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C.A. Justices at Odds on Dealing With DCFS’s Failure to Probe Possible Indian Heritage
Wiley Says in Dissent That Reversal of Order Severing Parental Ties Should Result Where Extended Family Members Aren’t Queried
By a MetNews Staff Writer
An agency of the County of Los Angeles is alleged in a burgeoning number of dependency cases to have made an inadequate inquiry into possible Indian ancestry of the child, producing disparate views, with one justice opining in a dissent yesterday that a disposition should be reversed based on workers having neglected to query members of the extended family even though there was nothing triggering a suspicion of Native American heritage.
Several placement decisions have been reversed recently based on the failure of the Department of Children and Family Services (“DCFS”) to discharge its responsibilities under the federal Indian Child Welfare Act (“ICWA”). An inquiry of extended family members as to whether the subject of a dependency proceeding is an “Indian child” is required by California’s Welfare and Institutions Code §224.2(b).
In the case decided yesterday by Div. Eight of this district’s Court of Appeal, the majority and the dissenter agreed that the DCFS had botched its investigation. San Diego Superior Court Judge Albert T. Harutunian III, sitting on assignment, authored the majority opinion, in which Acting Presiding Justice Elizabeth A. Grimes joined, affirming a decision by Los Angeles Superior Court Judge Hernán D. Vera terminating parental rights.
Harutunian’s Opinion
There was error, he said in an Harutyunyan’s unpublished opinion, in finding that that the ICWA did not apply, but proclaimed the error to be harmless. Harutunian wrote:
“We decline to follow the ‘error per se’ line of cases…whereby a failure to inquire is never harmless error. There are real and serious costs, both monetary and emotional, if courts blindly delay finalizing the placement of a child in every case where any extended family was not questioned, on the off-chance they might disagree with the parents’ representation that the child has no Indian heritage.”
In a dissent, Justice John Shepard Wiley Jr. commented:
“This is another case in which DCFS contacted extended family members but failed to ask about Indian heritage, even though asking would have been easy. I agree with Mother that, in these cases, to affirm without this inquiry is to rely on ‘a self-fulfilling prophecy’: the less DCFS investigates, the more insulated from reversal will be its work. This self-fulfilling prophecy sets an unfortunate incentive for an agency that, to judge from our current docket, routinely confesses its failings on this score.
“I lament delay in finalizing the adoption of children. When DCFS already is interacting with extended family members, it would seem a simple matter to add this question to the agenda.”
Responds to Dissent
In a footnote, Harutunian responded:
“The dissent argues the failure to inquire of extended family members leads to a “self-fulfilling prophecy” that the courts will find no basis for overturning DCFS’s conclusion that ICWA does not apply. But it is not self-fulfilling. It is based on the complete (absence of any hint of contrary evidence. There is no declaration from a family member saying, ‘I once heard my aunt say there is Indian blood in our family.’ There is no statement by a parent that they were mistaken in disclaiming Indian heritage. There is no declaration that any extended family member refused to informally answer the question when contacted by a parent or counsel. We have cited cases where courts did remand for further inquiry because all biological parents had not sworn under oath that they had no Indian heritage. Nothing about our decision insulates the DCFS decision from scrutiny.”
The case is In re R.T., B315541.
Div. Two Opinion
On Tuesday, Justice Judith Ashmann-Gerst of Div. Two said in an unpublished opinion in In re D.M., B315032:
“Mother…encourages us to follow a series of opinions holding that prejudice necessarily follows from DCFS’s failure to conduct a proper ICWA inquiry, since these procedural errors prejudice a tribe’s ability to be notified of a child and to intervene on their behalf. However, the opinions she cites for this proposition all examine errors made after a juvenile court has been given reason to believe or reason to know that a child is an Indian child, which triggers duties of further inquiry and notification to any identified tribes….We decline to apply the reasoning in these opinions to errors made before this initial requirement is met, especially when the appealing parent has not indicated that there is any reason to believe that a child is an Indian child within the meaning of ICWA.”
