In re J.C. ( 2022 )

Filed 4/4/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re J.C., A Person Coming B312685
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 18CCJP05161A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CAMERON C., et al.
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Stacy Wiese, Judge. Conditionally affirmed and
remanded with directions.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant Cameron C.
Karen J. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant Angelica S.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephanie Jo Reagan, Principal
Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Angelica S. and Cameron C. challenge the juvenile court’s
order under Welfare and Institutions Code section 366.26
terminating their parental rights to J.C.1 They argue that the
Los Angeles County Department of Children and Family Services
did not comply with the requirements of the Indian Child Welfare
Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law
and that the juvenile court erred in ruling ICWA did not apply.
We conclude that, because the juvenile court failed to
ensure the Department fulfilled its duty of inquiry under
section 224.2, subdivision (b), substantial evidence did not
support the court’s finding ICWA did not apply. Therefore, we
conditionally affirm the court’s orders terminating Angelica’s and
Cameron’s parental rights and direct the juvenile court to ensure
the Department complies with section 224.2 and, if necessary, the
notice provisions under ICWA and related California law.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Proceedings
On August 14, 2018 the Department filed a petition under
section 300, subdivisions (b) and (j), alleging Angelica’s and
Cameron’s histories of substance abuse and current use of
marijuana and other drugs placed their newborn son, J.C., at
substantial risk of serious physical harm. J.C. tested positive for
methadone and marijuana when he was born, and Angelica
admitted that she used marijuana a few days before giving birth
to J.C. and that she had used heroin and methadone in the past.
The juvenile court detained J.C. and placed him with Cameron’s
mother, Cheryl B.
The Department’s investigation revealed that Angelica and
Cameron were “habitual drug users of heroin and
methamphetamine” and had “extensive criminal histories related
to drug abuse,” including arrests in July 2018 (three weeks before
Angelica gave birth to J.C.) for unlawful possession of a
controlled substance under Health and Safety Code
section 11350, subdivision (a). The Department recommended
against providing reunification services for Angelica because, in
dependency proceedings related to her other children, family
reunifications services “were terminated” due to Angelica’s
“refusal to maintain sobriety.” In addition, Angelica was arrested
on three other occasions from 2015 to 2017 and tested positive for
methamphetamine and opiates two times after the court detained
J.C. And shortly before the jurisdiction hearing in this case,
Cameron was arrested and sentenced to 90 days in county jail for
possession of a controlled substance for sale.
The juvenile court sustained the petition as amended and
declared J.C. a dependent child of the court. The court found
that there was substantial danger and risk of detriment to J.C. if
3
he remained in the home of Angelica and Cameron, that the
Department provided reasonable services to prevent removal,
and that there were no available services to prevent further
detention. The court removed J.C. from Angelica and Cameron
and ordered family reunification services for Cameron, monitored
visitation for Angelica and Cameron, and suitable placement for
J.C.
For the six-month review hearing, the Department reported
that J.C. was “fully bonded with his caregivers” and “doing well
in their care” and that the caregivers were interested in adopting
him. The juvenile court found that Cameron’s progress toward
alleviating or mitigating the causes necessitating J.C.’s
placement had “not been substantial,” but the court continued
reunification services for him. The court subsequently granted
Angelica’s petition under section 388 for reunification services.
At the 12-month review hearing, the court found Angelica
and Cameron had not made substantial progress toward
alleviating or mitigating the causes that led to J.C.’s placement,
terminated reunification services, and set the case for a selection
and implementation hearing under section 366.26. At the
hearing to select a permanent plan for J.C, the court found that it
would be detrimental to return J.C. to his parents, that Angelica
and Cameron had not maintained regular and consistent
visitation and had not established a bond with J.C., that J.C. was
adoptable, and that any benefit to J.C. from his relationship with
his parents was outweighed by the physical and emotional
benefit he would receive through the permanency and stability of
adoption. The court terminated Angelica’s and Cameron’s
parental rights and designated Cheryl and her husband as the
prospective adoptive parents. Angelica and Cameron timely
appealed from the orders terminating their parental rights.
