Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
DEPENDENCY (current through 9/16/2022)
By: John Nieman
In re Dezi C. et al.
6/28/22, CA 2/2: B317935M
Changes primarily to footnote 4, more fully spelling out the benefits of utilizing CCP §909.
In re M.B.
6/29/22, CA 2/7: B312789
This is an Indian Child Welfare Act case where inquiry and notice were not properly effectuated in the trial court. After termination of parental rights, the Department (of Children and Family Services) conducted the further ICWA inquiry as required and submitted its findings to the juvenile court and the juvenile court made findings that ICWA noticing and investigation was completed and that the ICWA was inapplicable. Subsequently the Department petitioned to supplement the record with that finding and moved the appellate court to dismiss the appeal as moot. The Appellate court declined.
It characterized the filing post-termination of parental rights as a collateral attack on the order terminating parental rights. It went on to explain that findings the ICWA was applicable would require a reversal of the decision to terminate parental rights, something prohibited by Welfare and Institutions Code (WIC) §366.26(i)(1). The case was conditionally affirmed and remanded.
In re C.S.
6/30/22, CA 2/7: B312003
Mother challenged the visitation orders issued upon dismissal of the case at disposition (ordering placement with the nonoffending parent). She complained that an order delegating to the therapist the decision about when visits might start was an improper delegation of judicial authority. The Appellate Court affirmed citing W&I §364.2(a), reasoning that since the trial court could have ordered no visitation, one which permitted it conditionally was appropriate and within its discretion.
In re E.V.
6/30/22, CA 4/3: G061025
This is an Indian Child Welfare Act (ICWA) case where father appeals the termination of his parental rights based on a conceded failure to properly investigate the applicability of the ICWA. The Social Services Agency (SSA) failed to ask extended family members about possible Native American Ancestry. After the appeal was filed, SSA completed the investigation, finding no evidence of ICWA applicability. It requested that the appellate court receive that information and rule accordingly.
The appellate court denied to receive the evidence, indicating that it was not the proper court to make the ICWA compliance determination. Additionally, it ruled that the evidence proffered was not dispositive of all of the errors claimed by father upon appeal. This Appellate Court took the position (citing In re A.R. (2022) 77 Cal.App.5th 197) that “…SSA and the court’s failure to comply with its duties under ICWA is presumed to be prejudicial.” (p.10). Conditionally reversed and remanded to allow the SSA to comply with the ICWA.
In re M.G.
7/1/22, CA 2/8: B313483
Parental rights were terminated after the trial court received expert evidence on the quality of the parent-child relationship. The trail court cited that the parents didn’t occupy a parental role and that their bond with the child wasn’t positive. Finding the bonding study to be “inexplicably terse and analytically uninformative” (p.15), the appellate court ruled that evidence of the quality and existence of the parent-child emotional relationship inadequate to evaluate the second requirement of In re Caden C. (2021) 11 Cal.5th 614 regarding the possibility that the parent-child relationship should be protected. Remanded to evaluate the parent-child relationship according to the standards expressed in Caden C.
In re M.M.
7/12/22, CA 2/8: B315997
Mother appealed asserting that Caden C. had not been followed in the evaluation of her bond with the minor M.M., and that the ICWA was not followed. As to the Caden C. analysis, the trial court determined that the mother had failed to meet the first prong that enables the bond defense, namely that she failed to maintain regular visitation with M.M. As to the ICWA issue, briefly summarizing the various rules asserted in such cases by appellate courts and referring to its recent Dezi C. decision, because there was no assertion that there was Native American ancestry by the parents it found the probability of prejudice low enough to effectively deem the error to inquire of relatives to be harmless.
There is a dissenting opinion as to the holding regarding the ICWA that highlights the potential Tribe’s (whose theoretical interests are protected when W&I §224.2 is properly followed) inability to assert an influence when the extent of their interest, if any, is unknown.
In re Rylei S. et al.
