In re A.C.

75 Cal.App.5th 1009

291 Cal.Rptr.3d 197

IN RE A.C., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Alexander C., Defendant and Appellant.

B312391

Court of Appeal, Second District, Division 1, California.

Filed March 4, 2022

Patricia K. Saucier, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.

BENDIX, J.

It is undisputed that the Los Angeles County Department of Children and Family Services (DCFS) failed to ask extended family members about Indian ancestry in derogation of state law ( Welf. & Inst. Code, § 224.2 )¹ implementing the Indian Child Welfare Act of 1978 (ICWA) ( 25 U.S.C. § 1901 et seq ). The only issue before us is whether that failure was prejudicial. This is father's sole appellate challenge to the juvenile court's jurisdictional and dispositional orders regarding his son, A.C. Defining prejudice can sometimes resemble Lewis Carroll's description of logic in Through the Looking-Glass: " ‘[I]f it was so, it might be; and if it were so, it would be but as it isn't, it ain't.’ " (Carroll, Alice's Adventures in Wonderland and Through the Looking-Glass (1998) p. 157.)

As eloquently summarized in the dissent, recent appellate jurisprudence has adopted a continuum of tests for prejudice stemming from error in following California statutes implementing ICWA ranging from a per se rule that any error is always prejudicial, to a test advocated by the dissent finding no prejudice unless the appealing parent makes a proffer that interviewing extended family members would yield information about potential Indian ancestry. We acknowledge the policy arguments in favor of this latter test not the least of which is preventing the delay caused by remanding a case for additional inquiry into a child's Indian status and the resulting inability to comply with competing statutory obligations expeditiously to provide a safe and permanent home for children within the juvenile court's jurisdiction.

We conclude, however, under the facts of this case, that DCFS's failure to ask extended family members about potential Indian ancestry was prejudicial. The dictates of our high court and mandatory statutory duties of initial inquiry compel this conclusion. Our conclusion, moreover, is consistent with the very purpose of ICWA—to remedy a history of removal of Indian children from their communities and cultural heritage.

Accordingly, we remand the matter with directions for the juvenile court to order DCFS to comply with section 224.2.

BACKGROUND

1. The Juvenile Court Assumed Jurisdiction Over the Children²

For an undisclosed period prior to her 18th birthday, mother, who was born in 1985, was in foster care. Mother has three children, T.F. (born in 2009), S.F. (born in 2011), and A.C. (born in 2017). Father is A.C.’s father. At the time the dependency proceedings commenced, the children were living with mother, and mother reported that father helped with A.C.

a. Section 300 petition

DCFS became involved with the family after mother drove while under the influence of alcohol and collided with another vehicle. The children were in mother's car during this collision.

DCFS filed a section 300 petition, and the juvenile court sustained allegations that A.C. was at risk of suffering serious physical harm based on mother driving while under the influence. The juvenile court allowed the children to remain in mother's care. As part of the case plan dated July 7, 2020, the court recommended father take parenting classes. The juvenile court ordered that father's visits occur in mother's home unless father participated in an interview with social workers and an assessment of his home. The juvenile court ordered mother to attend a six-month drug and alcohol program and to undergo random drug testing every other week. The court also ordered mother to attend parenting classes and to cooperate with DCFS for unannounced home visits.

b. Section 360 petition

On December 18, 2020, DCFS filed a section 360 petition alleging that the original disposition was ineffective in ameliorating the situation that required jurisdiction. Mother failed to comply with random drug testing. DCFS alleged that mother has a history of alcohol use and currently abused marijuana. DCFS further alleged that father failed to comply with court orders, including participating in parenting classes.

c. Section 342 petition

On January 12, 2021, DCFS filed a section 342 petition alleging that domestic violence involving mother and father placed A.C. at substantial risk of suffering serious physical harm. DCFS also alleged A.C. was at substantial risk of harm based on father's abusive conduct, father's substance abuse, and mother's failure to protect A.C. from father.

Following a hearing at which father testified, the court sustained the section 360 and 342 petitions. The juvenile court ordered A.C. removed from parental custody and granted mother and father reunification services. The juvenile court ordered both parents to attend a drug and alcohol program, weekly random drug and alcohol testing, parenting classes, domestic violence programs, and individual counseling.

2. Background on A.C.’s Indian Heritage

A DCFS report dated April 8, 2020 indicates that mother "denied the family [has] any known Indian Ancestry ...." but DCFS nevertheless concluded for unidentified reasons that ICWA "may apply." The record does not indicate that social workers asked father about potential Indian ancestry.

Mother completed a form indicating she had no known Indian ancestry. The form states, "Note: This form is not intended to constitute a complete inquiry into Indian heritage. Further inquiry may be required by the Indian Child Welfare Act." Father also completed a form (different from the one mother completed), checking the box, "None of the above apply." The "above" unchecked boxes describing Indian ancestry were as follows: (1) "I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe"; (2) "The child is or may be a member of, or eligible for membership in, a federally recognized Indian tribe"; (3) "One or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe"; (4) "I am a resident of or am domiciled on a reservation, rancheria, Alaska Native village, or other tribal trust land"; (5) "The child is a resident of or is domiciled on a reservation, rancheria, Alaska Native village, or other tribal trust land"; (6) "The child is or has been a ward of a tribal court"; and (7) "Either parent or the child possesses an Indian identification card indicating membership or citizenship in an Indian tribe." Father's form also stated, "Note: This form is not intended to constitute a complete inquiry into Indian heritage. Further inquiry may be required by the Indian Child Welfare Act."

In December 2020, DCFS reported that T.F. and A.C. were placed with a maternal aunt and S.F. was placed with a different maternal aunt. The record does not indicate that social workers asked maternal relatives about Indian ancestry. The January 15, 2021 report indicated that T.F. and A.C. were placed with a maternal cousin and S.F. was placed with a maternal aunt. There is no indication that DCFS interviewed either the maternal cousin or maternal aunt about A.C.’s potential Indian heritage.

After making interim findings that ICWA did not apply, on January 15, 2021, the juvenile court again concluded that ICWA did not apply, reasoning: Father "submits his ICWA-020 form. And the court reviews his ICWA-020 form. He indicates he has no American Indian heritage." "[O]n mother's original WIC 300 petition, mother had submitted her ICWA-020 form. And she indicated that she had no American Indian heritage. [¶] So as to the child [A.C.] ..., the court has no reason to know that this is an Indian child as described by the Indian Child Welfare Act, or no reason to believe, based on both parents submitting executed ICWA-020 forms denying American Indian heritage."

DISCUSSION

Father argues DCFS's failure to satisfy its statutory duty of initial inquiry as to extended family members was prejudicial. His argument is well-taken.

A. Legal Background

ICWA is about Indian patrimony. "The ICWA was designed to remedy a unique and longstanding record of child welfare abuses by federal and state officials, state court judges, and private adoption agencies that led to widespread removal of Indian children from their homes and communities. Extensive congressional hearings on the topic of Indian child welfare in the 1970s established that ‘[t]he wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today.’ [Citation.]" (Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance (2002) 51 Emory L.J. 587, 601.) "ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family." ( In re Austin J. (2020) 47 Cal.App.5th 870, 881, 261 Cal.Rptr.3d 297 ( Austin J. ).)

Given this history, ICWA and related state legislation collectively impose obligations on the juvenile court and child welfare agencies to cull information from the parents and extended family members about potential Indian ancestry. These are mandatory duties commensurate with the importance of ICWA's remedial goals.

California law requires at the outset of a dependency case that the child welfare agency and juvenile court inquire into whether a child is, or may be an Indian child. "The child welfare...