In re S.S.

Filed 4/14/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re S.S., a Person Coming B318794

Under the Juvenile Court Law.

_______________________________ Los Angeles County

Super. Ct. No. 20CCJP00196B

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

KARLA S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los

Angeles County, Robin R. Kesler, Juvenile Court Referee.

Conditionally reversed and remanded with directions.

Roni Keller, under appointment by the Court of Appeal, for

Defendant and Appellant.

1

Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,

Assistant County Counsel, and Melania Vartanian, Deputy

County Counsel, for Plaintiff and Respondent.

_______________________

At the behest of tribes seeking redress for a long and

troubled history, the Legislature enacted a statute to help them

identify children who could sustain tribal cultures. But an

agency skipped the low-cost measures the statute required. That

neglect shuts tribes out: they cannot learn about cases where

their interests can be vitally at stake. The agency’s disregard

defeats the statute’s promise, and this broken promise is a

miscarriage of justice. It prejudices tribes.

I

A

The lone issue is the federal Indian Child Welfare Act,

sections 1901 and following of title 25 of the United States Code

(the Act, or ICWA) and its California counterpart. (Welf. & Inst.

Code, § 224 et seq.)

The word “Indian” appears in official statutory titles and

content. (E.g., Welf. & Inst. Code, § 224.1, subd. (a) [defining

“Indian,” “Indian child,” “Indian custodian,” and “Indian tribe”].)

Controversy surrounds this word. (E.g., Wikipedia, Native

American name controversy, <https://en.wikipedia.org/wiki/

Native_American_name_controversy> [as of April 12, 2023],

archived at < https://perma.cc/W8MM-ELEC>.)

Because statutory text and categories are at the center of

this statutory case, clarity sometimes necessitates using the

legislative word “Indian.”

2

B

In May 2021, the Department of Children and Family

Services detained infant boy S.S. at birth, based on exigency,

alleging his parents abused drugs and S.S. was born testing

positive for opiates, amphetamines, and methamphetamines.

The Department was familiar with these parents: the juvenile

court already had made S.S.’s older brother N.S. a dependent of

the court.

Three of S.S.’s paternal relatives are central to this appeal:

S.S.’s grandfather O.H., aunt L.R., and cousin L.T.

The Department had contact information for all three

paternal relatives.

The record contains the Department’s contact information

for this grandfather and aunt. Presumably the Department also

had contact information for this cousin, for it reported the cousin

had custody of S.S.’s brother N.S., who was under the

Department’s supervision. The father said he wanted the

Department to place S.S. with this cousin.

In May 2021, the juvenile court detained S.S. from his

parents and placed him with his maternal aunt and uncle. The

juvenile court conducted jurisdictional and dispositional hearings

and, on September 21, 2021, ruled that S.S. was a dependent of

the court.

The mother and father both denied Indian ancestry.

The maternal aunt, however, said that the mother might

have Yaqui heritage and that the maternal grandmother would

know more. The maternal grandmother did know more: she said

a DNA ancestry search, as well as information from relatives,

made her think she had Yaqui ancestry through the maternal

great-grandfather. The court ordered the Department to

3

interview the maternal aunt and grandmother. The Department

in turn notified the Pascua Yaqui tribe, which replied S.S. was

not eligible for membership: the tribe would not intervene.

The Department never asked paternal extended family

members about the possibility of Indian ancestry. The

Department concedes this point.

Although the Department had contact information for three

paternal extended family members and never asked them about

Indian ancestry, the court found the Act inapplicable in

September 2021. The court ruled there was no reason to know

S.S. was an Indian child.

In 2022, the court terminated parental rights in favor of a

permanent plan of adoption by the maternal aunt and uncle who

were the caretakers and prospective adoptive parents. The

mother appealed.

II

The crucial statute is the amendment to section 224.2 of

the Welfare and Institutions Code, enacted in 2018 and effective

January 1, 2019. (Stats. 2018, ch. 833 (A.B. 3176), § 5.)

This 2018 amendment requires conditional reversal and a

remand for the Department to ask the three extended paternal

family members for whom the Department had contact

information whether S.S. may have Indian ancestry. This work

should be slight and swift. The slightness of the effort, however,

does not imply the effort is unimportant. To the contrary, the

effort is vital to tribes striving to locate children to sustain tribal

cultures. We reverse and remand for the Department to conduct

this vital work that would take so little effort.

The analysis just stated does not command unanimous

agreement in the California Courts of Appeal, to put it mildly.

4

These courts are amazingly divided on the proper way to handle

the 2018 amendment. (E.g., In re K.H. (2022) 84 Cal.App.5th

566, 611–618 [critically surveying widely divergent approaches].)

Indeed, it is emblematic of this diversity of opinion that in this

very case we have three opinions from three judges.

Our Supreme Court will review this issue. (In re Dezi C.

(2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022,

S275578.)

Pending guidance from the high court, the controversy is

sharp.

Across this riven appellate field, there can be earnest and

heartfelt opposition to allowing ICWA issues to delay agency

efforts to finalize children’s adoptions. One perspective senses

overwhelming futility in this whole and maddeningly persistent

debate, given the slight likelihood that any real good will come

from the ICWA rigamarole. The children, who have heartrending

needs for immediate, stable, and loving adoptions, are at the

center of the proceedings; their circumstances are vivid and their

precious formative years fleeting. By contrast, “tribes” can seem

faraway abstractions—they are nowhere to be seen or heard in

these cases and courts—and ancient injustices to tribes may seem

remote and hardly the fault of hardworking social workers or the

high-minded and committed bench officers trying to solve today’s

dire problems.

From this perspective, ICWA can seem like pointless make

work: a costly diversion of resources from a vital mission

understaffed in the first place. Moreover, the issue often bursts

forth only on appeal, only after years of silence, only after

extended and evident disinterest in the matter.

5

There can be suspicion the whole controversy is just made

up, on behalf of parents who have no connection to indigenous

culture—that the entire thing is but a cynical ploy for delay.

