California Court of Appeal May 26, 2022 No. E078287Unpublished
Filed 5/26/22 In re J.C. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.C. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E078287
Plaintiff and Respondent, (Super.Ct.No. SWJ2000563)
v. OPINION
D.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Conditionally reversed and remanded with directions.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and
Respondent.
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D.M. (mother) appeals the termination of her parental rights over her son, J.C.
(Welf. and Inst. Code, §§ 300, subd. (b), 366.26, unlabeled statutory citations refer to this
code.) She argues the judge erred in concluding the Riverside County Department of
Public Social Services (the department) conducted a sufficient inquiry into J.C.’s Indian
ancestry as required under the Indian Child Welfare Act (ICWA). We agree, and
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 . . . .” ’ ” (J.S.,
supra, 62 Cal.App.5th at p. 677.) “ ‘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.) Thus there are two types of inquiry relevant entities are required to conduct: an
initial inquiry, which is always required, and a further inquiry, which is required only
when the relevant entity has reason to believe an Indian child is or may be involved in the
proceeding.
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Mother argues the department failed at the first step, the initial inquiry, because
they only asked her and father about potential Indian heritage and failed to ask any other
family members. She points out the department actually contacted maternal grandmother
and a maternal cousin but didn’t ask them about J.C.’s potential Indian ancestry and made
no effort to contact any paternal relatives. For their part, the department concedes they
didn’t ask any extended relatives about J.C.’s Indian status, despite the fact section 224.2,
subdivision (b), requires social workers to interview extended family members about
whether a child has Indian ancestry.
We agree with mother that this was error. (In re Darian R. (2022) 75 Cal.App.5th
502, 509 (Darian R.), petn. for review prematurely filed Mar. 28, 2022, time for grant or
denial of review extended to June 27, 2022.) The question becomes whether the error is
prejudicial. (Benjamin M., supra, 70 Cal.App.5th at p. 742.) In the ICWA context, error
is prejudicial “where the record 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.” (Id. at p. 744.)
Such is the case here. There is no dispute that the maternal grandmother and at
least one maternal cousin have readily obtainable information likely to bear on J.C.’s
Indian status. The department was actively in contact with both at various times during
the dependency, and simply failed to ask either about J.C.’s potential Indian status. Nor
can the department claim their failure to ask these family members is harmless because
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they were unlikely to have information showing J.C. had Indian heritage. “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. Rather, in 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.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 435 (Antonio R.) 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.” (Ibid.) In short, the department has not provided any
reason why they did not seek information from extended family members, and there is
good reason to believe the information would be relevant. Therefore, the department’s
failure to obtain the information was prejudicial.
The department argues the error was not prejudicial because both parents denied
having any Indian ancestry at least three times. However, section 224.2, subdivision (b),
“requires the [d]epartment to ask, as part of its initial duty of inquiry, extended family
members (including the biological grandparents) whether the child is or may be an
Indian child,” and nothing “relieves the [d]epartment of its broad duty to seek that
information . . . simply because a parent states on the ICWA-020 form . . . ‘I have no
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Indian ancestry as far as I know.’ ” (In re Y.W. (2021) 70 Cal.App.5th 542, 554 (Y.W.).)
“Such a rule ignores the reality that parents may not know their possible relationship with
or connection to an Indian tribe.” (Id. at p. 554.) Moreover, the department’s “position
ignores the express obligation that section 224.2, subdivision (b), imposes on the
[d]epartment to inquire of a child’s extended family members—regardless of whether the
parents deny Indian ancestry.” (Antonio R., supra, 76 Cal.App.5th at p. 431.) Indeed, this
duty to inquire regardless of the parents’ statements is especially important here, where
father was apparently removed from his biological parents and therefore was unlikely to
have detailed information regarding his biological heritage. (See, e.g., Y.W., at pp. 554-
555 [concluding the department prejudicially erred where they interviewed the mother’s
adoptive parents but failed to investigate her biological family].)
The department also argues this case is similar to two others, In re S.S. (2022) 75
Cal.App.5th 575 (S.S.) and Darian R., supra, 75 Cal.App.5th 502, both of which found
the department’s failed inquiry wasn’t prejudicial. These cases are distinguishable.
