended section 224.2, subdivision (e), to define ‘reason to believe,’ effective
September 18, 2020.” (K.H., supra, 84 Cal.App.5th at pp. 595–596, fn. omitted; accord,
E.C., supra, 85 Cal.App.5th at p. 139.)
B. Summary of Duties of Inquiry and Notice
“[W]hether a child is a member, or is eligible for membership, in a particular tribe
is a determination that rests exclusively with the tribe, and neither the [department] nor
the court plays any role in making that determination. [Citations.] ‘ “Because 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.” ’ ” (K.H., supra, 84 Cal.App.5th at p. 596;
accord, E.C., supra, 85 Cal.App.5th at pp. 139–140.)
“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of
notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the
[Bureau of Indian Affairs].’ ” (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California
law imposes “an affirmative and continuing duty [on the court and the county welfare
department] to inquire whether a child for whom a petition under [s]ection 300, … may
be or has been filed, is or may be an Indian child.” (§ 224.2, subd. (a).)
“The [state law] duty to inquire begins with the initial contact, including, but not
limited to, asking the party reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.” (§ 224.2, subd. (a).) “If a child is
placed into the temporary custody of a county welfare department pursuant to
[s]ection 306 … the county welfare department … has a duty to inquire whether that
child is an Indian child. Inquiry 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 Indian custod ian is domiciled.”
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(§ 224.2, subd. (b).)5 Additionally, “[a]t the first appearance in court of each party, the
court shall ask each participant present in the hearing whether the participant knows or
has reason to know that the child is an Indian child. The court shall instruct the parties to
inform the court if they subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
“If the initial inquiry provides ‘reason to believe’ that an Indian child is involved
in a proceeding—that is, if the court or social worker ‘has information suggesting that
either the parent of the child or the child is a member or may be eligible for membership
in an Indian tribe’—then the court or social worker ‘shall make further inquiry’ regarding
the child’s possible Indian status as soon as practicable.” (In re Ezequiel G. (2022) 81
Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) “Further inquiry
‘includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents,
Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of
Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the
tribe or tribes and any other person that may reasonably be expected to have information
regarding the child’s membership, citizenship status, or eligibility.’ ” (Ezequiel G., at
p. 999.)
“If there is ‘reason to know’ a child is an Indian child, the agency shall provide
notice to the relevant tribes and agencies in accordance with section 224.3,
subdivision (a)(5).” (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2,
5 “Courts have recognized it is somewhat inaccurate to refer to the agency’s
‘ “ ‘initial duty of inquiry’ ” ’ [citation] because the duty ‘ “begins with the initial
contact” (§ 224.2, subd. (a)) and continues throughout the dependency proceedings’
[citation]. However, in this case, like many others, an ICWA inquiry was made only of
the parents and after the juvenile court found ICWA did not apply at the detention
hearing, no further information was gathered. Given that our discussion on error …
focuses on the first step of the inquiry and does not involve the duty of further inquiry or
notice, we use the term duty of initial inquiry.” (K.H., supra, 84 Cal.App.5th at p. 597,
fn. 10.)
6.
subd. (f).) “There is ‘reason to know’ a child is an Indian child if any one of six statutory
criteria is met—i.e., if the court is advised that the child ‘is an Indian child,’ the child’s or
parent’s residence is on a reservation, the child is or has been a ward of a tribal court, or
either parent or the child possess an identification card indicating membership or
citizenship in an Indian tribe.” (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)
II. Analysis
A. Summary of ICWA Inquiry
Here, the record reflects that the department and the juvenile court only conducted
an ICWA inquiry with father. The department had been unable to inquire of mother
because she had been hospitalized. The department noted that in a previous dependency
case ICWA had been found not to apply but failed to provide further information.
Neither is there any indication that Melissa, who had placement of S.K., was inquired of.
Nevertheless, the juvenile court found ICWA did not apply.
Mother argues that remand is required with instructions for the department to
conduct a proper inquiry. The department acknowledges that only father was inquired of
and concedes error, but argues no prejudice occurred because the proceedings are
ongoing and the error can be cured without disturbing the jurisdictional and dispositional
findings and orders. Alternatively, the department agrees to a limited remand for
compliance with ICWA.
Recently, in K.H. and E.C., we addressed ICWA error at the inquiry stage. There,
we explained our decision not to follow the approaches articulated by other appellate
courts for determining whether ICWA error requires reversal and concluded that the
Supreme Court’s decision in A.R. supplies the appropriate framework for assessing
prejudice in this context. (K.H., supra, 84 Cal.App.5th at pp. 607–608, citing A.R.,
supra, 11 Cal.5th at pp. 252–254; accord, E.C., supra, 85 Cal.App.5th at p. 152.)
Applying the standards we articulated in K.H. and E.C., as we will discuss below, we
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conclude the department’s error is prejudicial and remand for the department to conduct a
proper, adequate, and duly diligent inquiry is necessary.
