In re KENNETH D., a Person Coming Under the Juvenile Court Law. PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. J.T., Defendant and Appellant.
S276649
IN THE SUPREME COURT OF CALIFORNIA
August 19, 2024
Third Appellate District C096051; Placer County Superior Court 53005180
Justice Corrigan authored the opinion of the Court, in which Chief Justice Guerrero and Justices Liu, Kruger, Groban, Jenkins, and Evans concurred.
Justice Groban filed a concurring opinion, in which Chief Justice Guerrero concurred.
This opinion precedes companion case In re Dezi C., S275578, also filed this date.
The federal Indian Child Welfare Act of 1978 (
We hold that, 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. Because no exceptional circumstances exist here, the Court of Appeal‘s consideration of previously unadmitted evidence on appeal was error. In In re Dezi C. (___, 2024, S275578) ___ Cal.5th ___ (Dezi C.), also filed today, we address the appropriate standard of harmless error review where the inquiry into a child‘s native heritage was inadequate, and conclude that a judgment must be conditionally reversed when error results in an inadequate ICWA inquiry. (Dezi C., at p. ___ [p. 38.]) Here, as in Dezi C., there is no dispute that the inquiry below was inadequate. We reverse the Court of Appeal‘s judgment
I. BACKGROUND
Born eight weeks prematurely, minor Kenneth D. (Kenneth) tested positive for amphetamine and syphilis shortly after his delivery. His mother, C.B. (mother) admitted using methamphetamine throughout her pregnancy, including three days before his birth. Mother had given birth under similar circumstances in 2016 and that son was removed from her custody. At the time of Kenneth‘s birth, mother had been living with T.D., who was also suspected of drug use. The Placer County Department of Health and Human Services (the department) filed a juvenile dependency petition to remove Kenneth from the custody of mother and T.D. (
The initial detention report by the department indicated mother was not sure whether T.D. or another man, B.F., was Kenneth‘s father. The department asked mother and T.D. about their potential native heritage. Mother stated she might have native ancestry on her father‘s side through a tribe from Kentucky, though she was not an enrolled member. T.D. indicated he might have Cherokee ancestry on his mother‘s side.1 At the detention hearing, however, both mother and T.D. denied having any native heritage and the juvenile court found ICWA did not apply. Kenneth was placed into the department‘s temporary custody.
Paternity testing revealed that neither T.D. nor B.F. was Kenneth‘s biological father. J.T. (J.T. or father) was later confirmed as being Kenneth‘s parent. The next hearing a month later occurred before the results of J.T.‘s paternity test had been received. The juvenile court recognized T.D. as the presumed father, noting he had submitted a voluntary declaration of paternity and his name appeared as the father on Kenneth‘s birth certificate. Kenneth was adjudged a dependent and removed from the parents’ custody, with visitation and reunification services ordered. The court found ICWA did not apply. The court did not initially offer services to J.T. but indicated the matter could be placed back on calendar if testing confirmed his paternity. The court did not ask about J.T.‘s potential native heritage. After receiving the paternity test result, the department could not locate father and he was not present during a court hearing for a three-month review.
At the six-month review hearing, the juvenile court terminated reunification services for mother and T.D. and set the matter for a termination of
The department recommended the parental rights of mother and T.D., as well as father, be terminated and Kenneth be cleared for adoption by his foster family. The department‘s report indicated it had contacted the maternal grandmother, who said her family did not have any native heritage. The department also contacted T.D.‘s mother, who indicated the same. Neither J.T. nor his family was contacted as to possible native heritage. At the termination hearing, father stated his counsel again could not attend. He did not object to termination of his rights but did seek visitation. The juvenile court terminated parental rights and approved the adoption plan for Kenneth. The court made no mention of ICWA. Father filed a notice of appeal.
On April 29, 2022, before the filing of an opening brief in the Court of Appeal, the department requested that the appellate court augment the record on appeal. The motion attached an April 27 memo describing the department‘s postjudgment efforts to comply with ICWA. The memo indicated the department contacted father on April 21, 2022. He “stated that he thought he might have Cherokee ancestry out of Oklahoma” and suggested contacting his mother for further information. That same day, the department did so. J.T.‘s mother denied that J.T. had native heritage. Instead, she reported that “all of their family comes from Mexico.” She said she had “completed a blood DNA ancestry test which came back stating that they had Native Heritage.” She explained that “all of her family is actually from Culicán Sinaloa, Mexico,” identified her parents, and stated both of her paternal grandparents were born in Mexico. She was unaware of any Native American heritage and assumed her DNA test results were due to her Mexican ancestry. The memo further reported the department had contacted someone at the federal Bureau of Indian Affairs (BIA), who confirmed that, though the grandmother‘s DNA findings indicated native ancestry, her other relatives were from Mexico and thus not federally recognized under ICWA. (See post, at p. 8, fn. 3.) According to the BIA, unless the grandmother knew the name of the tribe or is registered with one, the child is not considered an Indian child. Based on this information, the memo then asserted the department had no reason to know Kenneth is an Indian child. It requested that the Court of Appeal find ICWA was properly noticed and did not apply. The memo had been filed with the juvenile court on April 28, 2022, the day before the motion to augment in the Court of Appeal. The Court of Appeal granted the motion.
