The Second District Court of Appeal’s recent opinion in In re Ezequiel G. (Jul. 29, 2022, B314432) ___ Cal.App.5th ___ illustrates an issue that comes up regularly among appellate courts: appeals of juvenile dependency rulings alleging inadequate inquiries under the federal Indian Child Welfare Act (ICWA).

Under the ICWA (and implementing state law), California courts and county welfare departments have an affirmative and continuing duty to inquire whether a child for whom a juvenile dependency petition may be filed is an “Indian child.” In cases where a juvenile court finds that “proper and adequate further inquiry and due diligence…have been conducted and there is no reason to know whether the child is an Indian child,” the court may make a finding that the ICWA does not apply.

Much litigation has ensued over what constitutes adequate inquiry, with at least 47 California court opinions (both published and unpublished) involving ICWA inquiry-related appeals in July 2022 alone. Some of that volume of litigation may be attributed to the fact, as discussed in In re Ezequiel G., that courts have applied varying standards.

In re Ezequiel G. involved a fairly typical fact pattern in ICWA-related juvenile dependency appeals: a parent appealed following termination of their parental rights over their children, alleging an insufficient ICWA inquiry was made regarding several extended family members where there was no indication the county Department of Family and Children Services (DCFS) ever made such inquiry. However, DCFS contended that the children’s parents’ denial of Indian ancestry, both on the record and on Parental Notification of Indian Status (ICWA-020) forms, supported the juvenile court’s finding that the ICWA did not apply. Alternatively, DCFS contended that any failure to make an ICWA inquiry for the stated extended family members was harmless error.

The opinion discussed how courts had struggled with how to review claims of inadequate ICWA investigations. Though courts previously rejected such claims where there was no evidence in the record that a child was an Indian child and a parent did not affirmatively assert Indian ancestry on appeal, it noted some courts had recently reversed orders terminating parental rights by a mere showing that relatives had not been asked about possible Indian ancestry. The court counted more than 100 dependency cases that had been remanded over the past 12 months on those grounds after parental rights had already been terminated.

The court disagreed with such an approach, noting the resulting delays in finalizing adoptions or other permanent placements don’t serve the best interests of children and, moreover, automatic reversals were not compelled by the statutory language, since Welfare and Institutions Code section 224.2 provides a juvenile court’s findings should be reviewed for “sufficiency of the evidence.” The opinion states rather forcefully:

These reversals unquestionably delay permanency for some of the most vulnerable children in our juvenile court system. Worse, we believe the approach to reviewing ICWA error that drives these reversals is not mandated by the relevant statutes and is ineffective in protecting the interests of the Indian communities and families for whose benefit ICWA was enacted.

Rather, the court urged an interpretation of the ICWA requiring all participants to work together to determine whether children are Indian children, stressing the obligations of parents and their counsel to help ensure an adequate ICWA investigation is conducted and noting that allowing ICWA inquiry errors to be raised for the first time at appeal encourages parents to be uncooperative with such inquiries in order to save the issue in case of future appeal.

The court went on to suggest a hybrid substantial evidence/abuse of discretion standard, reviewing for substantial evidence whether there is reason to know a child is an Indian child, and for abuse of discretion a juvenile court’s finding of due diligence and a “proper and adequate” ICWA inquiry, with reversal warranted only if an appellant demonstrates that an ICWA error was prejudicial. It described a variety of complex fact scenarios it had recently encountered to demonstrate the difficulty of applying the statutory requirements and subsequent need for discretion (as opposed to mandatory reversal) in applying the statute. It also distinguished the state Supreme Court decision in In re Isaiah W. (2016) 1 Cal.5th 1, which held a parent could challenge a finding of the ICWA’s inapplicability in an appeal from a subsequent order without first raising the challenge in an appeal from an initial order. The Second District found Isaiah W. was limited to whether an appellate court could examine an ICWA finding at an earlier hearing that had not been appealed and did not consider the standard by which purported ICWA errors should be reviewed.

In light of the competing standards of review and the interests involved, this issue may be ripe for state Supreme Court review. As the dissent in In re Ezequiel G. states (and which it seems the majority would agree with):

[T]o date, California appellate courts have developed at least four different approaches to evaluating whether error at the inquiry stage is prejudicial. … This confusion benefits no one. Because the issues raised in this appeal are of substantial importance to dependent children, the children’s families, and Indian tribes, I urge the Supreme Court to review this decision and expedite briefing and preference in setting the date of oral argument.

For further discussion of the ICWA in general, see CEB’s California Juvenile Dependency Practice, chapter 9, with discussion of the duty of inquiry in § 9.12.

© The Regents of the University of California, 2022. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.