Filed 2/22/23 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
D.S.,
Petitioner, E079017
v. (Super.Ct.No. J290699)
THE SUPERIOR COURT OF SAN ORDER MODIFYING BERNARDINO COUNTY, OPINION
Respondent; [NO CHANGE IN JUDGMENT]
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
THE COURT
The opinion filed in this matter on February 15, 2023, is modified as follows:
On page 13, following the very last sentence ending in “ICWA compliance on an
appeal from any such order,” a new paragraph is to be added. The paragraph should read:
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III.D. 1 Petitioner is DIRECTED to prepare and have the peremptory writ of mandate
issued, copies served, and the original filed with the clerk of this court, together with
proof of service on all parties.
This modification does not change the judgment.
CERTIFIED FOR PARTIAL PUBLICATION
FIELDS J.
We concur:
MILLER Acting P. J.
CODRINGTON J.
2 Filed 2/15/23 (unmodified opinion)
THE SUPERIOR COURT OF SAN OPINION BERNARDINO COUNTY,
Respondent;
PURPORTED APPEAL from an order of the Superior Court of San Bernardino
County, treated as petition for extraordinary writ. Lynn M. Poncin, Judge. Petition
granted.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III.D. 1 Jamie A. Moran, by appointment of the Court of Appeal, for Petitioner.
Tom Bunton, County Counsel, Joseph R. Barrell and Glen C. Moret, Deputy
County Counsel, for Real Party in Interest.
I. INTRODUCTION
Petitioner D.S. (Mother) is the adoptive mother of A.S. In 2021, San Bernardino
County Children and Family Services (CFS) filed a petition pursuant to Welfare and
Institutions Code1 section 300 et seq. on behalf of A.S. in response to allegations of
physical abuse. During the pendency of the proceedings, Mother filed a petition pursuant
to section 388, seeking to have A.S. placed back in Mother’s home. She filed a notice of
appeal from the summary denial of this petition.
However, on appeal, Mother does not address any issue encompassed by her
section 388 petition. Nor does she seek reversal of the order denying her petition or
reversal of any prior jurisdictional or dispositional orders. Instead, Mother’s opening
brief is entirely devoted to seeking review of the adequacy of the juvenile court and
CFS’s efforts to fulfill their obligations under the Indian Child Welfare Act of 1978
(ICWA; 25 U.S.C. § 1901 et seq.), seeking only to have the matter “remanded with
instructions for the juvenile court to order full compliance with the inquiry provisions of
the ICWA.”
As a result, we construe Mother’s appeal as a petition for extraordinary writ
seeking an order directing the juvenile court and CFS to comply with their statutory
1 Undesignated statutory references are to the Welfare and Institutions Code. 2 duties under ICWA and the related California statutes; and, upon consideration of the
matter on the merits, we grant the requested relief.
II. FACTS AND PROCEDURAL HISTORY
Mother is the only adoptive parent of A.S. On September 28, 2021, CFS filed a
petition on behalf of A.S. pursuant to section 300 et seq. in response to allegations that
Mother had physically abused A.S. At the detention hearing on September 29, Mother
personally appeared and (1) confirmed she was the only adoptive parent of A.S.,
(2) denied knowledge of any Indian ancestry, and (3) provided contact information for
several relatives, including a maternal aunt, maternal uncle, and maternal grandparents.
No subsequent reports filed by CFS document or otherwise suggest that social workers
contacted any of these relatives to inquire whether they had knowledge of A.S.’s
potential status as an Indian child.
At a contested jurisdictional and dispositional hearing held on January 3, 2022, the
juvenile court found that ICWA did not apply, denied further reunification services to
Mother, and set the matter for a permanency planning hearing pursuant to section 366.26.
On May 3, the juvenile court held a hearing pursuant to section 366.26. However, the
juvenile court did not terminate Mother’s parental rights and instead set the matter for
further hearing.
On May 16, 2022, Mother filed a petition pursuant to section 388, requesting only
that A.S. be placed back in Mother’s home based upon purported changed circumstances.
Her petition did not request a reinstatement of reunification services or a change in the
juvenile court’s other jurisdictional or dispositional orders. The juvenile court summarily
3 denied the petition without a hearing, and Mother filed a notice of appeal from the order
denying her section 388 petition.