Another perspective is possible. Here, a different view

proceeds in five steps:

1. Legislative history shows tribes are the real parties

in interest, and tribes have explained why asking

only parents is not enough.

2. The 2018 amendment’s requirement of

communicating with extended family members is not

some costly new mandate; rather, it usually

piggybacks economically on the Department’s

preexisting duty and current practice of investigating

extended family members.

3. The added effort here would have been slight, which

accords with legislative intent: the 2018 amendment

should not cause a workload increase for county

caseworkers.

4. Courts properly interpret the concept of prejudice

under the 2018 amendment in light of its legislative

purpose of redressing a long and troubling history we

should not forget.

5. Tribes suffer prejudice when the Department had

contact information for extended paternal family

members but did nothing with it, thus denying tribes

the benefit of the 2018 statutory promise.

A

Tribes are the real parties in interest under this statute.

The 2018 amendment imposed a duty the federal Act does

not. That new state duty requires the Department and similar

6

agencies to ask “extended family members” whether a child has

Indian ancestry. (Welf. & Inst. Code, § 224.2, subd. (b).) By

statute, then, asking only the parents is not enough.

This 2018 amendment was tribal in origin and purpose.

By way of summary, California tribal leaders gathered

narratives and data about the failure of implementation of the

Act. They issued a report that generated the 2018 amendment:

the Legislature embraced the tribal proposal swiftly and without

opposition. The resulting law required the Department to ask

“extended family members” whether the child may be an Indian

child.

Let us flesh out this summary by tracing the law’s origin

and purpose in more detail.

The 2018 amendment originated in a 2017 report by the

ICWA Compliance Task Force. (See California ICWA

Compliance Task Force, Report to the California Attorney

General’s Bureau of Children’s Justice, 2017 [as of Feb. 1, 2023],

archived at <https://perma.cc/NYF6-VPY9> (Tribal Report).)

“In November 2015, the California Department of Justice’s

Bureau of Children’s Justice created the first ICWA Compliance

Task Force in California. The Task Force was independent of the

Department of Justice, made up of tribal representatives and

advocates, and operates under the direction of tribal leadership.

Its purpose was to gather information and data to inform the

Bureau of Children’s Justice of the status of compliance with

California laws related to Native American children in California,

and provide recommendations regarding changes necessary to

decrease violations of these laws across the many state and

county systems that impact tribal families in the dependency

system. The Task Force’s work culminated in a 2017 Report to

7

the California Attorney General’s Bureau of Children’s Justice.

Subsequent to the Task Force, the [California Tribal Families

Coalition] was created, which is the sponsor of this measure.”

(Cal. Health and Human Services Agency, Enrolled Bill Rep. on

Assem. Bill No. 3176 (2017-2018 Reg. Sess.) prepared for

Governor Brown (Aug. 31, 2018 & Sept. 4, 2018) p. 5 (Enrolled

Bill Report).)

This information is from an enrolled bill report. These

reports instruct us about legislative purpose and effect.

Government departments write these reports to help the

Governor decide whether to sign the bill into law—a necessary

and final step in the legislative process. The departmental

authors usually write their reports within days of the statute’s

passage. (People v. Ruiz (2018) 4 Cal.5th 1100, 1111, fn. 3.)

These reports thus can be a relevant and synoptic view of an

enrolled bill the Governor signs into law; they encapsulate the

bill to help the Governor decide its fate.

Returning to the Tribal Report, it explained why relying on

parents alone for the initial inquiry does not necessarily protect

the rights of the tribe. (Tribal Report, supra, p. 28.)

“When parents are the sole target of the initial inquiry, it

should be understood that there are a variety of reasons why

relying on the parents does not necessarily protect the child’s best

interests, or the rights of the tribe. Parents may simply not have

that information, or may possess only vague or ambiguous

information. [⁋] The parents or Indian custodian may be fearful

to self-identify, and social workers are ill-equipped to overcome

that by explaining the rights a parent or Indian custodian has

under the law. Parents may even wish to avoid the tribe’s

8

participation or assumption of jurisdiction.” (Tribal Report,

supra, p. 28, fns. omitted, italics added.)

To the extent the law has been interpreted to restrict

inquiry to parents, the Tribal Report explained, “it should be

amended.” (Tribal Report, supra, p. 27.)

This case illustrates that point: extended family members

can have tribal information the parents lack, or have forgotten, or

refuse to divulge. As recounted above, S.S.’s mother denied

having Indian ancestry, but her extended relatives had more

information: the maternal aunt reported the possibility of Yaqui

ancestry and said the maternal grandmother would know more.

This grandmother did know more, from a DNA test as well as

from other relatives. Had the Department never asked these

maternal extended family members, this possible Yaqui ancestry

would have remained hidden. This illustrates why tribes sought

inquiry beyond the parents alone. This inquiry successfully

revealed information then transmitted to Yaqui authorities, who

made a sovereign decision about S.S. That served the purpose of

the 2018 amendment: the tribe was notified and had an

opportunity to be heard. The law and its mandated inquiry

allowed the tribe to be part of the process.

Further illustrating the tribal origin of the 2018

amendment is the fact that the California Tribal Families

Coalition was the amendment’s sponsor and source. (Assem.

Com. on Judiciary, Rep. on Assem. Bill No. 3176 [2017-2018 Reg.

Sess.] April 17, 2018, pp. 1 & 10.)

What is this Coalition?

