Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re V.C; In re Jerry R.; In re Jose C.
In re V.C.—published 9/6/23; First Dist., Div. Two
Docket No. A166527; 95 Cal.App.5th 251
Link to case: https://www.courts.ca.gov/opinions/documents/A166527.PDF
[1] THE AGENCY HAS AN INITIAL DUTY OF INQUIRY REGARDLESS
OF HOW THE CHILD IS TAKEN INTO TEMPORARY CUSTODY. [2]
REVERSAL IS REQUIRED WHERE THE RECORD INDICATES READILY
OBTAINABLE INFORMATION EXISTS THAT IS LIKELY TO BEAR
MEANINGFULLY UPON A CHILD’S POTENTIAL INDIAN ANCESTRY.
The agency filed a petition concerning V.C. and sibling Z.C. due to mother’s
methamphetamine use and took the children into temporary custody after
obtaining a protective custody warrant. Both parents affirmed that they had
no knowledge of any Indian ancestry. The juvenile court removed the
children from the custody of mother and father and found ICWA did not
apply. However, during this entire period, the agency did not interview any
extended relatives they came into contact with about potential Indian
ancestry, including maternal cousins, maternal grandfather, and maternal
great uncle. The juvenile court terminated parental rights as to both
children after it renewed its finding that ICWA did not apply. Both parents
appealed.
Reversed and remanded. [1] Although the agency argues its duty of initial
inquiry with extended relatives only applies when children are removed
without a protective custody warrant, the Legislature did not include
language in section 224.2(b) expressly limiting an ICWA inquiry on that
basis. Additionally, California Rules of Court, rule 5.481 requires social
workers to complete its initial inquiry regarding potential Indian ancestry
any time the agency is seeking removal. Therefore, attempting to apply
different initial inquiries solely based on whether a child is removed with or
without a warrant is inconsistent with existing statutory law. For all those
reasons, the holdings from In re Robert F. (2023) 90 Cal.App.5th 492 and In
re Ja. O. (2023) 91 Cal.App.5th 672 are rejected. Instead, the holding from In
re Delila D. (2023) 93 Cal.App.5th 953 is adopted as the agency has a broad
duty to make an initial ICWA inquiry regardless of how the child is removed.
[2] Appellate courts are currently divided on what standard of prejudicial
error is appropriate when determining whether reversal is appropriate for
ICWA inquiry errors. However, both the “presumptive affirmance” rule
proposed by In re K.H. (2022) 84 Cal.App.5th 566 and the “reason to believe”
approach found in In re Dezi C. (2022) 79 Cal.App.5th 769 are not proper
because they both shift the burden away from the agency to the parent in
order to prove whether the child has potential Indian ancestry. The standard
for evaluating prejudicial error proposed by In re Benjamin M. (2021) 70
Cal.App.5th 735 is appropriate in this case as it properly holds that an ICWA
finding cannot stand “where the record indicates that there was readily
obtainable information that was likely to bear meaningfully upon whether
the child is an Indian child.” Here, reversal is required because a review of
the record demonstrates that the agency failed to interview numerous
extended maternal family members who may have possessed information on
the children’s potential Indian ancestry. (SW)
In re Jerry R. – filed 9/11/2023; Fifth Dist.
Docket No. F085850; 95 Cal.App.5th 388
Link to case: https://www.courts.ca.gov/opinions/documents/F085850.PDF
[1] A CHILD TAKEN INTO PROTECTIVE CUSTODY BY WARRANT
UNDER SECTION 340 FALLS WITHIN THE AMBIT OF SECTION
306(a)(1), THUS TRIGGERING THE DUTY OF INITIAL INQUIRY
MANDATED UNDER SECTION 224.2(b). [2] FAILURE TO ASK
AVAILABLE EXTENDED FAMILY MEMBERS ABOUT MINORS’
HERITAGE PREJUDICED THE TRIBES AND WARRANTED REMAND.
After an investigation involving allegations of neglect, including substance
abuse by parents, protective custody warrants were issued for minors.
Mother reported that minors are or may be Indian children, noting possible
Cherokee and Navajo ancestry. Father denied any Native American ancestry.