7/18/22, CA 2/7: B316877
This is an Indian Child Welfare Act case where inquiry into potential Native American ancestry was not properly effectuated by the Department of Social Services in the trial court. As has been repeated numerous times in the past year or so, the Department conceded its failure to make adequate inquiries under Welfare and Institutions Code (W&I) §224.2 after the mother asserted that she may have Cherokee ancestry through the maternal grandfather. Yet the identity, and therefore heritage of that grandfather were apparently never properly ascertained. County Counsel, knowing this appellate panel employs a harmless error analysis, proceeded to claim the error was harmless since the mother failed to produce any post-judgement evidence of Cherokee ancestry. Predictably, this argument was rejected and the case was conditionally affirmed but remanded to conclude further inquiries as is required under the Code and to follow the law based upon the results of those inquiries.
In re G.A.
7/19/22, CA 3: C094857
This is an Indian Child Welfare Act case where only the Court’s findings related to the ICWA were deficient. Both parents from the outset of the case filed ICWA-020 forms indicating no reason to believe there was Native American ancestry. Despite efforts by the Department, there was no opportunity to interview relatives about possible Native American ancestry. If no further inquiry was required, there was no failure by the Social Services Agency to effectuate its duty to investigate. Consequently, the trial court’s failure to make appropriate findings though error, was harmless to the final outcome.
The opinion declined to provide a detailed recitation of the facts, but “…finds no error flowing from the Agency’s failure to interview extended family members.” The opinion describes one Aunt who did not respond to the Agency’s communication attempts, but nothing more. This opinion goes out of its way to align itself with opinions that demand some evidence of potential ICWA applicability in order to find that error to investigate was not harmless. The implication is that available family members in this case were not interviewed. The case was affirmed but remanded for proper ICWA findings to be entered by the Juvenile Court.
In re J.W.
7/19/22, CA 2/8: B313447
This is another Indian Child Welfare Act (ICWA) case. Here it was undisputed that the Department failed to inquire of maternal family members about possible ICWA applicability as required by Welfare and Institutions Code (W&I) §224.2. The appellate court reasoned that the error was harmless because there was no evidence that mother’s assertion of having no Native American ancestry as she did on her ICWA-020 form was incorrect and that the child was placed with the maternal grandmother -therefore closer to whatever possible Native American ancestry were it to exist, and in conformance with the placement preferences of the ICWA- and freed for adoption by that same maternal grandmother.* The basic position of the court is that there is no showing that harm resulted from the failure to properly investigate but, even had some maternal Native American ancestry been found, placement with the maternal grandmother would have satisfied the then existing ICWA legal path.† Notably, the opinion points out how the minor would potentially suffer were the case remanded for additional investigation: “She lost an innocent part of her childhood because of this case; she should not be obliged to put her teenage years on hold as well where this proposed adoption does not perpetuate the abuses ICWA was enacted to prevent.” A dissent was filed with this opinion.
*A child placed with a relative upon termination of parental rights is not assured to remain in that placement. For this reason, the opinion includes a footnote that directs the Juvenile Court to complete the inquiry if ever the child is removed from the maternal grandmother and placement is contemplated with a non-relative.
†This reasoning presumes that the aims of the ICWA and California law designed to effectuate it are restricted to the decisions made by the Juvenile Courts -and do not include any other results of discovering the existence of a family’s Native American roots.
J.J. v Superior Court
7/21/22, CA 3: C095308
Mother filed an extraordinary writ claiming inadequate evidence supported the decision to bypass her from receiving an opportunity to reunify with her children under W&I 361.5(b)(5), (6), and (7). These bypass subsections are applicable when parental conduct causes serious physical harm (5) & (6), and serious harm to a sibling (7). While mother supplied alcohol to the father who perpetrated the severe abuse of the youngest minor, and she was less than perfect in her response upon hearing of the abuse, the appellate court found that the mother’s awareness of the risk posed by father was insufficient to apply the subsections (5) and (6). Since (5) and (6) were necessary to justify application of (7), it too was not supportable by the evidence.
Mother also claimed error with respect to the Indian Child Welfare Act (ICWA), but as the case was bring remanded for a new dispositional hearing, the claim was deemed unripe as remediation in the trial court was still available.