The Coalition “was formally organized in May 2017 to

continue to press for the implementation of the Task Force 2017

Report recommendations. The [Coalition] Board of Directors is

9

comprised of thirteen Tribal Council leaders from across the

State, including five of the seven co-chairs of the Task Force. [⁋]

The [Coalition] is organized as a 501(c)(4) nonprofit membership

corporation to promote social welfare, and to promote and protect

the health and welfare of tribal children and families through

litigation, legislation, regulations, and policy initiatives. The

initial road map for the organization lies in the recommendations

contained in the Task Force Report. The [Coalition] Board of

Directors has established a multi-pronged approach to advance

its mission which includes: regional meetings of tribal social

workers and ICWA advocates; convening an attorney advisory

panel of tribal attorneys in the state; and the establishment of

the Children's Commission, a high-level executive body of tribal

leaders, judges, and subject matter experts to provide the Board

of Directors with a broad perspective and recommendations to

better protect the health, safety and welfare of tribal children

and families.” (Enrolled Bill Report, supra, p. 6; see also

California Tribal Families Coalition <https://caltribalfamilies.

org/> [as of April 12, 2023], archived at <https://perma.cc/NC9Z-

2AGM> [“The California Tribal Families Coalition was

established by tribal leaders from across the state to provide a

strong and unified voice on behalf of tribal children. Formed in

2017 to implement the comprehensive findings of the California

ICWA Compliance Task Force, CTFC has worked with its

member tribes to successfully pass key legislation that helps

protect Native children and tribal sovereignty . . . .”].)

So, tribes wrote a report demanding legislative action, and

the California Tribal Families Coalition sponsored a bill and

pressed for its passage. The California Legislature passed the

bill swiftly, and the Governor signed it straight away. There was

10

no opposition. (Sen. Rules Com., Report on Assem. Bill No. 3176

[2017-2018 Reg. Sess.] August 20, 2018, p. 8.) The votes at every

stage were unanimous. (Enrolled Bill Report, supra, at p. 8; see

also History of AB-3176 Indian children,

<https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bi

ll_id=201720180AB3176> [as of April 12, 2023], archived at

<https://perma.cc/48UG-X8SR>.)

In sum, this uncontroversial law was tribal in origin and

purpose. Tribes are the real parties in interest in cases applying

the 2018 amendment.

B

Investigating “extended family members” is a well

established and familiar duty for agencies like the Department.

(See In re K.H., supra, 84 Cal.App.5th at p. 619.) By long-

standing practice, the Department routinely searches for and

communicates with a child’s extended family members—for

reasons that existed before the 2018 amendment.

The simple and compelling idea is that it might be good to

place a child within a family structure, and to do that you must

learn about the family structure.

Under the statute at hand, extended family members

include the child’s stepparents, grandparents, siblings, brothers-

or sisters-in-law, aunts, uncles, nieces, nephews, and first or

second cousins. (25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1,

subd. (c).)

Predating the 2018 amendment and apart from a tribal

purpose, many different laws have required the Department to

identify and to contact extended family members, simply to carry

out the Department’s day-to-day work. (E.g., Welf. & Inst. Code,

§§ 300.2 [focus shall be on the preservation of the family], 309

11

[social worker shall immediately investigate the circumstances of

the child and attempt to maintain the child with the child’s

family], 358 [court shall make a finding as to whether the social

worker has exercised due diligence in conducting the

investigation to identify, locate, and notify the child’s relatives],

361.3 [preferential consideration shall be given to a request by a

relative of the child for placement of the child with the relative],

361.4 [the county welfare department shall conduct an in-home

inspection to assess the ability of the relative or nonrelative

extended family member to care for the child’s needs], 361.45

[when sudden unavailability of a foster caregiver requires a

change in placement, if a relative or a nonrelative extended

family member is available and requests temporary placement of

the child, the county welfare department shall assess that

person’s suitability], 366.22 [requiring a review of contact

between children and their parents and other members of the

extended family].)

The 2018 amendment in most cases requires the

Department—when performing this routine duty—simply to add

a topic to the agenda in these already-occurring investigations.

This topic is “to inquire whether that child is an Indian child.”

(Welf. & Inst. Code, § 224.2.) The Department must ask

“whether the child is, or may be, an Indian child . . . .” (Ibid.)

In short, the 2018 amendment’s basic mandate of

communicating with extended family members does not require

some novel and expensive departure for the Department. The

amendment instead merely adds an item to the Department’s

preexisting duty of investigating extended family members.

12

C

The 2018 amendment required added agency effort that

here is slight. For instance, when you already are having or

planning a conversation, how long does this additional question

take: “Might this child be an Indian child?”

The slightness of this burden accords with the 2018

amendment.

The legislative history states the 2018 amendment “should

not significantly change the administrative work required of

county agencies and caseworkers . . . .” (Enrolled Bill Report,

supra, p. 3

The fiscal impact of the 2018 amendment would be “None.

This bill would not result in a workload increase for a county

caseworker.” (Enrolled Bill Report, supra, p. 7, italics added.)

Nowhere in the legislative history is there any indication

that legislators anticipated or wanted the 2018 amendment to

require child welfare agencies like the Department to embark on

significantly expensive or time-consuming new investigations to

find extended family members simply to ask about Indian

ancestry.

Early in the legislative process, there was uncertainty

about the bill’s fiscal impact. (E.g., Assem. Com. on Human

Servs., Rep. on Assem. Bill No. 3176 [2017-2018 Reg. Sess.] April

10, 2018, pp. 7 [“FISCAL EFFECT: Unknown.”].) Elsewhere,

legislative analysts estimated a likely cost increase from

providing “all case file information to all tribes that acknowledge

that they are the child’s tribe, from providing services such as

qualified expert witnesses, and from developing emergency

proceedings required by the bill.” (Assem. Com. on Approps, Rep.

on Assem. Bill No. 3176 [2017-2018 Reg. Sess.] May 23, 2018, p.

13

1.) Another possible cost was to conform with the new federal

standards. (Sen. Rules Com., Report on Assem. Bill No. 3176

[2017-2018 Reg. Sess.] August 23, 2018, p. 6.) Any costs would be

“minor and absorbable.” (Dept. of Finance, Enrolled Bill Rep. on

Assem. Bill No. 3176, [2017-2018 Reg. Sess.], August 12, 2018, p.

2.)

All these estimates are consistent with the statement that

“[t]his bill would not result in a workload increase for a county

caseworker.” (Enrolled Bill Report, supra, p. 7, italics added.)

Some have rightly decried a “limitless inquiry into whether

a child might be an Indian child.” (In re A.C. (2022) 86

Cal.App.5th 130, 137, italics added [dis. opn. of Baker, J.]; see

also id. at p. 141 [“How is a court or social services agency to

decide who else has an interest in a child such that ICWA-related

questions must be posed? Do family friends qualify? Therapists?

