A parent raising an ICWA notice issue for the first time on appeal has the burden of introducing new evidence or making new assertions that demonstrate the failure to conduct an ICWA inquiry was prejudicial. . .
In affirmance, the Fourth District holds that although the juvenile court erred by failing to make an inquiry into father's Indian ancestry prior to terminating his parental rights, such error was harmless where father failed to claim Indian ancestry at any point during the dependency proceeding or on appeal.
In re A.C.
(June 25, 2021)
Court of Appeal 4 Civil E075333 (Div 2) 65 Cal.App.5th 1060, 21 Cal.Rptr.3d 526, 2021 FA 1991, per Ramirez, J (McKinster, J, concurring, and Menetrez, J, dissenting). San Bernardino County: Pace, J, order affirmed. For appellant: Emily Paige Uhre. For respondent (CFS): Jeffrey Moret. CFLP §G.170.10.20, R.49.1.
In November 2017, San Bernardino County Children and Family Services (CFS) investigated a report that mother physically abused and neglected her then-one-year-old child (A.C.). During its investigation, CFS found that mother would leave A.C. with her roommate's sister and sometimes others for more than a week at a time. Mother also admitted to using meth. CFS detained A.C. and filed a dependency petition. The juvenile court found that it had jurisdiction based on failure to protect and failure to support and ordered A.C. removed from parents' custody and ordered reunification services for both parents. The juvenile court also ordered mother and father (D.M.) to file Judicial Council Form ICWA-020, "Parental Notification of Indian Status" (ICWA-020). At this time, D.M.'s whereabouts were unknown, but mother stated she was a member of the Confederated Tribes of the Colville Reservation, a federally recognized Indian tribe. CFS sent an ICWA notice to the Colville Tribes and the Bureau of Indian Affairs.
Meanwhile, CFS located D.M. in prison but failed to ask him whether he had any Indian ancestry or instruct him to file an ICWA-020. In January 2018, D.M., who was still in custody at the time, made his first appearance at the jurisdictional/dispositional hearing. The juvenile court did not notify D.M. about his need to file an ICWA-020 at that time or later. In May 2018, after D.M. was released from prison, CFS met with D.M. but again failed to ask him whether he had any Indian ancestry. As a result, D.M. never filed an ICWA-020.
In January 2019, the Colville Tribes notified CFS that A.C. was not a member and not eligible for membership. Consequently, the juvenile court found that ICWA did not apply. At a 12-month review hearing, the juvenile court terminated mother's reunification services and at an 18-month review hearing, the juvenile court terminated D.M.'s reunification services. A Welf. & Inst.C. §366.26 permanency planning hearing was held on June 2020, during which the juvenile court terminated parental rights. D.M. appealed, but the Fourth District affirmed.
The majority finds a harmless error. . .
The justices first found that the juvenile court erred by failing to ask D.M. at his first appearance or at any later time whether he had any Indian ancestry. The majority, however, determined that such error was not prejudicial since D.M. failed to allege that he had Indian ancestry at any time during the dependency proceedings or on appeal. In noting that D.M. failed to allege Indian ancestry even for the first time on appeal, the majority acknowledged that appellate courts generally cannot consider postjudgment evidence that was never before the juvenile court but noted that cases involving the failure to conduct an ICWA inquiry are one of the "'rare and compelling'" exceptions. While the majority agreed with D.M. that such "'a requirement that the appellant must submit evidence outside the record is a substantial departure from the normal appellate procedure[,]'" it also noted that this departure favors him. In so holding, the Fourth District followed the holdings in In re Rebecca R. (2006) 143 Cal.App.4th 1426, 49 Cal.Rptr.3d 951 [asserted failure to ask father whether he had Indian ancestry was harmless where father didn't claim such ancestry on appeal], and In re A.B. (2008) 164 Cal.App.4th 832, 79 Cal.Rptr.3d 580 [although juvenile court proceeded without further inquiry after agency failed to provide ICWA form indicating whether mother had Indian heritage, error was harmless because augmented record showed that mother had denied having Indian heritage in another dependency case]. In its reliance on In re Rebecca R., the Fourth District places the burden of asserting Indian ancestry on the parents bringing the appeal. In fact, the majority expressly stated in this case that "[i]f [D.M.] did claim Indian ancestry, we would reverse…." That not being that case here, the majority affirmed the juvenile court's order.
Dissent. . .
Justice Menetrez dissented from the majority's holding since he finds such ICWA inquiry cases presumptively prejudicial. In reaching this conclusion, Justice Menetrez noted that the majority's approach to these particular ICWA notice issues conflicts with recent case law. Moreover, Justice Menetrez would decline to follow In re Rebecca R., in part, he argued, because of its conflict with these more recent cases that treat ICWA inquiry violations as presumptively prejudicial. Instead, the dissent would place the burden on the trial court and social services agency to show that these errors were harmless.
The most notable point of law arising from this case and similar cases is that parents raising an ICWA notice issue for the first time on appeal have the burden of introducing new evidence or making new assertions that demonstrate the lower court's failure to conduct an ICWA inquiry was prejudicial. Without carrying this burden (e.g., by introducing postjudgment evidence of Indian ancestry), failure to conduct ICWA inquiries will be determined harmless. Practitioners should be mindful of this requirement, particularly since it involves a "'departure from normal appellate procedure.'"
16 Witkin, Summary of Cal. Law (11th ed. 2021) Juvenile, §154
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶7:71 et seq.