Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re A.C., In re Adrian L, Amber G. v. Superior Court, In re S.V., and In re D.B.
ICWA – WIC 224.2
In re A.C.
Published 12/12/22; Second Dist., Div. Five Docket No. B319752
THE AGENCY’S FAILURE TO CONDUCT A PROPER INQUIRY REGARDING POSSIBLE INDIAN ANCESTRY WITH RELATIVES AND A NREFM CONSTITUTES REVERSIBLE ERROR.
The agency filed a petition concerning three-year-old A.C. and her two halfsiblings. A.C.’s mother and presumed father both stated that they had no Indian ancestry. No other information before the juvenile court indicated that A.C. or her parents held tribal membership or resided on a tribal reservation. The juvenile court removed A.C. from both parents and placed her with I.C., a NREFM who was the father of one of A.C.’s half-siblings. During the pendency of the case, the agency did not interview the NREFM or any available maternal or paternal relatives about possible Indian ancestry. Subsequently, the juvenile court terminated mother’s and father’s parental rights. Mother appealed.
Reversed. Although the parties stipulated to a conditional affirmance and remand in order to conduct a proper inquiry, a conditional reversal was found to be proper in this instance given the errors presented in the record, specifically that the agency failed to conduct a proper ICWA inquiry with the NREFM and any extended relatives. Justice Baker filed a dissent in which he contended substantial evidence supported the juvenile court’s finding that ICWA did not apply because both parents denied Indian ancestry and no other evidence suggested tribal citizenship. He expressed concerns about the extent of the majority’s holding requiring the agency to inquire with NREFMs, asking whether the agency would now also have to inquire about a child’s possible Indian ancestry with family friends, therapists, pastors, and medical professionals. Justice Baker proposed the juvenile court’s ICWA rulings be evaluated under a substantial evidence standard of review in which appellate courts did not require perfect compliance with the ICWA statutes, but instead determined whether the juvenile court obtained sufficient information to support its conclusion that a child did not have Indian ancestry. (SW)
ICWA – WIC 224.2
In re A.C. – published 12/12/22; Second Dist., Div. Five Docket No. B319752
WHERE THE RECORD DOES NOT DISCLOSE THAT UNQUESTIONED EXTENDED FAMILY MEMBERS WERE LIKELY TO HAVE INFORMATION THAT WOULD BEAR MEANINGFULLY ON WHETHER MINOR IS AN INDIAN CHILD, THE ICWA INQUIRY ERROR UNDER SECTION 224.2(b) IS HARMLESS.
Prior to detention, mother spoke to the agency and denied any Indian ancestry. At the detention hearing, the juvenile court asked mother whether father had any Indian heritage, and mother answered, “No.” At separate hearings, mother and father each filed an ICWA-020 form, indicating no Indian ancestry. Mother and father were close to their respective families, and mother and minor’s counsel made requests for relative placement after a removal order pursuant to section 340(b) was granted nearly 17 months into the case. Father resided with maternal relatives at various times during the case and maintained contact with paternal relatives. At a 366.26 hearing, the court terminated parental rights as to Adrian. Mother appealed.
Affirmed. Any ICWA inquiry error under section 224.2(b) due to the agency’s failure to contact extended family was harmless. An agency’s failure to inquire of extended family members results in reversal or remand only where the record shows prejudice because there was information that was likely to bear meaningfully upon whether the child is an Indian child. (In re Benjamin M. (2021) 70 Cal. App. 5th 735, 744.) Here, the record reflects no such information. Mother had multiple opportunities to advise the juvenile court that Adrian was possibly an Indian child, and she repeatedly denied any Indian affiliation. The parents were close to their respective families, and there is no indication that extended family members had knowledge of minor’s possible tribal affiliation superior to parents’ disclaimers of Indian ancestry. Additionally, there are incentives for a parent and relatives to apprise the juvenile court of ICWA information (i.e., placement preference for extended family members for an Indian child, heightened standard of proof for removal of an Indian child at disposition, and heightened burden of proof to terminate parent rights as to an Indian child); thus, their failure to do so implies that they were unaware of such facts. In a lengthy concurring opinion, Judge Kelley concludes that he would also affirm on the ground that there was no inquiry error because the inquiry prescribed by section 224.2(b) is limited to cases where a child is placed into temporary custody “pursuant to section 306,” which did not occur here since Adrian was not removed from mother at the outset of the case and he remained in her care for more than 17 months thereafter. (AMC)
Amber G. v. Superior Court – published 12/16/2022; Fourth Dist., Div. Three
Docket No. G061684
THERE WAS INSUFFICIENT EVIDENCE THAT IT WOULD BE IN A CHILD’S BEST INTEREST TO REMOVE HER FROM HER PROSPECTIVE ADOPTIVE PARENT, WHOM SHE HAD RESIDED WITH HER ENTIRE LIFE AND WHO WAS WILLING TO FOSTER A RELATIONSHIP WITH THE CHILD’S BIOLOGICAL SIBLINGS, TO PLACE HER INSTEAD WITH AN OUT OF STATE RELATIVE SHE HAD NO RELATIONSHIP WITH.
In May 2021, the minor, W.M., was placed directly with resource parent Amber upon release from the hospital after birth. W.M. had siblings who were previously adopted, and the families who adopted them were amenable to sibling visits. W.M. thrived in placement with Amber, who wanted to adopt W.M. and keep her in contact with her biological siblings. In June 2021 maternal aunt Brytnee requested an ICPC to obtain placement of W.M. 4 Throughout reunification, W.M. continued to thrive in Amber’s care, Brytnee sporadically called Amber to check in on W.M., and the ICPC process continued. Reunification services were terminated, and a section 366.26 hearing was set for May 2022. Amber was identified as the prospective adoptive parent by the agency. She wanted an open adoption and noted she already gave Brytnee her phone number though hadn’t heard from her in the last five months. The court terminated parental rights, set adoption as the permanent plan and adopted the agency’s recommendation. Shortly after, Amber’s was granted de facto parent status, and on the same day, the social worker called to inform her that W.M. would be removed from her care and be placed with Brytnee. The agency never filed a notice of intent to seek W.M.’s removal but filed a report indicating only that the ICPC was approved. Amber was designated W.M.’s PAP, and at a hearing on the objection to removal, minor’s counsel shared details of how Amber planned to include biological family in W.M.’s life. Counsel for the agency indicated to the court it would have to decide if it was in W.M.’s best interest to be placed in the new home. The court ordered W.M. to be placed with Brytnee but stayed the order 7 days. W.M. and PAP filed writ petitions.
Writ petitions granted and removal order vacated. There was no evidence presented that it would be in the best interest of W.M. to be removed from her prospective adoptive parent (“PAP”). There are three statutory preferences at play throughout the case of a dependency case, depending on where you are in the timeline of a case: the relative placement preference, caretaker preference, and PAP preference. In order to remove a child from the home of a PAP, the requirements of section 366.26(n) must be followed. At a hearing challenging the agency’s decision to remove a child from the home of a PAP, the agency has the burden of proving that the removal is in the best interest of the child by a preponderance of the evidence. Once a child is freed for adoption and placed with her PAP, evidence of a proposed relative placement being in her best interest is not relevant. The relevant inquiry was whether the removal of the child from the home of the PAP was in her best interest, and such a determination requires evidence of the child’s current circumstances, including her relationships with the PAP and proposed placement, as well as her foreseeable future relationships. Here, there was no evidence submitted by the agency other than the approved ICPC, compared to the evidence submitted by the PAP of the undeniably strong bond the child had to her and her family. Further, Brytnee did not follow through on weekly calls to check in on the child, had no visitation, and only texted the PAP five time throughout the year, which was uncontroverted evidence that called into question the level of commitment Brytnee had for the child. The evidence of the child’s current circumstances was that she was greatly bonded to the PAP 5 and PAP’s family and had no relationship at all with Brytnee. Thus, there was no evidence supporting the juvenile court’s order that removal from the PAP was in the child’s best interest. (KH)
Due Process – WIC 329, 331, 348
In re S.V. – published 12/22/22; First Dist., Div. Five Docket No. A163272
AN AMENDMENT TO CONFORM TO PROOF THAT FINDS NEW AND DIFFERENT FACTS AND THEORIES NOT ORIGINALLY ALLEGED IN THE 300 PETITION VIOLATES DUE PROCESS AND SEPARATION OF POWERS
Mother and father filed multiple petitions for custody and visitation over S.V., starting from the time she was four years old. Mother requested a restraining order, alleging father sexually abused S.V. The family court eventually issued a final order granting mother sole physical custody and father visits every other weekend. Mother then sought an emergency order to suspend father’s visits based on the child’s disclosure to her therapist that father sexually abused her during a recent visit. Father also filed a request seeking sole custody and supervised visitation with mother, arguing that mother’s repeated allegations of sexual abuse were false. The family law judge submitted to the child welfare agency a WIC 329 application to commence proceedings in dependency court based on the multiple allegations of sexual abuse by father or, in the alternative, mother’s emotional abuse of the minor by repeatedly suggesting sexual abuse and subjecting her to examinations. When the agency filed a 300 petition alleging sexual abuse by father, the family court suspended its proceedings pending the outcome of the dependency case. The 300 petition only identified father as the offending parent for sexual abuse under subdivision (d). In advance of the jurisdictional hearing, father filed a motion to dismiss or, in the alternative, to amend and conform to proof the petition to make mother offending for emotional abuse by subjecting the child to coaching of false sexual abuse allegations, parental alienation, and frivolous medical examinations. The agency did not amend the petition. Six days before trial, minor’s counsel filed a statement requesting the court to amend and conform to proof the petition with a (c) count against mother in lieu of sustaining the (d) allegation. Minor’s counsel requested sustaining one of two proposed (c) counts – one that did not name mother and the other that named mother as the cause of emotional damage due to her continued discussions of and suggestions that father had sexually abused S.V. At a pretrial hearing with all counsel present, minor’s counsel repeated the intent to request to amend the petition 6 at the jurisdictional hearing. At the close of evidence, the court accordingly amended the petition, sustained a (c) allegation against mother, and dismissed the (d) allegation. Mother appealed, arguing the juvenile court exceeded its authority and violated her due process by amending the petition with an unpled allegation against her whereas originally she had been nonoffending.
