California Court of Appeal Jan 4, 2023 No. E079369Unpublished
Filed 1/4/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079369
Plaintiff and Respondent, (Super.Ct.No. RIJ119871)
v. OPINION
T.B.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Harry (Skip) 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 and remanded.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy
County Counsel, for Plaintiff and Respondent. 1
INTRODUCTION
T.B. (mother) appeals from a juvenile court’s order terminating parental rights to
her son, J.B. (the child). Mother contends the matter must be conditionally reversed and
remanded because the Riverside County Department of Public Social Services (DPSS)
includes child’s aunt and grandparents]; see In re Y.M. (2022) 82 Cal.App.5th 901, 909
(Y.M.).) Notably, “extended family member” does not include the child’s great-
grandparents or great-great-grandparents. (25 U.S.C. § 1903(2).) Therefore, contrary to
mother’s claim, DPSS’s inquiry duty did not include the child’s maternal great-
grandmother (Dora Lee H.) or maternal great-great-grandmother (Mary Martin L.). In
any event, as respondent points out, the evidence shows that the maternal great-
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grandmother was born in 1933 and had been deceased for years; accordingly, it is
reasonable to conclude the maternal great-great-grandmother was deceased as well.
However, we conclude that DPSS’s ICWA inquiry was deficient with regard to
the maternal aunt and the maternal grandfather, since it failed to ask them about the
child’s potential Indian ancestry. Thus, substantial evidence does not support the juvenile
court’s implicit finding that DPSS complied with its duty of initial inquiry under section
224.2, subdivision (b). (See Y.M., supra, 82 Cal.App.5th at pp. 909-910.)
D. The Record Does Not Permit Us to Conclude DPSS’s Error with Regard to the
Maternal Grandfather was Harmless
At the outset, we note the error asserted by mother “is one of state law error only
(i.e., a violation of § 224.2, subd. (b)) and not one of federal law.” (Y.M., supra, 82
Cal.App.5th at p. 910.) Accordingly, we may reverse the order terminating parental
rights “only if the error is prejudicial under the state law standard for prejudicial error.”
(Ibid.) We acknowledge that the standard of prejudice requiring reversal in cases
involving ICWA is unsettled in the Courts of Appeal. (In re Antonio R. (2022) 76
Cal.App.5th 421, 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 “a court must reverse where the record demonstrates that the
agency has not only failed in its duty of initial inquiry, but where the record indicates that
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there was readily obtainable information that was likely to bear meaningfully upon
whether the child is an Indian child.” (Id. at p. 744.)
Respondent concedes the record does not indicate the maternal aunt was ever
asked about the child’s possible Indian ancestry despite DPSS having contact with her.
However, respondent argues the error was harmless, as the maternal grandmother
reported that, to her knowledge, neither she nor her children (mother and the maternal
aunt) were registered tribe members. We agree that the maternal grandmother’s
knowledge of her own Indian status and that of her children was indicative of the
maternal aunt’s status, and also that it is reasonable to conclude the maternal aunt had the
same information about the child’s possible Indian ancestry that the maternal
grandmother had. Furthermore, even though the maternal aunt was “readily obtainable,”
the record does not indicate she had “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.)
With regard to the maternal grandfather, the record indicates his whereabouts were
unknown. However, DPSS has the obligation to “make a meaningful effort to locate and
interview extended family members to obtain whatever information they may have as to
the child’s possible Indian status.” (In re K.R. (2018) 20 Cal.App.5th 701, 709 (K.R.).)
In considering the prejudicial effect of a social services agency’s failure to discharge its
duty 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. (Ibid.; N.G., supra, 27 Cal.App.5th at p. 484; Benjamin M.,
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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.” (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.”].)
While we recognize the efforts made by DPSS in sending a letter to the BIA and
the various Cherokee tribes, pursuant to the information obtained from the maternal
grandmother, the record is devoid of any indication that DPSS made a meaningful effort
to locate and interview the maternal grandfather to obtain whatever information he may
have as to the child’s possible Indian status. (K.R., supra, 20 Cal.App.5th at p. 709.)
Thus, on this record, we conclude mother’s claim of ICWA error is prejudicial and
reversible. (See N.G., supra, 27 Cal.App.5th at p. 484.)
DISPOSITION
The order terminating parental rights 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 – specifically, to
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make a meaningful effort to locate and inquire of the maternal grandfather about the
child’s possible Indian ancestry. Since we remand to require inquiry of maternal
grandfather, we also require that ICWA inquiry be made as to maternal aunt. If, after
completing the inquiry, neither DPSS nor the juvenile court has reason to believe or
reason to know the child is an Indian child, the order terminating parental rights shall be
reinstated. If, however, DPSS 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:
RAMIREZ P. J.
CODRINGTON 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 initial duty of inquiry under the Indian Child Welfare Act (ICWA) by failing to interview the maternal grandfather and maternal aunt regarding the child's Indian ancestry. Consequently, the order terminating parental rights was conditionally reversed and remanded for the agency to conduct the required inquiries.
Issues
Did the Department of Public Social Services fail to discharge its initial duty of inquiry under ICWA and California law?
Is the failure to inquire of extended family members regarding Indian ancestry prejudicial error requiring conditional reversal?
Disposition. conditionally reversed and remanded
Quotations verified verbatim against the opinion
“substantial evidence does not support the juvenile court’s implicit finding that DPSS complied with its duty of initial inquiry under section 224.2, subdivision (b).”
“the record is devoid of any indication that DPSS made a meaningful effort to locate and interview the maternal grandfather to obtain whatever information he may have as to the child’s possible Indian status.”
“Thus, on this record, we conclude mother’s claim of ICWA error is prejudicial and reversible.”