Pastors? Teachers? Coaches? Doctors? Dentists?”]; In re K.H.,

supra, 84 Cal.App.5th at pp. 591 fn. 6, 602–603.)

Limitless inquiries consume scarce resources otherwise

devoted to the pressing needs of children and families. (See In re

H.V. (2022) 75 Cal.App.5th 433, 441 [dis. opn. of Baker, J.]

[“ordering a child services agency to try to run down suggestions

of possible Indian heritage has real costs to the agency’s core

mission of keeping children healthy and safe—there are only so

many hours in a day and only so many child services agency

employees on the payroll”].)

Courts should not interpret the 2018 amendment as

creating a limitless or even a significantly burdensome new duty.

(See In re K.H., supra, 84 Cal.App.5th at pp. 603–604.) That

would be contrary to the Legislature’s intent.

14

By the same token, courts also, and rightly, caution

appellants against “repeated appeals on this issue,” which would

be “to the detriment of all and would come at an intolerably high

cost to the child’s interest in permanency and stability.” (In re

K.H., supra, 84 Cal.App.5th at p. 620.)

The Legislature’s intent thus was that agency caseworkers

ask an added question of extended family members whom

caseworkers often already are investigating in their usual course

of work. That added question is whether the child may be an

Indian child. Courts should interpret the 2018 amendment in

light of this legislative intent.

D

When considering the 2018 amendment, the California

Legislature was aware of the “long and troubling history of

separation of Native American children from their families and

their tribes . . . .” (Assem. Com. on Judiciary, Rep. on Assem. Bill

No. 3176 [2017-2018 Reg. Sess.] April 17, 2018, p. 1, italics

added; cf. In re K.H., supra, 84 Cal.App.5th at pp. 588–590

[ICWA is a remedial statute].)

Courts should interpret the 2018 amendment in light of its

legislative purpose. (E.g., Apple Inc. v. Superior Court (2013) 56

Cal.4th 128, 135 [fundamental task is to ascertain the intent of

the lawmakers so as to effectuate the statute’s purpose].)

This purpose shows that, although costs may be slight, the

payoff can be large for tribes, whose children carry their cultures

into the future. The inquiry required by the 2018 amendment is

vital—literally: it can help keep cultures alive. This inquiry

indispensably serves the goal of preserving and transmitting

native cultures because there is a chance extended family

15

members may have otherwise-unavailable information the child

has Indian ancestry.

Admittedly, and in all likelihood, the chance of discovering

a child with Indian ancestry is very small, for historical reasons.

Those historical reasons go right to the heart of the issue.

Before surveying those historical reasons, it is helpful to

recall that courts consider whatever materials are appropriate in

construing statutes. (Cal. Law Revision Com. com., West's Ann.

Cal. Evid. Code (2022 ed.) foll. § 450; Cabral v. Ralphs Grocery

Co. (2011) 51 Cal.4th 764, 775, fn. 5.)

For instance, courts must be familiar with legislative facts

about American history. Legislative facts, like whether George

Washington was our first president, are fundamentally different

from adjudicative facts, like whether a party did or did not run a

red light.

Courts commonly consult historical sources to gain

understanding. (E.g. McGirt v. Oklahoma (2020) 140 S.Ct. 2452,

2463–2473 [citing historical works to comprehend Native

American history]; id. at p. 2483 [dis. opn. of Roberts, C.J.]

[same].)

No material from a case record is needed to know, for

instance, that indigenous people were here before Europeans

arrived, or, for that matter, that Juan Rodríguez Cabrillo landed

in California in 1542. (See Weber, The Spanish Frontier in North

America: The Brief Edition (2009) p. 34 (Frontier).)

We likewise know that, today, the odds that a given child

has Indian ancestry are very small. (Cf. In re K.H., supra, 84

Cal.App.5th at pp. 590, 619 [vast majority of inquiries will not

locate an Indian child].)

16

The chance is very small because, in the California of the

modern era, the demographic percentage of Native Americans is

very small. (Starr, California: A History (2005) p. 318 (hereafter

California) [American Indian and Alaska Native individuals

made up 0.5% of California population according to Census

2000].)

The fact this percentage is very small today represents

enormous change. Five centuries ago—before Cabrillo came—

100% of the people living in California had indigenous heritage.

There are many reasons for this precipitous decline from

100% to a very small percentage.

There is a long and troubling history.

“From Native American viewpoints, Europeans came as

predators. . . . To indigenous peoples . . . it must have seemed

inconceivable Europeans had discovered them or had a right to

push into their lands and claim sovereignty over them. . . . As

Spaniards moved into lands almost invariably occupied by

natives, the first meetings between discoverer and discovered

were brutal.” (Frontier, supra, p. 26-28.)

Theodore Roosevelt said, “I don’t go so far as to think that

the only good Indians are dead Indians, but I believe nine out of

every ten are, and I shouldn’t like to inquire too closely into the

case of the tenth.” (Dyer, Theodore Roosevelt and the Idea of

Race (1980) p. 86.)

Roosevelt’s comment reflected a history of deadly attacks

on tribes. (E.g., Hedgpeth, This was the worst slaughter of

Native Americans in U.S. history. Few remember it., <https://

www.washingtonpost.com/history/2021/09/26/bear-river-

massacre-native-americans-shoshone/> [as of April 12, 2023],

archived at < https://perma.cc/UE3U-HN7Y>.)

17

The pre-contact prophecy of a Spokan Indian was this:

“ ‘Soon,’ warned the prophet, ‘there will come from the rising sun

a different kind of man from any you have yet seen, who will

bring with them a book and will teach you everything, and after

that the world will fall to pieces.’ ” (Calloway, New Worlds For

All: Indians, Europeans, and the Remaking of Early America p.

xiii (2d ed. 2013) (New Worlds).)

From indigenous perspectives, the prophecy came true.

California’s state librarian wrote that “first Europe and

then the United States invaded their lands, wiped out their food

supply, uprooted their culture, and decimated their numbers.