4
B. Inquiry Under ICWA and Related California Law
Angelica and Cameron each completed Judicial Council
form ICWA-020, Parental Notification of Indian Status. Angelica
and Cameron both checked the box next to the statement, “I have
no Indian ancestry as far as I know.” In her initial interview
with the social worker, Angelica denied any Indian ancestry. At
the detention hearing the court confirmed Angelica and Cameron
had indicated they had no known Indian ancestry. The court
found: “There is no reason to know the Indian Child Welfare Act
applies to the case.” The record does not show the Department or
the court made any further inquiry about J.C.’s possible Indian
ancestry.
For the Department’s investigation into the allegations in
the petition, the social worker interviewed Cheryl (Cameron’s
mother and J.C.’s paternal grandmother) several times but did
not ask her about J.C.’s possible Indian ancestry. The social
worker also interviewed Cheryl’s mother (Cameron’s maternal
grandmother and J.C.’s paternal great-grandmother) and
Angelica’s stepfather, but did not ask either of them about J.C.’s
possible Indian ancestry.
DISCUSSION
Angelica and Cameron contend that the Department did
not conduct an adequate inquiry into the family’s possible Indian
ancestry and that the juvenile court failed to ensure the
Department fulfilled its duty under ICWA and related California
law. We agree with both contentions.
A. Applicable Law
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
5
children, Indian families, and Indian tribes of 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.’”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7; see In re T.G. (2020)
58 Cal.App.5th 275, 287; In re E.H. (2018) 26 Cal.App.5th 1058,
1067.) ICWA provides: “‘In any involuntary proceeding in a
State court, where the court knows or has reason to know that an
Indian child is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child
shall notify the parent or Indian custodian and the Indian child’s
tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention.’
[Citation.] This notice requirement, which is also codified in
California law [citation], enables a tribe to determine whether
the child is an Indian child and, if so, whether to intervene in or
exercise jurisdiction over the proceeding.” (In re Isaiah W., at
p. 5; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); In re H.V. (2022)
75 Cal.App.5th 433, 436; In re T.G., at pp. 287-288.)2 “ICWA
reflects a congressional determination to protect Indian children
and to promote the stability and security of Indian tribes and
families by establishing minimum federal standards a state court
must follow before removing an Indian child from his or her
family.” (In re T.G., at p. 287; see 25 U.S.C. § 1902; In re
Benjamin M. (2021) 70 Cal.App.5th 735, 740 [“‘Congress enacted
2 “‘Indian child’ means any unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or (b)
is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); see
§ 224.1, subds. (a), (b); In re H.V., supra, 75 Cal.App.5th at
p. 437)
6
ICWA to further the federal policy “‘that, where possible, an
Indian child should remain in the Indian community.’”’”].)
“‘“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. [Citation.] Federal regulations
implementing ICWA, however, 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 Y.W. (2021) 70 Cal.App.5th
542, 551; see 25 C.F.R. § 23.107(a) (2021).) “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.’” (In re Benjamin M., supra, 70 Cal.App.5th
at pp. 741-742; see § 224.2, subd. (a); In re Y.W., at p. 551.)
Section 224.2 “‘“creates three distinct duties regarding
ICWA in dependency proceedings.”’” (In re H.V., supra,
75 Cal.App.5th at p. 437; see In re D.F. (2020) 55 Cal.App.5th
558, 566.) First, section 224.2, subdivision (b), requires the child
protective agency to ask “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.”
(See In re H.V., at p. 437; In re T.G., supra, 58 Cal.App.5th at
p. 290; Cal. Rules of Court, rule 5.481(a)(1).) Although commonly
referred to as the “initial duty of inquiry,” it “begins with the
initial contact” (§ 224.2, subd. (a)) and continues throughout the
dependency proceedings. (See In re T.G., p. 290 [the duty to
7
inquire “begins with initial contact [citation] and obligates the
juvenile court and child protective agencies to ask all relevant
involved individuals whether the child may be an Indian child”].)
