In re A.A. CA4/2 ( 2022 )

Filed 11/30/22 In re A.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.A., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E079407
Plaintiff and Respondent, (Super. Ct. No. RIJ2000519)
v. OPINION
S.A. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Cheryl C. Murphy, Judges and Walter H. Kubelun, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Conditionally reversed and remanded with directions.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant S.A.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant A.M. Sr.
1
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy
County Counsels for Plaintiff and Respondent.
I.
INTRODUCTION
S.A. (Mother) and A.M. Sr. (Father) appeal from the juvenile court’s order
1
terminating parental rights to their child A.A. The parents argue that the Riverside
County Department of Public Social Services (DPSS) failed to discharge its duty of
initial inquiry under state law implementing the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C. § 1901 et seq.), and therefore the matter must be conditionally
reversed. DPSS asserts that substantial evidence supports the juvenile court’s findings
that ICWA did not apply and that any error was harmless.
We conclude that DPSS prejudicially erred by failing to comply with its duty of
2
initial and continuing inquiry under ICWA-related state law. (Welf. & Inst. Code,
§ 224.2, subd. (b).) Accordingly, we conditionally reverse the order terminating parental
rights and remand the matter for further ICWA inquiry.
1
A.A.’s sister M.M. is not a subject to this appeal.
2
All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2
II.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were in a long-term, unmarried relationship and had three
children. A.A. was born in November 2021, M.M. in April 2020, Ad.A. in June 2019.
They resided together with the maternal great grandmother and the maternal uncle.
Mother and Father had a history with DPSS dating back to November 2019 and an
unresolved history of abusing controlled substances, specifically fentanyl. The children
remained in the parents’ care while DPSS investigated allegations relating to caretaker
incapacity/absence and neglect. In September 2020, while Mother was pregnant with
A.A., the parents left Ad.A. unattended. Ad.A. had access to fentanyl pills and died as a
result of fentanyl poisoning despite emergency measures to revive him. Father and
Mother were arrested for, and charged with, child endangerment/ willful cruelty to a child
and murder.
M.M. was taken into protective custody in September 2020 and placed in a foster
home. M.M. was declared a dependent of the court and reunification services were
bypassed/denied to the parents. On September 4, 2020, as to M.M., the juvenile court
3
found that ICWA did not apply. Mother and Father’s parental rights as to M.M. were
eventually terminated in October 2021, and M.M.’s foster parents desired to adopt her.
3
DPSS’s reports in M.M.’s case do not indicate what efforts DPSS made in
inquiring of relatives as to M.M.’s Indian status.
3
On June 17, 2022, the juvenile court terminated the dependency and jurisdiction as to
M.M.
Mother gave birth to A.A. in November 2021 while Mother was incarcerated.
A.A. was detained and placed in the same home as her sister M.M. At the time of A.A.’s
detention, Mother was 19 years old and Father had just turned 22. As part of a “no-
bonding rule” for incarcerated parents, Mother was not allowed to have contact with A.A.
Mother asked that A.A. be placed with the maternal great-grandmother, S.R., or a
maternal great-aunt. Father also wanted A.A. placed with the maternal great-
grandmother. S.R., however, declined placement of the baby due to her old age and her
home’s lack of suitability for an infant. A maternal cousin reached out to DPSS to
inquire as to A.A.’s possible placement, stating that she was interested in caring for the
baby.
On November 19, 2021, DPSS filed a petition on behalf of A.A. pursuant to
section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). In the
petition, the social worker noted that both parents were asked about the child’s Indian
status on November 16, 2021, and both gave no reason to believe that the child was or
may be an Indian child. DPSS thus reported in its detention report that ICWA did not
apply.
The detention hearing was held on November 22, 2021. Neither parent was
present as they had not been transported from local custody. The juvenile court formally
detained A.A. from parental custody, found that ICWA did not apply, and continued the
4
matter to November 24, 2021 so that the parents could be present. The court’s minute
order of the detention hearing also indicates the court found that DPSS had conducted a
sufficient inquiry regarding whether the child may have Indian ancestry.
