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Name: In re D.B.
Case #: E079380
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 12/06/2022
Subsequent History: Ordered published 1/5/2023

Inadequate initial Indian Child Welfare Act (ICWA) inquiry was prejudicial under the Benjamin M. standard and any speculation about the minor’s placement with a relative is not a proper consideration. The minor was removed shortly after birth and placed with a paternal great uncle, who denied having any Indian ancestry. The Agency did not inquire of any other paternal relatives about Indian ancestry. The juvenile court found that ICWA did not apply. Both parents appealed following the termination of their parental rights. Following the reasoning of In re Benjamin M. (2021) 70 Cal.App.5th 735, the reviewing court conditionally reversed. While acknowledging that the Courts of Appeal are deeply divided on the issue of how to review ICWA inquiry error, the court chose to follow the reasoning of Benjamin M., that the Agency’s failure is prejudicial if the record shows that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child. In most circumstances, the information in possession of extended relatives is likely to be meaningful and thus failures in the ICWA inquiry will be prejudicial error in most circumstances. Here, the Agency neglected to question paternal relatives. Both paternal grandmother and great-grandmother were available during the proceedings and the Agency should have asked them about Indian ancestry. Thus, the Agency failed to comply with its duty of initial inquiry. The error was prejudicial because the unquestioned relatives’ responses would have shed meaningful light on whether there is a reason to believe the minor is an Indian child. Further, the reviewing court declined to consider that the minor was placed with a paternal relative or any other relative’s request for placement when assessing whether the inquiry error was harmless because speculating that a relative would raise Indian ancestry because they want the dependent child placed with them “has no place in the analysis of prejudicial error where there is an inadequate initial inquiry.” Declining to apply the reasoning of In re Y.M. (2022) 82 Cal.App.5th 901, 916), the reviewing court noted that this prejudice analysis also fails to account for tribal interests, which may have affected the outcome of the case, despite the minor’s placement with a relative.