Page 1
California Supreme Court:
Conducting Deficient Ancestry Inquiry Is Reversible Error
Evans Says Failure to Ask Child’s Extended Family Members of Possible Indigenous American Status Mandates Conditional Reversal of Parental Termination Even if Parents Deny Heritage; Groban, Guerrero Dissent
By Kimber Cooley, associate editor
The California Supreme Court held yesterday that an inadequate inquiry by a child welfare agency as to the possible Indigenous American ancestry of a dependent child under the California Indian Child Welfare Act requires conditional reversal of a juvenile court’s order terminating parental rights even if both parents deny any such ancestry and here is no evidence suggesting it.
Welfare and Institutions Code §224.2 provides that a child welfare agency has an “affirmative and continuing duty to inquire” whether a child detained by the court may be “an Indian child” and this “[in]quiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child…whether the child is, or may be, an Indian child.”
The dispute arose in an appeal by Angelica A.—the mother of the detained children Dezi and Joshua C.—who challenged an order by Los Angeles Superior Court Judge Pro Tempore Robin R. Kesler, terminating her parental rights. Angelica A.’s sole argument on appeal was that the Los Angeles County Department of Children and Family Services failed to comply with its duty under §224.2 to ask any extended family members about the children’s heritage.
Angelica A. and the children’s father, Luis C., denied Native American ancestry during their interviews with the department and on paperwork filed with the court, but the child welfare agency failed to inquire of any other family members as to the ancestry of the children despite discussing other issues with the maternal and paternal relatives.
Defect in Inquiry
Div. Two of this district’s Court of Appeal, in an opinion by Justice Brian M. Hoffstadt, found that any defect in an agency’s inquiry as to Native American status is harmless “unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning” of California law. Applying that standard, the court affirmed the termination order.
Justice Kelli Evans wrote the opinion reversing the judgment of the Court of Appeal. She noted a split in authority over what is required when there has been a deficiency in the status inquiry.
Resolving the question, she declared that “[w]e hold that error resulting in an inadequate…inquiry requires conditional reversal with directions for the child welfare agency to comply with the inquiry requirement of section 224.2.”
Justices Carol Corrigan, Goodwin H. Liu, Leondra Kruger, and Martin J. Jenkins joined in the opinion.
Justice Joshua P. Groban wrote a dissenting opinion, in which Chief Justice Patricia Guerrero joined. Groban wrote that “the majority’s rule of automatic conditional reversal…even if the parents disclaim any tribal membership and even if there is little possibility that the child may be Indian, fails to balance the equally important goal of achieving a prompt and stable placement for children in crisis.”
The high court yesterday also held, in a separate, unanimous opinion authored by Justice Carol Corrigan, that, absent extraordinary circumstances, the sufficiency of an inquiry under §224.2 must be determined by the Juvenile Court and the Court of Appeal may not consider post-judgment evidence to conclude that any error in conducting the inquiry was harmless.
Statutory Purpose
Evans noted that Congress enacted the Indian Child Welfare Act, codified at 25 U.S.C. §1901 et seq. (“ICWA”), in order to address a historic separation of large numbers of Native American children from their families and tribes through the intervention of the child welfare system.
Under ICWA’s state analogue, the California Indian Child Welfare Act (“Cal-ICWA”), courts and child welfare agencies are charged with completing an inquiry into whether a child in a dependency case may be an Indian child by conducting the statutorily mandated extended family interviews.
She reasoned that “[w]hen a Cal-ICWA inquiry is inadequate, it is impossible to ascertain whether the agency’s error is prejudicial” and so opined that a conditional reversal best protects the purposes of Cal-ICWA. Evans wrote:
“Upon a conditional reversal, the Department will make additional inquiry and documentation efforts consistent with its duties and the court shall hold a hearing thereafter to determine whether, in light of the outcome of the inquiry as documented, ICWA applies. If the juvenile court determines the inquiry is proper, adequate, and duly diligent and concludes that ICWA does not apply, any inquiry error is cured, and the judgment would be reinstated.”