Second, if the court or child protective agency “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 and
the Department “shall make further inquiry regarding the
possible Indian status of the child, and shall make that inquiry as
soon as practicable.”3 (§ 224.2, subd. (e); see In re H.V., at p. 437;
In re T.G., supra, 58 Cal.App.5th at p. 290; Cal. Rules of Court,
rule 5.481(a)(4).) Third, if the 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 H.V., at
p. 437; see 25 U.S.C. § 1912(a); § 224.3, subd. (a) [notice under
ICWA “shall be provided” if the court, social worker, or probation
officer “has reason to know . . . that an Indian child is involved”].)
“‘“The juvenile court must determine whether proper notice
was given under ICWA and whether ICWA applies to the
proceedings.”’ [Citation.] ‘If the court makes a finding that
proper and adequate further inquiry and due diligence as
required in [section 224.2] 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.’” (In re Y.W., supra, 70 Cal.App.5th at p. 552; see
3 “‘Reason to believe’ is broadly defined as ‘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.’”
(In re Benjamin M., supra, 70 Cal.App.5th at p. 744; see § 224.2,
subd. (e)(1); In re T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.)
8
§ 224.2, subd. (i)(2); In re Josiah T. (2021) 71 Cal.App.5th 388,
408 [“the court may not find that ICWA does not apply when the
absence of evidence that a child is an Indian child results from a
[child protective agency] inquiry that is not proper, adequate, or
demonstrative of due diligence”]; In re D.S. (2020) 46 Cal.App.5th
1041, 1050; Cal. Rules of Court, rule 5.481(b)(3).)
B. The Department Failed To Conduct an Adequate
Inquiry into J.C.’s Possible Indian Ancestry
The Department did not fulfill its duty to conduct an
adequate inquiry into whether J.C. may be an Indian child
because it did not ask any extended family members—some of
whom were readily available—whether J.C. had any possible
Indian ancestry. (See 25 U.S.C. § 1903(2) [“‘extended family
member’” includes the 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”]; § 224.1, subd. (c)
[“‘extended family member’” is “defined as provided in
Section 1903 of the federal Indian Child Welfare Act”].) At the
top of the list of persons the Department did not ask about
possible Indian ancestry was J.C.’s paternal grandmother,
Cheryl, who cared for J.C. throughout the dependency
proceedings, maintained regular contact with the social worker,
and may have been able not only to furnish ICWA-related
information about her family, but also to help the Department
find Cameron’s biological father. (See In re Y.W., supra,
70 Cal.App.5th at p. 553, fn. 10 [grandparent is an extended
family member under ICWA]; In re Michael A. (2012)
209 Cal.App.4th 661, 665 [same].) The social worker also made
no effort to interview Angelica’s biological parents. The social
worker spoke to Angelica’s stepfather, Mark M. (who was
9
married to Angelica’s mother, Kathryn M.), about Angelica’s
substance abuse; it would have taken very little additional effort
to ask Mark or Kathryn about possible Indian ancestry on
Kathryn’s side of the family or how to contact Angelica’s
biological father to get information from him.
The Department’s failure to ask Angelica’s and Cameron’s
extended relatives about their possible Indian ancestry violated
the express mandate of section 224.2, subdivision (b). (See In re
Antonio R. (Mar. 16, 2022, B314389) ___ Cal.App.5th ___, ___
[2022 WL 794843, p. 5] [section 224.2, subdivision (b), required
the child protective agency to interview extended family
members]; In re H.V., supra, 75 Cal.App.5th at p. 438 [child
protective agency’s “first-step inquiry duty under ICWA and state
law was broader [than interviewing only the mother], requiring it
also to interview, among others, extended family members and
others who had an interest in the child”]; In re Benjamin M.,
supra, 70 Cal.App.5th at p. 742 [failure to ask the father’s known
relatives about possible Indian ancestry violated ICWA
requirements under state law]; In re Y.W., supra, 70 Cal.App.5th
at pp. 552-553 [child protective agency’s failure to follow up on a
lead to locate and interview the mother’s biological parents
violated section 224.2, subdivision (b)]; see also In re S.R. (2021)
64 Cal.App.5th 303, 314 [section 224.2 “obligates the court and
child protective agencies to ask all relevant involved individuals
. . . ‘whether the child is, or may be, an Indian child’”].)
