Figuring out where the California Court of Appeal courts are on the initial inquiry duty when a child is removed from their home is about as easy as detangling a ball of Christmas lights. The Samantha F. case does a nice job of going through where everything is, and what courts have held. This issue is fairly specific to California, which has certain ICWA inquiry requirements in state law and court rules for the removal of any child from their home. The question at issue seems particularly frustrating, because certain California courts have held there is no duty for contacting a child’s extended family re. tribal citizenship if the child was removed from the home with a warrant. However, there is such a duty if they were removed from the home without a warrant. In reading the cases, it feels like there was an oversight in drafting the state laws rather than some kind of legislative intent to suss out. Regardless, this has been the top litigated issue in California ICWA cases for almost a year now. In fact, it was nearly a year ago I posted about this at length. Apparently filing is finally underway in the In re Ja. O. case now. Briefing in the other set of cases appears to be complete but oral argument has not yet been set.
inquiry
Updated: California Supreme Court Granted Rare Reviews in Two Sets of ICWA Inquiry Cases
Buckle up–this is a long one. ETA: And it just keeps getting longer. See below for the latest addition.
For a while now, California courts of appeal have been struggling with the level of ICWA inquiry required in a child protection case. These inquiry cases often involve are about inquiry beyond that of asking the parents about their Native ancestry. The question usually is what is the duty of inquiry to extended family members after parents have repeatedly and unequivocally denied any Native ancestry, as it is in the as it is in the Dezi C. case. However, the other case granted, Kenneth D., the court failed to inquire of father at all. These appeals are also coming up very late in the proceedings–in both cases the appeal was of a termination of parental rights order.
The CA courts of appeal have been fighting about the standard for years, though I would say in the past two-three years it has become particularly acute. There are so many contradictory reported cases that I haven’t posted a vast majority of them. I’ve had a draft post running for almost a year trying to collect and explain what was going on, but it is far too unwieldy. In 2022, I started tracking only reported ICWA cases. In 2022, California had 35 REPORTED ICWA cases on inquiry alone:
In all of 2022, there were only 67 TOTAL reported ICWA cases, making these inquiry cases a full 53% of all ICWA cases that year.
First Set of Appeals: Inquiry of Relatives
The California Supreme Court granted review on Dezi C. and Kenneth D. from the 2022 bunch in the past year or so. As you can see, I had classified the Dezi C. case as a “reason to believe” which means the Court did analysis on the level of information it needed to determine if the case was an ICWA case.
The Dezi C. opinion outlines the current state in the California courts of appeal regarding whether “defective initial inquiry is harmless.” There were three concurrent rules as of the time of the opinion (June 14, 2022 if you wondered how slowly the CA Sct works):
1. “Automatic Reversal Rule:” Any defective initial inquiry requires reversal on that issue.
2. “Readily Obtainable Information Rule:” Defective initial inquiry is harmless unless the record indicates there is “readily obtainable information” that will “bear meaningfully” on the question on if the child is an Indian child.
3. “Presumptive Affirmance Rule:” Defective initial inquiry is harmless unless the parent comes forward with a reason on appeal why further inquiry would change the outcome of the ICWA determination.
Dezi C. introduced a fourth rule–
4. “Reason to Believe Rule:” objectively the only one that quotes the actual law, this rule states the record on appeal must “contain information suggesting a reason to believe the child may be an ‘Indian child.'” The Court gives three examples that would require reversal–someone tells the Agency there may be Native ancestry and the Agency ignores it; no one inquires of the parents if they have Native ancestry; the parents are adopted themselves and may not have the required information.
The Court then goes on the explain in detail why their rule is best and the other rules are the worst (obvi).
In applying the reason to believe rule to the facts of the case, the Court found there was no reason to believe the children were Indian children, as both parents denied to the Agency, on a form, and in court that they had any Native heritage. No one came forward claiming they did. The parents grew up with their biological families. And on appeal, the mother did not offer any evidence that either parent in fact has Native ancestry. Therefore, the failure of the Agency to do further inquiry to extended family members was harmless error.
The question at the Supreme Court is as follows:
In Re Dezi C., S275578. (B317935; 79 Cal.App.5th 769; Los Angeles County Superior Court; 19CCJP08030.) Petition for review after the Court of Appeal affirmed orders in a juvenile dependency proceeding. This case presents the following issue: What constitutes reversible error when a child welfare agency fails to make the statutorily required inquiry concerning a child’s potential Indian ancestry?
