California Court of Appeal Aug 25, 2022 No. E078907Unpublished
Filed 8/25/22 In re Rafael M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 RAFAEL M., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E078907
Plaintiff and Respondent, (Super.Ct.No. RIJ2100063)
v. OPINION
M.G.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Christine V. Pate, Judge.
(Retired Judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Conditionally reversed with directions.
Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and
Appellant.
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Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and
Respondent.
M.G. (mother) appeals the findings and orders made at the permanency planning
hearing for her son, Rafael M., including the order terminating her parental rights. (Welf. 1 & Inst. Code, § 366.26.) She argues the findings and orders must be conditionally
reversed because the Riverside County Department of Public Social Services (the
To ensure that tribes receive notice when required, the duty of initial inquiry
applies to both the department and the juvenile court on an “affirmative and continuing”
basis. (§ 224.2, subd. (a).) It “begins with initial contact” and applies through termination
of parental rights “and obligates the juvenile court and child protective agencies to ask all
relevant involved individuals whether the child may be an Indian child.” (In re T.G.,
supra, 58 Cal.App.5th at p. 290.)
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 likely to bear meaningfully upon
whether the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
Notably, this standard does not require “proof of an actual outcome (that the parent may
actually have Indian heritage)”; rather, the missing information need only be relevant to
the ICWA inquiry, “whatever the outcome will be.” (Id. at pp. 743-744.)
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In this case, the department failed to discharge the duty of initial inquiry because
they asked only the parents about Indian ancestry, despite being in contact with at least
three extended family members and interested relatives on mother’s side—the maternal
aunt, great-aunt, and cousin. Additionally, the record contains no indication they asked
father for contact information for any of his extended family members or attempted in
some other way (e.g., by reviewing the dependency file from the Orange County
proceeding) to obtain the contact information.
As a result of this failure, the juvenile court’s finding that ICWA did not apply is
not supported by the record. (In re J.C. (2022) 77 Cal.App.5th 70, 79-80.) “[T]he court
had a duty either to require [the department] to provide a report with complete and
accurate information regarding the results of [their] inquiry . . . or to have the individual
responsible for notice to testify in court regarding the inquiry made . . . . Only then could
the court determine whether [ICWA] applied.” (In re L.S. (2014) 230 Cal.App.4th 1183,
1198.)
We conclude the error is prejudicial. Mother’s extended family members and
interested relatives were readily available—they each acted as Rafael’s caretaker at
various points in the case—and their responses would “shed meaningful light on whether
there is reason to believe” he is an Indian child. (Benjamin M., supra, 70 Cal.App.5th at
p. 744.) Though it appears they had no contact information for father’s extended family
members, it also appears the department made no attempts to obtain such information. As
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a result, we have no idea how difficult it would be to get it. On remand, they should make
an attempt to do so.
The department raise a number of arguments why remand is unnecessary, all of
which we reject. First, they claim mother waived her challenge to the March 29, 2022
ICWA finding when she filed the December 29, 2021 stipulation to adoption that also
contained a stipulation that ICWA did not apply. But there is simply no support for this
position. As our Supreme Court has explained, ICWA and the California laws
implementing it protect interests of the Indian tribes “that are separate and distinct” from
those of the parents, and as a result, a parent cannot waive a right that inures to the tribes’
benefit. (In re Isaiah W. (2016) 1 Cal.5th 1, 13 (Isaiah W.); see also In re K.R. (2018) 20
Cal.App.5th 701, 706 [“the parent’s failure to object in the juvenile court to deficiencies
in the investigation or noticing does not preclude the parent from raising the issue for the
first time on appeal . . .”].) No case has held that a parent can waive the tribes’ right to
notice. (See Benjamin M., supra, 70 Cal.App.5th at p. 745 [because the tribe is not
present, “the agency is charged with obtaining information to make” the tribe’s right to a
determination of a child’s Indian ancestry “meaningful”]; see also In re M.M. (July 12,
2022, B315997) ___Cal.App.5th ___, [2022 WL 2679301] dis. opn. of Wiley, J. [“The
right here belongs to the tribes . . . [who] have no idea their rights are on the line in these
cases”].)
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In any event, even if mother’s stipulation could constitute a waiver, it would not
apply to the ICWA finding issued several months after the stipulation, at the permanency
planning hearing. This is because the department and the court are under a continuing
duty to inquire about the family’s Indian ancestry “throughout the dependency
proceedings,” and as such, the court was required to make a “current finding . . . that it
had no reason to know [Rafael] was an Indian child and thus ICWA notice was not
required” before terminating parental rights. (Isaiah W., supra, 1 Cal.5th at p. 10.)
