Metropolitan News-Enterprise

 

Wednesday, July 13, 2022

 

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Wiley Says Tribes Should Be Recognized As Real Parties in Interest in Dependency Cases

 

By a MetNews Staff Writer

 

A rift continues in Div. Eight of the Court of Appeal for this district over the issue of whether inadequate investigations by the Los Angeles County Department of Children and Family Services into possible native American ancestry of dependent children can be dismissed as harmless error, with Justice John Shepard Wiley Jr. declaring yesterday in a dissent that input should be solicited from tribes as real parties in interest.

Acting Presiding Justice Elizabeth A. Grimes wrote for the majority that an order terminating parental rights must be affirmed notwithstanding that there is no evidence that the department fulfilled its statutory duty to inquire of “extended” family members as to whether the child, M.M., had an Indian heritage. Joined by San Diego Superior Court Judge Albert T. Harutunian III, sitting on assignment, she wrote:

“We decline to follow the ‘error per se’ line of cases. There are serious costs if courts delay finalizing permanency for a child in every case where extended family was not questioned, on the remote chance those relatives might have information which is inconsistent with the parents’ disclaimer of Indian ancestry.”

Last Week

The majority took the same stance in an opinion six days earlier, also drawing a dissent from Wiley. He said in yesterday’s dissent:

“The right here belongs to tribes. What is the tribes’ view of this controversy? We do not know. They have never been invited to the discussion. The entire appellate conversation has proceeded in their absence. The real parties in interest have no idea their rights are on the line in these cases.

“We do know the Legislature, in recently enacting the statute at issue, overwhelmingly favored the tribes’ perspective. Without any dissenting votes, legislators took the tribes’ advice that asking only the parents about Indian ancestry was not sufficient….That had been the old practice—ask only the parents and not extended family members—and the tribes spoke out against it. So the Legislature commanded the Department to ask “extended family members” about Indian ancestry.

“How do we know this? Because the legislative history is extensive, compelling, and clear as a bell.”

Wiley noted that this was his fourth dissent on the issue, remarking that “[t]he persistence of the problem suggests a Department-wide issue, not some issue with front-line social workers.”

Lost Opportunity

He went on to say:

“With every failure to identify a child with Indian ancestry, tribes lose an opportunity, one child at a time, to transmit their culture to future generations. Tribes have been losing futures for 500 years. The Legislature recently sought to do something about it. The Department, charged with defending the tribes’ interest, has faltered. The tribes will discover, eventually, that once again their interest has been balanced away.

“I would find prejudice.”

The case is In re M.M., 2022 S.O.S. 3004.

 

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