reason to know

Updated: California Supreme Court Granted Rare Reviews in Two Sets of ICWA Inquiry Cases

Kate Fort

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:

Screenshot 2023-07-27 at 11.33.29 AM

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.

Dezi C. Opinion

KennethD C096051

CA Supreme Court Grants

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):

Screenshot 2023-07-27 at 3.26.41 PM

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

In re Robert F.

In re Ja.O.

In re Delila D.

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.

Alaska Supreme Court Adopts In re Z.J.G. Reasoning in ICWA Reason to Know Opinion

Kate Fort

JimmyE

[14]We consider the Washington Supreme Court’s reasoning to be persuasive and note that other states also consider a specific, recent claim of Native heritage to be a “reason to know” the child is an Indian child.47 Tribes have many methods to determine membership or eligibility for membership, including lineal descent or blood quantum.48Additionally, a tribe may enroll an eligible child after being notified by a state agency that the child is involved in a child custody proceeding.49 Because the tribe as sovereign has exclusive power to determine tribal membership or eligibility for tribal membership, notifying the tribe when a child who may be a member is involved in a child custody proceeding is imperative to implementing ICWA’s protections of tribes and tribal members.

***

Perhaps more importantly, treating a parent’s uncertain statements as determinative in a context like this could undermine tribal sovereignty, because the tribe decides who is a member.56 It is a “basic federal rule” that tribes are the exclusive authority on their membership.57 We have previously held that absent a determination by a tribe, a child’s membership or eligibility for membership in a tribe is likely not subject to judicial admission, recognizing the legal authority of tribes to determine membership.58 Giving too much weight to the statements of a party without proof or input from the tribe would undermine this fundamental principle.

***

We reiterate that a “reason to know” that children are Indian children may arise in many different ways, based upon a multitude of different pieces of information, and determining whether there is a “reason to know” is a fact-intensive analysis requiring consideration of the record of information and context presented in any given case.64 Here, Jimmy’s specific claim that he is a recent descendant of a CIRI shareholder, paired with his early assertions related to his children’s tribal affiliation, gave OCS and the court “reason to know” his children are Indian children, triggering OCS’s duty to inquire and to treat the children as Indian children pending a definitive answer as to their status.

Minnesota Court of Appeals on Reason to Know: How to Write an Opinion On This [ICWA]

Kate Fort

OPa220311-051622

All the Courts of Appeals facing the question of reason to know should just go read this one (I’m looking at you, Colorado).

In this case the court ordered another investigation to ensure the children were not Indian children, and this bothered the state So Much that it asked for a writ of prohibition to avoid the order. The Court is pretty clear that the lower court has the power to order an investigation and dismisses the state’s argument that the lower court didn’t have “reason to know” in one succinct paragraph.

Finally, we reject the county’s assertion that the district court erroneously replaced the reason–to–know standard with a lower standard: that the children “might” be Indian children. “[R]eason to know” is “[i]nformation from which a person of ordinary intelligence . . . would infer that the fact in question exists or that there is a substantial enough chance of its existence that, if the person exercises reasonable care, the person can assume the fact exists.” Black’s Law Dictionary 1520 (11th ed. 2019). The word “might” means “to express possibility.” Random House Dictionary of the English Language Unabridged 1219 (2d ed. 1987). There is significant overlap between when a court “has reason to know” that a child is an Indian child and when there is a “possibility” that a child is an Indian child. On this record, we cannot say that the district court applied an incorrect standard. Moreover, as noted, even if a court has something less than a reason to know that a child is an Indian child, the court may nevertheless “choose to require additional investigation into whether there is a “reason to know” the child is an Indian child.” ICWA Guidelines, supra, at 11

Colorado’s Recent Struggles with Notice Standard [ICWA]

Kate Fort

21ca0381-pd

21CA0659-PD

21CA0764-PD

Colorado has long had a very low bar to trigger the reason to know provision of ICWA. The B.H. case from 2006 has long been a model for other states that involve the question of what information does a court need to trigger the “reason to know” requirement of 25 U.S.C. 1912(a). And here, in a recent CO Court of Appeals case, is what the current debate over how the regulations have changed the standards boils down to:

But an assertion of possible Indian heritage alone does not fall within a “reason to know” factor that would permit a participant or the court to assume the child is an “Indian child” under section 19-1-126(1)(a)(II). Thus, this type of an assertion does not require formal notice to a tribe or tribes to determine whether the child is an “Indian child.”

