In In re Dezi C. and In re Kenneth D., the Supreme Court today resolves two appellate review issues about the federal Indian Child Welfare Act and complementary California statutes (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.). The issues have divided the Courts of Appeal in dependency cases. The legislation, one of the opinions says, “are unique statutory schemes that are intended to protect Native American heritage, cultural connections between tribes and children of Native American ancestry, the best interests of Indian children, and the stability and security of Indian tribes and families.”
Chief Justice Patricia Guerrero signs a separate opinion in both cases, a dissent in Dezi C. and a concurrence in Kenneth D. At least until today, any expressed difference by her with a court’s majority opinion was very unusual. (See: Chief Justice Guerrero’s dissent is a novelty.)
In In re Dezi C., a 5-2 court adopts a strict standard of appellate review when a dependency court or a child welfare agency fails to conduct a required inquiry whether the subject of a case “is or may be an Indian child.” The majority opinion by Justice Kelli Evans holds “an inadequate CalICWA inquiry requires conditional reversal of the juvenile court’s order terminating parental rights with directions to the agency to conduct an adequate inquiry, supported by record documentation.” The court reasons, “When there is an inadequate inquiry and the record is underdeveloped, it is impossible for reviewing courts to assess prejudice because we simply do not know what additional information will be revealed from an adequate inquiry.” The court says its rule “best supports the interests of tribes, which are independently protected by ICWA.”
In dissent, Justice Joshua Groban, joined by the Chief Justice, writes that “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 responds that children have an important interest not only in “prompt, permanent placement,” but also “in continued connections to their tribes and preserving their culture.”
Justice Groban also emphasizes that the court’s opinion “does not prevent appellate courts from giving substantial deference to a juvenile court’s finding that the inquiry was, in fact, adequate,” an issue the majority doesn’t decide. (The court’s opinion disclaims a determination of “what constitutes an adequate and proper inquiry.”) Justices Carol Corrigan and Leondra Kruger both sign the court’s opinion, but they issue a separate concurrence, authored by Justice Kruger, to agree with the second part of Justice Groban’s dissent. Justice Kruger writes that “Cal-ICWA does not, as some have assumed, require the juvenile court to leave no stone unturned in an ‘ “open-ended universe of stones,” ’ thereby creating ever-widening circles of mandatory inquiry.”
The court’s In re Kenneth D. opinion by Justice Corrigan holds that, when there’s been an inadequate inquiry, “absent exceptional circumstances, a reviewing court may not generally consider postjudgment evidence to conclude the error was harmless. The sufficiency of an ICWA inquiry must generally be determined by the juvenile court in the first instance.”
All seven justices sign the opinion, but Justice Groban, with Chief Justice Guerrero, also concurs separately, writing “to make clear that [Code of Civil Procedure] section 909 continues to be a vehicle to admit postjudgment evidence in the appropriate case.” (Link added.) Returning to the main theme of his Dezi C. dissent, he says that a reviewing court’s taking of evidence in an appropriate case “will allow appellate courts to avoid a situation whereby a beneficial, permanent placement for a child is delayed so that the dependency court can engage in needless additional inquiry as to the child’s ICWA status.”
Dezi C. reverses the published opinion of the Second District, Division Two. (See here.) It also disapproves 18 different Court of Appeal opinions. There are a bunch of Dezi C. grant-and-hold cases, most of them with unpublished opinions
Kenneth D. reverses the Third District’s published opinion (see here) and it disapproves two Court of Appeal opinions.
The court still has another ICWA-inquiry case pending. In re Ja.O. is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. (See here.) It’s one more issue that has the Courts of Appeal in disagreement, including one intra-division split in particular. (See here.)