Metropolitan News-Enterprise

 

Tuesday, December 13, 2022

 

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Dissenter Urges Narrow Reading of Child Welfare Law

Justice Baker Criticizes Conditional Reversal of Order Severing Parental Ties Based on DCFS Not Having Inquired of Dependent Child’s Caregiver Whether the Girl Is of Native American Ancestry

 

By a MetNews Staff Writer

 

A dissenting justice said yesterday that the majority is moving the courts of appeal “further down the wrong path” in cases in which the disposition in a child-dependency case is challenged based on inadequate compliance by child welfare agencies with the duty to inquire if the child has native American ancestry.

At issue was an application of Welfare and Institutions Code §224.2 which supplements the federal Indian Child Welfare Act (“ICWA”). The state statute says in subd. (b):

“If a child is placed into the temporary custody of a county welfare department…, 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 and where the child, the parents, or Indian custodian is domiciled.”

‘Others’ With Interest

Justice Lamar Baker took issue with the majority taking heed of the words “others who have an interest in the child.”

Presiding Justice Laurence D. Rubin authored a brief majority opinion conditionally reversing an order by Los Angeles Juvenile Court Referee Ashley Price severing a mother’s ties to her daughter. The reversal, which honored a stipulation of the parties, was based on an inquiry not having been made either of the child’s non-relative caregiver, who is also her prospective adoptive parent, or extended family members, as to whether the girl is or might be of Native American heritage.

Rubin, who was joined by Justice Carl H. Moor, said the Los Angeles County Department of Children and Family Services (“DCFS”) is to attempt to interview the caregiver, as well as extended members of the family. “Based on the information reported, if the court determines that no additional inquiry or notice to tribes is necessary, the order terminating parental rights is to be reinstated,” he wrote, specifying that otherwise, “all necessary orders to ensure compliance with ICWA and related California law.”

Baker’s Dissent

Baker protested:

“The upshot of the majority’s holding is that—on pain of appellate reversal—juvenile courts and social services agencies must now make ICWA inquiry of not just all of a minor’s extended family members but also untold others who are not even related to the minor. Fortunately, our Supreme Court has agreed to hear a case that will hopefully bring some much-needed predictability and stability to this area of the law….While we await guidance from the Supreme Court, I write separately to highlight the facts of this case as an example of just how awry things have gone (and could yet further go), and to add some observations about how courts can make sense of an unartfully drafted statute.” Noting the divergent approaches taken by courts of appeal, Baker commented:

“There are already many published Court of Appeal opinions—particularly when taken to their logical conclusion regardless of any analytically arbitrary limits in their dispositional language—that require social workers to ask ICWA-related questions of every family member of a child they can find: parents, grandparents, brothers, sisters, first cousins, second cousins, aunts, uncles, etcetera. That can be a challenge in its own right. But the upshot of today’s opinion is that this universe has gotten even bigger: juvenile courts and social services agencies must now also contact and interview non-related extended family members presumably because they qualify as “others who have an  interest in the child.” But what does that mean? How is a court or social services agency to decide who else has an interest in a child such that ICWA-related questions must be posed? Do family friends qualify? Therapists? Pastors?  Teachers? Coaches? Doctors? Dentists? The ambiguity is remarkable.”

‘Recommended Sources’

Baker said he would “interpret the inquiry categories in section 224.2 as recommended sources of ICWA-related information” and would affirm Price’s order based on the DCFS’s inquiry of the parents.

He said in a footnote:

“If the Legislature believes I have too permissively understood the inquiry directions it sought to give juvenile courts and social services agencies, the Legislature can further amend the statute to make its intent clearer.”

The case is In re A.C., B319752.

 

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