In re A-J.A.B., 2022 COA 31, P58

The state law referenced is the Colorado adoption of 25 C.F.R. 23.107(c), the regulations that are supposed to guide courts regarding the “reason to know” standard. However, this is a fundamentally different standard than that articulated by B.H.:

Because membership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to trigger the notice provisions of the Act.

138 P.3d 299, 304

The court of appeals states that state law has changed enough that B.H.’s reasoning was done under a different standard than the one in effect today (ICWA, of course, has not changed).

Much like the discussion in the In re Z.J.G. case, we are again debating the points of the six factors the regulations articulate as giving a court reason to know, and how they (according to the CO Courts of Appeals) narrow the reason to know standard, rather than guide it.

We agree with the E.M. division that information about the child’s heritage does not constitute “reason to know” that the child is an Indian child under section 19-1-126(1)(a)(II)(A). Information about a possible affiliation with two tribal ancestral groups does not satisfy one of the six reason to know factors

2022 COA 31 at P71

It is honestly stunning to me (though it should not be), that the passage of federal regulations means we are all now re-litigating notice issues that had long been settled. Last week, the Colorado Court of Appeals held

We conclude that a parent’s assertion of Indian heritage, standing alone, is insufficient to trigger ICWA’s notice requirements but, rather, it invokes the petitioning party’s obligation to exercise
due diligence under section 19-1-126(3). We further conclude that the exercise of due diligence under this provision is flexible and depends on the circumstances of, and the information presented to the court in, each case. Nonetheless, the record needs to show that the petitioning party earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child.

People in re J.L., 2022 COA 43, P3

And now, “due diligence” is an “earnest endeavor” on the part of the state when a parent tells the Court they have tribal relations. However, in both cases the court of appeals sent the case back due to the lack of “due diligence” to follow up on these statements by the parents. The Court in A-J.A.B. gives a very detailed remand instruction regarding due diligence, and what the Court will need by date certain.

To lower my blood pressure and end this post, I will remember what the Washington Supreme Court held, when faced with very similar facts and laws:

We hold that a court has a “reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage. We adopt this interpretation of the “reason to know” standard because it respects a tribe’s exclusive role in determining membership, comports with the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, is supported by the statutory language and implementing regulations, and serves the underlying purposes of ICWA and WICWA. Further, tribal membership eligibility varies widely from tribe to tribe, and tribes can, and do, change those requirements frequently. State courts cannot and should not attempt to determine tribal membership or eligibility. This is the province of each tribe, and we respect it.

In re Z.J.G., 471 P.3d 853, 865.

Reason to Know Decision out of Colorado Court of Appeals [ICWA]

Kate Fort
21ca0381-pdDownload

The Colorado Court of Appeals analyzed the regs on the reason to know issue, a similar argument to the In re Z.J.G. case from Washington. And as in Z.J.G., the Department is arguing for a narrower interpretation. However, the Court of Appeals reasoned:

Recall that the federal regulation and the Colorado statute implementing ICWA’s “reason to know” component distinguish between information that the child is an Indian child, 25 C.F.R. § 23.107(c)(1); § 19-1-126(1)(a)(II)(A), and information indicating that the child is an Indian child, 25 C.F.R. § 23.107(c)(2); § 19-1- 126(1)(a)(II)(B). These two provisions cannot have the same meaning because that would make one superfluous.

***

As a result, divisions of this court have repeatedly recognized that, where a district court receives information that the child’s family may have connections to specific tribes or ancestral groups, the court has “reason to know” that the child is an Indian child — even where the information itself does not establish that the child fully satisfies the definition of an Indian child

Notice Case from Montana [ICWA]

Kate Fort
In re M.T.Download

This is the year of notice and reason to know. Courts are finally wrestling with what the regulations do and do not require–and there is considerable concern about what to do if there is no response from a tribe. 

