California Court of Appeal Mar 18, 2021 No. E076035Unpublished
Filed 3/18/21 In re T.C. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 T.C., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E076035
Plaintiff and Respondent, (Super.Ct.No. RIJ119250)
v. OPINION
L.C.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Reversed and remanded with directions.
Christine E. Johnson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and
Carol D. Perez, Deputy County Counsels, for Plaintiff and Respondent.
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L.C. (Mother) appeals from the juvenile court’s order terminating parental rights
to her son, T.C. Mother argues that the court and the Riverside County Department of
Public Social Services (DPSS) failed to comply with the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) and related state law. We conclude that further
ICWA inquiry is required. We therefore conditionally reverse the order terminating
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); accord § 224.1, subd. (b).)
DPSS and the juvenile court have an “affirmative and continuing duty to inquire”
whether the child in the dependency proceeding “is or may be an Indian child.” (§ 224.2,
subd. (a).) When DPSS takes the child into temporary custody, its duty to inquire
includes asking “the child, parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child,” and the reporting party whether the
child is or may be an Indian child. (§ 224.2, subd. (b).) In addition, “[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.” (§ 224.2, subd. (c).)
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When the initial inquiry gives the juvenile court or social worker “reason to
believe that an Indian child is involved,” the court and social worker must conduct further
inquiry to “determine whether there is reason to know a child is an Indian child.”
(§ 224.2, subd. (e) 1st par., (e)(2).) There is reason to believe an Indian child is involved
if the court or the 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.”
(§ 224.2, subd. (e)(1).)
Further inquiry includes, among other things, interviewing the parents and
extended family members to gather the information required for the ICWA notice.
(§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5).) To the extent known, the notice must
include the names, birthdates, current and former addresses, places of birth and death,
and any tribal enrollment information for the parents, grandparents, and great-
grandparents. (§ 224.3, subd. (a)(5)(C).) DPSS “must make a meaningful effort to
contact specified family members who might have pertinent information.” (In re
K.R. (2018) 20 Cal.App.5th 701, 707.) In addition, the agency “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.” (Cal.
Rules of court, rule 5.481(a)(5).)
Here, Mother argues that DPSS and the court failed to discharge their duty of
initial inquiry because Father provided conflicting information about Indian ancestry
when interviewed for the detention report, and the agency and the court failed to seek
clarification. Mother argues that the report was unclear “whether paternal grandfather
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was a ‘Cherokee Indian’ or there was merely Indian ancestry.” She further contends that
Father’s response provided a reason to believe that T.C. was an Indian child and therefore
triggered the duty of further inquiry.
Regardless of whether Father initially provided conflicting information, we agree
with Mother that his response to the initial interview and his form ICWA-020 triggered
the duty of further inquiry. Father provided information suggesting that either T.C. or
Father was a Cherokee member or eligible for Cherokee membership. DPSS was thus
required to make a meaningful effort to interview extended family members who might
have pertinent information. Yet there is no indication that DPSS attempted to contact
extended paternal family members, including the relative through whom Father claimed
Cherokee ancestry, namely, paternal grandfather. Paternal grandfather was alive and
living in Corona, California, according to the ICWA notice. Searching Accurint did not
satisfy the statutory requirements of further inquiry, particularly if there were living
relatives who could provide information.
Moreover, using decade-old information obtained from T.C.’s sister’s case also
did not satisfy the statutory requirements. The record of the sister’s case is not part of the
record on the present appeal. We have no evidence concerning the inquiries DPSS made
in that case or what information the ICWA notice included. And even if we had the
sister’s record, we would still have no evidence showing whether different information
about family members might be available today or how the tribes might have changed
their eligibility criteria over the years since the sister’s case. In short, “[i]t is important to
not lose sight of the fact that ICWA notices in separate dependency cases are not fungible
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evidence—even when the separate cases involve [children] who share the same parent
with Indian heritage.” (In re Robert A. (2007) 147 Cal.App.4th 982, 990.)
