California Court of Appeal Sep 9, 2022 No. E078590Unpublished
Filed 9/9/22 In re D.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 D.S., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078590
Plaintiff and Respondent, (Super.Ct.No. J281854)
v. OPINION
D.S.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Conditionally reversed with directions.
Elizabeth D. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
Tom Bunton, County Counsel, and Kaleigh Ragon, Deputy County Counsel, for
Plaintiff and Respondent.
1
INTRODUCTION
D.S. (father) appeals from findings and orders made at a postpermanency planning
hearing involving his son, D.S. (the child). Father claims the juvenile court erred in finding
the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et. seq.) (ICWA) did not apply. He
contends the matter must be conditionally reversed and remanded because the juvenile
California law imposes a similar duty of inquiry on courts. The juvenile court and
CFS have “an affirmative and continuing duty to inquire whether a child for whom a
petition under Section 300 . . . may be or has been filed, is or may be an Indian child.”
(§ 224.2, subd. (a); see Isaiah W., supra, 1 Cal.5th at pp. 9, 11-12.) The Welfare and
Institutions Code “creates three distinct duties regarding ICWA in dependency proceedings.
First, from the [department’s] initial contact with a minor and his family, the statute imposes
a duty of inquiry to ask all involved persons whether the child may be an Indian child.
[Citation.] Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian
child, then the [department] ‘shall make further inquiry regarding the possible Indian status 7
of the child, and shall make that inquiry as soon as practicable.’ [Citation.] Third, if that
further inquiry results in a reason to know the child is an Indian child, then the formal notice
requirements of section 224.3 apply.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052; see §
224.2.) The agency’s duty of inquiry includes asking “extended family members” whether
they know or have reason to know that the child is an Indian child. (§ 224.2, subd. (b).)
If the juvenile court finds that “proper and adequate further inquiry and due diligence
as required in this section 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.” (§ 224.2, subd.
(i)(2).) A juvenile court’s finding that ICWA does not apply includes an implicit finding
that social workers fulfilled their duty of inquiry. (Austin J., supra, 47 Cal.App.5th at p.
885.) “[W]e review the juvenile court’s ICWA findings under the substantial evidence test,
which requires us to determine if reasonable, credible evidence of solid value supports the
court’s order.” (In re A.M. (2020) 47 Cal.App.5th 303, 314; Austin J., at p. 885 [implicit
finding, reviewed for substantial evidence, that social workers fulfilled their duty of
inquiry].)
B. The Juvenile Court’s ICWA Finding Is Not Supported by Substantial Evidence
We first observe that father does not argue the juvenile court erred in failing to
question him or mother about potential Indian ancestry. The social worker interviewed
8
father and mother, and both denied any Indian ancestry.4 The focus of father’s claim is that
CFS failed in its initial inquiry under section 224.2 since the social worker did not make any
effort to contact his or mother’s extended family members—specifically, the paternal aunt
and uncle and the three maternal relatives named on mother’s Family Find and ICWA
Inquiry Form—about Indian ancestry. As to the alleged three maternal relatives, respondent
points out that mother’s Family Find and ICWA Inquiry Form identified three friends; thus,
there were no relatives to contact as to mother’s potential Indian ancestry. In his reply brief,
father concedes that he incorrectly described the friends as family. As to the paternal aunt
and uncle, nothing in the record suggests CFS inquired of them about the child’s potential
status as an Indian child. The record indicates that CFS had the ability to communicate with
these extended family members, as CFS reported they lived on the same property as father
and the child, and they were believed to be father’s caregivers. Such record cannot support
a finding that CFS discharged its initial duty of inquiry under ICWA.
Respondent concedes the record does not indicate the paternal aunt and uncle were
ever asked about the child’s possible Indian ancestry, but argues the error was harmless, as
father denied Indian ancestry and does not argue otherwise on appeal; further, there is
nothing to suggest the relatives would have any valuable information about the child’s
4 Although father initially informed the social worker he had Navajo ancestry, approximately two weeks later, he stated he did not have any Indian ancestry. Father points out, in his reply brief, that mother informed the court that she did not believe she had Native American ancestry since “she was told” that in a prior dependency case, and he asserts that “her belief based on what she was told on a prior case was not dispositive.” To the extent father is disputing that mother denied she had Native American ancestry, the record clearly shows that on August 15, 2019, mother denied Native American ancestry and stated that in her last case, no ancestry was found, so she was not claiming it now. 9
possible Indian status. We disagree that the error was harmless. “[S]ection 224.2,
subdivision (b), imposes [an obligation] on the Department to inquire of a child’s extended
family members—regardless of whether the parents deny Indian ancestry.” (In re Antonio
R. (2022) 76 Cal.App.5th 421, 431 (Antonio R.).) “[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.” (Y.W., supra, 70 Cal.App.5th at
p. 556; see also, id. at p. 554 [“parents may not know their possible relationship with or
connection to an Indian tribe”].)