On November 24, 2021, Father and Mother filed an ICWA-020 Parental
Notification of Indian Status (ICWA-020) form. Both Mother and Father signed and
declared under penalty of perjury that none of the options on the form applied.
Specifically, they declared that (1) neither they nor the child was or may be a member of,
or eligible for membership in, a tribe; (2) none of their lineal ancestors were members of
a tribe; (3) neither they nor the child was a resident or was domiciled on a reservation,
rancheria, Alaska Native village, or other tribal trust land; (4) the child was not or had
been a ward of a tribal court; and (5) neither parent nor the child possessed an Indian
identification card indicating membership or citizenship in an Indian tribe.
At the continued detention hearing held on November 24, 2021, Mother’s counsel
informed the court that Mother had no Native American heritage. Father’s attorney
informed the court that Father indicated he had no American Indian ancestry. The
juvenile court did not specifically inquire of Mother and Father as to their Native
American ancestry, but noted that “[n]either parent is aware of any American Indian
ancestry.”
In its jurisdictional/dispositional report, DPSS indicated that ICWA “does not
apply” and that on November 22, 2021, at the detention hearing, the juvenile court
“determined that [ICWA] does not apply to this proceeding.” On December 20, 2021,
5
both parents denied having any Native American ancestry. Mother reported that the
maternal grandmother had passed away in 2019, that she had a good relationship with her
siblings and the maternal grandfather who was incarcerated, and that she spoke with her
siblings on the telephone at least once a week. Father disclosed that he had a good
relationship with the paternal grandmother and his siblings, and a complicated
relationship with the paternal grandfather. The parents wanted A.A. placed with
Mother’s friend/maternal cousin K.S. or the maternal aunt, Y.R. However, in December
2021, Mother stated that she did not know K.S. well but that her grandmother told her to
give A.A. to K.S. due to K.S. not being able to have children of her own.
On December 27, 2021, the juvenile court authorized the assessment of maternal
aunt Y.R. for placement. DPSS made contact with maternal aunt Y.R., but she requested
that her name be removed from the placement process. Mother also suggested that her
paternal cousins be considered for placement. The social worker called the paternal
cousins on seven different days, but they did not answer any of the phone calls and the
social worker was unable to leave messages due to their voicemail being full. The social
worker eventually made contact with the paternal cousins on January 27, 2022, but the
cousins were not in a position to care for A.A.
The jurisdictional/dispositional hearing was held on February 24, 2022. Both
parents were present, as well as the paternal grandmother, A.G., and the paternal great-
grandmother, E.C. Father’s counsel requested that DPSS assess the paternal grandmother
and the paternal great-grandmother for placement of A.A. The juvenile court determined
6
that DPSS had conducted a sufficient inquiry regarding whether the child may have
Indian ancestry. The court then found that A.A. was not an Indian child and that ICWA
did not apply. The parents waived their constitutional rights, and the court sustained the
petition as amended, assumed jurisdiction, and removed A.A. from the physical custody
of the parents. The court also declared A.A. a dependent of the court and denied
reunification services to the parents.
A.A. continued to reside with her sibling M.M. The foster parents/prospective
adoptive parents desired to adopt both A.A. and M.M. and provide them with a stable,
loving home. A.A. and the prospective adoptive parents had formed a reciprocal bond
and attachment and all of A.A.’s physical, emotional, and developmental needs were
being met by the prospective adoptive parents.
On June 23, 2022, the juvenile court authorized DPSS to assess a non-related
4
extended family member, J.P., and the “grandmother” for possible placement of A.A.
The social worker spoke with the grandmother on June 30, 2022, regarding her taking
placement of A.A. The grandmother indicated that she was unable to provide care for
A.A. and that her living conditions were not ideal for the child.
4
The court’s minute order of the June 23, 2022 status review hearing indicates
DPSS to assess the “maternal grandmother” for placement. However, DPSS’s July 19,
2022 status review report states: “The Court ordered the Department to assess the
NREFM, Ms. P[.] and the paternal grandparents for possible placement of the child.”
