Date: 02-26-2018

Case Style: In re K.R., Persons Coming Under the Juvenile Court Law, Riverside County Department of Public Services v. E.K.

Case Number: E069276

Judge: McKinster, Acting P.J.

Court: California Court of Appeals Fourth Appellate District Division Two on appeal from the Superior Court, Riverside County

Plaintiff's Attorney: Elizabeth Klippi

Defendant's Attorney: Gregory P. Priamos, James E. Brown, Guy B. Pittman and Julie
Koons Jarvi

Description: E.K. appeals from an order terminating her parental rights to her three children.
The sole issue she raises is lack of compliance with the Indian Child Welfare Act of
1978, or ICWA (25 U.S.C. § 1901, et seq.), and with Welfare and Institutions Code
sections 224 et seq. We agree, and we will conditionally reverse the order and remand
the matter for compliance with those statutes.
BACKGROUND
Because we address only an ICWA claim, a brief synopsis of the factual and
procedural history will suffice.
A petition pursuant to Welfare and Institutions Code section 300 was filed on
May 23, 2016, as to the three minors, then age three years, two years, and 20 months,
respectively. The children’s father, R.R., died of a heroin overdose on April 24, 2016.
The petition alleged that mother was unable to provide adequate care for the children and
endangered them as a result of her abuse of controlled substances and her untreated
mental health issues.
The petition was sustained on June 15, 2016, and reunification services were
ordered. Mother had overdosed on heroin several times before the petition was filed.
She overdosed again in August 2016. Ultimately, reunification services were terminated.
The children were placed in a prospective adoptive home. Parental rights were
terminated on October 2, 2017.
Mother filed a timely notice of appeal on October 5, 2017.
3
LEGAL ANALYSIS
Mother informed the court that neither she nor the children had Indian ancestry,
and at the jurisdiction and disposition hearing, the court found that ICWA does not apply.
Later, in response to information that the children might have Cherokee heritage though
their father, respondent Riverside County Department of Public Social Services (DPSS)
gave notice of the proceedings to three Cherokee tribes and to the Bureau of Indian
Affairs.1
At the six-month review hearing in December 2016, DPSS informed the court that
it had received responses from two of the tribes, stating that based on the information
provided, the minors were not Indian children. DPSS stated that it was still waiting for a
response from the third tribe. Mother made no objection to the sufficiency of the notices,
and the court found that the notices were proper. A response was later received from the
third tribe, also stating that the children were not Indian children.
At the review hearing in February 2017, mother apparently made no objection to
the notices or noticing procedures, and the court found that ICWA does not apply.2

1 The record does not reflect the source of the information. However, paternal
relatives were involved in the proceedings, including the paternal grandmother and a
paternal aunt, with whom the children resided for a number of months before being
placed with prospective adoptive parents. Presumably, the information concerning the
children’s possible Cherokee heritage came from paternal relatives.
2 The portion of the reporter’s transcript dated June 1, 2017, appears in fact to be
the proceedings from February 1, 2017, in that the proceedings reported on that date
mirror the minute order from that date, including the order setting the next hearing on
May 31, 2017.
4
Mother now contends that DPSS did not properly investigate the children’s
possible Cherokee heritage and that it omitted mandatory information from the ICWA
notices sent to the tribes. She contends that the court had a continuing duty through the
Welfare and Institutions Code section 366.26 hearing to make ICWA inquiries and that
an implied finding was therefore made at that hearing that ICWA does not apply. She
contends that the sufficiency of the investigation is therefore cognizable on appeal from
the order terminating parental rights.
The Issue Is Cognizable in This Appeal.
Mother is correct that the juvenile court has a continuing duty to conduct an
inquiry when it has received information that a dependent child might be an Indian child,
as defined by ICWA, and to provide notice to any relevant tribe. This duty arises both
under ICWA itself and under California’s parallel statutes, Welfare and Institutions Code
sections 224 et seq. (In re Isaiah W. (2016) 1 Cal.5th 1, 5 (Isaiah W.).)
3
The purpose of
both statutory schemes is to “enable[] a tribe to determine whether the child [who is the
subject of involuntary proceedings in a state court] is an Indian child and, if so whether to
intervene in or exercise jurisdiction over the proceeding.” (Id. at p. 5.) The juvenile
court’s duty to inquire when it has reason to know that an Indian child is involved in such
a proceeding and to provide sufficient notice to any relevant tribe is independent of any
obligation on the part of the parents of the dependent child: The court and the agency

