duty of initial inquiry in California

2024(In re Abbigail A. (2016) 1 Cal.5th 83, 91 ; In re Benjamin M. (2021) 70 Cal.App.5th 735 , 741–742.) State law imposes on the Department a first-step inquiry duty to “interview, among others, 4 extended family members and others who had an interest in the child.” (In re H.V. (2022) 75 Cal.App.5th 433 , 438; see § 224.2, subd. (b).) Federal regulations explain that the term “[e]xtended family member is defined by the law or custom of the Indian child’s Tribe or, in the absence of such law or custom, is a person who has reached age 18 and who is the Indian child’s grandparent, aunt or uncle, bro

2023(In re Abbigail A. (2016) 1 Cal.5th 83, 91 ; In re Benjamin M. (2021) 70 Cal.App.5th 735 , 741–742.) State law imposes on the Department a first-step inquiry duty to “interview, among others, extended family members and others who had an interest in the child.” (In re H.V. (2022) 75 Cal.App.5th 433 , 438; see § 224.2, subd. (b).) Federal regulations explain that the term “extended family member is defined by the law or custom of the Indian child’s Tribe or, in the absence of such law or custom, is a person who has reached age 18 and who is the Indian child’s grandparent, aunt or uncle, brother

2023Specifically, 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

2023Specifically, 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

2023(In re Ricky R., supra, 82 Cal.App.5th at p. 671; see also In re E.V. (2022) 80 Cal.App.5th 691 ; In re Jennifer A. (2002) 103 Cal.App.4th 692 ; In re M.B., supra, 80 Cal.App.5th 617 ; In re K.M. (2015) 242 Cal.App.4th 450, 458 (K.M.).) Where, as here, both the agency and the juvenile court judge failed to follow state law implementing ICWA, “[m]aking the appellate court the trier of fact is not the solution.” (In re Jennifer A., at p. 703.) Instead, the juvenile court should consider in the first instance whether the department remedied their failure and fulfilled the duty of initial inquiry.

2022(Aug. 25, 2022, E078646); see also, e.g., In re E.V. (2022) 80 Cal.App.5th 691 ; In re Jennifer A. (2002) 103 Cal.App.4th 692 ; In re M.B., supra, 80 Cal.App.5th 617 ; In re K.M. (2015) 242 Cal.App.4th 450, 458 .) Where, as here, both the agency and the juvenile court failed to follow state law implementing ICWA, “[m]aking the appellate court the trier of fact is not the solution.” (In re Jennifer A., at p. 703.) Instead, the juvenile court should consider in the first instance whether the department remedied their failure and fulfilled the duty of initial inquiry.

2023(Former § 224.3, subd. (a); Stats. 2006, ch. 838, § 32; In re W.B. (2012) 55 Cal.4th 30, 53 .) Nor is it there to specify when the duty of initial inquiry arises: Subdivision (a) of section 224.2 already provides that it “begins with the initial contact.” Moreover, it is “not appropriate to treat the second sentence of section[ 224.2(b)], as a generic definition of ‘inquiry’ that the Legislature intended to govern all ICWA inquiries, not just ones referenced in the immediately preceding sentence.” (Adrian L., supra, 86 Cal.App.5th at pp. 367-368, fn. omitted (conc. opn. of Kelley, J.).) The st

2022Our state Legislature subsequently sought to increase compliance with ICWA in 2006 through the enactment of Senate Bill No. 678 (2005–2006 Reg. Sess.) (W.B., supra, 55 Cal.4th at p. 52 ), and in 2018, Assembly Bill No. 3176 (2017–2018 Reg. Sess.) expressly expanded 38. the scope of the agency’s duty of initial inquiry.

