Page 1
Court of Appeal Issues Joint Majority, Concurring Opinion
Justice Wiley Writes for Majority in Declaring That Remand Is Required in Case Where DCFS Failed to Make Inquiry of Father As to Possible Indian Ancestry of Child; Writes Alone in Responding to Point Raised in Dissent
By a MetNews Staff Writer
The Court of Appeal for this district has issued a hybrid opinion—in part, a majority opinion, but also a concurring one—in a case involving an issue that has recently become a frequently recurring one, spawning diverse resolutions: What is to be done where a child welfare agency has failed to conduct an adequate statutorily required inquiry as to whether a child, found to be a dependent, has Native American ancestry?
Justice John Shepard Wiley Jr. of Div. Eight, who has authored nine dissents in such cases, wrote for the majority in declaring that a remand is required because the Los Angeles County Department of Children and Family Services (“DCFS”) failed, as it has been found in scores of cases to have done, to make the required investigation. Wiley was placed in the position of speaking for the panel because he was backed up by San Diego Superior Court Judge Albert T. Harutunian III, sitting on assignment.
He was supported, however, only to the extent of his proclaiming in Part IIA of his opinion, filed Thursday, that a remand is mandated. Harutunian did not join Part IIB, in which Wiley responded to a dissent by Presiding Justice Maria E. Stratton who maintained that any dereliction on the part of the DCFS was harmless.
In the portion rejected by Harutunian, Wiley crystalized his reasons for taking a strong stance in favor of supporting tribal interests under the federal Indian Child Welfare Act (“ICWA”) and related California statutes.
Concurring Opinions
In recent years, justices authoring unanimous or majority opinions who desired to offer comments which did not draw acceptance by at least one other justice, in a Court of Appeal opinion, or three others with respect to a state Supreme Court decision, would pen a concurring opinion. That approach, occasionally followed, is attributed to California Supreme Court Justice Stanley Mosk, now deceased.
Writing for the majority, Wiley declared that an order by Los Angeles Superior Court Judge Charles Q. Clay III severing parental ties to a dependent child must be conditionally reversed because inquiry was not made of the father as to Native American ancestry. If, on remand, it is determined that no reason exists for a belief that the child, Oscar H., is of Native America ancestry, Clay’s order is to be reinstated, he said.
Wiley wrote:
“The Department erred by not inquiring of the father and of extended family members….The Department should have inquired of the father, paternal extended family members, and the maternal grandfather.
“As to the paternal inquiry, the error was prejudicial because the Department made no inquiry of the father or of paternal relatives.”
Stratton’s Dissent
Stratton said in her dissent:
“I agree DCFS erred in determining without further inquiry that ICWA did not apply. However, I conclude the error was harmless. The court ultimately designated Oscar H.’s maternal grandmother as his prospective adoptive parent. The minor is not in danger of being separated from his biological family, the evil ICWA was enacted to prevent.”
She noted that the ICWA spells out:
“[A] preference shall be given, in the absence of good cause to the contrary, to a placement with
“(1) a member of the child’s extended family….”
The presiding justice commented:
“Here, the juvenile court implemented ICWA’s first preference by finding Oscar H. adoptable by his maternal grandmother, a sensible finding given his lifelong placement with her….The abuses ICWA was enacted to prevent are not in play here.”
Wiley’s Rejoinder
In Part IIA of his opinion, Wiley explained that if it emerges from an inquiry of the parents and members of the extended families that there is reason to believe that a child has Native American ancestry, inquiry is made of the tribes. At the request of a tribe, jurisdiction would be shifted to a tribal court; the tribe could formally intervene in the Superior Court proceeding; or, on an informal level, a representative could address the court or a written submission could be made, the jurist recited.
Disagreeing with Stratton that the adherence to the first preference for placement set forth in the ICWA renders neglectfulness by the DCFS harmless, Wiley said:
“First, the preferences are under state law. A tribe could have sought jurisdiction and those preferences would not bind a tribal court.
“Second, in state court, compliance with the default preferences may not control because tribes may establish a different order of preference by resolution….Unless certain exceptions apply, the court and Department must follow that preference. The default preferences may not apply.
“Third, in tribal court or in state court, compliance with adoption preferences is not the only consideration. Termination of parental rights and adoption were not inevitable. As explained, tribal involvement may have changed the case’s trajectory.
“Fourth, assuming the same outcome of termination of parental rights and adoption, the lack of tribal involvement could still cause harm. The potential harm is acute here, where the child was placed with his maternal family and there was no inquiry of paternal family. If the child has paternal ancestry, placement with the maternal grandmother without identifying this ancestry and informing the tribe does not further the Act’s goal of promoting the stability and security of Indian tribes….Losing the chance to transmit cultural values is a tribal harm.”
Hartunian said:
“I concur with the majority opinion, except for section II.B. Since I believe remand is compelled by the absence of any inquiry of father or his lineage, we need not address in dicta the appropriateness of placement with the maternal grandmother. I would address that issue only when necessary to do so.”
The case is In re Oscar H., 2022 S.O.S. 5490.
Beverly Hills attorney Megan Elise Turkat-Schirn represented the mother and Los Angeles Principal Deputy County Counsel Tracey Dodds acted for the DCFS.
Copyright 2022, Metropolitan News Company