3 The California statutes were enacted in 2006 to “affirm ICWA’s purposes
([Welf. & Inst. Code,] § 224, subd. (a)) and mandate compliance with ICWA ‘[i]n all
Indian child custody proceedings’ ([Welf. & Inst. Code,] § 224, subd. (b).)” (Isaiah W.,
supra, 1 Cal.5th at p. 9.)
5
must act upon information received from any source, not just the parent (Welf. & Inst.
Code, §§ 224.2, subd. (a), 224.3, subd. (b)(1)), and the parent’s failure to object in the
juvenile court to deficiencies in the investigation or noticing does not preclude the parent
from raising the issue for the first time on appeal from an order entered at any hearing in
which the juvenile court determined that ICWA was satisfied or does not apply (In re
Marinna J. (2001) 90 Cal.App.4th 731, 738-739; In re Samuel P. (2002) 99 Cal.App.4th
1259, 1267-1268). And, because the juvenile court’s duty to comply with ICWA’s notice
requirements is ongoing until it is determined by the relevant tribe, following adequate
notice, that the child is not an Indian child (Isaiah W., at pp. 6, 11), the parent’s failure to
appeal from an earlier order does not preclude the parent from raising the issue of ICWA
compliance in an appeal from a later order, including an order terminating parental rights.
(Isaiah W., at pp. 6, 14-15.) Accordingly, even though mother did not object at any point
below to the sufficiency of the inquiry or of the notice given, the issue is cognizable in
this appeal.
Limited Remand for ICWA Compliance Is Necessary.
Mother’s contention as to the adequacy of the investigation and of the resulting
notices to the Cherokee tribes is also well taken.
Welfare and Institutions Code section 224.3, subdivision (c), provides that if the
court or social worker knows or has reason to know that an Indian child is involved in
dependency proceedings, the social worker must make further inquiry, as soon as
practicable, by interviewing the parents, Indian custodian and extended family members
to gather the information required, under Welfare and Institutions Code section 224.2, to
6
be provided to the relevant tribes. As pertinent here, that information includes “[a]ll
names known of the Indian child’s biological parents, grandparents, and greatgrandparents,
or Indian custodians, including maiden, married and former names or
aliases, as well as their current and former addresses, birthdates, places of birth and death,
tribal enrollment numbers, and any other identifying information, if known.” (Welf. &
Inst. Code, § 224.2, subd. (a)(5)(C).) The social services agency must make a meaningful
effort to contact specified family members who might have pertinent information. (In re
Michael V. (2016) 3 Cal.App.5th 225, 235-236.)
Here, the notices sent to the three Cherokee tribes included the name of the
children’s father, R.R., his dates of birth and death, and his birthplace, as well as the
names of the tribes he might have been affiliated with. The notices identified R.R.’s
father, Alfred John R., as possibly affiliated with the same tribes, and gave his last known
address, birth date and birthplace. The notices further identified R.R.’s paternal
grandfather, John “Unknown” R., as possibly affiliated with the same tribes, but listed all
other information about him as “unknown” or “no information available.” (In each
instance, the “R.” stands for the same surname.)
Mother contends that this information demonstrates that DPSS did not comply
with its duty to interview extended family members to gather pertinent information. She
points out that both the paternal grandmother and the paternal aunt were readily available
and might have been able to provide additional information. She also points out that
DPSS had a last known address for the paternal grandfather, Alfred, and asserts that if
DPSS had contacted him, Alfred “certainly” “could have supplied some of the
7
biographical information for his father John [i.e., the paternal great-grandfather], the
other relative with purported Cherokee heritage.” She asserts that DPSS “clearly”
performed no such investigation because the paternal great-grandfather’s biographical
information is essentially blank, including whether he was living or deceased.
Mother is correct that it is likely that the paternal grandfather would have had
some information about his father’s Indian heritage, and that he could possibly have put
DPSS in touch with his father, i.e., the children’s paternal great-grandfather, or provided
information as to the date and place of his father’s birth, as well as further biographical
information concerning himself. Yet, there is no information in the record that DPSS
wrote to the paternal grandfather at his last known address to seek that information or that
it made any other effort to contact him. Nor is there any evidence that DPSS attempted to
contact the children’s paternal great-grandmother. The notices identified both of the
father’s grandmothers, one living and one deceased. As to the living paternal greatgrandmother,
