In reversal, the California Supreme Court held an inadequate ICWA inquiry requires conditional reversal of juvenile court's order terminating parental rights with directions to the child welfare agency to conduct an adequate inquiry supported by record documentation; in so holding, the California Supreme Court expressly rejected the reason to believe rule, presumptive affirmance rule, and the readily obtainable information rule that have been used by various appellate courts to assess whether an ICWA inquiry error is harmless.

Parents deny having Indian ancestry. . .
In 2019, the Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition alleging Dezi C. and Joshua C. were at risk of harm in the custody of their parents, Angelica A. and Luis C., due to their substance abuse and domestic violence issues. Angelica and Luis completed Parental Notification of Indian Status (ICWA-020) forms and indicated "'I have no Indian ancestry as far as I know.'"

In December 2019, the juvenile court conducted the initial detention hearing, asking Angelica and Luis about possible Indian heritage. Both denied having Indian heritage, and the juvenile court found this was not an ICWA case. The juvenile court also asked the parents to provide contact information for maternal and paternal relatives.

In February 2020, the juvenile court held a combined jurisdictional and dispositional hearing in which it sustained the allegations in DCFS's petition and removed the children from the custody of their parents. The juvenile court further ordered DCFS to provide parents with reunification services.

At a six-month review hearing in August 2020, the juvenile court concluded Angelica and Luis were not in compliance with their case plan, terminated reunification services, and set a permanency planning hearing. Ultimately, the juvenile court terminated Angelica's and Luis's parental rights after it found the children were adoptable and likely to be adopted by their paternal grandparents.

DCFS fails to ask known relatives about potential Indian ancestry. . .
During their investigation, DCFS social workers spoke with parental grandparents, maternal grandparents, Luis's siblings, Angelica's siblings, and Luis's cousin. The social workers, however, did not ask any of these relatives whether Angelica, Luis, Dezi, or Joshua had Indian ancestry.

Angelica appealed the juvenile court's termination of her parental rights, but the Second District affirmed after finding that, despite the undisputed fact that DCFS's initial inquiry was deficient, the error was harmless. In so holding, the Second District announced a harmless error standard of review. This standard, later referred to as the "reason to believe" rule, holds that if a child welfare 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. The California Supreme Court granted review and reversed the Second District's judgment.

California's heightened duty of inquiry. . .
The majority justices began their analysis by describing the history of ICWA, including California's struggle with compliance. After the California Legislature discovered its state courts and agencies routinely failed to comply with ICWA, it enacted provisions reaffirming ICWA's purpose with the goal to increase compliance. These provisions resulted in heightened inquiry requirements. Per W&I C §224.2, agencies and juvenile courts have "'an affirmative and continuing duty' in every dependency proceeding to determine whether ICWA applies by inquiring whether a child is or may be an Indian child." W&I C §224.2(b) further requires that once a child is placed into the temporary custody of a county welfare department, this duty to inquire "includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting the child abuse or neglect, whether the child is, or may be, an Indian child[.]" For these purposes, "extended family member" means "'a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.'"

Various approaches developed by appellate courts. . .
With these legal principles in mind, the majority justices turned to the central issue on appeal, namely, what is the appropriate standard for prejudice in dependency cases in which the county welfare agency has failed to comply with ICWA's duty of inquiry. The majority noted the split of authority among the appellate courts on this issue, observing that five distinct rules have been developed. These rules include, first, the reason to believe rule adopted by the Second District. Second, the presumptive affirmance rule, which provides that error in the initial inquiry is harmless unless a parent can demonstrate on appeal that further inquiry would lead to a different outcome. Third, the reversible per se rule, which provides that reversal is required if a child welfare agency's initial inquiry is deficient. Fourth, the readily obtainable information rule, which holds that defect in the ICWA inquiry is harmless unless the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child. And finally, a hybrid substantial evidence/abuse of discretion approach that focuses on whether the agency's ICWA inquiry has yielded reliable information about the child's possible tribal affiliation, and, where this information has not been gathered, "'reversal for correction is generally the only effective safeguard.'"