Yet, this same July 19, 2022 status review report notes: “On June 30, 2022, I spoke with
the maternal grandmother regarding taking placement of her granddaughter.” The
reporter’s transcript of the June 23, 2022 hearing merely states “grandmother.” Thus, the
record is unclear as to whether DPSS spoke with the paternal grandmother or the
maternal grandmother, despite Mother claiming her mother had passed away in 2019.
7
On July 19, 2022, at the section 366.26 hearing, the juvenile court found that A.A.
was likely to be adopted and terminated parental rights. Mother and Father thereafter
timely filed their respective notice of appeal.
III.
DISCUSSION
Mother and Father contend that the juvenile court and DPSS failed to comply with
their duty of initial inquiry with respect to ICWA. They thus argue the evidence did not
support the court’s findings that ICWA did not apply. They further assert that the error
was prejudicial and urge us to reject the requirement that a parent must make an
affirmative showing of prejudice. Mother lists several relatives who were known to
DPSS but no ICWA inquiry was made of them.
DPSS “concedes that the record does not affirmatively show that relatives who
were readily available were asked about Native American ancestry in the family,” but
argues this court should affirm the juvenile court’s finding that ICWA did not apply
based on the record. DPSS initially asserts that the parents forfeited this issue for failing
to object in the court below. Alternatively, DPSS contends substantial evidence supports
the juvenile court’s finding that ICWA did not apply, the court did not abuse its
discretion when it found that a sufficient inquiry had been made, and that any error was
harmless.
Preliminarily, we decline to find the parents forfeited the ICWA issue for failing to
object below. In general the forfeiture doctrine does not bar complaints on appeal
8
concerning the application of ICWA. (In re Alice M. (2008) 161 Cal.App.4th 1189,
1195.) The inquiry and notice requirements of ICWA serve the interests of the Indian
tribes “‘“irrespective of the positions of the parents” and cannot be waived by the parent.’
[Citation.] A parent in a dependency proceeding is permitted to raise ICWA notice issues
not only in the juvenile court, but also on appeal even where, as here, no mention was
made of the issue in the juvenile court.” (In re Justin S. (2007) 150 Cal.App.4th 1426,
1435.)
“ICWA establishes minimum federal standards that a state court must follow
before removing Indian children from their families. (In re T.G. (2020) 58 Cal.App.5th
275, 287.) California law implementing ICWA also imposes requirements to protect the
rights of Indian children, their families, and their tribes. (See §§ 224-224.6; In re
Abbigail A. (2016) 1 Cal.5th 83, 91 [‘persistent noncompliance with ICWA led the
Legislature in 2006 to “incorporate[] ICWA’s requirements into California statutory
law”’].) An Indian child is any unmarried person under 18 who ‘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, subd. (b).).”
(In re Ricky R. (2022) 82 Cal.App.5th 671, 678.)
“‘“‘Federal regulations implementing ICWA . . . 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
9
subsequently receive information that provides reason to know the child is an Indian
child.”’”’ [Citations.] ‘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 J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.).)
As discussed in In re Austin J. (2020) 47 Cal.App.5th 870, 883 and In re D.S.
(2020) 46 Cal.App.5th 1041, 1048-1049, California law imposes a duty of initial inquiry
in every case, and a duty of further inquiry when there is reason to believe a child may be
an Indian child under the ICWA. The department’s initial duty of inquiry at the
beginning of a child welfare proceeding includes “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.” (§ 224.2, subd. (b); see J.C., supra, 77 Cal.App.5th at p. 77.) Extended
family members include adults who are the child’s stepparents, 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).) The court must inquire at each party’s first
appearance, whether any participant in the proceeding “knows or has reason to know that
the child is an Indian child.” (§ 224.2, subd. (c).) Part of the initial inquiry also includes
requiring each party to complete California Judicial Council form ICWA-020, Parental
Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
10
When there is reason to believe that an Indian child is involved in a proceeding,
further inquiry is required. (In re Austin J., supra, 47 Cal.App.5th at p. 883; In re D.S.,
supra, 46 Cal.App.5th at pp. 1048-1049; In re A.M. (2020) 47 Cal.App.5th 303, 321-
323.) The law requires further inquiry only “‘when “the court, social worker, or
probation officer has reason to believe that an Indian child is involved [or, under Cal.