Reversed. (I) In dependency proceedings, amendments to conform to proof are authorized under WIC 348 and generally favored. However, amendments should not be made where the original petition was so differently pled that the adversarial party is misled to their prejudice. Here, mother was not an offending parent in the original petition. Neither the juvenile court nor any party filed a WIC 329 application to commence proceedings against mother for emotional abuse. Although father and minor’s counsels provided notice of their requests to amend and conform to proof, the juvenile court’s amendment varied from their proposed amendments and more specifically found that mother’s unsubstantiated belief that father was sexually abusing the child caused the child’s emotional damage, as evidenced by the child’s withdrawal from father. Further, the agency disagreed the evidence supported a (c) allegation against mother. On this record, mother had not been adequately noticed of the need to defend herself against the court’s amendments that were unpled factual and legal theories. (II) The juvenile court improperly assumed the roles of advocate and trier of fact. Except as provided in section 331, et seq., the social worker has the sole discretion to file a 300 petition. Here, the proper statutory procedure for contesting the agency’s failure to seek jurisdiction based on a new and different basis was for minor’s counsel or father to file a WIC 329 application requesting the agency to file a 300(c) petition against mother. If the agency were to reject the request, the juvenile court could then under WIC 331 either affirm the agency’s decision or order the agency to file the requested petition. (ML)
ICWA – WIC 224.2
In re D.B. – published 12/6/2022; Fourth Dist., Div. Two Docket No. E079380
WHEN THE AGENCY FAILS TO ACQUIRE READILY OBTAINABLE INFORMATION THAT IS LIKELY TO BEAR MEANINGFULLY ON WHETHER THE CHILD IS AN INDIAN CHILD, THE ERROR IS PREJUDICIAL. Throughout the dependency proceedings, the agency attempted to comply with ICWA. The agency attached ICWA-010 forms to its petition stating both 7 parents denied Indian ancestry. Shortly afterward, Father submitted an ICWA-020 form denying that he or any family member had Indian ancestry. The child’s paternal great uncle, who eventually became the child’s prospective adoptive parent, also denied any Indian ancestry. However, the agency failed to contact any other paternal relatives in regard to ICWA. In particular, the agency did not inquire with the paternal grandmother who lived with father and whom the agency spoke to with several times. The paternal great-grandmother, who sought placement of the child, was also not contacted in regard to possible Indian ancestry. In mother’s ICWA-020 form, she stated that her mother was a member of a Cherokee tribe. The agency sent notices to the Cherokee Nation and certain Cherokee tribes, but all of them responded the child was not an Indian child and was ineligible for membership with the tribe. Without any objection, the juvenile court found ICWA did not apply. The parents timely appealed.
Reversed. The agency conducted a proper ICWA inquiry in regard to mother and the maternal family. However, the agency failed to conduct an adequate ICWA inquiry in regard to the paternal family—the agency failed to interview the paternal grandmother and paternal great-grandmother. Because both of them were available during the dependency proceedings, the agency should have asked them if they had Indian ancestry and whether the child is or may be an Indian child. By failing to do so, the agency failed to discharge its duty of initial inquiry under ICWA and, in turn, the juvenile court erroneously found that ICWA did not apply. The agency’s ICWA insufficiencies were also found to be prejudicial, not harmless. Applying the harmless error analysis in In re Benjamin M., (2021) 70 Cal.App.5th 735, the agency’s ICWA deficiencies were found to be prejudicial because there was readily obtainable information that was likely to bear meaningfully upon whether the child was an Indian child. The agency’s reliance on In re S.S., (2022) 75 Cal.App.5th 575 (S.S.), and In re Y.M., (2022) 82 Cal.App.5th 901 (Y.M.), to argue harmless error was also rejected. S.S. was found to be unpersuasive because speculation as to whether extended family members might have information likely to bear meaningfully on whether the child is an Indian child has no place in the harmless error analysis. Instead, the focus is whether the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child— regardless of whether the information ultimately shows the child is or is not an Indian child. Y.M. was also found to be unpersuasive because it failed to take into consideration tribal interests. (MO)