Whenever a court “knows or has reason to know” that a child is an “Indian child” under ICWA, the court is to verify the child’s status prior to conducting termination proceedings. 25 U.S.C. § 1912(a); In re L.D., 2018 MT 60, ¶ 13, 391 Mont. 33, 414 P.3d 768 (internal citations omitted). Whether a child is eligible for tribal membership is a question of fact dependent upon the child’s actual ancestry, and an Indian tribe provides the determination conclusively as a matter of law. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted); In re Adoption of Riffle, 273 Mont. 237, 242, 902 P.2d 542, 545 (1995).

¶22 It follows that a district court does not have authority to make a de novo conclusion regarding eligibility. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted). Instead, the district court must determine “(1) whether the court has reason to believe that a subject child may be an ‘Indian child’ and (2) whether an Indian tribe has conclusively determined that the child is a member or eligible for tribal membership.” In re L.D., ¶ 14 (internal citations omitted). Absent a conclusive tribal determination, a court abuses its discretion by terminating parental rights if there is “reason to believe” the child is an Indian child. In re L.D., ¶ 14 (internal citation omitted).

In this case, however, the issue was the Agency didn’t contact the Tribe at all, leading to the remand.

We hold the District Court abused its discretion in terminating Mother’s parental rights without a conclusive tribal determination of tribal membership status and enrollment eligibility in the United Keetoowah. Since the United Keetoowah is a federally recognized Cherokee tribe,3 and the Department did not contact the tribe, the District Court made a de novo determination regarding M.T. and L.T.’s United Keetoowah tribal eligibility, a determination which is in the sole province of the tribe.

ICWA Regulations, Reason to Know, and the Importance of In re Z.J.G.

Kate Fort

Now that the decision in out in In re Z.J.G., I feel like I can write about the reason this case was so important–beyond what I would consider the obvious (parent’s testimony), which I detailed in this post here.

The 2016 federal regulations for ICWA can be a double sided sword. There are portions of them that are absolutely vital and beneficial to the implementation and enforcement of ICWA. I think the most obvious one is the definition of active efforts in 25 C.F.R. 23.1, which finally gives a structure for one of the most important elements of the law. However, there are parts of the regulations that can be read in ways to counter ICWA’s protections. The reason to know section of the regulations has been one of those areas.

ICWA requires a bunch of stuff, including notice, when a court “knows or had reason to know” there is an Indian child in a child custody proceeding. 25 U.S.C. 1912(a) The regulation in contention in In re Z.J.G. was 23.107(c). That section states a court “has reason to know that a child involved in an emergency or child custody proceeding is an Indian child if:” and gives six elements. Those elements use the term “Indian child” in them–as in “any participant in the proceeding … informs the court that it has information indicating that the child is an Indian child.” 23.107(c)(2) (emphasis added). Some states, including Washington, took it upon themselves to read this regulation to mean that the child must be an “Indian child” as defined in ICWA–a member or eligible for membership and the biological child of a member–for a court to have reason to know. If this feels like circular reasoning, I’d argue that it is. Or, as Justice Montoya Lewis wrote:

However, this narrow interpretation commits the error addressed above: it assumes state agencies or participants will know and properly interpret tribal membership and eligibility rules. This interpretation diminishes the tribe’s exclusive role in determining membership and undermines the historical purpose of providing proper notification to tribes.

Decision at 30. 

