Metropolitan News-Enterprise


Monday, September 19, 2022


Page 1


Dissenter Bemoans Deference to Tribes Over Child Welfare

Yegan Asserts That Under State Constitutional Mandate, There Should Not Be Reversals, ‘Conditional Reversals,’ Or ‘Conditional Affirmances’ Based on Speculation That Dependent Child Might Have Indian Ancestry


By a MetNews Staff Writer


Div. Six of the Court of Appeal for this district on Friday conditionally affirmed an order severing parental ties to a child—the condition being that, on remand, evidence not be uncovered of Indian ancestry—with a dissenter arguing that the appellate courts are so obsessed with enforcing tribal rights that are Dependent losing sight of the state constitutional limitation on upsetting judgments.

In his dissent, Justice Kenneth Yegan argued:

“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.”

Both parents had denied Native American ancestry, but further inquiry had not been made of “extended family members,” as required by California’s Welfare and Institutions Code §224.2, which implements the federal Indian Child Welfare Act (“ICWA”). There are markedly differing views as to how a court of appeal is to respond where a superior court has made a termination order in the absence of compliance with §224.2 by the county’s child welfare agency, and the California Supreme Court has not yet spoken on the issue.

Conflicting Approaches

“The various districts and divisions of the Court of Appeal have conflicting approaches to how this troublesome issue is to be treated on appeal,” Yegan noted.

He said he would bow to the state constitutional “miscarriage of justice” (or “harmless error”) standard. Art. IV, §13 provides:

“No judgment shall be set aside, or new trial granted, in any cause…unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

The dissenter wrote:

“There is no showing of an actual miscarriage of justice in this case. There isn’t even a suggestion that upon further inquiry, there may be some evidence of Indian ancestry. If there were, I would vote to reverse. Of course, upon further investigation, there may be proof that there is, or is not, evidence of Indian ancestry. And even if there is some proof of Indian ancestry, that does not automatically mean that a child will be placed with an Indian family. This is all speculative. So, should there be a reversal, conditional reversal, or ‘conditional affirmance,’ based upon speculation? My answer now is, No.”

Perren’s Opinion

Retired Justice Steven Z. Perren, sitting on assignment, authored the majority opinion. In a footnote, he said: “Because a conditional affirmance does not ‘set aside’ the judgment, the constitutional “miscarriage of justice” provision…does not apply.”

Presiding Justice Arthur Gilbert signed Perren’s opinion, but noted in a brief concurring opinion that he disagrees with the footnote, saying:

“In my view the perceived differences between a conditional affirmance and a conditional reversal do not determine whether there is a ‘miscarriage of justice.’…Juliet’s oft-quoted comments about a rose is apt.”

He also set forth:

“I also wish to caution that against the backdrop of ICWA what is of paramount concern is the best interest of the child….ICWA consideration is important, but it does not supersede the child’s best interest.”

Championing Rights

Yegan put it more bluntly, remarking:

“Rather than championing the rights of an Indian tribe, we should be championing the rights of a dependent child.”

He also commented:

“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.”

In opting for a conditional affirmance, Perren said:

“Although conditional affirmances are rare, they have previously been issued in various types of cases by both the appellate courts and our Supreme Court. We issue such a disposition here because time is of the essence and a conditional affirmance provides the best opportunity for the error to be handled expeditiously without unduly prolonging the finality of the proceedings.”

He explained:

“With a conditional affirmance, the judgment remains in place on remand. When a judgment is conditionally reversed, the judgment is reinstated on the date the underlying condition is satisfied.”

Div. Seven’s View 

Perren endorsed the approach taken on July 18 by this district’s Div. Seven in In re Rylei S. There, Presiding Justice Dennis M. Perluss said, in an opinion ordering a remand pursuant to a conditional affirmance:

“[W]e—and a number of other courts of appeal applying a similar analysis of prejudice in Indian status cases—have explained that, when the child protective agency’s failure to conduct an adequate inquiry makes it impossible for the parent to show prejudice, we will remand for a proper inquiry….But that is a far cry from holding any misstep by the Department in the process of investigating a child’s possible Indian status will require reversal of a no-ICWA finding.”

Gilbert declared:

“I do not support the rigid application of ICWA promulgated  by In re Rylei S..Nevertheless, I  believe a limited remand here is appropriate….”

‘Readily Obtainable Information’

He cited In re Benjamin M., decided on Oct. 22 by Div. Two of the Fourth District Court of Appeal. Justice Michael J. Raphael said in that opinion:

“We believe that in ICWA cases, a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.”

In that case, there was a conditional reversal.

Yegan praised the June 14 opinion by Justice Brian M. Hoffstadt in In re Dezi C.

“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,” he wrote.

Hoffstadt offered this approach:

“In our view, an agency’s failure to conduct a proper initial inquiry into a dependent child’s American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court’s ICWA finding.”

In eight dissents, Justice John Shepard Wiley Jr. of Div. Two found the failure of the Los Angeles County Department of Children and Family Services to have been prejudicial where his colleagues did not and has argued that tribes should be considered to be real parties in interest.

Yegan observed:

“The continuing appellate controversy which is now dominating the advance sheets concerns the Indian Child Welfare Act…and the appropriate standard of appellate review.”

Friday’s decision came in In re J.K., 2022 S.O.S. 4465.


Copyright 2022, Metropolitan News Company