Recent Dependency Law Cases

In re Kenneth D.
8/19/24, C S276649
https://www.courts.ca.gov/opinions/documents/S276649.PDF

This is the first of 2 long-awaited CA Supreme Court decisions that resolve issues related to the adjudication of cases involving the Indian Child Welfare Act (ICWA). This case answers the question of the propriety of using post judgment evidence vis Code of Civil Procedure (CCP) §909 to decide the merits of a case on appeal within the context of the ICWA. On appeal from the termination of parental rights, yet faced with an undisputedly inadequate inquiry into the Native American ancestry of the father, the Court of Appeals accepted a filing detailing the Social Service Agency’s post judgement efforts to shore up the initially inadequate inquiry. The Supreme Court ruled that, absent exceptional circumstances, consideration of post judgement evidence by a Court of Appeal is error. While it declined to specify what constituted exceptional circumstances under CCP §909, it quoted In re K.H. (2022) 84 CalApp5th 566, at 612, that errors because of inadequate ICWA investigations were common and therefore not exceptional enough to justify deviation from the general rule that Appellate Courts refrain from making factual determinations. Secondly in footnote 7, it said that use of CCP §909 needs necessarily be rare, “…lest the exception swallow the rule.” Finally, the Supreme Court emphasized that augmentation of the record on appeal is intended for materials before the trial court prior to making the decision for which an appeal was filed. Finding no exceptional circumstances whatsoever, the Appellate Court decision was conditionally reversed and remanded for the Juvenile Court to consider additional evidence related to the ICWA inquiry.

In re Dezi C. et al.
9/11/24, C S275578M
https://www.courts.ca.gov/opinions/documents/S275578M.PDF

This is the second decision that resolves issues related to the adjudication of cases involving the Indian Child Welfare Act (ICWA). Similar to Kenneth D. (above), this case includes an undisputedly inadequate inquiry into the Native American ancestry of the family (on both parents’ sides). This case establishes the legal procedure to follow in such cases. It decided that conditional reversal is required when an appellate court finds that the initial inquiry was inadequate. In short, it reasoned that it is impossible and therefore inappropriate for an appellate court to perform a harmless error analysis – the probability that an outcome more favorable to appellant would be achieved absent the error- as laid out in People v. Watson (1956) 46 Cal.2d 818 (Watson). The dissent asserts that such a conclusion is tantamount to stating that inadequate ICWA inquiries constitute structural error -an assertion denied by the majority. Yet neither the majority nor the dissent go on to analyze why it would be problematic to label such errors structural.

In any event, the majority includes as factors in its analysis that Tribes are essentially unrepresented parties in the proceedings and therefore rely upon the courts and social service agencies to protect their rights (vis a proper ICWA inquiry). The implication is that a failure to make adequate initial inquiries as required under the law, and the ensuing consequences of that failure, cannot be remedied through mere analysis of prejudice based on what was initially before the trial court. This is because what was initial before the trial court could, for example, be the result of a parent unable or unwilling to be truthful about their own Native American ancestry.¹ Secondly, it points out the risk of shifting the burden of inquiry from social services and the courts to families. Thirdly, it reviews the myriad reasons why the initial inquiry is so important to protect Tribes, and that failure to identify Indian children effectively disables the ICWA. Finally, it dispels the notion that interminable delays will result from requiring conditional reversals because of errors in the initial inquiry by pointing out that not every failure to properly inquire at the trial court level is sufficient grounds for an appellate court to conclude that there was an inadequate inquiry.

The Court emphasizes that conditional reversal permits a swift resolution by the trial court and therefore helps to avoid further delays.