Rules of Court, rule 5.481(a)(4), ‘may be involved’] in a proceeding. . . .”’” (In re J.S.
(2021) 62 Cal.App.5th 678, 686.) “‘When that [“reason to believe”] threshold is reached,
the requisite “further inquiry” “includes: (1) interviewing the parents and extended
family members; (2) contacting the Bureau of Indian Affairs and State Department of
Social Services; and (3) contacting tribes the child may be affiliated with, and anyone
else, that might have information regarding the child’s membership or eligibility in a
tribe.”’” (Ibid.; accord, J.C., supra, 77 Cal.App.5th at p. 78) Thus, there are two types of
inquiry the social service agency is required to conduct: an initial inquiry, which is
always required, and a further inquiry, which is required only when the agency has reason
to believe an Indian child is or may be involved in the proceeding. Finally, 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.’”’” (J.C., supra, at p. 78.)
The duty to provide formal notice arises only if DPSS or the court “knows or has
reason to know that an Indian child is involved.” (25 U.S.C. § 1912(a); § 224.3, subd.
(a); In re Austin J., supra, 47 Cal.App.5th at pp. 883-884.) Federal regulations define the
11
grounds for reason to know that an Indian child is involved (25 C.F.R. § 23.107(c)(1)-
(6)), and state law conforms to that definition (§ 224.2, subd. (d)(1)-(6)).
“‘“‘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.”’” (J.C., supra, 77 Cal.App.5th
at p. 78.)
Here, DPSS acknowledges the record does not affirmatively show that relatives
who were readily available were asked about the child’s Native American ancestry.
Moreover, the record indicates that the juvenile court failed to inquire of Mother and
Father personally when they first appeared at the November 24, 2021, continued
detention hearing. Furthermore, the record in A.A.’s sibling’s case does not show what
efforts DPSS made in inquiring of readily available relatives. Hence, we find that the
juvenile court erred in determining ICWA did not apply when it failed to ensure adequate
initial inquiries had been made. Although DPSS inquired of the parents, the court failed
to ensure that DPSS inquired of the extended relatives that were readily available. The
record indicates DPSS was aware of the following relatives: presumably the maternal
grandmother, the maternal grandfather, the maternal great-grandmother, the maternal
aunt and uncle, the maternal great aunt, the paternal grandmother, the paternal great-
12
grandmother, and paternal cousins. However, neither DPSS nor the court asked them
about potential Indian ancestry.
The social services agency is obligated “to make a meaningful effort to locate and
interview extended family members to obtain whatever information they may have as to
the child’s possible Indian status.” (In re K.R. (2018) 20 Cal.App.5th 701, 709.) The
juvenile court “has a responsibility to ascertain that the agency has conducted an
adequate investigation and cannot simply sign off on the notices as legally adequate
without doing so.” (Ibid.) Because the court and DPSS failed to discharge its duty of
initial inquiry required under section 224.2, there is insufficient evidence to support the
court’s determination that ICWA was inapplicable to the case. (See § 224.2, subds. (b),
(c), (e); In re K.R., supra, at p. 709 [“[O]nce there is sufficient information to believe that
the children might be Indian children within the meaning of ICWA and the California
statutes, ‘responsibility for compliance’ with those statutes ‘falls squarely and
affirmatively’ on both the social services agency and the court.”]; accord, In re Darian R.
(2022) 75 Cal.App.5th 502, 509.)