After twenty-five generations, the First Californians would soon

be encountering social forces, diseases, and genocidal violence

that would bring them to the brink of extinction.” (California,

supra, p. 16.)

A multitude of other accounts describe this long and

troubling history. [E.g., Kroeber, Ishi in Two Worlds: A

Biography of the Last Wild Indian in North America (1961) pp.

40–114 [recounting the extinction of the Yana, down to the final

survivor, Ishi]; Brown, Bury My Heart At Wounded Knee: An

Indian History of the American West (1970) p. 449 [quoting Red

Cloud: “They made us many promises, more than I can

remember, but they never kept but one; they promised to take

our land, and they took it”]; Phillips, The Enduring Struggle:

Indians in California History (1990) pp. 14–78; Phillips, Indians

and Intruders in Central California, 1769-1849 (1993) pp. 32–

165; Rawls, Indians of California: The Changing Image (1984) pp.

171–201; Fagan, Before California: An Archaeologist Looks at

Our Earliest Inhabitants (2003) pp. 357–361; Frontier, supra,

passim; New Worlds, supra, passim.)

18

A more specific and relevant history likewise describes

interference with tribal children. A continent-wide program

removed tribal children by force. Tribes have known about this

program. Tribes were direct victims for a century and a half.

The federal government conceived of Indian schools as an

alternative to warfare against tribes. A goal was the cultural

assimilation of Indian children. (Fear-Segal & Rose, Carlisle

Indian Industrial School: Indigenous Histories, Memories, &

Reclamations pp. 6–7 (2016) (Carlisle); Davis, American Indian

Boarding School Experiences: Recent Studies from Native

Perspectives, (Winter 2001), OAH Magazine of History, at pp. 20-

22.)

The federal government embraced the Indian school

program partly because it was more economical than military

warfare against tribes. “The rationale for choosing cultural

rather than physical genocide was that it was more humane as

well as economically pragmatic. Secretary of the Interior

Schurz concluded that it would cost a million dollars to kill an

Indian in warfare, whereas it cost only $1,200 to school an

Indian child for eight years.” (Carlisle, supra, p. 7.)

The founder of the Indian school program identified his

ambition: “Kill the Indian in him, and save the man.” (R.H.

Pratt, Speech to the Proceedings of the National Conference of

Charities and Correction, June 23-29, 1892, p. 46,

<https://carlisleindian.dickinson.edu/sites/default/files/docs-

resources/CIS-Resources_1892-PrattSpeech.pdf> [as of April 12,

2023], archived at < https://perma.cc/EAL5-BCGH>.) The goal

was to “plant[] treason to the tribe and loyalty to the nation at

large.” (Id. p. 57.)

19

A federal report summarizes recent investigation by the

United States Department of the Interior. (Federal Indian

Boarding School Initiative Investigative Report (May 2022),

<https://www.bia.gov/sites/default/files/dup/inline-

files/bsi_investigative_report_may_2022_508.pdf> [as of April 12,

2023], archived at < https://perma.cc/FF4L-W6X6> (Indian School

Report); see also U.S. Dept. Interior, Federal Indian Boarding

School Initiative, < https://www.bia.gov/service/federal-indian-

boarding-school-initiative> [as of April 12, 2023], archived at

<https://perma.cc/FW4A-P4FW> (Indian School Initiative).)

“[F]rom 1819 to 1969, the federal Indian boarding school

system consisted of 408 federal schools across 37 states or then

territories . . . .” (Indian School Initiative.) The Federal

government created Indian schools throughout the nation,

including in the American West. Twelve schools were in

California, 48 in Arizona, three in Nevada, 10 in Oregon, 15 in

the State of Washington, and 45 in New Mexico. (Indian School

map, pp. 8, 6, 31, 40, 50, and 34, respectively, <https://www.bia.

gov/sites/default/files/dup/inline-files/appendix_c_school_maps_

508.pdf> [as of April 12, 2023], archived at < https://perma.cc/

V6MS-23JA>.)

“Systematic identity-alteration methodologies employed by

Federal Indian boarding schools included renaming Indian

children from Indian names to different English names; cutting

the hair of Indian children; requiring the use of military or other

standard uniforms as clothes; and discouraging or forbidding the

following in order to compel them to adopt western practices and

Christianity: (1) using Indian languages, (2) conducting cultural

practices, and (3) exercising their religions.” (Indian School

Report, supra, p. 53, fns. omitted.)

20

Indian schools enforced rules through corporal punishment,

solitary confinement, withholding food, and flogging. (Indian

School Report, supra, p. 54.)

Some Indian children fled the schools. Federal officials at

the time reported “[t]he children who have run away from school

have been promptly brought back and punished, and judicious

punishment has in all instances proved very salutary.” The

“habit, being of longstanding, was not entirely overcome; but I am

convinced that a prompt returning of the runaways and a

whipping administered soundly and prayerfully, helps greatly

toward bringing about the desired result.” (Indian School Report,

supra, p. 55, fns. omitted.)

Indian children in the schools experienced rampant

overcrowding, disease, malnourishment, and physical, sexual,

and emotional abuse. (Indian School Report, supra, p. 56.)

“The United States’ creation of the Federal Indian boarding

school system was part of a broader policy aimed at acquiring

collective territories from Indian Tribes . . . . From the earliest

days of the Republic, the United States’ official objective—based

on Federal and other records—was to sever the cultural and

economic connection between Indian Tribes . . . and their

territories. The assimilation of Indian children through the

Federal Indian boarding school system was intentional and part

of that broader goal of Indian territorial dispossession for the

expansion of the United States.” (Indian School Report, supra, p.

93.)

“The intentional targeting and removal of American Indian

. . . children to achieve the goal of forced assimilation of Indian

people was both traumatic and violent. Based on initial research,

the Department [of the Interior] finds that hundreds of Indian

21

children died throughout the Federal Indian boarding school

system. The Department expects that continued investigation

will reveal the approximate number of Indian children who died

at Federal Indian boarding schools to be in the thousands or tens

of thousands. Many of those children were buried in unmarked

or poorly maintained burial sites far from their Indian Tribes . . .

and families, often hundreds, or even thousands, of miles away.