In re Ezequiel G., et al
7/29/22, CA 2/3: B314432
This is another Indian Child Welfare Act (ICWA) case. Mother denied Native American ancestry throughout the proceedings and did not object when the trial court made ICWA findings based on an inadequate investigation of relatives by the Department of Children and Family Services (DCFS) -in contrary to the requirements of Welfare and Institutions Code (W&I) §224.2. Parental rights were terminated, and mother appealed. New to the recent spate of cases regarding the ICWA, this court emphasizes that all parties to a juvenile dependency case are obligated to participate in the process to identify any possible application of the ICWA. It also asserts that automatic reversal was not in keeping with the aims/spirit of the ICWA nor the interests of the (presumably as yet unidentified) Tribes.
The appellate court presented 3 reasons why reversal should not be automatic in such cases and why this decision was affirmed:
1) This court asserts that the Juvenile Court can exercise discretion as to the statutory requirements in reliance upon (the accuracy of) parental statements about Native American ancestry.*
2) It cites the mother’s failure to object in the trial court and implies a dirty-hands doctrine approach to the subsequent raising of the ICWA issue initially on appeal to delay the dependency proceedings.
3) That prejudice must be found, citing the recent In re Dezi C. (2022) 79 Cal. App. 5th 769, requiring that “it is reasonably probable that an agency’s error in not conducting a proper initial inquiry affected the correctness (that is, the outcome) of the juvenile court’s ICWA finding,” and/or only “to those cases in which the record gives the reviewing court a reason to believe that the remand may undermine the juvenile court’s ICWA finding.”
A dissent was filed with this opinion.
*Juvenile Court reliance on parental information was part of the process to determine applicability of the ICWA long before the recent change in the law. Indeed, the description made of the process is the procedure used prior to the change: “…we believe inquiry of the parents will, in many cases, yield reliable information about a child’s possible tribal affiliation. In other cases, inquiry of extended family members will be necessary, either because parents do not appear in the dependency proceedings, refuse to answer ICWA inquiries, or give answers that are deemed unreliable by the juvenile court. Whether an ICWA inquiry is sufficient in a particular case is a matter we leave to the sound discretion of the juvenile court, to be exercised in light of the statutory requirements and the facts of the case.” (p. 30).
In re S.H.
8/12/22, CA 1/1: A163623
This is another Indian Child Welfare Act (ICWA) case. This case also involves a concession by the Social Services Agency that a proper ICWA inquiry was not effectuate. Mother appealed from the Disposition orders. This case differs from other recently published ICWA cases because the appellate court refuses to disturb the dispositional orders -despite the investigation’s inadequacy- because the conceded obligation of the Agency to do an ongoing investigation as to the applicability of the ICWA provides a remedy to the error and mechanism to implement (however late) the ICWA’s requirements (being unable to go back in time as regards the practical impact of affirmative ICWA involvement at disposition).
Much is made in this case of evidence that the parents were conspiring to use the ICWA as a delay tactic. Notably however, the maternal grandmother revealed that there was nevertheless possible Native American ancestry in her family, about which whether follow-up inquiry and/or notice ensued is unclear. In a footnote, the trial court’s findings of “no reason to believe” the child was an Indian Child within the meaning of the ICWA leave that question (about possible notice and follow-up investigation specific to the possible Native American ancestry indicated by the maternal grandmother) essentially unaddressed -presumably subsumed by the Agency’s commitment to make-good on a proper Welfare and Institutions Code §224.2 investigation and procedure going forward.
In re Raul V.
