L.A. Cty. Dep't of Child. & Fam. Serv. v. Angelica A. (In re Dezi C.)

553 P.3d 829

324 Cal.Rptr.3d 275

IN RE DEZI C. et al., Persons Coming Under the Juvenile Court Law.

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

v.Angelica A., Defendant and Appellant.

S275578

Supreme Court of California.

August 19, 2024

Second Appellate District, Division Two, B317935, Los Angeles County Superior Court, 19CCJP08030A and 19CCJP08030B, Robin R. Kesler, Judge

Karen J. Dodd and John L. Dodd, Tustin, under appointments by the Supreme Court, for Defendant and Appellant.

Suzanne Nicholson, Sean Angele Burleigh and Christopher Blake for California Appel- late Defense Counsel as Amicus Curiae on behalf of Defendant and Appellant.

Dorothy Alther, Bishop, Hannah Reed, Laura Pedicini, Sheila Quinlan, San Francisco; Kimberly Cluff and Shunya Wade for California Indian Legal Services and California Tribal Families Coalition as Amici Curiae on behalf of Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer Henning; Claudia G. Silva, County Counsel (San Diego), Lisa M. Maldonado, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel, for the California State Association of Counties as Amicus Curiae on behalf of Plaintiff and Respondent.

Opinion of the Court by Evans, J.

In 1978, Congress enacted the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) to "formalize[ ] federal policy relating to the placement of Indian children outside the family home." (In re W.B. (2012) 55 Cal.4th 30, 40, 144 Cal.Rptr.3d 843, 281 P.3d 906 (W.B.).) Under ICWA’s state analogue, the California Indian Child Welfare Act (Cal-ICWA), courts and child welfare agencies are charged with "an affirmative and continuing duty to inquire whether a child … is or may be an Indian child" in dependency cases. (Welf. & Inst. Code, § 224.2, subd. (a).) Child welfare agencies discharge this state law duty by "asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled."¹ (Id., subd. (b).)

We are tasked with determining whether a child welfare agency’s failure to make the statutorily required initial inquiry under California’s heightened ICWA requirements constitutes reversible error. California courts have reached differing conclusions on this issue, and we granted review to resolve this conflict. ICWA and Cal-ICWA are unique statutory schemes that are intended to protect Native American heritage, cultural connections between tribes and children of Native American ancestry, the best interests of Indian children, and the stability and security of Indian tribes and families. (See In re Isaiah W. (2016) 1 Cal.5th 1, 7-8, 203 Cal. Rptr.3d 633, 373 P.3d 444 (Isaiah W.); 25 U.S.C. § 1902; Welf. & Inst. Code, § 224, subd. (a).) When there is an inadequate inquiry and the record is underdeveloped, it is impossible for reviewing courts to assess prejudice because we simply do not know what additional information will be revealed from an adequate inquiry. We therefore hold that an inadequate Cal-ICWA inquiry requires conditional reversal of the juvenile court’s order terminating parental rights with directions to the agency to conduct an adequate inquiry, supported by record documentation. Accordingly, we reverse the judgment of the Court of Appeal with directions to conditionally reverse the order terminating parental rights and remand for further proceedings consistent with our opinion.

I. Factual and Procedural Background

Angelica A. (mother) and Luis C. (father) have two children, Dezi C. (born in May 2016) and Joshua C. (born in April 2018). (In re Dezi C. (2022) 79 Cal.App.5th 769, 775, 295 Cal.Rptr.3d 205 (Dezi C.).) In 2019, the Los Angeles County Department of Children and Family Services (Department) filed petitions pursuant to Welfare and Institutions Code² section 300 seeking to assert dependency jurisdiction over Dezi and Joshua and alleging the minors were at risk of harm in the custody of mother and father due to the parents’ substance abuse and domestic violence issues.

Mother and father completed Parental Notification of Indian Status (ICWA-020) forms prior to the detention hearing, and each indicated, "I have no Indian ancestry as far as I know."

The initial detention hearing was held in December 2019. The court asked the parents about the accuracy of the ICWA-020 forms and whether they had Indian heritage. Mother and father denied having Indian heritage, and the court found this was not an ICWA case. The court ordered the parents to provide the Department with the name, address, and any other identifying information of maternal and paternal relatives but did not explain why this information was necessary.

In February 2020, the juvenile court held a combined jurisdictional and dispositional hearing. It sustained the allegations of the petitions, removed Dezi and Joshua from the custody of their parents, and ordered the Department to provide the parents with family reunification services in accordance with the case plans of each parent.