In addition to DPSS’s obligation to conduct further ICWA inquiry, the court had
“a responsibility to ascertain that the agency ha[d] conducted an adequate investigation.”
(In re K.R., supra, 20 Cal.App.5th at p. 709.) The court could not assume that DPSS had
fully complied with its obligations merely because the agency had obtained some of the
relevant information and noticed the tribes. (Ibid.) Yet there is no evidence in the record
that the court asked DPSS about its efforts to contact paternal grandfather or other
paternal family members who might have information about paternal grandfather’s
Cherokee ancestry.
Accordingly, DPSS and the court failed to perform their duties of further inquiry.
The court’s finding at the section 366.26 hearing that ICWA did not apply “implie[d] that
the duty of inquiry under California’s ICWA-related law had been satisfied.” (In re
Austin J. (2020) 47 Cal.App.5th 870, 887.) The record did not contain substantial
evidence to support that finding, in the absence of information about DPSS’s and the
court’s efforts to conduct further inquiry. (§ 224.2, subd. (i)(2) [ICWA finding “subject
to reversal based on sufficiency of the evidence”]; In re Hunter W. (2011) 200
Cal.App.4th 1454, 1467 [ICWA findings reviewed for substantial evidence].)
The ICWA error requires a conditional reversal. Although the ICWA notice in
this case contained much of the required biographical information about T.C.’s paternal
family members, we cannot say that the failure to conduct further inquiries was harmless
on that ground. (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576 [harmless error
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analysis applies to errors or omissions in ICWA notice].) The notice was notably lacking
in at least one respect: It contained no information about paternal grandfather’s mother.
And there is no information in the record showing that paternal grandfather traced his
Cherokee ancestry solely through his father (whose information was included in the
notice). It is at least possible that, if contacted, paternal grandfather could have provided
some of the biographical information about his mother. As both of the tribal response
letters explained, the responses were “based on the information exactly as provided,” and
any omitted information could “invalidate” the tribes’ determination that T.C. was not an
Indian child. (Boldface omitted.) We therefore cannot conclude there is no reasonable
probability that the tribes’ responses would have been different if DPSS had conducted a
proper further inquiry.
For all of these reasons, we conclude that the court and DPSS did not comply with
the duty of further inquiry under ICWA and related state law. We must conditionally
reverse the order terminating parental rights and remand the matter for the court and
DPSS to satisfy that duty and for DPSS to notice the pertinent tribes, if required. (In re
K.R., supra, 20 Cal.App.5th at p. 709.)
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the
juvenile court shall ensure that DPSS complies with the duty to further investigate
Father’s claim of Cherokee ancestry under section 224.2, subdivision (e) and, if
applicable, the duty to provide notice to the pertinent tribes under section 224.3. If the
court determines that ICWA does not apply—either (1) because DPSS has conducted a
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sufficient inquiry and the prior ICWA notice was sufficient, or (2) because DPSS’s
further inquiry requires it to resend notice to the pertinent tribes, and the tribes’ responses
show that T.C. is not an Indian child—then the court shall reinstate the order terminating
parental rights. If the court determines that ICWA applies, then it shall proceed in
conformity with ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
RAMIREZ P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court conditionally reversed the order terminating parental rights because the Department of Public Social Services and the juvenile court failed to satisfy their statutory duties of further inquiry under the Indian Child Welfare Act regarding the father's claim of Cherokee ancestry.
Issues
Did the Department of Public Social Services and the juvenile court fail to comply with the duty of further inquiry under the Indian Child Welfare Act?
Was the juvenile court's finding that the Indian Child Welfare Act did not apply supported by substantial evidence?
Disposition. Reversed and remanded with directions.
Quotations verified verbatim against the opinion
“We conclude that, at a minimum, further inquiry is required.”
“DPSS and the court failed to perform their duties of further inquiry.”
“The order terminating parental rights is conditionally reversed.”