Metropolitan News-Enterprise

 

Thursday, December 15, 2022

 

Page 1

 

Jurist Takes Differing Approaches in His Majority Opinion, Concurring Opinion

Visiting Jurist Applies Harmless Error Doctrine, Writing for the Panel, Says in Concurring Opinion There Was, in Fact, No Error

 

By a MetNews Staff Writer

 

A Los Angeles Superior Court judge, sitting on assignment, yesterday wrote for Div. One of the Court of Appeal for this district in affirming an order severing parental ties to a child, saying that any failing by the Department of Children and Family Services in inquiring as to a child’s possible native American heritage was harmless error—but declaring in a concurring opinion that there was, in actuality, no error.

 Judge Michael Kelley is the pro tem justice. He said in the majority opinion that Los Angeles Superior Court Referee Robin R. Kesler did not err in terminating parental rights to a dependent child, Adrian L., writing:

“In light of the facts in the record, which include the parents’ denials of Indian affiliation, as well as extensive efforts by Mother, Mother’s counsel, extended family members, and minor’s counsel, to have Adrian placed with the extended family members, we conclude additional inquiry would not have yielded information that was likely to bear meaningfully on the question of whether Adrian is an Indian child. Accordingly, any failure to inquire of extended family members was harmless. We thus affirm.”

Courts of appeals are divided as to whether the harmless error doctrine applies where there is not full compliance with the requirements of California legislation supplementing the federal Indian Child Welfare Act (“ICWA”) of 1978, and the California Supreme Court has taken up the question.

Kelley went on to say:

“As our prior decisions make clear, DCFS’s failure to inquire of extended family members does not result in automatic reversal….

“The appellate record does not demonstrate that inquiring of maternal grandmother, paternal grandmother, or paternal aunt would have yielded information likely to bear meaningfully on the court’s ICWA determination.”

Joining in the opinion were Justice Victoria Chaney and Acting Presiding Justice Helen I. Bendix.

Concurring Opinion

In his concurring opinion, Kelley said:

“I write separately because I conclude that DCFS did not in fact fail to make statutorily required ICWA inquiries.”

He pointed to the wording of Welfare & Institutions Code §224.2(b) which says:

“If a child is placed into the temporary custody of a county welfare department pursuant to Section 306…, the county welfare department…has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child….”

Sec. 306, in turn, authorizes a social worker to take a child into temporary custody for the protection of the child in an emergency situation.

Kelley noted that Adrian was not “placed into the temporary custody” of the DCFS at the outset of the proceedings; she was left with the mother.

“Thus, the specific ICWA inquiry prescribed by section 224.2, subdivision (b) was not implicated at the outset of this case,” the jurist wrote.

§306 Not Invoked

He continued:

“There can be no dispute that Adrian was not placed into DCFS’s temporary custody ‘pursuant to section 306’ in October 2020. Instead, DCFS acted under an entirely different procedure that authorizes the juvenile court to issue protective custody warrants—namely, the warrant procedure pursuant to section 340, subdivision (b). Based upon a showing that Mother had relapsed into methamphetamine use and demonstrated mental instability in the form of suicidal thoughts, DCFS obtained a court order that authorized removal of Adrian from Mother’s custody. Section 306 played no role in this removal.”

A removal under §306 is an emergency removal while one under §340 is not, he noted.

After examining legislative history, Kelley declared:

“[T]he Legislature expressly rejected having the inquiry prescribed in section 224.2, subdivision (b) apply in all cases when a child is placed into temporary custody and limited such inquiry to cases where a child is placed in temporary custody ‘pursuant to section 306.’ ”

Kelley’s concurring opinion does not express disagreement with his majority opinion; the majority opinion says that if there was error, it was harmless, while the concurring opinion proclaims that there was no error. But the approach taken by the two opinions was disparate.

Kelley explained:

“The main opinion in this case affirms based on finding any ICWA inquiry error harmless. Notwithstanding that result, I have written at some extended length to make the case for construing section 224.2, subdivision (b) narrowly for two reasons. First, our interpretation should conform to what the Legislature expressed and intended when it adopted the statute.

“Second, the broader prevailing interpretation, which I believe to be incorrect, has placed significant and unnecessary burdens on the courts; perhaps not consciously, but due to an unusual confluence of circumstances. It is understandable that a parent’s counsel would scour a record for errors that might provide a basis for an appeal from an order terminating parental rights. And once section 224.2, subdivision (b) began to be interpreted as mandating the questioning of extended relatives in every case, it was inevitable that the issue would be raised in virtually every appeal, even where (as has so often been the case, including in this case) no other error had been identified. What is less understandable is the approach of DCFS, which routinely failed to inquire of extended relatives and now prevails upon the appellate courts to redress what it concedes to be its routine violation of section 224.2, subdivision (b) by deeming the errors ‘harmless.’ ”

He said that “I believe the preferred approach here should be to declare ‘no error’ rather than ‘harmless error.’ ”

The case is In re Adrian L., 2022 S.O.S. 6072.

 

Copyright 2022, Metropolitan News Company