III. DISCUSSION
A. We Will Construe Mother’s Appeal as a Petition Seeking a Writ of Mandate
“ ‘ “[A]n appealable judgment or order is a jurisdictional prerequisite to an
appeal.” ’ [Citations.] . . . ‘ “Appeals in dependency proceedings are governed by
section 395,” ’ ” and “ ‘ “ ‘[a] consequence of section 395 is that an unappealed
disposition or postdisposition order is final and binding and may not be attacked on
appeal from a later appealable order.’ ” ’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 74; In
re A.A. (2016) 243 Cal.App.4th 1220, 1234.) Additionally, “ ‘ “[o]ur jurisdiction on
appeal is limited in scope to the notice of appeal and the judgment or order appealed
from.” ’ ” (In re J.F., at p. 75.) In this case, Mother has appealed from the juvenile
court’s order denying her section 388 petition. However, the petition raised only the
issue of temporary placement of A.S. The issue of ICWA compliance was never raised
in this petition.2 Thus, the issue Mother raises in her opening brief is clearly outside the
scope of her notice of appeal, as well as the order from which she appealed.
2 Nor could the section 388 petition reasonably be construed to encompass any issue involving ICWA compliance. The ICWA and related California statutes are intended to provide tribal entities with notice and an opportunity to participate in any hearing “that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement . . . .” (§ 224.3, subd. (a).) Mother’s section 388 petition would not have led to any of these outcomes, as her petition did not seek reversal of the juvenile court’s prior orders terminating reunification services or setting the matter for a permanency planning hearing pursuant to section 366.26. Thus, Mother’s petition, even if granted, would have only provided for A.S.’s [footnote continued on next page]
4 Further, we observe that ordinarily, the failure to comply with statutory duties
under ICWA is not grounds for reversal of juvenile dependency orders issued prior to
termination of parental rights. (In re S.H. (2022) 82 Cal.App.5th 166, 177-179 [failure to
conduct proper initial inquiry under ICWA does not warrant reversal of jurisdictional and
dispositional orders]; In re Dominick D. (2022) 82 Cal.App.5th 560, 567 [“ICWA inquiry
and notice errors do not warrant reversal of the juvenile court’s jurisdictional or
dispositional findings and orders other than the ICWA finding itself.”].) Instead, to the
extent any party believes that an order directing ICWA compliance is necessary while a
juvenile dependency proceeding is still pending, that party should seek review by petition
for extraordinary writ. (See § 366.26, subd. (l); Dwayne P. v. Superior Court (2002)
103 Cal.App.4th 247, 261 [granting writ directing compliance with ICWA]; Justin L. v.
Superior Court (2008) 165 Cal.App.4th 1406, 1411 [same]; D.B. v. Superior Court
(2009) 171 Cal.App.4th 197, 208 [same].)
Nevertheless, we recognize that “ ‘[t]he best interest of the child is the
fundamental goal of the juvenile dependency system, underlying the three primary goals
of child safety, family preservation, and timely permanency and stability.’ ” (In re
Joshua A. (2015) 239 Cal.App.4th 208, 218.) Because CFS has chosen to respond to
Mother’s contention on the merits and has not conceded that it has any duty under ICWA
in this case, we do not believe the interests of justice or the best interests of A.S. are
placement back in Mother’s home until the time of the continued permanency planning hearing. Mother’s section 388 petition would not have resulted in any of these outcomes, and it did not seek reversal of the juvenile court’s prior orders terminating Mother’s reunification services. 5 served by declining to the address the issue of ICWA compliance, only to have the issue
raised anew in a subsequent appeal from a future permanency planning order.
Thus, we will exercise our discretion to construe Mother’s appeal as a petition for
writ of mandate (Olson v. Cory (1983) 35 Cal.3d 390, 400-401 [treating premature
defective appeal as a writ petition]; Jennifer T. v. Superior Court (2007) 159 Cal.App.4th
254, 260 [construing defective appeal from order setting a § 366.26 hearing as a petition
for writ of mandate]), which would have been the more appropriate vehicle for seeking
an interlocutory order directing ICWA compliance (Justin L. v. Superior Court, supra,
165 Cal.App.4th at pp. 1408-1411 [issuing preemptory writ of mandate directing juvenile
court and child welfare agency to comply with inquiry and notice requirements under
ICWA]). As we explain, we believe that Mother has established that she is entitled to the
order requested.