After canvassing these various approaches, the majority justices expressly rejected the reason to believe rule, presumptive affirmance rule, and readily obtainable information rule. Instead, they held an inadequate ICWA inquiry requires conditional reversal of the juvenile court's order terminating parental rights with directions to the child welfare agency to conduct an adequate inquiry supported by record documentation. In so holding, the justices explained that they were not finding that an inadequate ICWA inquiry constitutes structural error, only that when an ICWA inquiry is inadequate, it is simply impossible to ascertain whether the agency's error is prejudicial. For that reason, the majority justices held that conditional reversal is warranted.

The majority justices next discussed several reasons supporting their conclusion. First, as the primary parties protected under ICWA, Native American tribes "'have no standing to intervene in a dependency case unless Native American ancestry is first uncovered and established." In other words, without compliance with ICWA, these tribes would have no way of protecting their tribal interest. Second, a conditional reversal rule best comports with the plain language of W&I C §224.2, particularly its provision imposing an "affirmative and continuing duty to inquire" on the county welfare agencies and juvenile courts and, notably, not the parents. According to the majority, "the entities charged with the duty to conduct the inquiry must attempt to cure that error and may not avoid their duty by placing the burden on the parents[.]" Third, it is critical to conduct an adequate inquiry at the outset of the proceeding. Otherwise, the likelihood that relevant information will be discovered later in the proceeding "declines precipitously." And fourth, this approach will encourage prompt and complete compliance with ICWA, which in turn will avoid delay and duplicative efforts.

In addressing the Court of Appeal's concern that this approach will result in an "'endless feedback loop of remand, appeal, and remand,'" the majority justices noted that their conclusion does not require a reversal in every instance where every possible extended family member has not been asked about possible Indian ancestry. In fact, W&I C §224.2 does not require the agency to find unknown relatives, but instead to make reasonable inquiries. According to the majority, "'[t]he operative concept is those people who are reasonably available to help the agency with its investigation into whether the child has any potential Indian ancestry should be asked.'" The majority added that, on a well-developed record, the juvenile court has broad discretion to determine whether the agency has discharged its duty of inquiry.

The majority next addressed one of the central concerns of the dissenting justices, namely, that the conditional reversal approach will lead to unnecessary delays to the long-term placement of dependent children. Although the majority justices expressed agreement with the dissent that "'permanency and stability are of paramount importance,'" they also expressed some additional considerations. First, it is the lack of timely and proper inquiry that leads to delays by "'call[ing] into doubt the finality of juvenile court orders.'" Second, in cases where the inquiry is inadequate, the parties may expedite resolution by stipulating to a conditional reversal and the immediate issuance of the remittitur to give the juvenile court jurisdiction to order ICWA compliance. Third, a conditional reversal will lead to a more expeditious resolution than a per se reversal of the entire judgment. And fourth, agencies can prevent such delays and avoid repeated remands by conducting an adequate inquiry in the first place. Regarding this last point, the majority noted that since agencies are already identifying and locating the child's extended family members as part of their investigation into the child's removal, "it is a rather simple task to ask those family members about Indian ancestry in this process."

Next, the majority justices discussed their reasons for rejecting the reason to believe rule announced by the Second District, noting that such approach contravenes W&I C §224.2 by improperly shifting the responsibility of courts and agencies to the parents. The majority also noted that this approach ignores the fact that parents may not know of, or be willing to disclose, their Indian heritage. For example, parents may be estranged from extended family members or be unaware of their family's tribal affiliation. And finally, requiring parents to proffer some evidence tending to show the child is Indian would fail to protect tribal interest when parents' interests are not aligned with tribal interests, such as when parents view tribal involvement in the dependency proceeding as competition for custody of their child.