In S.S., the father was never identified but the maternal grandmother was an active
participant in the proceedings and made a concerted effort to have the child placed with
her. (S.S., supra, 75 Cal.App.5th at p. 582.) The court determined that if the maternal
grandmother had information suggesting the child had Indian heritage, it would’ve been
in her interest to disclose that information as “[u]nder ICWA, when an Indian child is the
subject of foster care or adoptive placement proceedings, ‘preference shall be given, in
the absence of good cause to the contrary, to a placement with . . . [¶] . . . a member of
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the Indian child’s extended family.’ ” (Ibid.) Given this, the court concluded that the
maternal grandmother’s silence on the child’s Indian status indicated she didn’t have any
relevant information regarding the child’s Indian heritage, and the department’s failure to
ask her was harmless. (Ibid.)
Here, the department had contact with father but made absolutely no effort to
speak to any of his family. This immediately distinguishes the two cases. In addition,
though the maternal grandmother and maternal cousin were interviewed for placement,
neither had an obvious incentive to disclose information about J.C.’s Indian heritage
without being asked. Maternal grandmother told the department her home wasn’t suitable
and disclosed personal information which made the department reticent to place the child
with her. Thus, from this record, it is not at all clear that maternal grandmother was
actively interested in having J.C. placed with her or whether that was even a viable
option. Meanwhile maternal cousin voluntarily removed herself from consideration for
placement. There is therefore no reason to believe either maternal relative was
incentivized to affirmatively disclose any knowledge of J.C.’s Indian status, as there was
in S.S.
In Darian R., both parents claimed their children didn’t have any Indian ancestry,
and the department never asked the maternal relatives they had contact with about the
child’s Indian status. (Darian R., supra, 75 Cal.App.5th at pp. 505-506.) However, in that
case there was a previous dependency concerning the parents’ other children in which the
court found ICWA did not apply. The parents did not challenge this finding. (Id. at
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pp. 509-510.) The court also found relevant that the mother lived with the identified
maternal extended relatives and concluded this meant these relatives were unlikely to
have information the mother didn’t have herself. (Id. at pp. 509-510.)
Here, unlike in Darian R., no prior ICWA finding exists. This alone renders
Darian R.’s guidance of limited use. Meanwhile, while there is some evidence mother
lived with certain identified maternal relatives in this case, it is undisputed the identified
maternal cousin didn’t live with mother, and there is no evidence the parents ever lived
with any paternal relatives. Therefore, even assuming the parents’ cohabitation with some
extended family members is relevant, the nature and extent of that cohabitation is
substantially different here than in Darian R.
Accordingly, we conditionally reverse the order terminating parental rights to
permit the department to complete its initial inquiry. On remand, the department should
inquire about J.C.’s Indian status with, at minimum, the maternal grandmother and
maternal cousin with whom the department was previously in contact. The department
should also contact the paternal side of the family, including but not limited to father’s
biological parents, or else explain what efforts they made to do so and why those efforts
failed.
III.
DISPOSITION
We conditionally reverse the order terminating parental rights. We remand the
matter to the juvenile court judge with directions to order the department to comply with
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the inquiry provisions of ICWA and of sections 224.2 and 224.3 (and, if applicable, the
notice provisions as well) by interviewing any extended family member—maternal or
paternal—with information likely to bear meaningfully upon whether the child is an
Indian child. If, after completing the initial inquiry, neither the department nor the judge
has reason to believe the child is an Indian child, the judge shall reinstate the order
terminating parental rights. If the department or the judge has reason to believe the child
is an Indian child, the judge shall proceed accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH Acting P. J. We concur:
RAPHAEL J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the Department of Public Social Services failed to conduct an adequate initial inquiry into the child's Indian ancestry as required by ICWA and California law, rendering the termination of parental rights prejudicial. The case was remanded for the Department to interview extended family members and properly investigate the child's potential Indian status.
Issues
Did the Department of Public Social Services conduct a sufficient initial inquiry into the child's Indian ancestry under ICWA and California law?
Was the Department's failure to interview extended family members regarding the child's Indian ancestry prejudicial error?
Disposition. Conditionally reversed and remanded
Quotations verified verbatim against the opinion
“The department concedes they didn’t ask any extended relatives about J.C.’s Indian status, despite the fact section 224.2, subdivision (b), requires social workers to interview extended family members”