Nonetheless, the failure here concerned the agency’s duty of initial inquiry, thus
only state law is involved. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742
(Benjamin M.).) “Where a violation is of only state law, we may not reverse unless we
find that the error was prejudicial.” (Ibid.) As we recently held in Benjamin M., a failure
to discharge the duty of initial inquiry is prejudicial, and we will therefore conditionally
reverse, if “the record indicates that there was readily obtainable information that was
13
likely to bear meaningfully upon whether the child is an Indian child.” (Id. at p. 744;
[We concluded the department “failed its duty of inquiry by not asking ‘extended family
members’ . . . whether there [was] reason to believe [the minor was] an Indian child.”];
compare In re Dezi C. (2022) 79 Cal.App.5th 769, 779, review granted Sept. 21, 2022,
S275578 [“[A]n agency’s failure to conduct a proper initial inquiry into a dependent
child’s American Indian heritage is harmless unless the record contains information
suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning
of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court’s
ICWA finding.”]; contra In re M.B. (2022) 80 Cal.App.5th 617, 629-630 [per se reversal
5
where department and juvenile court failed their duties of ICWA inquiry].) Notably, the
Benjamin M. standard does not require “proof of an actual outcome (that the parent may
actually have Indian heritage).” (Benjamin M., supra, at pp. 743-744.) Rather, the
missing information need only be relevant to the ICWA inquiry, “whatever the outcome
will be.” (Id. at p. 744; see also In re Antonio R. (2022) 76 Cal.App.5th 421, 435 [“in
5
We acknowledge that Courts of Appeal have applied different standards of
harmless error to defects occurring at the initial inquiry phase, even within the same
appellate court. Several courts have reversed for defective initial inquiries whenever
there is an “absence of an appellate record affirmatively showing the court’s and the
agency’s efforts to comply with ICWA’s inquiry . . . requirements.” (In re N.G. (2018)
27 Cal.App.5th 474, 484; see, e.g., In re A.R. (2022) 77 Cal.App.5th 197, 203, 206-207;
In re H.V. (2022) 75 Cal.App.5th 433, 438, fn. 4.) Other courts have deemed any defect
harmless unless the parent makes an offer of proof or other assertion of Indian heritage
on appeal (see, e.g., In re A.C. (2021) 65 Cal.App.5th 1060, 1065, 1070-1073), or unless
the record contains information “suggesting a reason to believe that the child at issue may
be an ‘Indian child’ within the meaning of ICWA” (In re Dezi C., supra, 79 Cal.App.5th
at p. 779, review granted).
14
determining whether the failure to make an adequate initial inquiry is prejudicial, we ask
whether the information in the hands of the extended family members is likely to be
meaningful in determining whether the child is an Indian child, not whether the
information is likely to show the child is in fact an Indian child”].)
We find the ICWA error was prejudicial. The record shows that DPSS had
contact information for several maternal and paternal relatives who qualified as extended
family members. The extended maternal and paternal family members thus were readily
available, and their responses would “shed meaningful light on whether there is reason to
believe” that the child is Indian child, whatever the outcome of the inquiry may be.
(Benjamin M., supra, 70 Cal.App.5th at p. 744.) The record is unclear whether DPSS had
contact information for all of the extended relatives. However, it appears DPSS made no
attempts to obtain such information. As a result, we have no idea how difficult it would
6
be to get it.
Although the parents had continued to deny Native American heritage, there is no
indication in the record to suggest Mother and Father were fully informed of their Indian
heritage, especially in light of their young ages and substance abuse issues. In short,
there is no good excuse for why DPSS did not seek this information, and good reason to
believe the information would be relevant. Therefore, DPSS’s failure to obtain the
information was prejudicial. As in In re M.B., supra, 80 Cal.App.5th at pages 629-630,
6
On remand, DPSS should make an attempt to obtain the extended relatives’
contact information.
15
the failure of DPSS and juvenile court to fulfill their statutory obligations under ICWA
requires that we conditionally reverse and remand the matter for full compliance with
ICWA.
