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Wiley Continues to Dissent in Child Dependency Cases
Maintains Failure of DCFS to Contact Extended Family Members to Inquire If Child Has Native American Ancestry Is Never Harmless Error and Reversal Is Mandatory
Court of Appeal Justice John Shepard Wiley Jr. of this district’s Div. Eight has said before and will no doubt keep saying it until the California Supreme Court has had the final say on the matter: reversal of an order adverse to a parent in a child-dependency matter is required where the Los Angeles County Department of Children and Family Services has failed to inquire of extended family members if the child has Native American heritage.
His is one of four views that have been propagated by courts of appeal.
On Friday, Wiley dissented from a decision authored by the panel’s presiding Justice Maria E. Stratton in In re Tyler C., an opinion that was not certified for publication. It affirms an order by Los Angeles Superior Court Judge Michael C. Kelley terminating a mother’s parental ties to her dependent child.
Stratton acknowledged that the DCGS failed to abide by its statutory duty under Welfare and Institutions Code §224.2(b)by making the statutorily required inquiry, but said that “the error was harmless because the children’s designated adoptive parent was their maternal step-grandmother and the record otherwise reveals no reason to know that the children may have Indian ancestry.”
She declared: “We find no miscarriage of justice.” Wiley responded:
The miscarriage of justice is cutting tribes out of the child placement process.
Tribes asked our Legislature to require agencies like the Department to ask extended family members about a child’s possible Indian ancestry.
Tribes identified the problem. Questioning only the parents about Indian ancestry was not enough. “[T]here are a variety of reasons why relying on the parents does not necessarily protect the child’s best interests, or the rights of the tribe. Parents may simply not have that information, or may possess only vague or ambiguous information.” (California ICWA Compliance Task Force, Report to the California Attorney General’s Bureau of Children’s Justice, 2017, p. 28 <https://caltribalfamilies.org/wp-content/uploads/2020/12/ICWAComplianceTaskForceFinalReport2 017.pdf> [as of Feb. 1, 2023], archived at <https://perma.cc/NYF6- VPY9> (Tribal Report).) Parents “may be fearful to self-identify” or may “wish to avoid the tribe’s participation or assumption of jurisdiction.” (Ibid.) Acting on the basis of the Tribal Report, the Legislature unanimously passed the 2018 amendment requiring agencies like the Department to ask extended family members about a child’s possible Indian ancestry. (See, e.g., Cal. Health and Human Services Agency, Enrolled Bill Rep. on Assem. Bill No. 3176 (2017-2018 Reg. Sess.) prepared for Governor Brown (Aug. 31, 2018 & Sept. 4, 2018) pp. 5-6.)
The Legislature enacted this amendment to help tribes get information that would enable them better to preserve their cultures. In light of the last 500 years of history, denying tribes the benefit of this information is a miscarriage of justice.
Placement with maternal family members does not prove harmlessness. (In re Oscar H. (2022) 84 Cal.App.5th 933, 938- 940 [portion of opn. not joined by a second justice].) Placement with a relative can still mean harm to tribes, particularly where (as here) the relative does not acknowledge any tribe. If the relative does not acknowledge this heritage, how is it carried forward?
“A tribe’s rights are independent of the rights of other parties.” (Tribal Report, supra, p. 71.) A parent cannot waive the tribes’ rights. (Ibid.) The injustice inherent in tribes not being fairly included in state court can be overcome only by ensuring tribal participation. (Id. at p. 94.)
This is my 17th dissent on this topic. The persistence of this issue is remarkable. The Department could eliminate this issue by complying with the 2018 amendment.
On Thursday, Wiley dissented in In re A.V., B316674, also an unpublished opinion. San Diego Superior Court Judge Albert T. Harutunian, sitting on assignment, wrote for the majority in affirming orders by Los Angeles Superior Court Judge Mary E. Kelly terminating the parents’ rights to their children, saying:
“There was no evidence that the Department questioned extended maternal and paternal family members about Indian ancestry. However, we conclude that the error was harmless because Mother and Father participated in the proceedings below and denied Indian ancestry.”
Wiley countered:
The Department failed to phone the children’s paternal grandmother, among others, about possible Indian ancestry. It would have taken slight effort to try that number, as the 2018 amendment to California’s version of the Indian Children Welfare Act required.
This is significant. Through questions like that, tribes can connect with children who might carry an indigenous heritage into the future. No question means no answer. No answer shuts tribes out of the legal process that places children who might be their future. No answer means tribes cannot learn their interests are at stake. Tribes will have no notice of a relevant case and will not get an opportunity to be heard.
Tribes are the real parties in interest under California’s amended law. They sought this change in the law because the old system was failing them. The Legislature responded unanimously and with alacrity, for the tribes’ benefit. Why such unanimity, such alacrity? That is not standard for a legislature.
It was because 500 years of our history freights this issue. The Legislature took measures to counteract a history that has so devastated tribes.
So prejudice to tribes is the issue. The 2018 amendment sought to secure notice to tribes when a dependency case might involve Indian children. A child welfare agency failed to do what this amendment directed: to ask “extended family members” about the possibility of the child’s Indian ancestry. Agency failures like this deprive the intended tribal beneficiaries of notice and an opportunity to be heard, if the information would have shown Indian ancestry. This deprivation of an amendment’s benefit is a miscarriage of justice to tribes. They are the statute’s beneficiaries and now have no way of knowing when their rights are at stake. This failure entirely negates the intended effect of the Legislature’s 2018 amendment.
To say this omitted telephone call did not matter—that it caused no prejudice—is to misapprehend the stakes. Tribes have been losing for 500 years. They lose again today.
This is my 16th dissent on this issue.
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