The Department’s research revealed at least 53 different burial

sites across the Federal Indian boarding school system and leads

to an expectation that there are many more burial sites that will

be identified with further research. The deaths of Indian

children while under the care of the Federal Government, or

federally supported institutions, led to the breakup of Indian

families and the erosion of Indian Tribes . . . .” (Indian School

Report, supra, p. 93.)

Targeting Indian children for assimilation contributed to

loss of life, loss of physical and mental health, and loss of

territories and wealth. The policy also contributed to the loss of

tribal and family relations and the use of tribal languages. It

eroded tribal religious and cultural practices over many

generations. (Indian School Report, supra, p. 94.)

“In the final analysis, the boarding school story constitutes

yet another deplorable episode in the long and tragic history of

Indian-white relations. For tribal elders who had witnessed the

catastrophic developments of the nineteenth century—the

bloody warfare, the near-extermination of the bison, the scourge

of disease and starvation, the shrinking of the tribal land base,

the indignities of reservation life, the invasion of missionaries

and white settlers—there seemed to be no end to the cruelties

perpetrated by whites. And after all this, the schools. After all

22

this, the white man had concluded that the only way to save

Indians was to destroy them, that the last great Indian war

should be waged against children. They were coming for the

children.” (David Wallace Adams, Education for Extinction:

American Indians and the Boarding School Experience, 1875–

1928 (1995) pp. 336–337.)

The memory of Indian schools is not lost in the past.

United States Secretary of the Interior Deb Haaland

recently stated, “Federal Indian boarding school policies have

touched every Indigenous person I know.” (Murphy, ‘I will never,

ever forgive this school for what they did’: Native American elders

share painful memories from government-backed boarding

institutions, (July 11, 2022) L.A Times p. A2.) “Some are

survivors. Some are descendants. But we all carry the trauma in

our hearts.” (Ibid.; see also Becenti, “I can take this”: Former

boarding school students tell Haaland about abuse, mistreatment,

Arizona Republic, January 27, 2023, <https://www.azcentral.com/

story/news/local/arizona/2023/01/27/deb-haaland-hears-stories-of-

mistreatment-at-boardingg-schools/69844003007/> [as of April

12, 2023], archived at < https://perma.cc/35KY-Z3CT>.)

“From the very earliest period in my life that I can

remember, there was always a family reunion in August and we

always had empty chairs. I remember as a child I tried to sit in

one of the chairs, and my aunts would scold me. ‘Don’t sit in the

chair please, there is someone there.’ And I would ask, ‘Mom,

there’s no one there?’ and my mum would say, ‘But there is, you

just can’t see them, we have them in our heart, we have them in

our memory, and until the day we find them and we find out

where they’re at, and we come to help them and bring them

23

home, we’ll put out a chair for them.’ ” (Carlisle, supra, at pp.

352–353.)

E

The Department’s failure prejudices tribes. The

Department had contact information for three extended paternal

family members but did nothing with it, thus denying tribes the

benefit of the statutory promise. It would be a miscarriage of

justice to deny tribes the benefit of this legislation.

In light of a long and troubling history, there is no good

reason for the Department to fail to ask about Indian ancestry

when the cost is slight. When low-cost inquiries yield fruit, the

Department can notify the relevant tribes, which can decide

whether and how to involve themselves with a child. The

information can thereby be a vital link connecting Indian

children with their tribes, which helps preserve a future for

cultures the Legislature sought to protect. (See In re K.H., supra,

84 Cal.App.5th at p. 609.)

Placing this child with maternal family members does not

dispel prejudice to tribes. (In re Oscar H. (2022) 84 Cal.App.5th

933, 938–940 [portion of opn. not joined by a second justice].)

Even in such cases, tribes may assert tribal jurisdiction or may

formally intervene in state court. (Ibid.)

A “tribe’s rights are independent of the rights of other

parties.” (Tribal Report, supra, p. 71.) A parent cannot waive the

tribes’ rights. (Ibid.; In re Isaiah W. (2016) 1 Cal.5th 1, 13 [given

the protections the Act affords Indian children and tribes,

parental inaction is not waiver].)

When a relative does not acknowledge a tribe, that relative

cannot be expected to carry forward a tribal heritage.

24

The protection of the tribal interest is at the core of ICWA

and our state counterpart, which recognize that a tribe has an

interest in the child that is distinct from, but on a parity with,

the interest of the parents. This relationship between Indian

tribes and Indian children is one many non-Indians find difficult

to understand and that non-Indian courts are slow to recognize.

(Miss. Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30,

52.)

The relevant rights belong to Indian tribes. They have a

statutory right to receive notice where an Indian child may be

involved so that they authoritatively may determine for

themselves that child’s status. “It necessarily follows that the

prejudice to those rights lies in the failure to gather and record

the very information the juvenile court needs to ensure accuracy

in determining whether further inquiry or notice is required, and

whether ICWA does or does not apply.” (In re K.H., supra, 84

Cal.App.5th at p. 591.)

The question of membership is determined by the tribes,

not by courts or child protective agencies. (In re T.G. (2020) 58

Cal.App.5th 275, 294 [citing Santa Clara Pueblo v. Martinez

(1978) 436 U.S. 49, 65, fn. 21 & Welf. & Inst. Code, § 224.2, subd.

(h)].)

In sum, the Department’s violation of the 2018 amendment

is prejudicial.

III

Courts have grappled with the 2018 amendment in the

utmost good faith and with pure motives. All abhor injustices of

the past. All want children like S.S. to achieve stability and

finality as soon as possible. All lament delay and uncertainty

that the debate over this amendment has thrust into the lives of

25

these children and the people who love them. We all share these

attitudes and goals.

Courts are united in these respects but disagree about how

to apply the 2018 amendment.

Nothing is stopping the Department from taking the slight

efforts required to comply with the 2018 amendment. The sooner

the Department begins complying with the law consistently, the

sooner this unfortunate and regrettably persistent issue will be

resolved.