We granted father‘s petition for review. The sole issue before us is whether the Court of Appeal properly considered postjudgment evidence in concluding that any ICWA error was harmless. We begin with the relevant portions of ICWA and the state implementing scheme.
II. DISCUSSION
A. Duty of Inquiry and Notice under ICWA and California Implementing Law
“In 1978, Congress enacted the Indian Child Welfare Act (ICWA) out of concern that ‘an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.’ [Citation.] Congress found that many of these children were being ‘placed in non-Indian foster and adoptive homes and institutions,’ and that the States had contributed to the problem by ‘fail[ing] to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.’ [Citation.] [These state actions] harmed not only Indian parents and children, but also Indian tribes.” (Haaland v. Brackeen (2023) 599 U.S. 255, 265.)
“At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings.” (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 36.) As relevant here, “[i]n any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child‘s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child‘s tribe . . . .” (
“The minimum standards established by ICWA include the requirement of notice to Indian tribes in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights ‘where the court knows or has reason to know that an Indian child is involved.‘” (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see
“In 2006, our Legislature enacted provisions that affirm ICWA‘s purposes [citation] and mandate compliance with ICWA.” (Isaiah W., supra, 1 Cal.5th at p. 9; see In re W.B. (2012) 55 Cal.4th 30, 52; see also
The protective provisions of ICWA turn on a determination of whether a minor is an “Indian child” as defined by statute.2 “A determination by an Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe, or testimony attesting to that status by a person authorized by the tribe to provide that determination, shall be conclusive.” (
Fulfilling the notification duty requires sufficient inquiry into the child‘s native heritage. “The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child . . . [facing a dependency or delinquency proceeding] is or may be an Indian child.” (
Then, on the first appearance upon a petition, “the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child.” (
A duty of further inquiry exists when “the court, social worker, or probation officer has reason to believe that an Indian child is involved in a
If proper inquiry reveals information creating reason to know a minor is an “Indian child,” the relevant tribe must be notified, and “the court shall treat the child as an Indian child unless and until the court determines on the record and after review of the report of due diligence . . . and a review of the copies of notice, return receipts, and tribal responses . . . that the child does not meet the definition of an Indian child . . . .” (
B. Appellate Review of Determination That ICWA Does Not Apply and Consideration of Postjudgment Evidence
Here, the Court of Appeal recognized “the abject failure of the Department and juvenile court to inquire as to father‘s possible Native American heritage . . . .” (In re Kenneth D., supra, 82 Cal.App.5th at p. 1034) The department does not disagree but argues any failure of inquiry at the trial court level was cured by its later, postjudgment interview of father and the paternal grandmother. The department asserts its inquiry provided “conclusive information” that “father does not have any Native American heritage,” and ICWA does not apply. Based on this assertion, the department urges a remand to the juvenile court for further ICWA inquiry would “be a futile act.” Father counters the Court of Appeal could not properly consider the department‘s
We turn to standards of appellate review. As noted, the Welfare and Institutions Code6 provides that “[i]f the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence.” (
We need not resolve here which standard applies as no one disputes the inquiry conducted below was inadequate and, thus, that the court‘s ICWA finding lacked adequate support. As noted, with regard to J.T.‘s heritage, the trial court never made any inquiry of its own nor did it find that the department‘s inquiry was proper and sufficient. We characterize the trial court‘s finding as implicit because, without such a finding, its
obligation would have been to order further inquiry to ensure that the appropriate tribe had notice and was given the opportunity to intervene before the court terminated parental rights and approved the adoption plan. Even accounting for the initial confusion as to the identity of Kenneth‘s father, paternity testing eventually brought J.T. within the definition of “parent” under ICWA. (See
“On a well-developed record, the court has relatively broad discretion to determine whether the agency‘s inquiry was proper, adequate, and duly diligent on the specific facts of the case. However, the less developed
The department does not argue that the inquiry made before termination of parental rights was adequate. Instead, it asserts the postjudgment inquiry rendered any error harmless. We reject the contention.