The dissent points up the supposed extra requirements of “Cal-ICWA” versus the ICWA -not a novel claim- which has apparently fallen on deaf ears in the legislature. It also insists that, regardless of the admittedly structural-like legal consequences of failures to make adequate ICWA inquiries as required by law, that Watson and prejudice analyses must nevertheless be gleaned from the facts (that were) before the trial court (not to mention that the probability that ICWA is actually applicable in any dependency case is generally very small). The dissent claims that the resultant delays in permanency justify adherence to Watson. Finally, the dissent stresses that, aside from its preferred reliance on Watson, appellate courts’ option to be deferential to the trail court’s determination about the adequacy of the ICWA inquiry. The concurring opinion supports this final assertion.²

Conditionally reversed and remanded to the trial court to determine the adequacy of the ICWA inquiry and proceed accordingly.

¹ This author asserts that, notably, it is immaterial why a parent raises ICWA issues on appeal if an inadequate inquiry was made. This fact, in the face of reasonably attainable (and yet) absent facts, is the essence of the reasoning for the holding.

² It is unclear that the dissent believes that the majority disagrees with this final point -which is consistent with the most basic rule on appeal that trial court findings and orders are not disturbed absent an abuse of discretion. Perhaps this is a semantic issue between “inadequate” in terms of strict compliance with the statute versus “inadequate” overall under the particular circumstances of the case -the latter being within the normal province of the trial court’s discretion?

In re V.S.
9/9/24, CA 2/4 B332310
https://www.courts.ca.gov/opinions/documents/B332310.PDF

Social Services and minor appeal a W&I §366.26 decisions to maintain the minor in guardianship instead of adoption as recommended. Mother had initial lost custody of her daughter (who was then an infant) and son (½ sibling to daughter) in 2018 because of substance abuse issues. Mother was later incarcerated and failed to reunify with her daughter. For most of the 5 years since the original petition was sustained, the daughter was placed with a maternal great aunt in guardianship as was recommended and ordered at the first W&I §366.26 hearing. In the interim, son and daughter enjoyed fairly regular visitation. That maternal great aunt later petitioned for adoption. The trial court based the denied adoption based on the minor’s relationship with the ½ sibling brother who was in mother’s care, even though mother had not asserted a sibling bond exception to adoption. There was evidence of the daughter’s positive relationship with the ½ sibling brother.

The trial court made 3 errors. In the first place it sua sponte (and therefore without notice) applied the sibling exception and denied choosing adoption as the permanent plan. Therein it applied the wrong burden of proof, namely taking on its own and failing to ascribe to mother that burden. Secondly it purported to apply the Caden C. analysis (In re Caden C. (2021) 11 Cal.5th 614), explicitly intended to apply to the parental bond exception, to the sibling relationship exception. Finally, there was insufficient evidence to support the sibling relationship exception even were it properly before the court.

Reversed and remanded with instructions that the Juvenile Court find no exceptions to adoption and select adoption as the permanent plan.

In re Gilberto G. et al.
9/12/24, CA 2/7 B332002
https://www.courts.ca.gov/opinions/documents/B332002.PDF

Mother appeals jurisdiction findings and subsequent orders related to her children. Petitions were sustained for Welfare and Institutions Code (W&I) §300(b)(1). The children were not removed but mother was ordered to engage in services.

Mother drank alcohol during dinner with her father-in-law and children and subsequently fell, injuring herself on the bus in route to bring her 3 children (then ages 6-10) to their father. Mother tested positive for alcohol and marijuana at the hospital. This case was compared to In re J.N. (2010) 181 Cal.App.4th 1010, where an intoxicated father had a car accident that injured his children and immediately afterward he attempted to flee the scene. The salient similarities are that in both cases there was not enough evidence to demonstrate a pattern of risky behavior, nor current risk when the petitions were sustained (despite petition allegations referring to past events, they must assert, and the trial court must find, current risk to be viable). Mother had a history of involvement with Social Services when domestic violence with the children’s father placed the children at risk. There was also a later sustained W&I §387 petition of mother’s alcohol and marijuana abuse. Finding insufficient evidence to support a pattern of risky behavior, current risk (at the time the petitions were sustained), nor that of the previous W&I §387 petition, the appellate court reversed jurisdictional findings and dispositional orders.