The juvenile court, too, did not satisfy its duty to ensure the
Department adequately investigated whether J.C. may be an
Indian child. There is no indication in the record that, after the
detention hearing, the juvenile court gave ICWA another thought
in the almost three years of this dependency case. The court did
10
not ask the Department whether the social worker made the
relevant inquiry when she spoke to Cheryl, Cheryl’s parents, or
Angelica’s stepfather. Nor did the court ask the Department to
describe the efforts it made to ascertain J.C.’s possible Indian
ancestry; the record reflects that, other than obtaining the signed
ICWA-020 forms (and perhaps asking Angelica in her initial
interview if she had any Indian ancestry), the Department made
no such efforts at all. That was error. (See In re Y.W., supra,
70 Cal.App.5th at p. 555 [juvenile court had a duty to ensure the
Department complied with section 224.2, subdivision (b)]; In re
N.G. (2018) 27 Cal.App.5th 474, 482 [juvenile court had a duty to
ensure the child protective agency made the relevant inquiries,
including asking the maternal uncle whether the child “may have
maternal Indian ancestry”]; see also In re K.R. (2018) 20
Cal.App.5th 701, 709 [“the court has a responsibility to ascertain
the agency has conducted an adequate investigation and cannot
simply sign off on the notices as legally adequate without doing
so”].)
The Department neither concedes nor denies it failed to
conduct an adequate inquiry under section 224.2, subdivision (b).
The Department instead argues “any inquiry error was harmless”
because Angelica and Cameron denied they had any Indian
ancestry, there was nothing “in the record to suggest these
denials were unreliable,” and the evidence the Department
“‘uncovered’” in its inadequate inquiry was sufficient for the
juvenile court to make a finding ICWA did not apply. To state
the Department’s argument is to expose its circular flaw: By
failing to conduct an adequate inquiry, the Department virtually
guarantees that the (incomplete) information it obtains will
support a finding ICWA does not apply and that the juvenile
11
court’s error in failing to require the Department to comply with
the law is harmless. Under the Department’s theory, the less it
complies with its duties to inquire under state and federal law,
the more harmless is its erroneous failure to inquire.
That’s not how it works. As we explained in In re Y.W.,
supra, 70 Cal.App.5th 542, where, as here, the Department’s
failure to conduct an adequate inquiry makes it impossible for
the parent to show prejudice, we must remand for a proper
inquiry.4 (Id. at p. 556; see In re Antonio R., supra, ___
Cal.App.5th at p. ___ [2022 WL 794843, p. 7] [where the child
protective agency fails to discharge its duty of inquiry under
ICWA and related state law, “the error is in most circumstances .
. . prejudicial and reversible”]; In re H.V., supra, 75 Cal.App.5th
at p. 438 & fn. 4 [juvenile court’s “ICWA error was prejudicial
and reversible” where the child protective agency’s “failure to
discharge its inquiry duty under ICWA and state law [was]
responsible for the absence of information in the record about the
child’s possible Indian ancestry”]; In re N.G., supra,
27 Cal.App.5th at p. 484 [“In the absence of an appellate record
affirmatively showing the court’s and the agency’s efforts to
4 The Department attempts to distinguish In re Y.W., supra,
70 Cal.App.5th 542 by pointing out that the mother in that case
was adopted and had minimal contact with her biological
parents, whereas in this case neither parent “reported being
adopted or being unfamiliar with their biological relatives.” That
the mother in In re Y.W. was adopted was all the more reason the
Department should have followed up on an obvious lead to locate
her biological parents. In no way did we suggest in In re Y.W.
that a parent’s statements on the ICWA-020 form are more
reliable if the parent is not adopted.
12
comply with ICWA’s inquiry and notice requirements, we will
not, as a general rule, conclude that substantial evidence
supports the court’s finding that . . . ICWA did not apply.