the notices gave her last known address and birth date, but no further
information. Because neither paternal great-grandmother shared the “R.” family
surname, it is not possible to determine whether the living great-grandmother might have
been a source of further information about the children’s paternal grandfather or greatgrandfather.
However, there is no information in the record that DPSS attempted to
contact the living great-grandmother in order to determine whether she had any relevant
information. These are actions DPSS was required to undertake. (In re Michael V.,
supra, 3 Cal.App.5th at pp. 235-236.)
8
DPSS contends that because the record is silent as to its investigative efforts,
mother’s contention that it should have done more is unsupported by the record and her
contention that the paternal grandmother, paternal aunt and paternal great-grandfather
most likely could have provided additional information is mere speculation. It contends
that there is no requirement for the social services agency to document its efforts to
contact relatives, and that the absence of information on the subject precludes mother
from meeting her burden on appeal, i.e., to demonstrate error based on the record. DPSS
relies on In re Gerardo A. (2004) 119 Cal.App.4th 988 and In re Charlotte V. (2016)
6 Cal.App.5th 51.
DPSS is correct that, in general, an appellant has the burden of producing an
adequate record that demonstrates reversible error. (Aguilar v. Avis Rent A Car System,
Inc. (1999) 21 Cal.4th 121, 132.) However, ICWA compliance presents a unique
situation, in that, as we have just discussed, although the parent has no burden to object to
deficiencies in ICWA compliance in the juvenile court, the parent may nevertheless raise
the issue on appeal. (Isaiah W., supra, 1 Cal.5th at pp. 6, 9, 14-15.) The purpose of
ICWA and the California statutes is to provide notice to the tribe sufficient to allow it to
determine whether the child is an Indian child and whether it wishes to intervene in the
proceedings. (Isaiah W., at pp. 8-9, 15.) The parent is in effect acting as a surrogate for
the tribe in raising compliance issues on appeal. Appellate review of procedures and
rulings that are preserved for review irrespective of any action or inaction on the part of
the parent should not be derailed simply because the parent is unable to produce an
adequate record.
9
DPSS is correct that there is no express directive to the social services agency to
provide a record of the efforts it undertook to comply with ICWA, either in the applicable
statutes or rules of court or, as far as we are aware, in the case law. However, a social
services agency has the obligation to make a meaningful effort to locate and interview
extended family members to obtain whatever information they may have as to the child’s
possible Indian status. (In re Michael V., supra, 3 Cal.App.5th at pp. 235-236.) The
agency cannot omit from its reports any discussion of its efforts to locate and interview
family members who might have pertinent information and then claim that the
sufficiency of its efforts cannot be challenged on appeal because the record is silent.
Nor can the juvenile court assume that because some information was obtained
and relayed to the relevant tribes, the social services agency necessarily complied fully
with its obligations. On the contrary, once there is sufficient information to believe that
the children might be Indian children within the meaning of ICWA and the California
statutes, “responsibility for compliance” with those statutes “falls squarely and
affirmatively” on both the social services agency and the court. (Justin L. v. Superior
Court (2008) 165 Cal.App.4th 1406, 1410.) Accordingly, the court has a responsibility to
ascertain that the agency has conducted an adequate investigation and cannot simply sign
off on the notices as legally adequate without doing so. Here, the court did not inquire as
to what efforts DPSS had made to contact the paternal grandfather or the paternal greatgrandparents,
and accordingly failed in its duty to ensure compliance with ICWA.
10
For these reasons, we will remand the matter for the limited purpose of
compliance with the directives of ICWA and of Welfare and Institutions Code
sections 224.2 and 224.3.

Outcome: The order terminating parental rights is conditionally reversed. The matter is
remanded to the juvenile court with directions to comply with the inquiry and notice provisions of ICWA and of Welfare and Institutions Code sections 224.2 and 224.3, consistent with this opinion. If, after receiving notice as required by those statutes, the relevant tribes do not respond or respond that the children are not Indian children within the meaning of ICWA, the order terminating parental rights shall immediately be reinstated and further proceedings shall be conducted, as appropriate. If any tribe determines that the children are Indian children, the juvenile court shall proceed accordingly.

Plaintiff's Experts:

Defendant's Experts:

Comments: