Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re E.C. and In re G.Z.
ICWA—WIC 224.2
In re E.C.
Published 11/8/2022; Fifth Dist. Docket No. F084030
FAILURE TO INQUIRE OF RELATIVES WITH POSSIBLE TRIBAL MEMBERSHIP CONSTITUTES A VIOLATION OF THE DUTY OF INITIAL INQUIRY AND IS PREJUDICIAL
During the initial investigation, mother disclosed possible Apache ancestry. At the initial hearing, mother submitted an ICWA-020 form indicating possible Apache heritage and testified the maternal great-grandmother and two maternal great-uncles were enrolled members of the tribe. She further testified that one of her great-uncles resided with the maternal great grandmother. While mother did not provide contact information for maternal great-grandmother or maternal great-uncles, she did provide the cross streets to their residence. Mother also stated maternal grandmother had the telephone number for the maternal great-grandmother. In its adjudication Children’s Law Center of California report, the agency reported its ICWA inquiry was pending. The agency’s attorney made an oral representation at the adjudication and disposition hearing that the Apache tribe in question was not federally recognized and connection to the tribe was by marriage. At the six-month review hearing, the agency’s report contained no new information regarding ICWA. Family reunification services were terminated and a section 366.26 hearing was set. Mother appealed; her sole claim on appeal was the agency failed to comply with section 224.2.
Conditionally reversed and remanded with directions. If the agency or the juvenile court has reason to believe a child is an Indian child, the agency and the juvenile court must make further inquiries. Here, mother’s ICWA-020 form and her testimony demonstrated that there was reason to believe E.C. might be an Indian child. Such information triggered the duty of further inquiry. (WIC 224.2.) As a result, the juvenile court abused its discretion by finding ICWA did not apply. Failure to comply with the duty of further inquiry was prejudicial because Indian tribes have a statutory right to receive notice where an Indian child might be the subject of court proceedings. Because the agency failed to comply with section 224.2, the juvenile court could not accurately determine whether additional inquiry or notice to tribes was required. Ensuring that the agency and the juvenile court fulfill their duties of initial inquiry and further inquiry are the only meaningful way to safeguard the statutory rights of Indian tribes. Tribes determine whether a child is eligible for membership – not the agency or the juvenile court. Although the agency conceded that it failed to comply with section 224.2, it asked the court to consider post-judgment evidence consisting of declarations from maternal grandmother, maternal aunt, and an individual associated with the Lipan Apache Band of Texas. The agency also requested judicial notice of the list in the Federal Register of recognized tribal entities, which did not include the Lipan Apache Band. The agency’s request was denied. The juvenile court is the appropriate venue to weigh the evidence the agency submitted. Even if this Court considered the post judgment evidence, such evidence failed to remedy the agency’s failure to conduct a further inquiry and the declarations were from maternal grandmother and a maternal aunt, not the maternal great-grandmother or maternal great-uncles identified by mother. On remand, the juvenile court was directed to conduct a further ICWA inquiry. (SL)
Jurisdiction—WIC 300(b)(1); WIC 355.1(a)
In re G.Z.
Published 11/30/22; Second Dist., Div. Eight Docket No. B313378
[1] PERCEPTIONS OF RISK, RATHER THAN ACTUAL EVIDENCE OFRISK, ARE AN INSUFFICIENT BASIS FOR WIC 300(B)(1)JURISDICTION; [2] WHEN A PARENT PRESENTS EVIDENCE THATTHE INJURIES WERE NOT THE RESULT OF ABUSE OR NEGLECT,THE PARENT REBUTS THE WIC 355.1(A) PRESUMPTION AND THEBURDEN SHIFTS BACK TO THE AGENCY TO PROVE THE ALLEGATIONS
Ten-month-old G.Z. was detained from mother after G.Z was hospitalized forpersistent vomiting. MRI and CT scan results showed G.Z. had two oldersubdural hematomas and one new subdural hematoma. G.Z. lived withmother, maternal grandparents, aunt, and uncles. Mother reported that G.Z.fell off her bed while co-sleeping a few months prior and a separate incidentwhere G.Z. fell out of maternal grandfather’s arms onto the kitchen floor.Maternal relatives reported they were aware of these two falls andcorroborated mother’s statements. All members of the household deniedabuse or neglect. Prior to detention, mother had taken G.Z. to the hospitalfour times due to persistent vomiting. A pediatric ophthalmology consultationrevealed no evidence of retinal hemorrhages or other signs of ocular traumaand a skeletal survey showed no evidence of fractures. In hearings leading upto the adjudication, the juvenile court liberalized mother’s visitation,ultimately ordering G.Z released to both parents under the agency’ssupervision. At the adjudication hearing, experts gave conflicting opinionsregarding G.Z.’s injuries. While both the agency’s expert (Dr. Imagawa) andmother’s expert (Dr. Weinraub) agreed that the subacute subdural hematomacould be a result of the arachnoid cyst and not due to significant force frominflicted trauma, Dr. Imagawa also concluded that non-accidentally inflictedtrauma could not be excluded as the cause of G.Z.’s older subduralhematoma. The juvenile court sustained an allegation under section 300(b)but dismissed counts under 300(a) and 300(e). In its ruling, the juvenile courtreferenced section 355.1(a), finding that this child would not have sufferedthe injuries except for the unreasonable or neglectful acts of mother. The juvenile court released G.Z. to mother and father under a jointly sharedcustodial plan. Mother appealed.
Reversed and remanded with directions to dismiss the petition. [1] There wasno substantial evidence in the record that the subdural hematomas werecaused by abuse or neglect by mother or anyone else in mother’s household. Dr. Imagawa never stated that G.Z.’s injuries were more likely than notcaused by abusive trauma. Dr. Imagawa concluded that non-accidentallyinflicted trauma as the cause of G.Z.’s older subdural hematoma “cannot beexcluded.” However, it was not mother’s burden to exclude non-accidentallyinflicted trauma as a possible cause of G.Z.’s injuries. It was the agency’sburden to prove by a preponderance of the evidence that non-accidentaltrauma caused the injury. Mother’s expert, Dr. Weinraub, testified G.Z. hadnumerous medical conditions that explained the bleeding, includingmacrocephaly, an arachnoid cyst, and increased subarachnoid spaces andneomembranes. It was undisputed G.Z. exhibited no signs of having sufferednoncontact injury, such as shaken baby syndrome or acute head traumasyndrome. The record contains no mention that G.Z. suffered any bruising,broken bones, fractures, or retinal hemorrhage – signs ordinarily seen inshaken babies. Finally, by the time of the adjudication, physical custody ofG.Z. was split between mother and father, G.Z.’s arachnoid cyst wasreportedly stabilized, and no additional hematomas or brain bleeds werefound. The record did not support a finding of substantial risk of seriousphysical harm to G.Z. based on abuse or neglect by mother. [2] Thepresumption created by WIC 355.1(a) affects the burden of producingevidence. Once the agency establishes a prima facie case that a child issubject to dependency jurisdiction because the child has sustained an injury“of a nature as would ordinarily not be sustained except as the result of theunreasonable or neglectful acts or omissions” of a caregiver, the burden ofproducing evidence shifts to the parent to raise the actual cause of the injuryor the fitness of the home. (§ 355.1(a).) If the parents submit rebuttalevidence, the agency maintains its burden of proving the alleged facts. Here,because the petition incorporated the language of WIC 355.1(a), mother wasgiven adequate notice of the agency’s intent to rely on this presumption.However, because mother presented evidence that G.Z’s subdural hematomaswere not the result of her abuse or negligence – primarily through Dr.Weinbraub – she rebutted the WIC 355.1(a) presumption. The burden wasthen on the agency to prove the petition’s allegations by a preponderance ofthe evidence, which it failed to do. (DM)
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