B. Standard of Review
“The juvenile court’s finding that ICWA does not apply to the proceeding rests on
two elemental determinations, ‘subject to reversal based on sufficiency of the
evidence.’ ” (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2));
accord, E.C., supra, 85 Cal.App.5th at pp. 142–143.) First, “[t]he court must find there is
‘no reason to know whether the child is an Indian child,’ which is dependent upon
whether any of the six circumstances set forth in subdivision (d) of section 224.2 apply.”
(K.H., supra, at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, at p. 143.)
Second, “[t]he juvenile court must … find a ‘proper and adequate further inquiry and due
diligence .…’ ” (K.H., at p. 601, quoting § 224.2, subd. (i)(2)); accord, E.C., at p. 143.)
Under the substantial evidence standard, “ ‘a reviewing court should “not reweigh
the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.”
[Citation.] The determinations should “be upheld if … supported by substantial
evidence, even though substantial evidence to the contrary also exists and the trial court
might have reached a different result had it believed other evidence.” ’ [Citations.] The
standard recognizes that ‘[t]rial courts “generally are in a better position to evaluate and
weigh the evidence” than appellate courts’ [citation], and ‘an appellate court should
accept a trial court’s factual findings if they are reasonable and supported by substantial
evidence in the record’ [citation]. ‘[I]f a court holds an evidentiary hearing, it may make
credibility determinations, to which an appellate court would generally defer.’ ” (K.H.,
supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, 85 Cal.App.5th at p. 143.)
The juvenile court’s finding on the second element, however, “is ultimately
discretionary because it requires the juvenile court to ‘engage in a delicate balancing of’
various factors in assessing whether the agency’s inquiry was proper and adequate within
the context of ICWA and California law, and whether the agency acted with due
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diligence.” (K.H., supra, 84 Cal.App.5th at p. 601, quoting In re Caden C. (2021) 11
Cal.5th 614, 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; Ezequiel G., supra, 81
Cal.App.5th at pp. 1004–1005.) Therefore, we employ a hybrid standard and review the
court’s determination for substantial evidence and abuse of discretion. (K.H., at p. 601;
accord, E.C., at pp. 143–144; Ezequiel G., at pp. 1004–1005.)
“ ‘Review for abuse of discretion is subtly different [from review for substantial
evidence], focused not primarily on the evidence but the application of a legal standard.
A court abuses its discretion only when “ ‘ “the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ”
[Citation.] But “ ‘ “[w]hen two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court” ’ ” [Citations.] [¶] While each standard here fits a distinct type of determination
under review, the practical difference between the standards is not likely to be very
pronounced.’ ” (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85
Cal.App.5th at pp. 143–144.)
“Review of the juvenile court’s findings under the foregoing standards is
deferential, but ‘ “an appellate court [nevertheless] exercises its independent judgment to
determine whether the facts satisfy the rule of law.” ’ [Citations.] Where the material
facts are undisputed, courts have applied independent review to determine whether
ICWA’s requirements were satisfied.” (K.H., supra, 84 Cal.App.5th at p. 602; accord,
E.C., supra, 85 Cal.App.5th at p. 144.)
C. Department and Juvenile Court Erred
1. Duties
As previously mentioned, “[a]t the first appearance in court of each party, the
court shall ask each participant present in the hearing whether the participant knows or
has reason to know that the child is an Indian child. The court shall instruct the parties to
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inform the court if they subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
Moreover, when “a child is placed into the temporary custody of a county welfare
department …, the county welfare department … has a duty to inquire whether [the] child
is an Indian child. Inquiry 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 Indian custodian is domiciled.” (§ 224.2,
subd. (b).) Extended family members include adult grandparents, siblings, brothers- or
sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C.
§ 1903(2); § 224.1, subd. (c).)
“If the court[ or the department] has reason to believe that an Indian child is
involved in a proceeding, but does not have sufficient information to determine that there
is reason to know that the child is an Indian child, the court[ or the department] shall
make further inquiry regarding the possible Indian status of the child, and shall make that
inquiry as soon as practicable.” (§ 224.2, subd. (e).) “There is reason to believe a child
involved in a proceeding is an Indian child whenever the court, social worker, or
probation officer has information suggesting that either the parent of the child or the child
is a member or may be eligible for membership in an Indian tribe.” (Id., subd. (e)(1).)
County welfare departments “must on an ongoing basis include in its filings a
detailed description of all inquiries, and further inquiries it has undertaken, and all
information received pertaining to the child’s Indian status, as well as evidence of how
and when this information was provided to the relevant tribes. Whenever new
information is received, that information must be expeditiously provided to the tribes.”
(Cal. Rules of Court, rule 5.481(a)(5).)6
6 All further references to rules are to the California Rules of Court.
10.