DPSS raises a number of arguments why remand is unnecessary under the
different standards of harmless error, all of which we reject. They argue that under the
standard we applied in In re A.C., supra, 65 Cal.App.5th 1060, which requires a parent to
“‘make an affirmative representation of Indian heritage’ on appeal” (Id. at p. 1069, italics
added), the parents are unable to demonstrate prejudice. But, as we explained in
Benjamin M., we think that standard inappropriately shifts the burden of inquiry to the
parents, to the detriment of potentially interested tribes. (See Benjamin M., supra, 70
Cal.App.5th at p. 745.) They attempt to distinguish our case from Benjamin M. on the
ground that “in the instant matter there is evidence from both parents about their lack of
Native American ancestry” and “that none of their lineal ancestors were members of a
tribe.” But as section 224.2, subdivision (b) makes clear, the parents are not the end of
the inquiry and DPSS only inquired of the parents. They did not inquire of any maternal
or paternal relatives. “By requiring the Department to inquire of a child’s extended
family members as to the child’s possible Indian ancestry, the Legislature determined that
inquiry of the parents alone is not sufficient.” (In re Antonio R., supra, 76 Cal.App.5th at
p. 431.) “[T]he 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.” (In re Y.W. (2021) 70 Cal.App.5th 542, 556, italics added; see
16
also In re J.C., supra, 77 Cal.App.5th at pp. 70, 78-80 [same]; In re Darian R., supra, 75
Cal.App.5th at p. 509 [same]; In re H.V., supra, 75 Cal.App.5th at p. 438 [same].)
DPSS also cites opinions holding ICWA inquiry error harmless in the absence of
some indication the parents’ disclaiming of Indian ancestry was unreliable. (See, e.g., In
re Ezequiel G. (2022) 81 Cal.App.5th 984, 1015 [no prejudice when all parents
“unequivocally denied Indian ancestry,” the mother identified no evidence suggesting
any parents “might unknowingly be members of an Indian tribe,” and the evidence
showed “[a]ll of the parents appear to have been in contact with their extended families”];
In re M.M. (2022) 81 Cal.App.5th 61, 72, review granted Oct. 12, 2022, S276099 [“There
is nothing in the record indicating mother and father might have been unaware of having
Indian ancestry.”]; In re Dezi C., supra, 79 Cal.App.5th at p. 786, review granted Sept.
21, 2022, S275578 [no prejudice when mother and father both disclaimed Indian
ancestry, they both “grew up with their biological family members,” and “[m]other points
to nothing else in the juvenile court’s record indicating that she or father has any
American Indian heritage”].) However, we are applying a different analysis of harmless
error. Our approach assumes the parents’ representations that they lack Indian ancestry
are not sufficiently reliable to support a finding of harmless error unless something else in
the record corroborates them.
We are unmoved by DPSS’s arguments. We cannot reasonably infer Father and
Mother asked their family members themselves before denying their Indian ancestry, as
there is no evidence suggesting they did or did not. Absent some evidence suggesting
17
Father and Mother already asked their family members, or that the information the family
members have is unlikely to meaningfully bear on A.A.’s Indian status (one way or the
other), DPSS is obligated to speak to them precisely because we cannot impute
knowledge one family member has about their family to all family members. Moreover,
it is not the parent’s duty to ask their relatives for this information, it is the department’s.
Without more, DPSS cannot rely on the parent’s denials assuming they did the work for
them—they must do the investigation themselves.
For these reasons, “[w]here the [d]epartment fails to discharge its initial duty of
inquiry 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.” (In re Antonio R., supra, 76
Cal.App.5th at p. 435.) Accordingly, we must conditionally reverse the order terminating
parental rights. At a minimum, DPSS must contact the known extended family members
to make the initial ICWA inquiry, and the juvenile court must determine whether DPSS
has satisfied its ICWA duties and whether ICWA applies to A.A.
IV.
DISPOSITION
The order terminating parental rights is conditionally reversed and “remanded to
the juvenile court for full compliance with the inquiry and notice provisions of ICWA
and related California law and for further proceedings not inconsistent with this opinion.”
(In re M.B., supra, 80 Cal.App.5th at p. 630.) Specifically, on remand, the juvenile court
18
shall order the department to comply with the duty of initial inquiry (§ 224.2, subd. (b))
and, if applicable, the duty of further inquiry (§ 224.2, subd. (e)) and the duty to provide
notice to the pertinent tribes (25 U.S.C. § 1912(a); § 224.3). If the court determines
ICWA does not apply, the order terminating parental rights shall be reinstated. If the
court determines ICWA does apply, the court shall proceed in conformity with ICWA
and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
FIELDS
J.
19