The Kenneth D. court applied the Dezi C. fourth rule to fairly different facts. In Kenneth D. the trial court completely failed to inquire of the putative father’s Native ancestry. The court order termination of parental rights on Mrch 22, 2022 and father appealed. The Agency supplemented the record on April 28 with the following information received from the father on April 21: Father said he might be Cherokee, and that his mother (grandmother) would have the information. The Agency spoke with the grandmother who explained their entire family is from Mexico so the Native heritage result she received on a DNA test likely results from Mexico. The grandmother provided the Agency with additional family contact information.
Mother in the case originally said she might have some Native ancestry from her Kentucky relatives, but denied any family member was a tribal citizen or that she was eligible to be a tribal citizen.
The father appealed the termination order asking for a reversal because of the lack of inquiry and the court held under the Reason to Believe test that the error of the court in not conducting an initial inquiry TO A PARENT was harmless.
The question at the California Supreme Court is as follows:
In re Kenneth D., S276649. (C096051; 82 Cal.App.5th 1027; Placer County Superior Court; 53005180.) Petition for review after the Court of Appeal affirmed an order in a juvenile dependency proceeding. This case presents the following issues: May an appellate court take additional evidence to remedy the failure of the child welfare agency and the trial court to comply with the inquiry, investigation, and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.), and if so, what procedures must be followed?
Briefing in Dezi C. is here
Kenneth D is here
Second Set of Appeals: Interpretation of California Welfare and Institutions Code Sec. 224.2(b)
In 2023, there have been fewer reported cases on inquiry so far (only 9, though there was one this week I haven’t entered into this spreadsheet, but talk about below):
There have been 28 (29 if you count Brackeen) reported cases total, so they are currently running less than half of the total.
However, there was a new issue that arose in In re Robert F. and In re Ja. O. out of the Fourth District, Div. II, regarding California’s statutory requirement of inquiry. Both of these cases have been granted review in the California Supreme Court yesterday. The question turns on an interpretation of the California statute governing this issue. For reasons that feel to me like a scrivener’s oversight/a citation lost in the drafting, the Court held that when a child is removed pursuant to a warrant, there is no statutory requirement to make ICWA inquiry. But when a child is removed without a warrant, the statute does require the inquiry.
In both cases, the children are removed and ICWA would apply if the children “Indian children,” under the law, and inquiry should be happening in both instances. It is in many ways a distinction without a difference for the purposes of ICWA inquiry. Perhaps unsurprisingly then, the Fourth District, Div. II, late last week held the exact opposition in In re Delila D.:
We conclude there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from home. Applying a narrower initial inquiry to the subset of dependencies that begin with a temporary removal by warrant frustrates the purpose of the initial inquiry and “den[ies] tribes the benefit of the statutory promise” of A.B. 3176. (In re S.S. (2023) 90 Cal.App.5th 694, 711, 307 Cal.Rptr.3d 308 (S.S.).) The goal of the initial inquiry is to determine whether ICWA’s protections may apply to the proceeding, and the way a child is initially removed from home has no bearing on the question of whether they may be an Indian child.
California Supreme Court Results from 7/26 Conference
Finally, did I get myself turned around and initially post the older granted cases as the new cases and then find the new cases and have to go back and fix everything? Perhaps. Special thanks to Lenny Powell for alerting me after the original post and helping sort this all out. Maybe I got excited because few of us remember the last time ICWA came up to the CA Supreme Court back in 2015-2016 with the Abbigail A. (obligation to enroll) and Isaiah W. (notice) cases.
Colorado Supreme Court On Inquiry and Notice
Unfortunately the Colorado Court did not continue its strong position on notice they had in the 2006 ex rel B.H. case.
Thus, as the divisions in A-J.A.B. and Jay.J.L. aptly noted, B.H. “required notice to tribes under a different criterion than the one in effect today.” A-J.A.B., ¶ 76, 511 P.3d at 763; Jay.J.L., ¶ 32, 514 P.3d at 319. As such, B.H. is inapposite.
¶56 In short, while assertions of a child’s Indian heritage gave a juvenile court “reason to believe” that the child was an Indian child under Colorado law in 2006, see B.H., 138 P.3d at 303–04 (emphasis added), the question we confront in this case is whether such assertions give a juvenile court “reason to know” that the child is an Indian child under Colorado law in 2022, § 19-1-126(1)(b) (emphasis added). We agree with the divisions in A-J.A.B. and Jay.J.L. that mere assertions of a child’s Indian heritage (including those that specify a tribe or multiple tribes by name), without more, are not enough to give a juvenile court reason to know that the child is an Indian child. And, correspondingly, to the extent that other divisions of the court of appeals have expressly or impliedly reached a contrary conclusion, we overrule those decisions.
