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C.A. Takes Evidence to Avoid Remand in Dependency Case
By a MetNews Staff Writer
Div. Six of the Court of Appeal for this district yesterday avoided a remand for further inquiries as to whether a dependent child comes under the Indian Child Welfare Act of 1978 by considering updated information from the child welfare agency, the same approach it took in a case in August.
The only issue raised by a mother whose parental ties to her child, J.R., had been ordered severed by Santa Barbara Superior Court Judge Arthur A. Garcia was that adequate inquiry had not been made as to possible native American ancestry of the child. Such a contention is being made with increased frequency in such cases, resulting in disparate approaches by the appellate courts.
In yesterday’s unpublished decision, Presiding Justice Arthur Gilbert said:
“We conclude that error in failing to make initial inquiries of extended family members pursuant to the [federal] Indian Child Welfare Act of 1978 (ICWA)…and related California law was harmless in view of the recent augmentation of the appellate record to reflect the additional inquiries and responses thereto.”
Information supplied directly to Div. Six was considered, along with trial court evidence. In his opinion affirming the order terminating parental ties, Gilbert announced:
“Remand would unnecessarily delay the likelihood of adoption of J.R. and would achieve the same result we do here by the unopposed augmentation of the record.”
The case is In re J.R., B319648.
August Decision
On Aug. 23, Gilbert, writing for Div. Six in In re E.L., a published decision, rejected a mother’s contention that considering information presented by the Ventura County Human Services Agency would be a misuse of Code of Civil Procedure §909 which authorizes a reviewing court to “take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal.”
He noted there, as in yesterday’s opinion, that remanding the case to allow the trial judge to receive the evidence would simply delay an adoption of the child.
Affirming the order cutting parental ties, he wrote:
“To what extent are social workers required to comb the nether reaches of the land to find relatives who may shed light on a child’s possible Indian heritage? We can only hope these varying interpretations will be resolved soon. But here we have the evidence that answers this question.”
(The California Supreme Court has recently granted review in cases in which the issue is raised.)
In his August opinion, Gilbert cited the May 27 decision by Presiding Justice Frances Rothschild of Div. One in In re Allison B. There, Rothschild observed that “[g]enerally the authority granted by section 909 ‘should be exercised sparingly’ and only when ‘exceptional circumstances’ are present” but that reliance on the section is appropriate in juvenile dependency proceedings to expedite a resolution.
Other Cases
Other unpublished opinions were filed yesterday by Court of Appeal divisions in this district dealing with the ICWA.
•In In re Am.W., B317071, Justice Dorothy Kim of Div. Five said:
“This case involves reversible error because the parties agree, and we concur, there was noncompliance with the inquiry requirements of ICWA and related California provisions….Specifically, the Department failed to interview known extended family members about the children’s possible Indian ancestry, even though its social workers had contact with maternal grandmother, a maternal aunt, paternal grandfather, and paternal grandmother.”
The panel’s response was to “conditionally affirm,” directing the Los Angeles Superior Court to require a further inquiry by the Department of Children and Family Services (“DCFS”) and “if the court determines that no additional inquiry or notice to tribes is necessary, the order terminating father’s reunification services shall be unconditionally affirmed.”
•Justice Lamar Baker wrote for that same division in In re R.B., B318631. In that case, Los Angeles Superior Court Judge Debra Archuleta had found that the DCFS had met its responsibilities under the ICWA, but the father, DCFS, and the minor stipulated to a conditional reversal, and the appeals court accepted the stipulation, and the matter was remanded fir further proceedings.
•Taking a different approach—patterned after that adopted by Div. Two of this district’s on June 14 in In re Dezi C. (in which review has been granted)—Acting Presiding Justice Thomas L. Willhite Jr. of Div. Four said the DCFS had not conducted a proper investigation, but nonetheless affirmed, declaring:
“Here, the record does not provide a “reason to believe” that the children have Indian ancestry. Rather, father and mother repeatedly denied any Indian ancestry to DCFS….Moreover, nothing in the record suggests any reason to believe that the parents’ knowledge of their heritage is incorrect or that the children might have Indian ancestry. Mother has offered no such reason on appeal. Therefore, we conclude that DCFS’s error in this case was harmless.”
That case is In re W.R., B314199.
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