Next, they argue we should decline to follow Benjamin M.—our division’s most
recent precedent on the prejudice standard—and instead use the standard we applied in In
re A.C. (2021) 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.) 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 only one parent denied Indian ancestry there, whereas both did here.
But as section 224.2, subdivision (b) makes clear, the parents are not the end of the
inquiry. “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. (2022) 76 Cal.App.5th 421, 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
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parent may not have.” (In re Y.W. (2021) 70 Cal.App.5th 542, 556, italics added; see also
In re J.C., supra, 77 Cal.App.5th at pp. 70, 78-80 [same]; In re Darian R. (2022) 75
Cal.App.5th 502, 509 [same]; In re H.V. (2022) 75 Cal.App.5th 433, 438 [same].) We are
unmoved by the request to return to a prejudice standard we have expressly disapproved.
Finally, the department argue mother’s ICWA challenge has been mooted by their
postappeal investigation and have filed a motion to dismiss the appeal on the basis of a
declaration from the social worker describing the inquiries he made after mother filed her
opening brief. They argue we may consider this evidence under Code of Civil Procedure
section 909, which “permits an appellate court to take additional evidence and make
independent factual findings on appeal,” in appropriate cases, “to determine whether an
issue on appeal is moot.”2 (In re M.B., (2022) 80 Cal.App.5th 617, 627, citing In re
Josiah Z. (2005) 36 Cal.4th 664, 676.) In her opposition to the motion to dismiss, mother
argues the juvenile court should consider the evidence in the first instance, not the
reviewing court. She also argues she should be afforded the opportunity to question the
accuracy of the statements in the declaration by cross-examining the social worker and
presenting witnesses of her own.
2 The statute says: “In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. . . . The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require.” (Code Civ. Proc., § 909.) 11
There appears to be a split of authority on how to handle postjudgment evidence of
an agency’s investigatory efforts under ICWA. In support of their approach, the
department cite In re Allison B. (2022) 79 Cal.App.5th 214, in which the appellate court
considered postjudgment evidence of the agency’s post-appeal investigation under Code
of Civil Procedure section 909 when reviewing the juvenile court’s ICWA finding. The
sounder approach, in our view, is the one taken by our division as well as the majority of
courts to consider the issue, and it requires the juvenile court to consider the evidence and
allow the parent an opportunity to challenge it. (In re Ricky R. (Aug. 25, 2022,
E078646); see also, e.g., In re E.V. (2022) 80 Cal.App.5th 691; In re Jennifer A. (2002)
103 Cal.App.4th 692; In re M.B., supra, 80 Cal.App.5th 617; In re K.M. (2015) 242
Cal.App.4th 450, 458.) Where, as here, both the agency and the juvenile court failed to
follow state law implementing ICWA, “[m]aking the appellate court the trier of fact is
not the solution.” (In re Jennifer A., at p. 703.) Instead, the juvenile court should consider
in the first instance whether the department remedied their failure and fulfilled the duty of
initial inquiry. (In re E.V., supra, 80 Cal.App.5th 691.)
As a final point in response to the department’s position on appeal, we echo the
words of our colleagues in Division Three. Where, as here, the ICWA error is clear,
“[t]he most expeditious and efficient way to solve th[e] problem is for the parties to
stipulate to a limited reversal and an expedited remittitur.” (In re K.M., supra, 242
Cal.App.4th at p. 458.)
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III
DISPOSITION
We deny the motion to dismiss the appeal, and we conditionally reverse the March
29, 2022 ICWA finding and orders terminating parental rights. On remand, the juvenile
court 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
SLOUGH J.
We concur:
RAMIREZ P. J.
McKINSTER J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that the Department of Public Social Services failed to fulfill its duty of initial inquiry under the Indian Child Welfare Act (ICWA) by failing to interview extended family members, necessitating a conditional reversal of the order terminating parental rights.
Issues
Whether the Department of Public Social Services failed to discharge its duty of initial inquiry under ICWA and California law.
Whether a parent can waive the tribe's right to ICWA notice through a stipulation.
Whether the appellate court should consider post-judgment evidence of an agency's investigatory efforts under Code of Civil Procedure section 909.
Disposition. conditionally reversed
Quotations verified verbatim against the opinion
“We agree and therefore conditionally reverse and remand for a new ICWA finding.”
“the department failed to discharge the duty of initial inquiry because they asked only the parents about Indian ancestry, despite being in contact with at least three extended family members and interested relatives on mother’s side”
“a parent cannot waive a right that inures to the tribes’ benefit.”