DISPOSITION

We conditionally reverse the juvenile court’s finding that

ICWA does not apply and remand the matter to the juvenile court

with directions to order the Department to inquire, if reasonably

possible, of the three paternal extended family members

previously identified whether S.S. may be an Indian child. These

three paternal relatives are grandfather O.H., aunt L.R., and

cousin L.T. If this inquiry produces information showing ICWA

applies, the court shall vacate its existing order and proceed in

compliance with ICWA and related California law. If, on the

basis of these three inquiries, the court instead finds that ICWA

does not apply, its ICWA finding shall be reinstated. In all other

respects, we affirm the court’s orders terminating parental rights.

WILEY, J.

26

VIRAMONTES, J., Concurring.

I concur with the majority opinion’s holdings that the

juvenile court erred in finding that the Indian Child Welfare Act

of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) did not apply and that

the error was prejudicial. I also concur in the holding that

placement with maternal family relatives does not preclude

prejudice to the tribes. I write separately to express my

agreement with the analytical framework set forth in In re K.H.

(2022) 84 Cal.App.5th 566 (K.H.) for assessing prejudice when the

Los Angeles County Department of Children and Family Services

(Department) fails to inquire of extended family members. In

this case, the Department’s failure to make any inquiry of known

paternal extended family members left the juvenile court without

sufficient evidence upon which to find that the inquiry was

proper, adequate, and duly diligent. As in K.H., this error was

prejudicial because “the inquiry fell well short of that required to

gather the information needed to meaningfully safeguard the

rights of the tribes, as intended under ICWA and California law.”

(Id. at p. 620.) Remand for an adequate inquiry in the first

instance is accordingly required.

VIRAMONTES, J.

1

STRATTON, P. J., Dissenting

Mother Karla S. appeals the juvenile court’s order

terminating parental rights to son S.S. (born May 2021). She

does not challenge the juvenile court’s decision to terminate her

rights. Mother’s contention is that the Los Angeles Department

of Children and Family Services (DCFS) did not comply with its

initial duty of inquiry under Welfare and Institutions Code1

section 224.2, subdivision (b) in that DCFS failed to ask available

extended paternal family members whether S.S. is an “Indian

child” within the meaning of section 1903 of the federal Indian

Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)

DCFS erred in failing to question extended paternal family

members despite having contact information for them. However,

I conclude the error was harmless because S.S.’s designated

prospective adoptive parents are his maternal aunt and uncle.

BACKGROUND

S.S. was taken into protective custody by DCFS at the time

of his birth. Within days thereafter, DCFS filed a section 300

petition alleging Mother had a history of substance abuse and

tested positive for opiates at the time of S.S.’s birth; S.S.’s older

brother N.S. was already a dependent of the juvenile court due to

Mother and Father’s neglect and substance abuse; and Father

suffered from mental health problems, including suicidal ideation

and diagnosed bipolar depression, for which he failed to take his

prescribed medication. It was alleged all these circumstances

placed S.S. at risk of serious physical and emotional damage. On

May 19, 2021, the juvenile court detained infant S.S. from his

1 Undesignated statutory references are to the Welfare and

Institutions Code.

1

parents and eventually placed him with his maternal aunt and

uncle. The juvenile court ultimately conducted contested

separate jurisdictional and dispositional hearings and on

September 21, 2021, found S.S. a dependent of the court based on

toxicology reports positive for opioids at birth, Mother’s drug

abuse, and Father’s mental illness which had been previously

documented in the older son’s dependency case.

On February 14, 2022, when S.S. was nine months old, the

juvenile court terminated all parental rights in favor of a

permanent plan of adoption by his caretaker maternal aunt and

uncle, who were designated his prospective adoptive parents.

ICWA

As for inquiries into S.S.’s possible Indian ancestry, at the

May 19, 2021 detention hearing, Mother submitted ICWA-020

form denying Indian ancestry. However, the juvenile court was

informed by minor’s counsel (who had spoken to the maternal

aunt) that Mother might have Yaqui Native American heritage.

DCFS also reported it had interviewed maternal grandmother

who believed she had Yaqui ancestry through the maternal great

grandfather. The court ordered DCFS to investigate this claim,

including by interviewing the maternal aunt and maternal

grandmother.

On June 23, 2021, DCFS gave notice to the Pascua Yaqui

tribe, which replied by letter dated July 8, 2021 that S.S. was not

eligible for membership in the tribe and the tribe would not

intervene in the matter. During this time, contact information

for a paternal cousin, paternal aunt, and paternal grandfather

became known to DCFS. Father also completed an ICWA-020

form stating he was unaware of Indian ancestry. DCFS did not

contact any of the family members on the paternal side.

2

On September 21, 2021, the juvenile court found both

parents had denied Indian ancestry. The court also found ICWA

inapplicable because there was no reason to know S.S. is an

Indian Child within the meaning of the statute. Mother’s appeal

followed.

DISCUSSION

Mother contends the order terminating parental rights

should be reversed because DCFS did not inquire of paternal

extended family members about S.S.’s possible Indian ancestry.

In enacting ICWA, Congress found “that an alarmingly

high percentage of Indian families are broken up by the removal,

often unwarranted, of their children from them by nontribal

public and private agencies and that an alarmingly high

percentage of such children are placed in non-Indian foster and

adoptive homes and institutions.” (25 U.S.C. § 1901(4).) ICWA

reflects the intent of Congress “to protect the best interests of

Indian children and to promote the stability and security of

Indian tribes and families by the establishment of minimum

Federal standards for the removal of Indian children from their

families and the placement of such children in foster or adoptive

homes which will reflect the unique values of Indian culture, and

by providing for assistance to Indian tribes in the operation of

child and family service programs.” (25 U.S.C. § 1902.) The

court is obligated to ask each “participant” in the proceedings

whether they have reason to believe the child is an Indian child

and to instruct the parties to inform the court if they

subsequently receive information that provides a reason to know

the child is an Indian child. (In re Austin J. (2020)

47 Cal.App.5th 870, 882–883, superseded by statute on other

3

grounds as stated in In re E.C. (2022) 85 Cal.App.5th 123, 147;

see 25 C.F.R. § 23.107(a) (2022).)