2. Juvenile Court’s Finding Unsupported by Substantial Evidence
Here, the department inquired only of father, which fell short of complying with
the plain language of section 224.2, subdivision (b). “We recognize the frustration with
the sheer volume of cases suffering from this fundamental defect given that the vast
majority of inquiries will not result in a finding that a child is or may be an Indian child.
However, ‘[t]he judiciary, in reviewing statutes enacted by the Legislature, may not
undertake to evaluate the wisdom of the policies embodied in such legislation; absent a
constitutional prohibition, the choice among competing policy considerations in enacting
laws is a legislative function.’ [Citation.] [County welfare departments] and lower
courts are, by now, on very clear notice of the problems caused when little to no inquiry
is made. While we are not persuaded that compliance with section 224.2 will prove
onerous once [county welfare departments] provide a record of their efforts for the
juvenile court to review, we may not interpret the law to relieve either one of the burden
of complying with the plain directives of the statute.” (K.H., supra, 84 Cal.App.5th at
pp. 619–620, fn. omitted.)
“[T]he law demands more than merely inquiring of … [f]ather” (K.H., supra, 84
Cal.App.5th at p. 620, citing In re Antonio R. (2022) 76 Cal.App.5th 421, 431; accord, In
re M.M. (2022) 81 Cal.App.5th 61, 74, review granted Oct. 12, 2022, S276099 (dis. opn.
of Wiley, J.)), a point the department does not dispute. There may be cases in which
there is no one else to ask, but if that is so, the record must be developed to reflect that
fact and supported by documentation. (Rule 5.481(a)(5).) “On a well-developed record,
the court has relatively broad discretion [in such cases] to determine [that] the
[department’s] inquiry was proper, adequate, and duly diligent on the specific facts of the
case.” (K.H., at p. 589; accord, E.C., supra, 85 Cal.App.5th at p. 157.)
Under these circumstances, the department did not fulfill its statutory duty of
inquiry. (§ 224.2, subds. (b) & (e).) As a result, the juvenile court’s finding that ICWA
11.
did not apply was not supported by substantial evidence, and its contrary conclusion was
an abuse of discretion. (§ 224.2, subd. (i)(2).)
D. Prejudice
“Where, as here, the deficiency lies with [a department’s] duty of initial inquiry
and a juvenile court’s related finding of ‘proper and adequate further inquiry and due
diligence’ (§ 224.2, subd. (i)(2)), the error is one of state law ([In re] Benjamin M., supra,
70 Cal.App.5th at p. 742). Under the California Constitution, ‘[n]o judgment shall be set
aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of
the improper admission or rejection of evidence, or for any error as to any matter of
pleading, or for any error as to any matter of procedure, unless, after an examination of
the entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)”
(K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, 85 Cal.App.5th at p. 151.)
“ ‘[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must
clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of
justice’ [citations], and California law generally interprets its constitutional miscarriage
of justice requirement ‘as permitting reversal only if the reviewing court finds it
reasonably probable the result would have been more favorable to the appealing party but
for the error.’ ” (K.H., supra, 84 Cal.App.5th at pp. 606–607; accord, E.C., supra, 85
Cal.App.5th at pp. 151–152.)
However, in A.R., the Supreme Court “recognized that while we generally apply a
Watson[7 ] likelihood-of-success test to assess prejudice, a merits-based outcome-focused
test is not always appropriate because it cannot always adequately measure the relevant
harm. [Citation.] In other words, where the injury caused by the error is unrelated to an
outcome on the merits, tethering the showing of prejudice to such an outcome misplaces
7 People v. Watson (1956) 46 Cal.2d 818, 836.
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the measure, at the expense of the rights the law in question was designed to protect.”
(K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
As we explained in K.H., “ ‘ICWA compliance presents a unique situation .…’ ”
(K.H., supra, 84 Cal.App.5th at p. 608.) “ICWA is not directed at reaching, or
protecting, a specific outcome on the merits.” (Id. at p. 609; accord, E.C., supra, 85
Cal.App.5th at p. 154.) Rather, “ ‘[t]he purpose of ICWA and related California statutes
is to provide notice to the tribe sufficient to allow it to determine whether the child is an
Indian child, and whether the tribe wishes to intervene in the proceedings’ [citation], and
an adequate initial inquiry facilitates the information gathering upon which the court’s
ICWA determination will rest.” (K.H., at p. 608; accord, E.C., at pp. 152–153.) Yet,
“while the appealing party is usually a parent, parents do not bear the burden of gathering
information in compliance with ICWA [citations], and parents may raise the claim of
error for the first time on appeal.” (K.H., at p. 608; accord, E.C., at p. 153.) Further, the
ultimate determination whether a child is an Indian child rests with the tribe, not with a
parent, the department, or the juvenile court. (K.H., at p. 590; accord, E.C., at pp. 139–
140.)