2022(In re H.B. (2008) 161 Cal.App.4th 115 , 122; Rebecca R., supra, 143 Cal.App.4th at p. 1431 .) In this respect, the automatic reversal rule gives rise to the “very evil the Legislature intended to correct”—namely, “lengthy and unnecessary delay in providing permanency for children.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310 .) Second, the rule—in conjunction with the breadth of the duty of initial inquiry under section 224.2—may yield a seemingly endless feedback loop of remand, appeal, and remand. 18 Section 224.2 does not limit the duty of initial inquiry to “extended family members.” Inst

2022(In re H.B. (2008) 161 Cal.App.4th 115 , 122; Rebecca R., supra, 143 Cal.App.4th at p. 1431 .) In this respect, the automatic reversal rule gives rise to the “very evil the Legislature intended to correct”—namely, “lengthy and unnecessary delay in providing permanency for children.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310 .) Second, the rule—in conjunction with the breadth of the duty of initial inquiry under section 224.2—may yield a seemingly endless feedback loop of remand, appeal, and remand. 18 Section 224.2 does not limit the duty of initial inquiry to “extended family members.” Inst

2022(In re H.B. (2008) 161 Cal.App.4th 115 , 122; Rebecca R., supra, 143 Cal.App.4th at p. 1431 .) In this respect, the automatic reversal rule gives rise to the “very evil the Legislature intended to correct”—namely, “lengthy and unnecessary delay in providing permanency for children.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310 .) Second, the rule—in conjunction with the breadth of the duty of initial inquiry under section 224.2—may yield a seemingly endless feedback loop of remand, appeal, and remand. 18 Section 224.2 does not limit the duty of initial inquiry to “extended family members.” Inst

2022(In re H.B. (2008) 161 Cal.App.4th 115 , 122; Rebecca R., supra, 143 Cal.App.4th at p. 1431 .) In this respect, the automatic reversal rule gives rise to the “very evil the Legislature intended to correct”—namely, “lengthy and unnecessary delay in providing permanency for children.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310 .) Second, the rule—in conjunction with the breadth of the duty of initial inquiry under section 224.2—may yield a seemingly endless feedback loop of remand, appeal, and remand. 18 Section 224.2 does not limit the duty of initial inquiry to “extended family members.” Inst

2022Several courts have reversed for defective initial inquiries whenever there is an “absence of an appellate record affirmatively showing the court’s and the agency’s efforts to comply with ICWA’s inquiry . . . requirements.” (In re N.G. (2018) 27 Cal.App.5th 474, 484 ; see, e.g., In re A.R. (2022) 77 Cal.App.5th 197 , 203, 206-207; In re H.V. (2022) 75 Cal.App.5th 433 , 438, fn. 4.) Other courts have deemed any defect harmless unless the parent makes an offer of proof or other assertion of Indian heritage on appeal (see, e.g., In re A.C. (2021) 65 Cal.App.5th 1060 , 1065, 1070-1073), or unless

2022(See N.G., supra, 27 Cal.App.5th at p. 484 ; A.C., supra, 65 Cal.App.5th at pp. 1070–1073; Benjamin M., supra, 70 Cal.App.5th at p. 744; Dezi C., supra, at p. *4.) Of paramount consideration in any dependency proceeding is that such actions “be resolved expeditiously. [Citations.] That goal would be thwarted if the proceeding had to be redone without any showing the new proceeding would have a different outcome.” (In re Jesusa V. (2004) 32 Cal.4th 588 , 625.) That DCFS was ordered to conduct further 9 inquiry into the children’s Indian heritage means that any remand by this court for complianc

2022(In re H.B. (2008) 161 Cal.App.4th 115 , 122; Rebecca R., supra, 143 Cal.App.4th at p. 1431 .) In this respect, the automatic reversal rule gives rise to the “very evil the Legislature intended to correct”—namely, “lengthy and unnecessary delay in providing permanency for children.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310 .) Second, the rule—in conjunction with the breadth of the duty of initial inquiry under section 224.2—may yield a seemingly endless feedback loop of remand, appeal, and remand. 18 Section 224.2 does not limit the duty of initial inquiry to “extended family members.” Inst