In Div. Two’s June 14 published decision in In re Dezi C., Justice Brian M. Hoffstadt wrote for the court. Noting that varying views have been expressed on “how harmlessness is to be assessed” where the DCFS fumbles, he put forth a new test (the fourth one a court of appeal has formulated):
“An agency’s failure to discharge its statutory duty of initial inquiry is harmless unless the record contains information suggesting a reason to believe that the children at issue may be ‘Indian child[ren],’ in which case further inquiry may lead to a different ICWA finding by the juvenile court.”
Div. Three’s View
On June 16, Div. Three of this district’s ordered publication of its May 18 decision in In re Q.M. There, the court said, in an opinion by Presiding Justice Lee Edmon that the DCFS could not have interviewed extended family members where neither parent would identify them.
The opinion includes this discussion:
“Although mother concedes there is no indication in the present record that the children had Indian ancestry through her mother’s family, she urges that this court should assume she has extended family members who could provide additional information regarding her possible Indian ancestry—and, further, that we should reverse the order terminating parental rights because the juvenile court failed to order DCFS to interview these still-unidentified individuals. We decline to do so. The kind of inquiry mother advocates is amorphous and lacks a defined stopping point at which DCFS can reliably conclude that it has done enough to establish the absence of Indian ancestry. And, of course, requiring DCFS to run down unpromising leads comes at a significant cost in terms of protecting the welfare of dependent children.”
Div. Seven’s Opinion
Div. Seven weighed in on April 4, with Justice John L. Segal authoring the published opinion in In re J.C., expressing a view along the lines of what Wiley said yesterday. The DCFS neither admitted nor denied that it had failed to comply with §224.2(b) but asserted that if there was error, it was harmless because both parents denied Indian heritage and the department’s investigation—which Segal labeled “inadequate”—provided no basis for suspecting such ancestry.
The justice said:
“To state the Department’s argument is to expose its circular flaw: By failing to conduct an adequate inquiry, the Department virtually guarantees that the (incomplete) information it obtains will support a finding ICWA does not apply and that the juvenile court’s error in failing to require the Department to comply with the law is harmless.
“Under the Department’s theory, the less it complies with its duties to inquire under state and federal law, the more harmless is its erroneous failure to inquire.That’s not how it works….[W]here, as here, the Department’s failure to conduct an adequate inquiry makes it impossible for the parent to show prejudice, we must remand for a proper inquiry.”
Another Remand
Div. Seven also ordered a remand, for the same reason, in its March 16 published opinion in In re Antonio R., authored by Justice Gail Ruderman Feuer, who remarked:
“The so-called burden on the Department (to satisfy its responsibilities) cannot justify the potential to break up Indian families given the country’s history of doing just that.
“Nor can the sake of efficiency justify applying a relaxed harmless error standard. Indeed, it is the failure of the Department to satisfy its obligations during the dependency proceeding that creates uncertainty and potential delay because a juvenile court judgment is subject to collateral attack based on later-discovered information that a child is an Indian child.”
Div. Five’s Decisions
In an April 27 unpublished opinion in In re L.S., Presiding Justice Laurence D. Rubin of Div. Five alluded to “DCFS’s repeated non-compliance with the clear mandate of ICWA and related state law.”
Justice Carl H. Moor wrote the majority opinion, signed by Rubin, in which a remand was ordered for the purpose of the DCFS being ordered to make an inquiry of extended family members. In his separate opinion, Rubin noted that Moor had used a “substantial evidence formula” and remarked:
“…I believe that the more analytically sound basis on which to judge ICWA errors of this sort is to decide whether the agency’s failure to comply with clear statutory directives was or was not prejudicial. In my view the harmless error approach adopted by Division 7 of this court is the correct one.”
He cited In re Antonio R., In re J.C., and an earlier decision by that division.
Justice Lamar Baker wrote a concurring opinion.
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