8/17/22, CA 4/2: E077964
This case is about the burden on appeal of a trial courts’ decision to bypass reunification services under Welfare and Institutions Code (W&I) §361.5(b)(5) and the companion §361.5(c)(3). This subsection is implemented when a finding is made by the trial court that the child suffered severe physical harm under W&I §300(e). Under the subsection, there is a rebuttable presumption that a parent will not benefit from services adequately to permit a safe return of the child(ren). The burden shifts to the parent to show that efforts at rehabilitation will likely result in an ability to be a safe parent. Consequently, upon appeal if a §300(e) petition is properly sustained, as regards to the provision of reunification services, the appellate review focuses on what evidence the parent presented in order to show that reunification services are likely to be successful. Mother produced (presumably) expert testimony at the disposition trial that mother accepted responsibility for the injuries and was fully participating in services. There was evidence of multiple injuries (that preceded the injury that brought the minor to the Juvenile Court), and mother’s truthfulness was questioned, and her statements related to taking responsibility for the child’s injuries appeared to be ambiguous. The Juvenile Court disagreed with the expert’s conclusion that mother was likely to be able safely parent with appropriate supports and intervention, and bypassed mother. The appellate court could find no abuse of the trial court’s discretion and affirmed.
In re J.R. et al.
8/22/22, CA 1/2: A164334
This case is about an alleged misapplication of the law related to termination of parental rights. Mother contended that the trial court erroneously relied on information determined by In re Caden C. (2021) 11 Cal.5th 614 to not bare upon the question before the trial court. However the appellate court affirmed, indicating that mother presented inadequate evidence to permit the trial court to rule in her favor. The appellate court therefore found harmless the trial court’s erroneous consideration of superfluous information to make its decision, as otherwise adequate support of its decision was received.
In re Dominick D., et al
8/23/22, CA 4/2: E078370
This is an Indian Child Welfare Act (ICWA) case. Mother appealed the Disposition orders, alleging the trial court erroneously found the ICWA did not apply. Children and Family Services (CFS) conceded its failure to conduct an adequate initial inquiry into possible application of the ICWA. CFS nevertheless contended that its failure was harmless. The Appellate court agreed with the mother but declined to decide the merits of CFS’s contention of harmlessness since the failure to make a proper finding as to the ICWA did not require modification of decisions related to Jurisdiction and Disposition. Remanded to conduct a proper ICWA inquiry with no modification of the trial court’s other orders.
In re J.R.
8/25/22, CA 2/8: B314532M
This case is about a failure to afford due process to the mother of the child before the juvenile dependency court. The Department of Children and Family Services (DCFS) failed to adequately attempt to locate mother. Though she subsequently communicated her whereabouts and a means of correspondence with her, DCFS failed to notice her of the proceedings. Upon termination of parental rights (juvenile dependency courts only terminate parental rights of both parents), only father appealed, and only raised the failure to provide mother with due process. The appellate court found father did have standing to raise mother’s due process rights violation because it was the only way to address the gross violation of mother’s rights, it was appropriate for the minor and court to potentially have mother’s participation, and to deny father standing would potentially improperly reward failures to notice parties in dependency cases. Reversed and remanded to permit trial court to afford mother an opportunity to engage in reunification services, with father’s parental rights reinstated -but leaving other determinations as to him undisturbed.
In re Ricky R., et al
8/25/22, CA 4/2: E078646
This is another Indian Child Welfare Act (ICWA) case. Mother appealed the orders terminating her parental rights. It is undisputed that the Department of Public Social Services (DPSS) failed to conduct a proper inquiry as required by Welfare & Institutions Code (W&I) §224.2(b). Readily available for inquiry and yet never asked were the maternal grandmother, maternal aunt, and paternal grandmother. DPSS requested the appellate court consider new evidence that the proper inquiry was conducted after the termination decision under judicial notice, augmentation, or Code of Civil Procedure (CCP) §909. The appellate court denied judicial notice because it would then be improperly making a factual determination based on the contents of the new evidence. It denied to augment because the evidence had never before been presented to the trial court.
It also denied to apply Code of Civil Procedure §909. DPSS cited In re Allison B. (2022) 79 Cal.App.5th 214. But this court distinguished this case (as there, unlike here, the trial court was able to examine and rule on evidence subsequently utilized under CCP §909) and further criticized it because the post-termination trial court examination of the evidence relied upon in the CCP §909 motion happened without the parent having an opportunity to participate in the vetting of the evidence, since parental rights there, as here, had been terminated. Finally, it indicated that employing CCP §909 in an appeal from parental rights termination is contrary to the explicit bar expressed in W&I §366.26(i)(1).