B. Legal Background and Standard of Review
“Congress enacted ICWA in 1978 to address concerns regarding the separation of
Indian children from their tribes through adoption or foster care placement, usually in
non-Indian homes. [Citation.] ICWA established minimum standards for state courts to
follow before removing Indian children from their families and placing them in foster
care or adoptive homes.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)
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
6 ‘reason to believe’ the child is an Indian child, then the [department] ‘shall make further
inquiry regarding the possible Indian status 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., supra, 46 Cal.App.5th at p. 1052; § 224.2.)
Following the inquiry stages, the juvenile court may make a finding that ICWA
does not apply because the department’s inquiry and due diligence was “ ‘proper and
adequate’ but no ‘reason to know’ whether the child is an Indian child was discovered.”
(In re D.S., supra, 46 Cal.App.5th at p. 1050.) However, the duty to inquire is “ ‘an
affirmative and continuing duty’ ” and the juvenile court “ ‘shall reverse its determination
if it subsequently receives information providing reason to believe that the child is an
Indian child and order the social worker or probation officer to conduct further inquiry.’ ”
(In re D.S., at p. 1048, 1050 ; In re K.R. (2018) 20 Cal.App.5th 701, 706 [“[T]he juvenile
court has a continuing duty to conduct an inquiry when it has received information that a
dependent child might be an Indian child, as defined by ICWA . . . .”].)
A juvenile court’s finding that ICWA does not apply includes an implicit finding
that social workers fulfilled their duty of inquiry. (In re Austin J. (2020) 47 Cal.App.5th
870, 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; In re
Austin J., at p. 885 [finding reviewed for substantial evidence and implicit finding made
that social workers fulfilled their duty of inquiry].)
7 C. The Department Failed To Comply with Its Statutory Duty of Inquiry
Mother claims that CFS failed to fulfill its duty of initial inquiry because the
record does not show any effort to interview extended family members in order to
determine whether any information might exist that would suggest A.S. is an Indian
child. We agree.
The record in this case indicates that Mother provided contact information for a
maternal uncle, maternal aunt, and maternal grandparents at the time of the detention
hearing. The record also shows that A.S. identified the existence of these relatives when
speaking with a social worker. However, none of CFS’s reports document any effort to
contact any of these individuals for the purpose of making an ICWA inquiry. Thus, the
record does not support an implied finding that CFS fulfilled its duty of initial inquiry
under ICWA or the juvenile court’s finding that ICWA does not apply.
CFS concedes that its efforts in this case would normally be insufficient to fulfill
its statutorily mandated duty of inquiry, but it argues that it had no duty to conduct an
inquiry under the unique facts of this case because all of the identified relatives were
adoptive relatives. In support of this argument, CFS relies on In re Francisco D. (2014)
230 Cal.App.4th 73 (Francisco D.), which concluded that ICWA is inapplicable unless
the child is “ ‘a member of an Indian Tribe’ ” or “the biological child of a member of a
tribe” (In re Francisco D., at pp. 83-84). We disagree.
First, as acknowledged by CFS, Francisco D. predates the current statutory
scheme. Under the current statutory scheme, section 224.2 sets forth specific steps that a
child welfare agency must undertake in order to fulfill its duty of inquiry under ICWA.
8 (§ 224.2.) Notably, section 224.2 was not added to the Welfare and Institutions Code
until 2018—years after Francisco D. was decided. As such, Francisco D. is of little
value for the purpose of interpreting the obligations imposed by ICWA and the related
California statutes currently in effect.
