In re J.K., A Person Coming Under
2d Juv. No. B319316 (Super. Ct. No. 21JV00074)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Filed 9/16/22
CERTIFIED FOR PUBLICATION; (Santa Barbara County)
This is yet another in a series of conflicting dependency appeals following a termination of parental rights in which the juvenile court and county welfare department failed to satisfy their expanded duties of initial inquiry under the Indian Child Welfare Act (ICWA;
We conclude the juvenile court errs in finding ICWA does not apply where, as here, the record does not establish that the expanded duty of initial inquiry set forth in
FACTS AND PROCEDURAL HISTORY
Mother and A.A. (father, who is not a party to this appeal) are the natural parents of J.K., born in February 2021. CWS filed a
Both parents appeared at the detention hearing, denied Indian ancestry, and completed and filed the Parental Notification of Indian Status form (ICWA-020) to attest that they had no Indian ancestry. At the request of CWS’s counsel, the court found ICWA did not apply and took judicial notice of the recent finding that ICWA did not apply in Z.V.K.’s dependency case. The court also took judicial notice of the reports in Z.V.K.’s case, which contained no indication that CWS had made ICWA-related inquiries of the maternal grandmother or the maternal relatives with whom Z.V.K. was placed.
J.K. was placed with non-relative extended family members. The court directed the parents to provide CWS with the names and addresses of all relatives to assist in investigating J.K.’s possible placement with an extended family member.
On March 30, 2021, the social worker reported that the paternal grandmother had stated she had no Indian ancestry. The social worker also contacted the paternal grandfather, father’s and mother’s siblings, and other maternal relatives, but there is no indication that she made any inquiries of them regarding J.K.’s possible Indian status. In the court’s April 27, 2021 dispositional orders and findings — which were prepared on form JV-415 by CWS’s attorney — the section that is supposed to identify the relatives the social worker asked about J.K.’s possible Indian status was blank.
At the conclusion of the jurisdiction and disposition hearing, father was offered reunification services but services were bypassed as to mother. We
DISCUSSION
Mother contends the juvenile court erred in finding ICWA did not apply because the record does not reflect that CWS and the court satisfied their duties of inquiry under
I.
We generally review ICWA findings for substantial evidence. (In re A.M. (2020) 47 Cal.App.5th 303, 314.) Because the material facts at issue here are undisputed, “‘we review independently whether ICWA requirements have been satisfied.’” (In re J.L. (2017) 10 Cal.App.5th 913, 918.)
“ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family.” (In re T.G. (2020) 58 Cal.App.5th 275, 287 (T.G.).)3 “Congress enacted ICWA in 1978 in response to ‘rising concеrn in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive
“ICWA significantly limits state court actions concerning out-of-family placements for Indian children. ‘When ICWA applies, a state court may not . . . terminate parental rights to an Indian child unless the court is satisfied “that active efforts have been made to provide remedial services and rehabilitative programs designed to prеvent the breakup of the Indian family and that these efforts have proved unsuccessful.” [Citations.]’” (T.G., supra, 58 Cal.App.5th at p. 287.) “ICWA and the controlling federal regulations [citation] simply set a floor for minimal procedural protections for Indian children, their families and their tribes; the statute authorizes states to provide ‘a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under’ ICWA. [Citations.]” (T.G., at p. 288.) “In addition to significantly limiting state court actions concerning out-of-family placements for Indian children [citation], ICWA permits an Indian child’s tribe to intervene in or, where appropriate, exercise jurisdiction over a child custody proceeding [citations].” (Rylei S., supra, 81 Cal.App.5th at p. 316.)
Pursuant to ICWA and related California law, “[t]he [juvenile] court[ and] county welfare department . . . have an affirmative and continuing duty to inquire whether a child for whom a petition under
If the initial or further inquiry gives rise to a “reason to know” the child is an Indian child, notice of the proceedings must be given to the tribes of which the child may be a member or eligible for membership. (
II.
Our Legislature unanimously enacted
III.
Because the record demonstrates that CWS and the juvenile court failed to satisfy their statutorily-mandated duties under
We also agree that the appropriate remedy is to issue a conditional affirmance with a limited remand. (Rylei S., supra, 81 Cal.App.5th at pp. 326-327.) Although conditional affirmances are rare, they have previously been issued in various types of cases by both the appellate courts and our Supreme Court.4 We issue such a disposition here because time is of the essence and a conditional affirmance provides the best opportunity for the error to bе handled expeditiously without unduly prolonging the finality of the proceedings. Appeals from orders terminating parental rights are governed by
Although parents subject to dependency proceedings have no duty to conduct the initial inquiry on the county welfare departments’ behalf, they are obligated to provide any and all information they have regarding their extended family members and to apprise their attorneys and the social worker of any new information relating to extended family members or their knowledge regarding their children’s possible Indian status. In this case, it appears the parents have already identified all of their relatives and the social worker has already had contact with them. If these extended family members all deny any knowledge that J.K. is or may be an Indian child, the error will be quickly corrected without disturbing or unduly prolonging the finality the judgment. Accordingly, a conditional affirmance with a limited remand will best serve J.K.’s interests in achieving permаnency, stability, and the finality of these proceedings.7
The issuance of a conditional affirmance with a limited remand is a proper, appropriate, and necessary exercise of our supervisory authority over the juvenile courts. (See Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 635.) In enacting
CWS and the juvenile court also have an affirmative and cоntinuing duty to inquire into J.K.’s potential Indian status. (
We cannot interpret statutes in a manner that renders language in the statute a nullity. (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1039.) Moreover, our Supreme Court has held it is improper for courts to “‘frustrate the creation of a statutory duty by refusing to enforce it through the normal judicial means.’” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 869.) Because the record does not affirmatively reflect that the protections intended to be afforded through the exercise of the statutory duties set forth in
III.