And also,

While a broad interpretation serves the statute’s purposes, a narrow interpretation would undermine the protection of Indian children and tribes. The “reason to know” finding triggers the requirement of formal notification to tribes. 25 U.S.C. § 1912(a); RCW 13.38.070(1). Without formal notification, tribes are likely unaware of the child custody proceedings. Lack of notice repeats the historical harms that predicated the passage of ICWA and WICWA: Indian children are more likely to be taken and then lost in the system, often adopted when legally free, primarily to non-Native homes; tribes are denied the opportunity to make membership determinations; and tribes are unable to intervene in the case or exercise jurisdiction. 25 U.S.C. § 1911. Further, the failure to timely apply ICWA may unnecessarily deny ICWA protection to Indian children and their families, which could lead to unnecessary delays, as the court and parties may need to redo certain processes in order to comply with ICWA standards. ICWA Proceedings, 81 Fed. Reg. at 38,802; see also 25 U.S.C. § 1914 (noting that any Indian child, parent, or tribe may petition any court to invalidate a child custody action “upon a showing that such action violated any provisions of sections 1911, 1912, and 1913 of this title”). As those who practice in the area of child welfare and dependency know, if a court determines  that ICWA and WICWA should have been applied from the beginning of a case and was not, key decisions may have to be revisited because the burden of proof is higher at threshold stages of dependency cases.

Decision at 33-34.

Finally, a thing I think we forget a lot when talking about the regulations–they are the federal minimum standards. 25 C.F.R. 23.106. In Washington, for example, the state law has even more qualifying language. stating that a court has a reason to know an Indian child is involved in the case when it “knows or has reason to know a child is or may be an Indian child.” RCW 13.38.070. And while it could have done so, the Washington Supreme Court did not base its unanimous decision on just WICWA, but rather on ICWA, the regulations, and independently and alternatively on WICWA. 

Anyway, yes, I did do my first oral argument in this case, thanks to a bunch of awesome lawyers, including the two women attorneys up at CCTHITA, and we worked with the Center for Indigenous Research and Justice and Hon. Whitener (ret.) to get all the briefs filed, and was lucky to work with the very excellent parent attorney, Tara Urs (co-author of my top five favorite law review articles ever).

Also, all of this is all available publicly in all the briefing here, but I wanted to break it down into a post for those who might not read ALL of that:

98003-9 – In the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children.
Hearing Date – 06/25/2020

Washington Supreme Court Finds Reason to Know in In re Greer/ZJG [ICWA]

Kate Fort

The Supreme Court reversed the Court of Appeals. Justice Montoya-Lewis wrote the unanimous opinion.

The opinion is here: 

98003-9-opinionDownload

It is a long opinion with a lot of history, and information. Friend of the blog Sandy White Hawk is featured extensively. There are important law review articles and social science articles cited.

Importantly for future cases, the Court held “We hold that a court has a ‘reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage.”

The Indian Law Clinic at MSU represented the Tribes in this case, along with the Center for Indigenous Research and Justice.

(To be clear I am Very Excited about this and it is a Big Deal.)

Reason to Know Decision from NC Supreme Court [ICWA]

Kate Fort

Opinion by Justice Beasley, putting the burden on the court to ensure inquiry and notice are done properly:

Here, the record shows that the trial court had reason to know that an Indian child might be involved. In eight separate filings, DSS indicated in its court reports that respondent-father indicated that he had Cherokee Indian heritage. Respondent-father also raised his Indian heritage during a Child and Family Team Meeting, and his comments were included in a report filed by DSS with the trial court. Although the trial court had reason to know that an Indian child might be involved in these proceedings, the trial court failed to readdress its initial finding that the Act did not apply and failed to ensure that any Cherokee tribes were actually notified.

Crosscut Article on Greer Case

ilpc

Here

ICWA was thereafter applied to the case, but the damage was done — the children were placed in foster care without the normal protections the law would have offered them. Now, the Central Council of Tlingit and Haida Indian Tribes of Alaska are challenging the decision in the Washington State Supreme Court. If the court’s decision is upheld, advocates say the case could significantly weaken the use of ICWA in Washington by raising the bar for what qualifies as a “reason to know” that a child is “Indian” in the eyes of the law.

Kathryn Fort, director of Michigan State’s Indian Law Clinic, who is arguing on behalf of the tribes in the case involving Greer and Graham, says that it shouldn’t be so difficult. The burden of checking in with a tribe is low, she says, but the outcome has immense implications for the family, children and tribe.

Briefing and oral arguments here.