Kern Cnty. Dep't of Human Servs. v. M.H. (In re K.H.)

Citation84 Cal.App.5th 566,300 Cal.Rptr.3d 499
Decision Date21 October 2022
Docket NumberF084002
Parties IN RE K.H., a Person Coming Under the Juvenile Court Law. Kern County Department of Human Services, Plaintiff and Respondent, v. M.H., Defendant and Appellant.
CourtCalifornia Court of Appeals

84 Cal.App.5th 566
300 Cal.Rptr.3d 499

IN RE K.H., a Person Coming Under the Juvenile Court Law.

Kern County Department of Human Services, Plaintiff and Respondent,
M.H., Defendant and Appellant.


Court of Appeal, Fifth District, California.

Filed October 21, 2022

Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Plaintiff and Respondent.


84 Cal.App.5th 587


M.H. (Father) and A.C. (Mother) are the parents of K.H., now 20 months old. Due to his parents’ drug use, K.H. was taken into protective custody following his birth and made a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b)(1).1 The juvenile court subsequently terminated Mother's and Father's parental rights under section 366.26,2 and Father timely appealed. Mother is not a party to the appeal.

The sole claim advanced by Father is the alleged violation of the Indian Child Welfare Act of 1978 ( 25 U.S.C. § 1901 et seq. ) (ICWA) and related California law.3 Father contends Kern County Department of Human Services (the Department) and the juvenile court failed to comply with their affirmative and continuing duties of inquiry under section 224.2, subdivision (a), the Department failed to comply with its broad duty of inquiry set forth under section 224.2, subdivision (b), and remand for an adequate inquiry is required.4 The Department does not dispute the inquiry, which extended no further than Mother and Father, was inadequate under

300 Cal.Rptr.3d 508

section 224.2, subdivision (b), but argues the juvenile court's finding that ICWA does not apply, made pursuant to section 224.2, subdivision (i)(2), is supported by

84 Cal.App.5th 588

substantial evidence and any error is harmless because "the record contains [no] information suggesting a reason to believe that [K.H.] may be an ‘Indian child’ within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding." ( In re Dezi C. (2022) 79 Cal.App.5th 769, 779–782, 295 Cal.Rptr.3d 205 ( Dezi C. ), review granted Sept. 21, 2022, S275578.) Recently, the California Supreme Court granted review in Dezi C. and we anticipate further clarification on this issue. Until such time, we conclude that the court's ICWA finding is not supported by substantial evidence and it abused its discretion in concluding otherwise. Given the remedial purpose underlying ICWA and related California law intended to protect third party rights, we apply the analytical framework set forth by the California Supreme Court in A.R. for assessing harm and we conclude the error is prejudicial. ( In re A.R. (2021) 11 Cal.5th 234, 252–254, 276 Cal.Rptr.3d 761, 483 P.3d 881 ( A.R. ).)

As discussed herein, ICWA applies to federally recognized Indian tribes ( 25 U.S.C. § 1903(8) ; In re Ricky R. (2022) 82 Cal.App.5th 671, 681, fn. 2, 298 Cal.Rptr.3d 602 ( Ricky R. )), and provides "a right to intervene in or exercise jurisdiction over the proceeding" (In re K.T. (2022) 76 Cal.App.5th 732, 741, 291 Cal.Rptr.3d 678, citing 25 U.S.C. § 1911 ; accord, In re Isaiah W. (2016) 1 Cal.5th 1, 8, 203 Cal.Rptr.3d 633, 373 P.3d 444 ( Isaiah W. )) "Notice to Indian tribes is central to effectuating ICWA's purpose ...." ( In re T.G. (2020) 58 Cal.App.5th 275, 288, 272 Cal.Rptr.3d 381 ( T.G. ), citing Isaiah W., supra , at p. 8, 203 Cal.Rptr.3d 633, 373 P.3d 444.) However, it is typically "not self-evident whether a child is an Indian child" ( Benjamin M., supra , 70 Cal.App.5th at p. 741, 285 Cal.Rptr.3d 682 ), and "the question of membership is determined by the tribes, not the courts or child protective agencies" ( T.G., supra , at p. 294, 272 Cal.Rptr.3d 381 ). To ensure notice in cases in which it is known or there is reason to know an Indian child is involved ( 25 U.S.C. § 1912(a) ; Welf. & Inst. Code, § 224.3, subd. (a) ), the law imposes an affirmative and ongoing duty to inquire whether a child subject to dependency proceedings is or may be an Indian child ( § 224.2, subd. (a) ).