Our Supreme Court has made clear that ICWA issues may be raised for the first time by parents appealing the termination of their parental rights. (Isaiah W., supra, 1 Cal.5th at p. 9.) The court reasoned: “We are mindful of the child’s need for a permanent and stable home, and we agree that a swift and early resolution of ICWA notice issues is ideal. But the federal and state statutes were clearly written to protect the integrity and stability of Indian tribes despite the potential for delay in placing a child. The [relevant] provisions . . . recognize the importance of properly determining a child’s Indian status even when a dependency proceeding has progressed beyond the initial stages. [Citations.]” (Id. at p. 12, italics added.).
The court went on to note that ICWA and related California law give tribes the right to intervene at any point in the dependency proceedings, even after parental rights have been terminated. (Isaiah W., supra, 1 Cal.5th at p. 13, citing
Of course, juvenile court judges and county welfare departments have no duty to give any such notice unless there is a “reason to know” the child is an Indian child. But the determination of this “reason to know” presumes that the county welfare department has satisfied its duties of initial inquiry under
If the statutorily-mandated duties of inquiry are not satisfied, the court’s finding that there is no “reason to know” the child is an Indian child is fatally uninformed. “‘[T]he tribe’s right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending.’ [Citations.]” (Isaiah W., supra, 1 Cal.5th at pp. 13-14.) Here, one can merely speculate that a proper inquiry under
In light of these principles, we are not persuaded by CWS’s assertion that remanding the matter for satisfaction of the duties set forth in
Parents who are committed to reunifying with their children must also be committed to acting in the children’s best interests. But parents are not likely to know the law unless their attorneys tell them. The juvenile court is also reasonably expected to be currently apprised of the law, particularly as it relates to the court’s statutorily-mandated duties. Here, however, the attorneys and juvenile court judge either were unaware of the provision or simply overlooked it.
It is also clear that counsel for CWS now knows that CWS failed to satisfy its continuing duty of inquiry under
DISPOSITION
The order terminating parental rights is conditionally affirmed. The matter is remanded to the juvenile court for the limited purpose of allowing CWS and the juvenile court to satisfy their statutorily-mandated inquiry and notice duties under
After satisfying its initial inquiry duties in accordance with
If the report and its attachments demonstrate that CWS has satisfied its duty of initial inquiry, the court shall so find and then proceed to find whether this new information gives the social worker or the court a “reason to believe” J.K. is or may be an Indian child, or a “reason to know” J.K. is an Indian child. If the court concludes there is still no “reason to believe” that J.K. is or may be an Indian child, it shall enter a new order finding that ICWA does not apply and the judgment (order terminating parental rights) shall become final as of that date.
If the court finds that the new information gives rise to a “reason to believe” that J.K. is or may be an Indian child, the court shall find that ICWA may apply and further inquiry shall be conducted in accordance with
If the information obtained during the initial or further inquiry gives the court or the social worker a “reason to know” that J.K. is an Indian child, the court shall ensure that proper notice of the proceedings is sent in accordance
If on remand a tribe informs the court that J.K. is a member of the tribe or eligible for membership and that the tribe intends to intervene in the proceedings, the court shall find that ICWA applies and enter an order to that effеct. If the court issues such an order, the judgment (order terminating parental rights) is reversed as of that date. If the judgment is so reversed, the court shall promptly hold a new
CERTIFIED FOR PUBLICATION.
PERREN, J.*
I concur:
GILBERT, P.J.
* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to
In re J.K., A Person Coming Under The Juvenile Court Law. SANTA BARBARA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. S.K., Defendant and Appellant.
2d Juv. No. B319316 (Super. Ct. No. 21JV00074)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Filed 9/16/22
GILBERT, P.J.
I concur.
I do not support the rigid application of ICWA promulgated by In re Rylei S. (2022) 81 Cal.App.5th 309. Nevertheless, I believe a limited remand here is appropriate for the reasons stated in In re Benjamin M. (2021) 70 Cal.App.5th 735, 744, readily obtainable information that is likely to bear on whether the child is аn Indian child.