The Indian Law Clinic at MSU represented the tribal amici in this case, the Ute Mountain Ute and Southern Ute Indian Tribes.
Reported Inquiry Case from California [ICWA]
So for the first time since 2015, I’m giving myself permission to only read the reported ICWA cases rather than all of the unreported ones. So what does California do? Start reporting way more cases! Five in this first quarter (as opposed to 1 in 2021).
This case itself notes that this is not a particularly unique, but that by reporting it, just the reporting might lead to compliance.
We publish our opinion not because the errors that occurred are novel but because they are too common. Child protective agencies and juvenile courts have important obligations under ICWA. Failing to satisfy them serves only to add unnecessary uncertainty and delay into proceedings that are already difficult for the children, family members, and caretakers involved. Delayed investigation may also disadvantage tribes in cases where it turns out ICWA does apply, as their opportunity to assume jurisdiction or intervene will come at a late stage in the proceeding.
Unfortunately, I don’t think just reporting a case will lead to compliance, especially when this is the final result:
We conditionally reverse the section 366.26 orders. On remand, the juvenile court shall (1) direct CFS to comply with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3 and update the court on their inquiry and the tribes’ responses and (2) determine whether ICWA applies. If the court determines ICWA does not apply, the orders terminating parental rights shall be reinstated and further proceedings conducted, as appropriate.
(emphasis added)
I haven’t crunched the numbers, but I am not convinced conditional reversal helps with compliance. Vivek Sankaran made this argument in the In re Morris case here in Michigan, and the sheer numbers in California indicate conditional reversal doesn’t seem to do much to change practice. I’m not sure reporting the case will change that. I still believe we should be reporting far more of the ICWA cases than we currently do, given that only about 20% of total ICWA appellate cases are reported.
North Carolina Supreme Court on Reason to Know [ICWA]
DSS and the guardian ad litem for Carrie (GAL) disagree, arguing that respondent
conflates the existence of or possibility of a distant relation with an Indian with
reason to know that a child is an Indian child.
States and courts are really struggling with how much information from a parent gives the court reason to know there is an Indian child in the case–I think this is especially since the regulations now make clear that if you do have reason to know, you must treat the child as an Indian child until demonstrated otherwise. At the same time, there is real issue with lack of nuance on this issue–when a trial court takes the facts from a case like In re Z.J.G. and treats them the exact same way as the facts in this case, which is essentially what happened, then states really have to go send notice for both, which is what the WA Supreme Court held. You don’t do the reverse, which is what the North Carolina Supreme Court has done in this case.
Now, I got an email from California recently and there is a lot of discussion there about the state’s laws there distinguishing between “reason to believe” and “reason to know.” There are a LOT of bumps with implementation, but they are essentially requiring a level, or duty, of inquiry and further inquiry from their state workers to ensure they aren’t missing ICWA cases.
I’d love to get into why is the GAL arguing against the application of ICWA or ensuring the child has the information she may need to be a tribal citizen, but I do have to do some other things today . . . https://turtletalk.blog/2013/11/25/fletcher-fort-indian-children-and-their-guardians-ad-litem/
ICWA Inquiry Case from Franklin Co. Ohio
A county with at least one awful case has a much better inquiry decision here. Turns out this is not enough, judges:
[Judge]: The question was posted as to whether or not the
requirements of ICWA had been met and hopefully, someone
has that answer for us.
[FCCS Attorney]: We did locate a log in which intake has asked
[appellant] if she participated with any Cherokee tribal
affiliation or membership. The answer was in the negative. And
then on June 15, 2018, subsequent to the complaint being filed
where [appellant] alleged some kind of Cher — Cherokee – * * *
heritage, [appellant] was put under oath on the record as noted
under [the juvenile court magistrate’s] order and she did state
that she did — was not eligible for membership and therefore,
no ICWA notifications would be required under the law. And at
that point the prosecutor had proceeded on the
adjudication/disposition as those notifications weren’t
required. But we did locate that; that is all in the record.
[Appellant] was put under oath again on June 15, 2018 and all
of that testimony is on the Court’s record. Thank you.[Judge]: Thank you. Not being familiar with the whole ICWA
process, I trust that satisfies everyone’s concerns in regard to
ICWA?[Appellant’s counsel]: Yes, Your Honor.
[Judge]: Very good then.
Pretty rare to be ok with admitting you just don’t know how to apply/aren’t familiar with a 40 year old law.