As our Supreme Court has recognized, “Congress enacted

ICWA in 1978 in response to ‘rising concern in the mid-1970’s

over the consequences to Indian children, Indian families, and

Indian tribes of abusive child welfare practices that resulted in

the separation of large numbers of Indian children from their

families and tribes through adoption or foster care placement,

usually in non-Indian homes.’ ” (In re Isaiah W. (2016) 1 Cal.5th

1, 7.) In enacting these provisions, “ ‘Congress was concerned not

solely about the interests of Indian children and families, but also

about the impact on the tribes themselves of the large numbers of

Indian children adopted by non-Indians.’ ” (Id. at p. 9.)

The concern about separating Indian children from their

Indian families, heritage and culture was the topic of extensive

Congressional hearings when ICWA was enacted. As one

commentator wrote, the “ ‘wholesale separation of Indian

children from their families is perhaps the most tragic and

destructive aspect of American Indian life today.’ ” (Atwood,

Flashpoints Under the Indian Child Welfare Act: Toward a New

Understanding of State Court Resistance (2002) 51 Emory L.J.

587, 601, cited in In re A.C. (2022) 75 Cal.App.5th 1009, 1014.)

ICWA authorizes states to provide even more protection

than the federal statute provides. In 2006, the California

legislature enacted parallel statutes to affirm ICWA’s purposes

and mandate compliance with ICWA in all Indian child custody

proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.)

In California, the child protection agency is obligated to ask “the

child, parents, legal guardian, Indian custodian, extended family

members, others who have an interest in the child, and the party

4

reporting child abuse or neglect, whether the child is, or may be,

an Indian child.” (§ 224.2, subd. (b); In re Dominick D. (2022)

82 Cal.App.5th 560, 566.)

Here, DCFS did not fulfill its duties under section 224.2 as

it did not ask extended paternal family members about Indian

ancestry, despite having their contact information. This was a

violation of law. But the next question is whether the error was

prejudicial. A prerequisite to reversal of a trial court’s decision

under California law is s showing of a miscarriage of justice.

(Cal. Const., art. VI, § 13.)

I find no miscarriage of justice, or, in other words,

prejudice. ICWA itself sets out placement priorities. Section

1915 of title 25 of the United States Code provides that in any

adoptive placement of an Indian child under state law, “a

preference shall be given, in the absence of good cause to the

contrary, to a placement with [¶] (1) a member of the child’s

extended family; [¶] (2) other members of the Indian child’s tribe;

or [¶] (3) other Indian families.” (25 U.S.C. § 1915(a).) Extended

family under ICWA includes aunts and uncles. (25 U.S.C.

§ 1903(2).) By its terms, the statute does not mandate placement

with the Indian side of the family where, as here, one side of the

“extended family” is not Indian.

In this case, S.S. was detained immediately after birth and

eventually placed with his maternal aunt and uncle. He has

remained with them throughout the proceedings. He is now

almost two years old, having lived with his aunt and uncle since

birth. DCFS reported to the court that S.S. has built a bond with

the aunt and uncle as “this is the only family placement he has

had.” His older brother N.S. is also living with the same

caregivers so S.S. has also been able to build what DCFS

5

characterizes as a “lifelong connection to his brother.” It is

expected these familial bonds will continue to grow because

maternal aunt and uncle, with two young daughters of their own

who are S.S.’s first cousins, have applied to adopt both brothers.

The prospective adoption by maternal aunt and uncle

contrasts with the parents’ failure to visit S.S. on a regular basis.

They also failed to follow through with telephone contact with

S.S. even though calls were scheduled for every Sunday at 11

a.m. Placement with the aunt and uncle has provided S.S. with

“regular contact with his extended family members. The

maternal grandmother sees the child almost every week, while

another maternal aunt lives nearby and is in contact. In

addition, the caregivers have contact with paternal aunt who

recently spoke to the sibling for his birthday.” “The current

caregivers’ home is adoption ready and there are no impediments

to adoption.”

The juvenile court implemented ICWA’s first preference by

designating S.S. adoptable by his maternal aunt and uncle, a

logical finding given S.S.’s lifelong placement with them and their

close geographic proximity and social connection to extended

family members of both Mother and Father. S.S. is in no danger

of being separated from his biological family, the evil ICWA was

enacted to prevent. (In re J.W. (2022) 81 Cal.App.5th 384, 391.)

Moreover, even if a tribe had intervened, it would be bound by

the placement priorities of the statute if, as the court found here,

the first placement priority was in the minor’s best interest.

Given that the placement chosen by the juvenile court is clearly

in S.S.’s best interests and also promotes rather than eviscerates

S.S.’s connection to his biological family, I am hard pressed to say

that a tribe’s inability to participate warrants delaying S.S.’s

6

permanent unification with, not separation from, his biological

family.

I cannot find that ICWA and its California counterpart

were intended to elevate a tribe’s right to participate over the

child’s interest in a secure and safe placement within the bosom

of the child’s biological family. Tribes are included in the

proceedings to ensure that no unreasonable and unjustified

separation from biological family members occurs. Nothing like

that happened here. That the tribe may be the official real party

in interest does not supersede the child’s best interests, and no

one in this proceeding argues that placement within S.S.’s

extended family does not serve his best interests. Do we want to

unwind this biological-family adoption by the only parents S.S.

has ever known so that a tribe can come in and suggest someone

else within the first preference category? I do not.

Mother does not argue that her son’s proposed adoption by

his aunt and uncle is contrary to his best interests or lacks good

cause. Nor could she credibly oppose the proposed adoption as

the prospective adoptive parents have created a biologically-

based family unit which Mother and Father could not do. S.S.

has now spent his entire life of two years with the same

caregivers who are also part of his own biological family. He is

entitled to the security and stability of the adoptive home that is

awaiting him, a disposition with which appellant does not

quarrel. There is no miscarriage of justice.

STRATTON, P. J.

7