The majority then disapproved the following cases insofar as inconsistent with its decision: In re A.C. (2021) 65 Cal.App.5th 1060, 280 Cal.Rptr.3d, 2021 FA 1991 526; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 49 Cal.Rptr.3d 951; In re Benjamin M. (2021) 70 Cal.App.5th 735, 285 Cal.Rptr.3d 682; In re Samantha F. (2024) 99 Cal.App.5th 1062, 318 Cal.Rptr.3d 575; In re V.C. (2023) 95 Cal.App.5th 251, 313 Cal.Rptr.3d 272; In re Ricky R. (2022) 82 Cal.App.5th 671, 298 Cal.Rptr.3d 602; In re S.S. (2022) 75 Cal.App.5th 575, 290 Cal.Rptr.3d 564; In re Darian R. (2022) 75 Cal.App.5th 502, 290 Cal.Rptr.3d 575; In re A.C. (2022) 75 Cal.App.5th 1009, 291 Cal.Rptr.3d 197; In re Y.M. (2022) 82 Cal.App.5th 901, 299 Cal.Rptr.3d 118; In re Adrian L. (2022) 86 Cal.App.5th 342, 302 Cal.Rptr.3d 317; In re D.B. (2022) 87 Cal.App.5th 239, 303 Cal.Rptr.3d 405; In re Ezequiel G. (2022) 81 Cal.App.5th 984, 297 Cal.Rptr.3d 685; In re G.A. (2022) 81 Cal.App.5th 984, 296 Cal.Rptr.3d 544; In re Allison B. (2022) 79 Cal.App.5th 214, 294 Cal.Rptr.3d 581; In re A.M. (2020) 47 Cal.App.5th 303, 260 Cal.Rptr.3d 412; In re Austin J. (2020) 47 Cal.App.5th 870, 261 Cal.Rptr.3d 297; and In re M.M. (2022) 81 Cal.App.5th 61, 296 Cal.Rptr.3d 624.

Accordingly, the California Supreme Court majority reversed the Second District's judgment with directions to conditionally reverse the juvenile court's order terminating parental rights. The Court further remanded the matter to the juvenile court for compliance with the inquiry and notice requirements of W&I C §224.2 and document provisions of Cal Rules of Court, rule 5.481(a)(5).

In a concurring opinion, Justice Kruger expressed agreement with the majority's holding that an inadequate ICWA inquiry requires conditional reversal of the juvenile court's order terminating parental rights. However, Justice Kruger also noted her agreement with the portion of the dissenting opinion discussing what constitutes an adequate initial inquiry under ICWA. More specifically, the concurrence clarified that ICWA "does not, as some have assumed, require the juvenile court to leave no stone unturned in an 'open-ended universe of stones,' thereby creating ever-widening circles of mandatory inquiry."

Dissent would apply Watson standard by adopting reason to believe rule. . .
In a dissenting opinion, Justice Groban (joined by Chief Justice Guerrero) noted that the majority's adoption of an "automatic conditional reversal" rule does not comport with the constitutional mandate that no judgment shall be set aside unless the error complained of has resulted in a miscarriage of justice. As the dissent observed, the well-established standard of review for harmlessness set forth in People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243, provides that reversal is appropriate only where the petitioner can show that "'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" Noting that the Watson standard has been applied for almost 70 years and in various contexts, the dissent would apply the Watson standard to this issue by adopting the Court of Appeal's reason to believe rule.

According to the dissent, the majority's conditional reversal rule will also lead to critical delays in dependency proceedings. These delays, in turn, "may throw an adoption off track entirely if the prospective adoptive family cannot tolerate further delay." The dissent added that these delays will occur in every case where a child welfare department fails to comply with ICWA, even "in cases where there is zero evidence that the child is Indian." The dissent noted, for example, that both parents in the present case denied having Indian ancestry on multiple occasions, including under penalty of perjury. Moreover, Angelica's counsel conceded that the likelihood of tribal placement is "'minimal.'" Meanwhile, Dezi was three and half years old and Joshua was one and half years old when the dependency proceedings began, and at the time of the Court's opinion, they were over eight and six years old. According to the dissent, "[t]he majority's formulaic approach needlessly condemns these children and others like them to more uncertainly, more instability, and more trauma."