As such proper inquiry was not made here, we expressly make no
determination as to whether the juvenile court knows or has reason to know pursuant to 25
C.F.R. 23.107(c). We also expressly make no determination as to whether the children are
Indian children as defined in 25 U.S.C. 1903. Nevertheless, given the potential for
invalidation of a custody determination, we sustain the third assignment of error
California Inquiry and Notice Case [ICWA]
Ok, remember when I said this morning the California inquiry and notice process is in a . . . growth process? Here is another example. This case disagrees with the really not great In re Austin J. case and is from the same appellate district.
In re T.G. returns to the low bar for notice and inquiry California appellate courts have traditionally adhered to.
We agree the Department failed to adequately investigate Tamara’s claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding, if it ever actually did, ICWA did not apply to these proceedings. In reaching this result, we disagree with the holding in In re Austin J. (2020) 47 Cal.App.5th 870, 888-889 (Austin J.) that amendments enacted by Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (Assembly Bill 3176) were intended to limit the Department’s robust duty of inquiry. Accordingly, we conditionally reverse the orders for legal guardianship and remand the matters to allow the Department and the juvenile court to rectify their errors and to take all other necessary corrective actions.
So again, if you are practicing in California, this is a vital area to be following. If you are not practicing in California, I think it’s worth seeing how the new changes to the state laws shake out on appeals this year (2021). If you are a tribal attorney, know that California is supposed to be contacting a tribe very early in the proceedings, even if it is not with a formal notice packet.
Notice Case out of California [ICWA]
If you find the current published notice and inquiry cases out of California particularly confusing, join the club (and I’ve been trying to sort them out!). I think the important thing for tribal attorneys to know is that California is trying to do very early contact during the inquiry phase before they send formal notice. For some tribes this is very welcome, and for others, it’s a big change in practice. However, this does mean that California is trying to formalized very specific steps into law–from initial inquiry, reason to believe, further inquiry, reason to know, notice (I think). This means California case law probably won’t be particularly useful in this area in other state appeals.
Notice Case out of California [ICWA]
Since April, the California courts of appeal have been wrestling with California’s new law defining “reason to know” from ICWA’s section 1912 and “reason to believe” (state law standard). In addition, the department has been regularly petitioning to make cases reported rather than unreported. Since April with the In re Austin J. case, California courts have been reshaping their very low bar for notice to tribes into a much higher one, with the caveat that the California standard of “reason to believe” does require contact with tribes though not necessarily formal notice. Given California’s outsized role in notice and inquiry ICWA cases, this is a trend that bears watching, with the understanding this is based on California state law, and not the federal ICWA.
Here is In re M.W., decided on May 11. The Department petitioned for publication on May 15 and it was published on June 5. Under the reason to believe standard, the social worker,
The report documented the social worker’s contact with the 12 tribes by telephone, fax, e-mail, and/or mail, the name of the designated agent for each tribe, the dates of attempted contact with each designated agent (all between May 15 and June 4, 2019), and that each tribe was provided with the minor’s “ICWA Family Tree.” As of the date of the report, four of the tribes had confirmed the minor was not an Indian child. As of the July 10, 2019 hearing, six additional tribes had confirmed the minor was not an Indian child, and the two remaining tribes (the Navajo Nation and the White Mountain Apache Tribe) had acknowledged contact but had not yet provided a definitive response.
I am curious to know how out of state tribes are feeling this system is working, given that while California may change its ways, tribes are generally set up to receive the paperwork to confirm a family’s tribal membership, and we already know that informal phone calls to confirm or deny a child’s eligibility can be problematic. Early outreach is great, if it works to give tribes MORE information and not less.
Inquiry and Notice Case out of California (Published!)[ICWA]
At the detention hearing, Father said he had Native American Indian heritage, but he was unable to identify the correct tribe. Father believed his heritage was through his paternal grandmother. He provided CWS and the juvenile court with the names of his father and grandmother.
***
Father argues CWS failed to comply with ICWA requirements and the juvenile court did not make findings on whether ICWA applied. He contends the court was “not authorized to proceed with foster care placement until ICWA notice has been sent and received.” He is correct.
***
Here, CWS had reason to know the children might be Indian children. Accordingly, CWS was required to comply with ICWA notification requirements at least 10 days before the disposition hearing, because the hearing was an involuntary proceeding in which CWS “was seeking to have the temporary placement continue[d].” (Jennifer A., supra, 103 Cal.App.4th at pp. 700-701; 25 U.S.C. § 1912(a).)
This is very different from the reasoning applied by the Washington Court of Appeals here.
Turtle Talk 
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