In re A.R. CA2/6 ( 2022 )

Filed 5/27/22 In re A.R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re A.R., a Person Coming 2d Juv. No. B315182
Under the Juvenile Court Law. (Super. Ct. No. J072274)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.R.,
Defendant and Appellant.
A.R. (father) appeals the juvenile court’s orders
terminating parental rights to his two-year-old daughter, A.R.1
1 All further references to A.R. are to the child.
(Welf. & Inst. Code, § 366.26.)2 He contends the juvenile court
and Ventura County Human Services Agency (HSA) failed to
comply with their duties of inquiry under the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) and related
California law.
The juvenile court found ICWA did not apply based solely
on the parents’ denials of Indian ancestry. Neither HSA nor the
court asked any of A.R.’s extended family members whether she
is or may be an Indian child, as required by section 224.2,
subdivision (b).
HSA concedes that “because certain relatives were readily
accessible in this case . . . father is probably correct that HSA and
the court could have asked those relatives about Indian ancestry
and that the court may have erred by accepting just mother’s and
father’s denial of any Indian ancestry.” HSA argues, however,
that any error was nonprejudicial or harmless under the facts of
this case.
We agree that HSA was required to expand its ICWA
inquiry to A.R.’s extended family members and that the juvenile
court erred by making its ICWA determination based on an
insufficient inquiry. Further, the error was prejudicial because it
is not known what information the relatives would have provided
had a proper inquiry been made. We conditionally affirm and
remand for the juvenile court and HSA to comply with the
inquiry provisions of ICWA and California law.
2 All statutory references are to the Welfare and
Institutions Code unless otherwise specified.
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FACTS AND PROCEDURAL BACKGROUND
A.R. was taken into protective custody when she was two
months old because of parents’ substance abuse issues, father’s
incarceration and mother’s arrest for child endangerment.
Reunification services were offered but both parents failed to
reunify with A.R. The juvenile court terminated services and set
the matter for a section 366.26 permanency placement hearing.
HSA recommended A.R.’s adoption by her maternal great-
grandmother. The juvenile court agreed with the
recommendation and terminated parental rights to allow the
adoption to proceed.
Earlier in the case, mother and father denied having any
American Indian ancestry on their ICWA-020 Parental
Notification of Indian Status forms. Father stated he had “Aztec
Ancestry in Mexico.” “Aztec” is not listed among the tribes
recognized by the federal government. (Fed.Reg., vol. 86, no. 18
(Jan. 29, 2021).)
Five relatives appeared at the September 18, 2019
detention hearing. At the juvenile court’s request, they
introduced themselves as the child’s paternal grandfather,
paternal grandmother, paternal uncle and aunt, and maternal
aunt.3
After informing the relatives they may “remain in the
courtroom,” the juvenile court noted it had received and
considered the detention report, as well as the ICWA information
provided by parents. It stated: “[T]here does not appear to be
any . . . Native American Indian ancestry” as to either parent and
it “[a]ppears that Indian Child Welfare Act does not apply.” The
court did not make any inquiry of the relatives in the courtroom.
3 The grandparents were assisted by an interpreter.
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The same relatives and another uncle attended the
jurisdiction and disposition hearing a month later. During that
time frame, the social worker spoke with the paternal
grandparents, a paternal uncle, maternal grandmother and
maternal great-aunt about visitation and possible placement of
the child. The social worker also spoke with the maternal great-
grandmother with whom the child was placed. At no point did
the social worker ask these family members whether A.R. is or
may be an Indian child.
DISCUSSION
In all dependency cases, HSA and the juvenile court “have
an affirmative and continuing duty to inquire” whether a minor
subject to a petition under section 300 is or may be an Indian
child within the meaning of ICWA. (§ 224.2, subd. (a).) The
agency’s initial duty to inquire includes “asking the child,
parents, legal guardian, Indian custodian, extended family
members, [and] others who have an interest in the child . . .
whether the child is, or may be, an Indian child.” (Id., subd. (b),
italics added; In re H.V. (2022) 75 Cal.App.5th 433, 437.) If,
based on this initial inquiry, HSA or the court knows or has
reason to know that the minor is an Indian child, HSA must
make further inquiry “regarding the possible Indian status of the
child . . . .” (§ 224.2, subd. (e); see In re Antonio R. (2022) 76
Cal.App.5th 421, 430 (Antonio R.) [“The duty to develop
information concerning whether a child is an Indian child rests
with the court and the [agency], not the parents or members of
the parents’ families”].)