Instead, as a general rule, we will find the appellant’s claims of
ICWA error prejudicial and reversible.”].) Without the benefit of
a proper inquiry, Angelica and Cameron can neither assert they
have Indian ancestry nor show their initial responses on the
ICWA-020 form were inaccurate or unreliable. (See, e.g., In re
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”].) Indeed, the extensive inquiry requirements under
section 224.2 presume that a parent’s declaration on the
ICWA-020 form, reliable or not, is not enough and that the child
protective agency must do more than look at the form. (See
In re T.G., supra, 58 Cal.App.5th at p. 295 [“the information
available at the outset of dependency proceedings will often be
inadequate to ensure the necessary protection of the rights and
cultural heritage of Indian children, Indian families and Indian
tribes”].)
Citing In re Benjamin M., supra, 70 Cal.App.5th 735, the
Department argues that any information from Angelica’s or
Cameron’s relatives was not “‘likely to bear meaningfully upon
whether [J.C.] is an Indian child’ because ‘the evidence already
uncovered in the initial inquiry was sufficient for a reliable
determination.’” As discussed, this reasoning allows the
harmless error exception to swallow the rules governing the duty
to inquire. In addition, the Department’s argument misapplies
In re Benjamin M. In that case the court stated: “We believe
that in ICWA cases, a court must reverse where the record
13
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.”
(In re Benjamin M., at p. 744.) The court in Benjamin M. rejected
an approach that would require reversal in all cases where the
agency erred, explaining: “There are cases where . . . it was
obvious that additional information would not have been
meaningful to the inquiry. This might occur where the evidence
already uncovered in the initial inquiry was sufficient for a
reliable determination.” (Id. at p. 743.) This is not one of those
cases. As discussed, it is not uncommon for parents to
mistakenly disclaim (or claim) Indian ancestry. (See In re S.R.,
supra, 64 Cal.App.5th at p. 314; In re T.G., supra, 58 Cal.App.5th
at p. 295.) And putting aside that only the tribe can determine
whether a child is an Indian child (see § 224.2, subd. (h); In re
Breanna S. (2017) 8 Cal.App.5th 636, 654, disapproved on
another ground in In re Caden C. (2021) 11 Cal.5th 614, 629, 637,
fn. 6), the statements on Angelica’s and Cameron’s ICWA-020
forms did not relieve the Department of its duty to interview the
parents’ extended relatives.
Moreover, in its reliance on In re Benjamin M., the
Department fundamentally misunderstands the prejudice
standard the court adopted in that case. The court in In re
Benjamin M. actually stated that the failure to comply with
section 224.2 is not harmless where the readily obtainable
information was likely to bear meaningfully upon the inquiry
whether a child is an Indian child, regardless of whether the
information was likely to show that the child is an Indian child.
(In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) As the
14
court in In re Benjamin M. explained, in a passage the
Department ignores, “it would frustrate the statutory scheme if
the harmlessness inquiry required proof of an actual outcome
(that the parent may actually have Indian heritage), rather than
meaningful proof relevant to the determination, whatever the
outcome will be.” (Id. at pp. 743-744.) Focusing on the inquiry
(rather than the result), the court in In re Benjamin M. found the
child protective agency’s failure to interview the father’s
relatives, essentially the same error the Department committed
here, was not harmless. (See id. at p. 744 [“the information those
relatives could have given would likely have shed meaningful
light on whether there is reason to believe [the minor] is an
Indian child”].) Thus, even under the harmless error standard
the court applied in In re Benjamin M., the Department’s failures
were not harmless because, at a minimum, interviewing Cheryl
and Kathryn (both of whom the social worker easily could have
contacted) would have shed meaningful light on the inquiry into
J.C.’s possible Indian ancestry.