Ordinarily, appellate courts review a trial court‘s judgment based on the record as it existed when the trial court ruled. (In re Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.).) It is ultimately within the purview of the juvenile court to make determinations of credibility and assessments of adequacy because it is uniquely positioned to reach these conclusions based on its familiarity with the case and those involved. The department‘s assertion that its postjudgment report rendered any prior failure of inquiry harmless “necessarily requires that we treat the factual assertions therein as undisputed, which we cannot do” because, absent exceptional circumstances, “[t]his type of factfinding is precisely what must occur in the juvenile court in the first instance [citation], where additional and possibly competing evidence may be offered; and the court, on a more fully developed record, will assess weight and credibility as appropriate, and make its factual findings.” (In re E.C., supra, 85 Cal.App.5th at p. 150; see In re G.H. (2022) 84 Cal.App.5th 15, 32-33; Ricky R., supra, 82 Cal.App.5th at p. 682.)
Our conclusion is fully consistent with Zeth S., supra, 31 Cal.4th 396 and In re Josiah Z. (2005) 36 Cal.4th 664 (Josiah Z.), neither of which involved ICWA. In Zeth S., the minor‘s counsel advocated for termination and represented that the maternal grandfather was ready and willing to adopt. Over the mother‘s objection, the juvenile court terminated parental rights and approved adoption as the permanent plan. (Zeth S., at p. 403.) On the mother‘s appeal, the minor‘s appellate counsel submitted a letter brief stating counsel had conducted her own investigation of the minor‘s current circumstances and found Zeth did well when the mother visited him, the mother had assumed primary caretaking duties during these visits, and the maternal grandfather “‘felt pressure to adopt [the minor]
In Josiah Z., the minors were put in a nonrelative placement after the juvenile court terminated parental rights. The minors’ counsel challenged the placement, arguing the children should have been placed with the paternal grandparents. The juvenile court found no abuse of discretion in the placement, noting the grandparents’ criminal record. The minors appealed. (Josiah Z., supra, 36 Cal.4th at p. 672) As relevant here, Josiah Z. addressed whether appellate counsel had authority to move to dismiss the minors’ appeal based on counsel‘s own assessment of what was in their best interests. In concluding counsel could so move, Josiah Z. rejected the argument “that hearing a motion to dismiss the appeal based on appellate counsel‘s best-interests assessment would violate the proscription against consideration of postjudgment evidence on appeal” under Zeth S. (Id. at p. 676) Although cautioning that “an appellate court should not consider postjudgment evidence going to the merits of an appeal and introduced for the purposes of attacking the trial courts judgment,” Josiah Z. suggested that “the generally applicable appellate rules authorize such a motion [to dismiss], and appellate courts routinely consider limited postjudgment evidence in the context of such motions.” (Ibid.) Whether a child should be permitted to abandon a challenge to the trial court ruling is a limited question “distinct from the
The reasoning of Josiah Z. does not apply here. That case turned on whether parties could properly dismiss their own appeal based on a reassessment of current circumstances by appellate counsel. Dismissing an appeal in such a case would not place an appellate court in the position of usurping the factfinding function generally given to the juvenile court. By contrast here, the complete failure to inquire about father‘s native heritage would necessitate reversal for further investigation but for the Court of Appeal‘s consideration of the department‘s postjudgment inquiry evidence and its own assessment that this evidence was credible and sufficient. As In re E.C. reasoned, “[w]hile we recognize that the Department is seeking to shore up the juvenile court‘s judgment rather than undermine it [citation], this distinction does not overcome the general proscription against routinely accepting postjudgment evidence to resolve issues raised on appeal, absent exceptional circumstances not present here . . . .” (In re E.C., supra, 85 Cal.App.5th at p. 150)
The department asserts
We cautioned in Zeth S. that, although this provision generally authorizes appellate courts to make factual determinations in nonjury cases, such authority “‘should be exercised sparingly,‘” and “‘[a]bsent exceptional circumstances, no such findings should be made.‘” (Zeth S., supra, 31 Cal.4th at p. 405, quoting Tyrone v. Kelley (1973) 9 Cal.3d 1, 13, italics omitted.) As one court observed, “claims of error under ICWA are not rare and will not typically present the type of exceptional circumstances warranting deviation from the general rule” that appellate courts should not engage in factfinding. (In re K.H., supra, 84 Cal.App.5th at p. 612) Indeed, if we accept the department‘s position, it is unclear how it could be cabined to the ICWA context, as it would seem to countenance appellate courts’ receipt of new evidence in any case involving harmless error review, making consideration of such evidence routine rather than exceptional. Cases have properly rejected application of