I agree that the result here is appropriate. I take issue, however, with footnote 5 in the majority opinion. (Ante, p. 10.) In my view the perceived differences between a conditional affirmance and a conditional reversal do not determine whether there is a “miscarriage of justice.” (
I also wish to caution that against the backdrop of ICWA what is of paramount concern is the best interest of the child. (See In re Josiah Z. (2005) 36 Cal.4th 664, 673.) ICWA consideration is important, but it does not supersede the child’s best interest. (
CERTIFIED FOR PUBLICATION.
GILBERT, P.J.
In re J.K., A Person Coming Under The Juvenile Court Law. SANTA BARBARA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. S.K., Defendant and Appellant.
2d Juv. No. B319316 (Super. Ct. No. 21JV00074)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Filed 9/16/22
YEGAN, J., Dissenting:
I respectfully dissent. The continuing appellate controversy which is now dominating the advance sheets concerns the Indian Child Welfare Act (ICWA) and the appropriate standard of appellate review. Strict and inflexible ICWA enforcement at the Court of Appeal level strikes at the heart of two basic aspects of the California Constitution: First, the oath of judicial office, which directs justices to “support and defend” the California Constitution, not a statute. Second, reversal of a superior court judgment only where an error is prejudicial, i.e., where it is reasonably probable that a different rеsult will obtain upon reversal. There is no California Supreme Court case which has
The primary and overarching dispute to be decided in dependency cases is between the parent or parents of the child or children, and the State of California, whose job it is to secure the safety and well-being of children. The caption of a dependency case is telling. It does not mention an Indian tribe. An Indian tribe is neither a party nor a real party in interest in a dependency case.
I entertain a real doubt that the cases automatically reversing a judgment because of an ICWA violation, accomplish the goal of ICWA. The Legislature has not purported to declare that ICWA error is always prejudicial. I doubt that it could lawfully do so. And I am fairly certain that the inevitable delay caused by ICWA reversals is counterproductive. Childhood is not “stayed” while the superior court revisits ICWA upon a Court of Appeal order to do so. Dependent children need the stability of a superior court final order and “new” parents now. New parents are presumptively ready and able to shepherd children in a safe and caring environment. It is hard enough for a child to grow up in a functional family environment. It is harder still in a non-functional family environment. A dependent child cannot, and should not, have to wait because of the delay caused by reversals of judgments which, in the vast majority of cases, will not result in placement with an Indian family. The primary goal of dependency court is the safety and well-being of children. Any other goal, including an ICWA goal, is secondary.
The various districts and divisions of the Court of Appeal have conflicting approaches to how this troublesome issue is to be treated on appeal. In my view, the issue is straight forward. The Court of Appeal does not reverse a superior court judgment based upon a silent record, i.e., the absence of Indian ancestry proof. Error by the superior court is never presumed. Error by the superior court must be affirmatively shown. This is true even if the child welfare investigators could have undertaken a more robust investigation concerning Indian heritage. Any investigation could always be more robust. And the trial court has a duty to monitor that inquiry. That monitoring too, can always be more robust. Perhaps therе should be a rule requiring an ICWA objection in the superior court before a parent can raise and ICWA issue on appeal, and perhaps the superior court should develop a form showing compliance with the search for Indian ancestry listing all of the parents’ extended family which have been contacted. Such a checklist would hopefully put an end to needless litigation at the Court of Appeal.
The goal of ICWA is laudable. But, the late Justice Macklin Fleming would ask: How much time, money, investigation efforts, attorney time, and judicial resources is to be spent trying to achieve “perfеct justice?”
The oath of judicial office does not say that appellate courts have a duty to support and defend a statute. This is a glaring omission in the oath and the only inference that can be drawn is that the judicial oath of office is not directed to a statute. Of course, we strive to uphold the letter and spirit of a statute. And, we do so in almost every case. But, the Constitution takes precedence over a statute. This is not a novel statement. Any negligent violation of statute in almost any context does not inexorably result in reversal. Such a violation, an error, must be prejudicial within the meaning of the California Constitution to warrant reversal of a judgment.
The Court of Appeal should not continue to slavishly adhere to the ICWA rules at the expense of the California Constitution. There is no ICWA exception to the California Constitution. As indicated, we strive to follow any statute, including the ICWA statute. And, at least in Division Six of the Second Appellate District, we have always and strictly applied ICWA and reversed upon a showing of “ICWA error.” That time, for me, is now over. Rather than chаmpioning the rights of an Indian tribe, we should be championing the rights of a dependent child.
The prior Court of Appeal opinions, and the majority opinion here, does not solve this administration of justice problem. The new opinion authored by Justice Hoffstadt, In re Dezi C. (2022) 79 Cal.App.5th 769, does solve the problem. This scholarly opinion is consistent with the oath of office, follows the Constitutional mandate of when and when not to reverse a judgment, and is a pragmatic solution for the ICWA issue at the Court of Appeal level. It dictates that we affirm in this case.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Aрpellant.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein, Deputy County Counsel, for Plaintiff and Respondent.