Due to changes in California law over the past few years, agencies now have a broader duty of inquiry and a duty of documentation ( § 224.2, subd. (b) ; Cal. Rules of Court, rule 5.481(a)(5) ),5 and dependency cases have begun to reach the appellate courts following these changes, often after the passage of much time and the termination of parental rights. Courts have been tasked with determining how to assess error when the agency fails to discharge its now-broad duty of inquiry and, particularly as of late, how to assess whether that error is prejudicial in view of our state constitutional miscarriage of justice requirement. Given that the appellant is usually a parent who may raise the issue for the first time on appeal, but ICWA is a

84 Cal.App.5th 589

remedial statute designed to protect the rights of a stakeholder other than the parent or the child, this assessment has not proven simple or straightforward. Agencies have often conceded error and, therefore, disposition of the issue on appeal has turned on whether the error was prejudicial. Although reviewing courts generally agree that reversal is dependent on showing prejudice, or a miscarriage of justice,

300 Cal.Rptr.3d 509

approaches for assessing prejudice have varied. (E.g., In re E.V. (2022) 80 Cal.App.5th 691, 698, 296 Cal.Rptr.3d 387 ( E.V. ); Dezi C., supra , 79 Cal.App.5th at p. 779, 295 Cal.Rptr.3d 205, review granted; In re J.C. (2022) 77 Cal.App.5th 70, 80, 292 Cal.Rptr.3d 222 ( J.C. ); In re A.C. (2021) 65 Cal.App.5th 1060, 1069, 280 Cal.Rptr.3d 526 ( A.C. ); Benjamin M., supra , 70 Cal.App.5th at p. 744, 285 Cal.Rptr.3d 682.) The separate concepts of error, standard of review, and prejudice, however, are so closely related in this context that they lend themselves to conflation. In our view, a more precise delineation of the degree of error and the appropriate standard of review assists in clarifying why, viewed through the lens of A.R. , undeveloped records often result in prejudicial error necessitating reversal for correction.

The juvenile court may find that ICWA does not apply to a proceeding if it determines "that proper and adequate further inquiry and due diligence as required ... have been conducted and there is no reason to know whether the child is an Indian child ...." ( § 224.2, subd. (i)(2).) The court's finding in this regard is reviewed for substantial evidence (ibid. ), but we agree with the Court of Appeal in In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004–1005, 297 Cal.Rptr.3d 685 ( Ezequiel G. ) that, consistent with the reasoning in In re Caden C. (2021) 11 Cal.5th 614, 639–640, 278 Cal.Rptr.3d 872, 486 P.3d 1096 ( Caden C. ), the determination that the agency's inquiry was proper, adequate, and duly diligent should be reviewed under a hybrid substantial evidence and abuse of discretion standard.

This hybrid standard better reflects the need for the juvenile court to engage in a balancing of factors and to exercise sound discretion in making the relevant determinations. Not every error by an agency in discharging its duties under section 224.2, subdivision (b), will undermine the court's ICWA finding under section 224.2, subdivision (i)(2), but the court's ability to exercise discretion in this regard is dependent on adequate record development by the agency. On a well-developed record, the court has relatively broad discretion to determine whether the agency's inquiry was proper, adequate, and duly diligent on the specific facts of the case. However, the less developed the record, the more limited that discretion necessarily becomes. When, as in this case, the court's implied finding that the agency's inquiry was proper, adequate, and duly diligent rests on a cursory record and a patently insufficient inquiry that is conceded, the only viable conclusion is that the finding is unsupported by substantial evidence and the court's conclusion to the contrary constitutes a clear abuse of discretion.

84 Cal.App.5th 590

As stated, neither the juvenile court nor the agency makes a determination on the merits regarding whether a child is an Indian child; that matter rests within the sole province of Indian tribes. The only protection the collective statutes afford is notice to relevant tribes so that they may determine a child's status in accordance with their particular customs and procedures and decide whether to intervene. Therefore, ensuring a proper, adequate, and duly diligent inquiry at the initial stage of the compliance process is foundational to fulfilling the purpose underlying ICWA and related California law. Ensuring the record is reasonably developed on this matter, in turn, is critical to an accurate determination by the court as to whether further inquiry or notice, which is the means by which the interests of Indian tribes and Indian children are protected in dependency proceedings, is required. Most children will not be found to be Indian children, but that is not the


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