2022(In re H.B. (2008) 161 Cal.App.4th 115 , 122; Rebecca R., supra, 143 Cal.App.4th at p. 1431 .) In this respect, the automatic reversal rule gives rise to the “very evil the Legislature intended to correct”—namely, “lengthy and unnecessary delay in providing permanency for children.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310 .) Second, the rule—in conjunction with the breadth of the duty of initial inquiry under section 224.2—may yield a seemingly endless feedback loop of remand, appeal, and remand. 18 Section 224.2 does not limit the duty of initial inquiry to “extended family members.” Inst

2024Where a violation is only state law, we may not reverse unless we find that the error was prejudicial.” (In re Benjamin M. (2021) 70 Cal.App.5th 735 , 742.) “Reversal is justified ‘only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (In re J.S. (2011) 196 Cal.App.4th 1069, 1078-1079 .) “ ‘[D]ependent children have a critical interest in avoiding unnecessary delays to their long-term placement.’ ” (In

2023Assn. (1991) 2 Cal.App.4th 1197, 1204 ; see also Estate of Sapp (2019) 36 Cal.App.5th 86, 109 .) However, there are several considerations that compel us to depart from Robert F. First, that decision itself departed from earlier decisions of our court holding the duty of initial inquiry in section 224.2(b) “applies in every dependency proceeding.” (In re Ricky R. (2022) 82 Cal.App.5th 671 , 678; see also In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.) [same].) Second, Robert F.’s interpretation is, in our view, based on a plain error of statutory construction that is easily corrected

2023(See In re Natasha A. (1996) 42 Cal.App.4th 28 , 34–35; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 [“evaluating the factual basis for an exercise of discretion [in custody and visitation orders] is similar to analyzing the sufficiency of the evidence for the ruling”].) 5 An “Indian child” is a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (§ 224.1, subds. (a), (b); 25 U.S.C. § 1903 (4).) 12 guardian, Indian custodian, extended family members,[6] others who have an interest in th

2023(In re Austin J. (2020) 47 Cal.App.5th 870 , 6 883-884.) Federal regulations require state courts to ask each participant “at the commencement” of a child custody proceeding “whether the participant knows or has reason to know that the child is an Indian child.” ( 25 C.F.R. § 23.107 (a).) State law requires the court to pursue an inquiry “[a]t the first appearance in court of each party” by asking “each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child.” (§ 224.2, subd. (c).) In addition, when the Department takes a child i

2022However, ‘[t]he judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function.’ (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53 .) Agencies and lower courts are, by now, on very clear notice of the problems caused when little to no inquiry is made.

2022(See N.G., supra, 27 Cal.App.5th at p. 484 ; A.C., supra, 65 Cal.App.5th at pp. 1070–1073; Benjamin M., supra, 70 Cal.App.5th at p. 744; Dezi C., supra, at p. *4.) Of paramount consideration in any dependency proceeding is that such actions “be resolved expeditiously. [Citations.] That goal would be thwarted if the proceeding had to be redone without any showing the new proceeding would have a different outcome.” (In re Jesusa V. (2004) 32 Cal.4th 588 , 625.) That DCFS was ordered to conduct further 9 inquiry into the children’s Indian heritage means that any remand by this court for complianc

2022Thus, the law allows a parent to raise failure to comply with ICWA on appeal, even if the issue was not raised in the trial court, because “[t]he parent is in effect acting as a surrogate for the tribe in raising compliance issues on appeal.” (In re K.R. (2018) 20 Cal.App.5th 701, 708 .) If ICWA is not complied with, “‘the dependency proceedings, including an adoption following termination of parental rights, [are] vulnerable to collateral attack if the dependent child is, in fact, an Indian child.’” (In re E.H. (2018) 26 Cal.App.5th 1058, 1072 ; see 25 U.S.C. § 1914 .) 2.

2021When the court has reason to know, ICWA requires that DCFS give formal notice to the parent, legal guardian, or Indian custodian and to the child’s tribe. (§ 224.3, subds. (a) & (f); rule 5.481(c)(1).) 9 the case as to all five children (A.H. v. Superior Court (2013) 219 Cal.App.4th 1379, 1386 ).