California Court of Appeal Dec 5, 2022 No. E079399Unpublished
Filed 12/5/22 In re J.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.B., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E079399
Plaintiff and Respondent, (Super.Ct.No. RIJ2100454)
v. OPINION
D.B.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Harry A. Staley, Judge.
(Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Conditionally reversed with directions.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar,
Deputy County Counsel for Plaintiff and Respondent.
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1 To further the Indian Child Welfare Act’s (ICWA) purpose of protecting the best
interests of Indian children in custody proceedings, the Welfare and Institutions Code
requires child protection agencies to ask “extended family members [and] others who
have an interest in the child” whether the child is or may be an Indian child. (§ 224.2, 2 subd. (b).) This duty is commonly called the initial inquiry and it applies throughout the
nephews, and first or second cousins. (25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1,
subd. (c).)
To ensure tribes receive notice when required, the duty of initial inquiry applies to
both the agency 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 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.” (Benjamin M., at pp. 743-744.)
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In this case, DPSS failed to discharge the duty of initial inquiry because they
asked only the parents about Indian ancestry, despite being in contact with at least five
family members (i.e., the maternal great-grandmother, paternal grandfather, paternal
great-aunt, paternal aunt, and paternal grandmother). The record also indicates DPSS
might be able to contact with relative ease the three relatives the maternal great-
grandmother’s mother is in close contact with (i.e., the maternal aunt, uncle and great-
great-grandmother).
Because DPSS asked only the parents about Indian ancestry, 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 [DPSS] 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. The family
members and interested relatives were readily available and their responses would “shed
meaningful light on whether there is reason to believe” Jayden is an Indian child.
(Benjamin M., supra, 70 Cal.App.5th at p. 744.)
In an attempt to avoid remand, DPSS claim father waived his ICWA challenge
because his argument is premised on section 224.2, which is a state statute. But, 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. (In
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re Isaiah W. (2016) 1 Cal.5th 1, 13 (Isaiah W.).) Following this reasoning, our court has
previously held that “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.” (In re K.R. (2018) 20 Cal.App.5th 701, 706.)
Next, despite clear statutory language to the contrary, DPSS argue no further
inquiry is necessary when both parents deny having Indian ancestry, as the parents did
here. Most courts who have considered this argument, including ours, disagree. (See, e.g.,
In re Y.W. (2021) 70 Cal.App.5th 542, 556 [rejecting the position]; In re Antonio R.
(2022) 76 Cal.App.5th 421, 431; Benjamin M., supra, 70 Cal.App.5th at p. 744 [same]; 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].) Section
224.2, subdivision (b), imposes an “express obligation . . . to inquire of a child’s extended
family members—regardless of whether the parents deny Indian ancestry.” (In re Antonio
R., 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., at p. 556, italics added.)
The right at stake here, the right to a determination of a child’s Indian ancestry,
belongs in large part to the tribes, who are not present and “have no idea their rights are
on the line.” (In re M.M. (2022) 81 Cal.App.5th 61, 72, dis. opn. of Wiley, J.) Moreover,
the Legislature charged the agencies, not the parents, with the duty of “obtaining
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information to make that right meaningful.” (Benjamin M., supra, 70 Cal.App.5th at
p. 745.)
The goal of providing children with permanent and stable homes does not override
the importance of properly determining a child’s Indian status and protecting the integrity
and stability of Indian tribes. (Isaiah W., supra, 1 Cal.5th at p. 12.) For that reason, our
Supreme Court has urged that ICWA compliance should be “swift and early.” (Isaiah W.,
at p. 12.) When it is not, and when there is clear error (like here), “[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. (2015) 242 Cal.App.4th 450, 458.) At the very
least, we would hope the agency would not continue to press arguments our court has
already rejected.
III
DISPOSITION
We vacate the July 13, 2022 ICWA finding and conditionally reverse the order
terminating parental rights. On remand, the juvenile court shall order DPSS to comply
with the duty of initial inquiry (Welf. & Inst. Code, § 224.2, subd. (b)) and, if applicable,
the duty of further inquiry (Id., subd. (e)) and the duty to provide notice to the pertinent
tribes (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3). If the court determines ICWA
does not apply, the order terminating parental rights shall be reinstated. If the court
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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.
RAPHAEL 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 satisfy its statutory duty of initial inquiry under the Indian Child Welfare Act (ICWA) by failing to interview available extended family members regarding the child's potential Indian ancestry. Consequently, the court conditionally reversed the order terminating parental rights and remanded for the agency to complete the required inquiry.
Issues
Did the Department of Public Social Services fail to satisfy its duty of initial inquiry under Welfare and Institutions Code section 224.2, subdivision (b)?
Is a parent's failure to object to ICWA inquiry deficiencies in the juvenile court a waiver of the issue on appeal?
Does a parent's denial of Indian ancestry excuse the agency from its duty to inquire of extended family members?
Disposition. Conditionally reversed and remanded.
Quotations verified verbatim against the opinion
“We agree DPSS failed to discharge its statutory duty, and as a result, the juvenile court erred by finding ICWA did not apply.”
“Section 224.2, subdivision (b), imposes an “express obligation . . . to inquire of a child’s extended family members—regardless of whether the parents deny Indian ancestry.””
“The goal of providing children with permanent and stable homes does not override the importance of properly determining a child’s Indian status and protecting the integrity and stability of Indian tribes.”