The two additional cases cited by the Department, In re
Darian R. (2022) 75 Cal.App.5th 502 and In re S.S. (2022)
75 Cal.App.5th 575, are distinguishable. In In re Darian R. the
court held the child protective agency’s failure to ask a maternal
aunt and a grandfather about the children’s Indian ancestry was
harmless because the juvenile court in a prior dependency case
involving two of the three dependent children (and the same
parents) found ICWA did not apply. (In re Darian R., at pp. 506,
509.) While In re Darian R. is arguably limited to the relatively
unusual circumstance of a prior finding in a previous dependency
proceeding involving the same family, the court’s harmless error
analysis in that case is questionable. The finding in the prior
15
dependency case that ICWA did not apply was in 2015. (Id. at
pp. 509-510.) In the later dependency case, filed July 2019, the
juvenile court made findings in September 2019, November 2019,
and October 2020 that ICWA did not apply. (Id. at p. 510)
Between the findings in the prior case and those in the later case,
however, the law governing the duty to inquire under ICWA
changed: The Legislature amended sections 224.2 and 224.3,
effective January 1, 2019, to require inquiry of extended family
members; amended section 224.2, subdivision (d), effective
January 1, 2019, to conform the state law definition of “reason to
know” with federal regulations; and amended section 224.2,
subdivision (e), effective September 18, 2020, to add a definition
of “reason to believe.” (See In re T.G., supra, 58 Cal.App.5th at
p. 296; In re A.M. (2020) 47 Cal.App.5th 303, 316.) In addition,
the Judicial Council amended California Rules of Court, rule
5.481(a)(4), which “mandates further inquiry if a social worker or
investigator ‘knows or has reason to know or believe that an
Indian child is or may be involved,’” effective January 1, 2020, “to
add ‘or believe’ to the triggering requirement that an Indian child
‘is or may be involved.’” (In re T.G., at p. 291.) The court in In re
Darian R. did not consider whether applying these new laws,
which expanded the duty of inquiry, would necessarily produce
the same result.5
5 The court In re Darian R. also relied on the fact the mother
had been “under court order to continue providing information
relevant to ICWA.” (In re Darian R., supra, 75 Cal.App.5th at
p. 510.) But the Department, not the parent, has the burden to
provide information relevant to ICWA, and even a parent under a
court order cannot provide information about possible Indian
ancestry the parent does not know.
16
In In re S.S., supra, 75 Cal.App.5th 575 the court held the
child protective agency’s failure to ask a grandparent who wanted
to adopt the child about possible Indian ancestry was harmless
because ICWA gives preference to placing an Indian child with a
member of the Indian child’s extended family. (Id. at p. 582; see
25 U.S.C. § 1915.) The court in In re S.S. also relied on the
assumptions that the grandmother, as a prospective adoptive
parent, would have had “a strong incentive to bring to the court’s
attention any facts that suggest that [the minor] is an Indian
child” and that her failure to do so implied she was “unaware of
such facts.” (In re S.S., at p. 582) This analysis erroneously
places the burden on a parent or the parent’s family to provide
information about possible Indian ancestry, when under ICWA
and California law that burden is on the child protective agency.
(See In re Michael V. (2016) 3 Cal.App.5th 225, 233 [“the burden
of coming forward with information to determine whether an
Indian child may be involved and ICWA notice required in a
dependency proceeding does not rest entirely—or even
primarily—on the child and his or her family”].) It also subverts
a central purpose of ICWA and related California law: to protect
the interests of the Indian tribes. (See In re Benjamin M., supra,
70 Cal.App.5th at p. 745 [“it is in part the tribe’s right to a
determination of a child’s Indian ancestry, but the tribe is not
present, and the agency is charged with obtaining information to
make that right meaningful”]; In re S.R., supra, 64 Cal.App.5th
at p. 314 [same]; see also In re Isaiah W., supra, 1 Cal.5th at p. 13
[“Indian tribes have interests protected by ICWA that are
separate and distinct from the interests of parents of Indian
children,” and “ICWA’s notice requirements are ‘intended to
protect the interests of Indian children and tribes despite the
17
parents’ inaction’”].) Finally, not only was the court’s decision in
In re S.S. based on speculation about the maternal grandmother’s
incentives, it was based on a false premise: As the prospective
adoptive parent, the grandmother’s incentive would be not to
provide any information suggesting the child was an Indian child,
so that she could adopt the child without any potential
interference from the tribe.
DISPOSITION
The juvenile court’s orders terminating the parental rights
of Angelica and Cameron are conditionally affirmed. The matter
is remanded to the juvenile court with directions to ensure the
Department fully complies with the inquiry and, if necessary,
notice provisions of ICWA and related California law, including
interviewing Cheryl, Kathryn, and any other extended family
members they may identify.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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