At the initial hearing, minors were detained. At the jurisdiction and
disposition hearing, the juvenile court stated it was unknown if ICWA
applied. The court sustained the allegations, and parents were bypassed for
reunification services. The agency later obtained responses from six Indian
tribes to which it sent ICWA-030 notices, based on mother’s ICWA claim. The
court found that ICWA did not apply and terminated parental rights. Mother
and father appealed.
Conditionally reversed and remanded. The inquiry requirements of section
224.2(b) require interviews of available extended family members regarding a
minor’s possible Indian heritage, even if the child comes into protective
custody by warrant. Section 224.2(b) requires the agency to inquire about a
child’s possible Indian heritage with extended family members when the
child is placed into the temporary protective custody of a social worker
pursuant to section 306. While the agency argues – and some caselaw (e.g., In
re Robert F. (2023) 90 Cal.App.5th 492 and In re Ja.O. (2023) 91 Cal.App.5th
672)) has concluded – that this duty of inquiry does not apply where the child
is taken into protective custody pursuant to a warrant issued under section
340, this assertion is unpersuasive. Based on the plain language of these
statutes, when children are taken into protective custody by warrant under
section 340(a) or 340(b) and delivered to a social worker pursuant to section
340(c), they are received and maintained in the temporary custody of the
social worker within the meaning of section 306(a)(1). This triggers the duty
of inquiry described in section 224.2(b). This interpretation is consistent with
the statutory schemes underlying California’s dependency law and ICWA and
the well-reasoned conclusion in In re Delila D. (2023) 93 Cal.App.5th 953.
Here, the agency’s failure to inquire of available extended relatives, at least
44 of whom were identified along with their addresses, was prejudicial to the
tribes’ rights. Remand is required. (AMC)
In re Jose C.—published 10/9/23; Second Dist., Div. Seven
Docket No. B317838
Link to Case: https://www.courts.ca.gov/opinions/documents/B317838.PDF
ABSENT SPECIFIC EXCEPTIONS, IF JURISDICTION IS TERMINATED
WHILE AN APPEAL OF JURISDICTIONAL FINDINGS IS PENDING, THE
APPEAL WILL BE MOOT UNLESS THE TERMINATION OF
JURISDICTION IS ALSO APPEALED.
On December 2, 2021, the juvenile court sustained a WIC 300 petition
alleging that the mother and father placed their three children at risk of
harm by engaging in violent physical and verbal altercations in front of the
children. At the disposition, the juvenile court removed the children from
father, Jose C.’s, care, released the children to their mother, and granted
father unmonitored visits in a public setting. The father appealed the
jurisdictional findings. On September 22, 2022, prior to father filing his
opening brief on appeal, the juvenile court terminated jurisdiction with a
juvenile custody order. The juvenile custody order provided for joint legal and
physical custody of the children, primary residence with mother, and a
parenting schedule. The juvenile custody order was based on the parents’
mediated agreement. Father did not appeal the order terminating
jurisdiction or the custody orders.
Dismissed. Father’s appeal of the jurisdictional findings is moot because he
failed to appeal the termination of jurisdiction and custody and visitation
orders. A case is moot if a decision in favor of the plaintiff would not result in
effective relief, meaning: (1) the harm is ongoing; and (2) the harm will be
rectified by the outcome the plaintiff seeks. In limited circumstances, even
when a case is moot, the merits may be reached. Those circumstances
include: (1) when the case presents an issue of broad public interest that is
likely to recur; (2) when there may be a recurrence of the controversy
between the parties; and (3) when a material question remains for the court’s
determination. Additionally, exceptions exist in dependency cases including:
(1) whether the challenged jurisdiction finding could potentially impact the
current or future dependency proceedings; (2) the nature of the allegations
against the parent; and (3) whether the case became moot due to the parents’
prompt compliance with their case plans. Here, the harm that father
identified on appeal—his reduced visitation—cannot be rectified by the
outcome he seeks—reversing the juvenile court’s jurisdictional finding.
Father failed to appeal the termination of jurisdiction and custody orders,
and his request does not fall within any exception that would allow the court
to exercise its discretion and reach the merits of the appeal. (EG)