We have applied
The department makes no effort to establish this case involved exceptional circumstances warranting appellate factfinding under
However, the nature of this evidence only highlights why it should be presented to the juvenile court rather than for the first time on appeal. The department‘s interview of paternal grandmother suggested she believed that any native heritage reflected in a DNA test derived from her Mexican ancestry. Whether the paternal grandmother‘s explanation should be credited, as well as whether the department‘s efforts constituted “proper and adequate further inquiry and due diligence” (
contemplated should be made by the juvenile court in the first instance. At most, the department‘s proffer provided additional
Evidence of a postjudgment inquiry also is not a proper subject of augmentation or judicial notice. A reviewing court may order the appellate record augmented to include “[a]ny document filed or lodged in the case in superior court . . . .” (
Contrary to the department‘s suggestion, routinely allowing evidence of postjudgment ICWA inquiry to cure defects in the inquiry performed before judgment would not promote “the state‘s strong interest in the expeditiousness and finality of juvenile dependency proceedings . . . .” (Zeth S., supra, 31 Cal.4th at p. 412; see Josiah Z., supra, 36 Cal.4th at p. 676.) As we have noted, “Indian tribes have interests protected by ICWA that are separate and distinct from the interests of parents of Indian children.” (Isaiah W., supra, 1 Cal.5th at p. 13.) “The relevant rights under ICWA belong to Indian tribes and they have a statutory right to receive notice where an Indian child may be involved so that they may make that determination.” (In re K.H., supra, 84 Cal.App.5th at p. 591.) Because tribes have a right to
We emphasize the narrowness of our holding. Where the juvenile court finds that ICWA does not apply based on an inadequate inquiry into a child‘s native heritage, an appellate court, absent exceptional circumstances, may not consider evidence uncovered during a postjudgment inquiry to conclude the failure to conduct a proper inquiry was harmless.
In sum, the Court of Appeal below properly concluded the required inquiry into a child‘s native heritage did not satisfy statutory mandates. Because exceptional circumstances were not present here, the reviewing court should not have gone on to consider evidence of the department‘s postjudgment inquiry to conclude the error was harmless. Consistent with our decision in Dezi C., supra, ___ Cal.5th ___, we reverse the judgment here and order a conditional remand to the juvenile court for a proper inquiry and further proceedings. (See In re C.L. (2023) 96 Cal.App.5th 377, 392; In re V.C. (2023) 95 Cal.App.5th 251, 262-263.) Nothing we say here undermines the authority conferred by
III. DISPOSITION
The Court of Appeal‘s judgment is reversed with directions to conditionally reverse the juvenile court‘s order terminating parental rights. The matter is to be remanded to the juvenile court for compliance with the inquiry and notice requirements of
CORRIGAN, J.
We Concur:
GUERRERO, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
Concurring Opinion by Justice Groban
I agree with the majority that the Court of Appeal improperly considered postjudgment evidence in order to find that error in complying with the Indian Child Welfare Act of 1978 was harmless. (ICWA;
” ‘exceptional.’ ” (In re Zeth S. (2003) 31 Cal.4th 396, 405, italics omitted (Zeth S.).)
The majority also rightly emphasizes “the narrowness of our holding” (maj. opn., ante, at p. 22) and clarifies that “[n]othing we say here undermines the authority conferred by section 909 when exceptional circumstances have been established” (ibid.). I write separately to make clear that section 909 continues to be a vehicle to admit postjudgment evidence in the appropriate case.2
Future cases may present circumstances that are more exceptional than those presented here, thereby making reliance on postjudgment evidence
In sum, courts reviewing ICWA determinations must balance two sometimes competing interests: ICWA establishes the laudatory goal of “ensuring that the issue of Native American ancestry is addressed in every case [so] that we can ensure the collective interests of the Native American tribes will be protected.” (In re E.V. (2022) 80 Cal.App.5th 691, 697.) However, courts must also ensure the prompt resolution of dependency proceedings in order to achieve “a stable, permanent placement that allows a caretaker to make a full emotional commitment to the child.” (In re Celine R. (2003) 31 Cal.4th 45, 59.) There are likely to be exceptional future cases where uncontroverted, postjudgment evidence reveals that the child is not of Indian descent. In such instances, it is appropriate for the appellate court to rely upon
GROBAN, J.
I Concur:
GUERRERO, C. J.