Justifications for Rule
The jurist said “several reasons” support the conditional reversal rule established by the case. She pointed out that the purpose of ICWA, and its California counterpart, is to protect both parental rights and the interests of the tribe involved.
Evans said that tribes have no standing to intervene in a dependency case unless Native American ancestry is first established. She opined:
“When an ICWA inquiry is inadequate, a child’s potential Indian ancestry is missed, and tribes are prevented from making the final determination that the child is an Indian child. Conditionally reversing to conduct an adequate Cal-ICWA inquiry ensures tribes’ important sovereign right to determine whether the child is a member of, or eligible for membership in, the tribe.”
She also explained that “this approach best comports with the plain language of the inquiry requirements of section 224.2” and remarked that “[r]ecognizing that parents may not be the best source of information about a child’s Indian ancestry, the Legislature expressly mandated that, from the outset, child protective agencies expand their investigation of a child’s possible Indian status beyond the child’s parents.”
Not Endless Loop
Evans disagreed with a concern expressed by the Court of Appeal that requiring conditional reversal would lead to an “endless feedback loop of remand, appeal, and remand” and said “our conclusion does not require reversal in all cases in which every possible extended family member has not been asked about the child’s Indian ancestry.”
Instead, she commented that the statute requires only “those people who are reasonably available” to help the agency with the inquiry need be asked. She clarified:
“If, upon review, a juvenile court’s findings that an inquiry was adequate and proper and ICWA does not apply are found to be supported by sufficient evidence and record documentation as required by California law…, there is no error and conditional reversal would not be warranted even if the agency did not inquire of everyone who has an interest in the child. On the other hand, if the inquiry is inadequate, conditional reversal is required so the agency can cure the error and thereby safeguard the rights of tribes, parents, and the child.”
She added that “[b]ecause it is undisputed that the inquiry in this case was inadequate, we do not have occasion to decide what constitutes an adequate and proper inquiry necessary to satisfy section 224.2.”
Groban’s View
Groban wrote:
“I agree with the majority that the Indian Child Welfare Act of 1978…and California’s version of ICWA…protect vital tribal interests. But the majority’s rule of automatic conditional reversal where there has been a failure to comply with Cal-ICWA, even if the parents disclaim any tribal membership and even if there is little possibility that the child may be Indian, fails to balance the equally important goal of achieving a prompt and stable placement for children in crisis. The majority opinion ensures that siblings Dezi C. and Joshua C., and hundreds of other children like them, will remain in prolonged legal uncertainty about who their adoptive parents will be, where they will live, where they will go to school, and whether they will be separated from one another and placed in separate homes.”
The justice added:
“Even though the majority, wrongly in my view, adopts a rule requiring automatic conditional reversal when there is error in conducting a Cal-ICWA inquiry…appellate courts can still continue to show substantial deference to a juvenile court’s finding that the inquiry actually complied with Cal-ICWA.”
The case is In re Dezi C., 2024 S.O.S. 2807.
Post-Judgement Evidence
The second Supreme Court decision came after the Third District, in an opinion by Acting Presiding Justice Ronald Robie, affirmed an order terminating parental rights over minor Kenneth D. by Placer Superior Court Judge Colleen Nichols despite recognizing “the abject failure of the Department and juvenile court to inquire as to father’s possible Native American heritage.”
The Court of Appeal agreed to consider a post-judgment interviews of the father and paternal grandmother, each of whom denied any American Indian ancestry.
Reversing the judgment of the Third District, Corrigan wrote:
“We emphasize the narrowness of our holding. Where the juvenile court finds that ICWA does not apply based on an inadequate inquiry into a child’s native heritage, an appellate court, absent exceptional circumstances, may not consider evidence uncovered during a postjudgment inquiry to conclude the failure to conduct a proper inquiry was harmless.”
The case is In re Kenneth D., 2024 S.O.S. 2824.
Copyright 2024, Metropolitan News Company