This court emphasized that “To avoid such a dilemma [employing trial court procedures to resolve appeals of parental rights terminations without involving parents] and still expedite the appellate process, the parties should stipulate to a conditional ICWA reversal and an immediate issuance of the remittitur.” (p.14) Conditionally reversed for proper ICWA inquiry and findings.
In re Kenneth D.
8/31/22, CA 3: C096051
This is another Indian Child Welfare Act (ICWA) case. Mother initially claimed possible Native American ancestry through her father (maternal grandfather), but later, and repeatedly, recanted. Father initially claimed possible Native American ancestry. The facts recited, focused as they were on those related to the ICWA, do not demonstrate that the Social Services Agency nor the trial court followed proper procedure relating to the ICWA. Yet there was no explicit acknowledgement that such inquiries and procedures failed to comport with the law. Be that as it may, the Appellate court affirmed the trial court’s orders because appellant father failed to show prejudice. The appellate court allowed the record to be augmented by (and considered) a post-decision addendum relating that father had no Native American Ancestry and trial court decision that the ICWA (still) didn’t apply. In augmenting the appellate record this court explicitly denied to follow In re M.B. (2022) 80 Cal.App.5th 617 which indicates that the appellate courts’ have no authority to consider post-Welfare & Institutions Code §366.26-decision evidence or findings that might bear upon that decision. This appellate court furthermore disagreed with In re E.V. (2022) 80 Cal.App.5th 691 (citing In re A.R. (2022) 77 Cal.App.5th 197), that failure to make a proper ICWA inquiry was presumptively prejudicial.
This decision does not explain why it was appropriate for the trial court to rely on mother’s own assessment of her Native American ancestry, nor how reliance upon the maternal grandmother’s assessment of potential Native American Ancestry on her side of the family was relevant to mother’s initial claim that maternal grandfather had Native American Ancestry. Nor does the decision explain with whom the child was placed and what impact such a placement might have had on the applicability of information provided by the mother and maternal grandmother.
In re Y.M.
9/2/22, CA 4/1: D080349
This is another Indian Child Welfare Act (ICWA) case. Here it was undisputed that the Department failed to obtain readily available information from relatives (paternal grandparents and uncle) about possible Native American ancestry. This Court opted to follow In re Benjamin M. (2021) 70 Cal.App.5th 735, perceiving that Benjamin M. found prejudice not on the fact that the information bearing upon the applicability of the ICWA was readily available but not obtained, but rather that such information additionally provide the basis for prejudice.* This appellate panel seems to make its decision based on the fact that, despite much involvement with both the court and Social Workers, none of the relatives claimed Native American ancestry (even though they weren’t asked directly about it). Finding that father failed to show there was prejudice from the lack of proper inquiry, the Appellate Court affirmed.
*The Benjamin M. decision does not evince any information that tends to show that inquiries of the unasked relatives in that case were more likely than not to indicate there was Native American ancestry. Therefore it is likely that the Benjamin M. court rested its decision on the idea that, whatever their responses, the answers given by those readily available relatives was likely to bear on the question of Native American ancestry in their (and hence Benjamin’s) family, not that their answers were likely to show there was Native American ancestry in their families.
In re J.K.
9/16/22, CA 2/6: B319316
This is also an Indian Child Welfare Act (ICWA) case. Parents denied Native American Ancestry and filed ICWA-020 forms in accord. The social worker asked paternal grandmother of her Native American ancestry, but didn’t inquire of the paternal grandfather, the parent’s siblings, and other maternal relatives.
The Appellate Court reasoned that: “If the statutorily-mandated duties of inquiry are not satisfied, the court’s finding that there is no “reason to know” the child is an Indian child is fatally uninformed.” (p. 13) The court remanded the case, emphasizing that this is a conditional affirmance, which preserves the status quo while simultaneously mitigating delays caused by a conditional reversal to ensure a full ICWA inquiry is conducted.