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Name: In re A.C.
Case #: E075333
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/25/2021

The juvenile court erred by failing to ask father whether he had Indian ancestry, but the error was harmless. The minor A.C. was removed from parents, who subsequently failed to reunify. Mother was an enrolled member of an Indian tribe. Father was never asked whether he had any Indian ancestry. When mother’s tribe declared A.C. was not eligible for membership, the juvenile court found that the Indian Child Welfare Act (ICWA) did not apply. Parental rights were terminated at the 366.26 hearing. Father appealed, and the appellate court affirmed the order. By failing to ask father at his first appearance, or at any other time, whether he had Indian ancestry, the juvenile court failed in its affirmative and continuing duty to inquire whether a child who is the subject of a dependency petition is or may be an Indian child. However, a failure to comply with this duty of inquiry must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. This means that a parent asserting a failure to inquire must show that he or she would have claimed some kind of Indian ancestry. While a requirement that an appellant submit evidence outside the record is a substantial departure from normal appellate procedure, in a case in which a parent is claiming the child has Indian ancestry, but the social services agency failed to carry out its duty of inquiry, the court will make an exception to that general rule. Here, father had not ever claimed at any stage that he has any Indian ancestry. Thus, reversal is not required. [Editor’s Note: Justice Menentrez dissented, relying on the holdings of In re K.R. (2018) 20 Cal.App.5th 701, 708 (appellate review of rulings that are preserved for review irrespective of action on the part of the parent should not fail simply because the parent is unable to produce an adequate record) and In re N.G. (2018) 27 Cal.App.5th 474, 484 (the burden of making an adequate record of the court’s and the agency’s ICWA inquiry efforts falls squarely and affirmatively on the court and the agency).]