Second, we do not believe the logic of Francisco D. can be extended to apply to
the current statutory scheme. Specifically, section 224.2 provides that the duty of initial
inquiry under ICWA now includes “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
. . . .” (§ 224.2, subd. (b).) Under California law, “an adopted person and the adopting
person are, by law, in a parent-child relationship the same as a natural parent and child”
(Ehrenclou v. MacDonald (2004) 117 Cal.App.4th 364, 372), and section 224.2,
subdivision (b), makes no distinction when using the term “parent.” Additionally,
inclusion of legal guardians, Indian custodians, others who have an interest in the child,
and the party reporting child abuse or neglect in the list of persons who must be
interviewed does not suggest any limitation on the duty of inquiry based upon a
biological connection to the child.3 In light of this clear and unambiguous language, we
3 Arguably, even the term “extended family member” does not suggest the necessity of a biological connection to the child. ICWA provides that the meaning of “ ‘extended family member’ ” is “defined by the law or custom of the Indian child’s tribe” and may include the child’s “brother-in-law,” “sister-in-law,” and “stepparent.” (25 U.S.C. § 1903, subd. (2).) 9 find no basis to conclude that the duty of inquiry imposed under section 224.2 is limited
only to biological relatives.
As CFS concedes, the record in this case clearly shows that it failed to contact
multiple known family members for the purpose of fulfilling its duty of inquiry under
ICWA, and the failure to do so is not excused simply because these family members may
be related by adoption.
D. The Record Does Not Permit Us To Conclude CFS’s Failure Was Harmless
CFS also argues that, even if it failed to fulfill its duty of inquiry, any such failure
should be deemed harmless. We disagree.
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 has adopted the standard of prejudice articulated in In re Benjamin M. (2021)
70 Cal.App.5th 735 (Benjamin M.), which 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.)
CFS concedes that under this standard, the record discloses that there was “readily
available information that could have been gathered from the relatives,” but it questions
10 whether any such information would have borne meaningfully on whether A.S. was an
Indian child. However, 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. (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,” and “as a general rule, we will find the
appellant’s claims of ICWA error prejudicial and reversible.” (In re N.G., at p. 484.)
CFS argues that information held by extended family members in this case would
be unlikely to bear meaningfully on whether A.S. was an Indian child because Mother
already denied knowledge of Indian heritage, and there was no evidence that she was
estranged from the identified family members. We disagree. “In determining whether
the failure to make an adequate initial inquiry is prejudicial, we ask whether the
information in the hands of the extended family members is likely to be meaningful in
determining whether the child is an Indian child, not whether the information is likely to
show the child is in fact an Indian child. In most circumstances, the information in the
possession of extended relatives is likely to be meaningful in determining whether the
child is an Indian child—regardless of whether the information ultimately shows the child
11 is or is not an Indian child.” (In re Antonio R., supra, 76 Cal.App.5th at p. 435; Benjamin
M., supra, 70 Cal.App.5th at p. 745 [“While we cannot know how [a relative] would
answer the inquiry, [the relative’s] answer is likely to bear meaningfully on the
determination at issue . . . .”].) Thus, the fact that family members might further disavow
knowledge of potential Indian ancestry is not dispositive.
On this record,4 it is clear that the information known to relatives was “likely to
bear meaningfully” upon whether A.S. is an Indian child. Under Benjamin M., even if
the identified relatives responded to an ICWA inquiry by confirming their lack of
information, such an answer assists CFS and the juvenile court in making a fully
informed determination regarding whether ICWA applies. Under this court’s precedent,
we cannot conclude that the failure to make such an inquiry was harmless.
IV. DISPOSITION
The petition for extraordinary writ is granted. Let a preemptory writ of mandate
issue directing the juvenile court and CFS to comply with the inquiry provisions of
ICWA and of Welfare and Institutions Code sections 224.2 and 224.3. The juvenile court
is further directed to vacate or continue any hearing set pursuant to section 366.26. If,
after completing the initial inquiry, neither CFS nor the juvenile court has reason to
believe or reason to know that A.S. is an Indian child, the juvenile court may proceed
4 CFS points out that some courts have come to different conclusions when applying the test articulated in Benjamin M. However, different outcomes are to be expected because the very purpose of the test articulated in Benjamin M. is to avoid “applying broad, rigid reversal rules” in favor of focusing on the specific facts of each case. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) 12 with setting the matter for a permanency planning hearing pursuant to section 366.26. If,
however, CFS or the court discovers a reason to believe that A.S. is an Indian child, the
court shall not conduct any such hearing until such time as the further inquiry and notice
requirements of 224.2 and 224.3 are met. If the juvenile court has already held a hearing
pursuant to section 366.26 during the pendency of this proceeding resulting in an order
terminating parental rights, this opinion shall be without prejudice to any claim involving
ICWA compliance on an appeal from any such order.