A six-month review hearing was held in August 2020. At that hearing, the juvenile court concluded mother and father were not in compliance with their case plans, terminated reunification services, and set the matter for a permanency planning hearing pursuant to section 366.26.

At the section 366.26 permanency hearing, held in January 2022, the juvenile court concluded by clear and convincing evidence that the children were adoptable and were likely to be adopted by their paternal grandparents. The court terminated mother’s and father’s parental rights. ICWA was not mentioned.

In investigating the allegations underlying the dependency petitions, Department social workers spoke with paternal grandparents, maternal grandparents, father’s siblings, mother’s siblings, and one of father’s cousins. (Dezi C., supra, 79 Cal.App.5th at p. 776, 295 Cal.Rptr.3d 205.) It is undisputed that the social workers did not ask any of these individuals whether mother, father, Dezi, or Joshua had Indian ancestry. (Ibid.) This is despite the facts that: mother, father, and the children resided with paternal grandparents before the court asserted jurisdiction over the children and throughout the dependency proceedings, and paternal grandparents were likely to adopt the children; father’s cousin appeared at the detention hearing; and maternal grandparents appeared at the adjudication and disposition hearing.

Mother appealed the termination of her parental rights. Her sole contention on appeal was that the Department failed to comply with its duty under ICWA and related California provisions to initially inquire of "extended family members" (§ 224.2, subd. (b)) regarding the children’s possible Indian ancestry. The Court of Appeal found it was "undisputed that the Department’s initial inquiry was deficient" and thus concluded that the operative question was whether "the Department’s defective initial inquiry in this case render[ed] invalid the juvenile court’s subsequent finding that ICWA does not apply (and thus render[ed] invalid the court’s concomitant order terminating mother’s parental rights)?’’ (Dezi C., supra, 79 Cal. App.5th at pp. 776–777, 295 Cal.Rptr.3d 205.)

The Court of Appeal noted that "California courts have staked out three different rules for assessing whether a defective initial inquiry is harmless." (Dezi C., supra, 79 Cal. App.5th at p. 777, 295 Cal.Rptr.3d 205.) It considered and rejected the rules in favor of its own fourth rule. The Court of Appeal held that if an agency’s inquiry is deficient, that defect "is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA." (Id. at p. 779, 295 Cal.Rptr.3d 205, italics added.) It found this rule "best reconciles the competing policies at issue when an ICWA objection is asserted in later at the final phases of the dependency proceedings" (id. at p. 781, 295 Cal.Rptr.3d 205), while also respecting the California Constitution’s requirement that a judgment not be set aside "unless it ‘has resulted in a miscarriage of justice.’ " (Id. at p. 779, 295 Cal.Rptr.3d 205, citing Cal. Const., art. VI, § 13.) The Court of Appeal also observed that "[w]here, as here, there is no doubt that the Department’s inquiry was erroneous … we must assess whether it is reasonably probable that the juvenile court would have made the same ICWA finding had the inquiry been done properly." (Id. at p. 777, 295 Cal. Rptr.3d 205, citing People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

We granted review. Since that time, a number of Courts of Appeal have weighed in on the split of authority, and we have granted review and deferred further action in some of those matters until after this case is decided. (In re G.A. (2022) 81 Cal.App.5th 355, 296 Cal.Rptr.3d 544, review granted and held Oct. 12, 2022 [following Dezi C. rule and concluding error was harmless]; In re M.M. (2022) 81 Cal.App.5th 61, 296 Cal.Rptr.3d 624, review granted and held Oct. 12, 2022 [declining to adopt "reversal per se" approach and finding error harmless under all other standards]; In re An. L. (Dec. 8, 2022, B315986), 2022 WL 17493236 [nonpub. opn.], review granted and held Mar. 22, 2023; In re Athena R. (Dec. 13, 2022, B318751), 2022 WL 17592402 [nonpub. opn.], review granted and held Mar. 22, 2023; In re D.D. (Dec. 8, 2022, B319941), 2022 WL 17492523 [nonpub. opn.], review granted and held Mar. 1, 2023; In re E.T. (Oct. 4, 2022, B315104), 2022 WL 4876759 [nonpub. opn.], review granted and held Dec. 28, 2022; In re M.G. (Oct. 28, 2022, B317366), 2022 WL 15660397 [nonpub. opn.], review granted and held Jan. 18, 2023;...