The sole issue on appeal is whether HSA’s and the juvenile
court’s efforts to comply with ICWA were adequate and, if not,
whether the error was prejudicial. HSA acknowledges that
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information relevant to A.R.’s possible Indian ancestry was
readily obtainable from a number of the child’s extended family
members. The social worker interviewed several maternal and
paternal relatives and six of them appeared at hearings before
the juvenile court. Notwithstanding these opportunities, HSA
and the court failed to ask any of these relatives about A.R.’s
possible Indian ancestry.
“Courts of Appeal are divided as to whether a parent must
make an affirmative showing of prejudice to support reversal
where the [agency] failed fully to perform its initial duty of
[ICWA] inquiry. One line of cases requires that in order to
demonstrate prejudice ‘a parent asserting failure to inquire must
show – at a minimum – that, if asked, he or she would, in good
faith, have claimed some kind of Indian ancestry.” (Antonio R.,
supra, 76 Cal.App.5th at p. 433; see In re A.C. (2021) 65
Cal.App.5th 1060, 1069; In re S.S. (2022) 75 Cal.App.5th 575,
582-583; In re Darian R. (2022) 75 Cal.App.5th 502, 582; In re
Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.) The other line
holds that “‘[i]t is unreasonable to require a parent to make an
affirmative representation of Indian ancestry where the
[agency’s] failure to conduct an adequate inquiry deprived the
parent of the very knowledge needed to make such a claim.’”
(Antonio R., at p. 433, quoting In re Y.W. (2021) 70 Cal.App.5th
542, 556; see In re J.C. (2022) 77 Cal.App.5th 70, 83; In re K.T.
(2022) 76 Cal.App.5th 732, 744-745; In re H.V., supra, 75
Cal.App.5th at p. 438; In re Benjamin M. (2021) 70 Cal.App.5th
735, 743; see also In re A.C., supra, 65 Cal.App.5th at pp. 1074-
1076 (dis. opn. of Menetrez, J.).)
Antonio R. adopted the latter standard, concluding that
“[w]here the [agency] fails to discharge its initial duty of inquiry
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under ICWA and related California law, and the juvenile court
finds ICWA does not apply notwithstanding the lack of an
adequate inquiry, the error is in most circumstances, as here,
prejudicial and reversible. Speculation as to whether extended
family members might have information likely to bear
meaningfully on whether the child is an Indian child has no place
in the analysis of prejudicial error where there is an inadequate
initial inquiry.” (Antonio R., supra, 76 Cal.App.5th at p. 435.)
The court rejected the agency’s contention that the error was
harmless because there were “‘slim’” odds the extended relatives’
information would reveal Indian ancestry. It reiterated that
accepting that “position would require us to engage in precisely
the type of speculation we consider inappropriate.” (Ibid.)
We agree with Antonio R. “ICWA is a vital aspect of our
dependency framework, and both social workers and judges have
affirmative and continuing duties to follow it -- regardless of the
actions of the parents involved or the underlying reasons for the
dependency. As our Supreme Court [has] explained . . ., our
state’s goal of providing children with permanent and stable
homes does not override the importance of properly determining
a child’s Indian status and protecting the integrity and stability
of Indian tribes.” (In re K.T., supra, 76 Cal.App.5th at p. 745; see
In re Y.W., supra, 70 Cal.App.5th at p. 556 [The “point of the
statutory requirement that the social worker ask all relevant
individuals whether a child is or may be an Indian child [is] to
obtain information the parent may not have”].)
On remand, HSA must, at a minimum, inquire of the
extended family members who were previously interviewed or
who appeared in court. While we cannot know how these
relatives will answer the inquiry, they are likely to have
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meaningful information about whether A.R. is or may be an
Indian child. (See In re Benjamin M., supra, 70 Cal.App.5th at
p.745.)
DISPOSITION
The orders terminating parental rights are conditionally
affirmed. The matter is remanded to permit HSA and the
juvenile court to comply with the inquiry and notice provisions of
ICWA and California law. If the court finds A.R. is an Indian
child, it shall conduct a new section 366.26 hearing, as well as all
further proceedings, in compliance with ICWA and related
California law. Otherwise, the court’s original section 366.26
orders will remain in effect.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Andre F. F. Toscano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tiffany N. North, County Counsel, and Joseph J. Randazzo,
Assistant County Counsel, Plaintiff and Respondent.
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