C. The Record Does Not Permit Us to Conclude CFS’s Error Was Harmless
We acknowledge that the standard of prejudice requiring reversal in cases involving
ICWA is unsettled in the Courts of Appeal. (Antonio R., supra, 76 Cal.App.5th at p. 433
[“Courts of Appeal are divided as to whether a parent must make an affirmative showing of
prejudice to support reversal . . . .”].) However, this court recently adopted a standard of
prejudice in Benjamin M., supra, 70 Cal.App.5th 735, that rejects both an automatic rule of
reversal or a rule that places the burden squarely on the parents to show the likelihood of
obtaining a more favorable result. (Id. at pp. 743-745.) Instead, we explained that reversal
is required “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.)5
In considering the prejudicial effect of a social services agency’s failure to discharge its duty
5 In adopting this standard of prejudice, this court expressly disagreed with the standard articulated in In re A C. (2021) 65 Cal.App.5th 1060. (Benjamin M., supra, 70 Cal.App.5th at p. 745.) Accordingly, we find CFS’s reliance on that case unpersuasive. 10
to inquire under ICWA, this court has repeatedly held that the failure to comply with an
initial duty of inquiry is deemed prejudicial in the absence of information in the record to
suggest otherwise. (In re K.R. (2018) 20 Cal.App.5th 701, 709; In re N.G. (2018) 27
Cal.App.5th 474, 484; Benjamin M., supra, 70 Cal.App.5th at pp. 744-745.) As this court
has previously explained: “[W]here the record does not show what, if any, efforts the
agency made to discharge its duty of inquiry [citations], . . . the burden of making an
adequate record demonstrating the court’s and the agency’s efforts to comply with ICWA’s
inquiry and notice requirements must fall squarely and affirmatively on the court and the
agency. . . . [A]s a general rule, we will find the appellant’s claims of ICWA error
prejudicial and reversible.” (In re N.G., at p. 484.) This remains true even under our
recently articulated standard of prejudice in Benjamin M. (Benjamin M., at p. 745 [failure to
make an initial inquiry of an extended family member is prejudicial because, “[w]hile we
cannot know how [an extended family member] would answer the inquiry, his answer is
likely to bear meaningfully on the determination at issue.”].)
Here, the record is devoid of any indication that CFS made efforts to contact the
paternal aunt and uncle, or any other extended relatives, for the purpose of making an initial
ICWA inquiry. Nor does the record suggest this was merely a failure by CFS to adequately
document its efforts, as CFS’s reports contained no substantive information related to
ICWA. Given such a silent record, under the general rule we expressed in In re N.G., supra,
27 Cal.App.5th 474, and our articulation of what constitutes prejudicial error in Benjamin
M., supra, 70 Cal.App.5th 735, we cannot conclude CFS’s failure to comply with its initial
duty of inquiry under the ICWA was harmless. 11
DISPOSITION
The finding that ICWA did not apply is conditionally reversed. The matter is
remanded to the juvenile court with directions to comply with the inquiry provisions of
ICWA and of Welfare and Institutions Code sections 224.2 and 224.3. If, after completing
the initial inquiry, neither CFS nor the juvenile court has reason to believe or reason to
know the child is an Indian child, the finding that ICWA did not apply shall be reinstated.
If, however, CFS or the juvenile court discovers a reason to believe that the child is an
Indian child, the juvenile court shall proceed as required under ICWA and related California
statutes.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
CODRINGTON Acting P. J.
RAPHAEL J.
12
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court's finding that the Indian Child Welfare Act (ICWA) did not apply was not supported by substantial evidence because the agency failed to fulfill its initial duty of inquiry by neglecting to contact available extended family members. The case was conditionally reversed and remanded for the agency and court to conduct the required inquiries.
Issues
Whether the juvenile court and the child welfare agency failed to discharge their initial duty of inquiry under ICWA and California law.
Whether the failure to inquire of extended family members regarding Indian ancestry constitutes prejudicial error requiring reversal.
Disposition. conditionally reversed
Quotations verified verbatim against the opinion
“The record indicates that CFS had the ability to communicate with these extended family members, as CFS reported they lived on the same property as father and the child, and they were believed to be father’s caregivers.”
“[S]ection 224.2, subdivision (b), imposes [an obligation] on the Department to inquire of a child’s extended family members—regardless of whether the parents deny Indian ancestry.”
“The finding that ICWA did not apply is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of ICWA and of Welfare and Institutions Code sections 224.2 and 224.3.”