“Although the duty of inquiry is a continuing one (§ 224.2, subd. (a)), as we have
seen in countless cases, including here, if the inquiry is inadequate at the outset, the
likelihood that the opportunity to gather relevant information will present itself later in
the proceeding declines precipitously.” (K.H., supra, 84 Cal.App.5th at p. 609; accord,
E.C., supra, 85 Cal.App.5th at p. 154.) “Thus, ‘the relevant injury under ICWA is not
tied to whether the appealing parent can demonstrate to the juvenile court or a reviewing
court a likelihood of success on the merits of whether a child is an Indian child[, under a
standard Watson analysis]. The relevant rights under ICWA belong to Indian tribes and
they have a statutory right to receive notice where an Indian child may be involved so
that they may make that determination. It necessarily follows that [in the context of
ICWA and consistent with A.R.,] the prejudice to those rights lies in the failure to gather
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and record the very information the juvenile court needs to ensure accuracy in
determining whether further inquiry or notice is required, and whether ICWA does or
does not apply. Many cases do not proceed beyond the inquiry at the first stage in the
compliance process and, therefore, ensuring adequacy and accuracy at this step is
critical’ ” (E.C., at p. 154, quoting K.H., at p. 591), and “ ‘requiring adequacy as the law
directs “is generally the only meaningful[ ] way to safeguard the statutory right[s]” as
intended under ICWA and related California law [citation]. If this step is disregarded, the
protection Congress and the state Legislature intended to afford tribes goes unrealized .’ ”
(E.C., at p. 154, quoting K.H., at p. 609.)
As we explained in K.H., “where the opportunity to gather the relevant
information critical to determining whether the child is or may be an Indian child is lost
because there has not been adequate inquiry and due diligence, reversal for correction is
generally the only effective safeguard.” (K.H., supra, 84 Cal.App.5th at p. 610, citing
A.R., supra, 11 Cal.5th at pp. 252–254; accord, E.C., supra, 85 Cal.App.5th at p. 155.)
Here, the department’s inquiry, limited only to father, “ ‘fell well short of that required to
gather the information needed to meaningfully safeguard the rights of the tribes, as
intended under ICWA and California law’ ” (E.C., at p. 156, quoting K.H., at p. 620), and
“[a] finding of harmlessness on this record would necessarily require speculation and ‘is
at odds with the statutory protections that ICWA and California law intend to afford
Indian children and Indian tribes.’ ” (E.C., at p. 155, quoting K.H., at p. 611.) Therefore,
the error is prejudicial and reversal is required.
We recognize that mother is appealing from the juvenile court’s jurisdictional and
dispositional findings and orders, and that the department and juvenile court “have an
affirmative and continuing duty to inquire whether a child … is or may be an Indian
child.” (§ 224.2, subd. (a).) However, the error in this case, left uncorrected, is
prejudicial; and in K.H. and E.C., we explained that “ ‘if the inquiry is inadequate at the
outset, the likelihood that the opportunity to gather relevant information will present itself
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later in the proceeding declines precipitously.’ ” (E.C., supra, 85 Cal.App.5th at p. 154,
quoting K.H., supra, 84 Cal.App.5th at p. 609.)
Accordingly, the juvenile court’s finding that ICWA does not apply is
conditionally reversed and the matter is remanded. The juvenile court is instructed to
ensure the department conducts “ ‘a proper, adequate, and duly diligent inquiry under
section 224.2, subdivision[s] (b) [and (e)], and document its inquiry in the record in
compliance with rule 5.481(a)(5).’ ” (E.C., supra, 85 Cal.App.5th at p. 157, quoting
K.H., supra, 84 Cal.App.5th at p. 621.) “ ‘This should not be interpreted as requiring an
exhaustive search for and questioning of every living relative of [S.K.]’ but ‘[w]e leave
that determination for the juvenile court in the first instance because it is better positioned
to evaluate the evidence provided by the [d]epartment. So long as the court ensures the
inquiry is reasonable and of sufficient reach to accomplish the legislative purpose
underlying ICWA and related California law, the court will have an adequate factual
foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)’ ” (E.C., at
p. 157, quoting K.H., at p. 621.)
DISPOSITION
The juvenile court’s finding that ICWA does not apply is conditionally reversed,
and the matter is remanded to the juvenile court with directions to order the department to
comply with the inquiry provisions set forth in section 224.2, subdivisions (b) and (e),
and the documentation provisions of rule 5.481(a)(5). If, after determining that an
adequate inquiry was made consistent with the reasoning in this opinion, the court finds
that ICWA applies, the court shall vacate its existing order and proceed in compliance
with ICWA and related California law. If the court instead finds that ICWA does not
apply, its ICWA finding shall be reinstated. In all other respects, the jurisdictional and
dispositional findings and orders are affirmed.
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