Metropolitan News-Enterprise


Thursday, March 16, 2023


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Two C.A. Holdings in a Single Case Come in One Opinion, Another in Separate Opinion

Justice Baker Sets Forth the Resolution of Two Issues,

Justice Kim Writes for Majority in Deciding Third Issue


By a MetNews Staff Writer


Div. Five of the Court of Appeal for this district has filed an opinion in an unconventional format with the resolution of two of the issues coming in one opinion and the disposition of another issue appearing in a separate opinion by a different justice.

The opinions, filed Tuesday, were not certified for publication.

Although it is sometimes necessary in reviewing U.S. Supreme Court opinions to figure out what propositions contained in the lead opinion are concurred in by a sufficient number of justices in separate opinions as to add up to the five votes necessary to create a holding, no such need commonly arises in connection with California Court of Appeal decisions.

Acting Presiding Justice Lamar Baker authored Opinion No. One. It is arguably both a majority opinion and a dissent.

Justice Dorothy Kim wrote Opinion No. Two, which was signed by Justice Carl H. Moor. It is labeled a “Separate Opinion.”

Mother’s Appeal

On appeal were orders by Los Angeles Superior Court Commissioner Gabriela Shapiro. A mother contested the termination of her parental ties to a child identified as “G.S.”

Baker’s opinion holds that Shapiro did not err in denying the mother’s change-of-circumstances petition without conducting an evidentiary hearing “because there is no evidence that restarting reunification services would be in Minor’s best interests.” It also declares that no reversal is warranted based on a failure to consider the benefit to the child of maintaining her relationship with the mother because of “the dearth of evidence that Minor would benefit from continuing the relationship with Mother.”

Neither Kim nor Moor signed Baker’s opinion. However, Kim’s “Separate Opinion” indicates agreement with Baker’s first two proposition.

It rejects his conclusion as to the effect of a failure by the Los Angeles County Department of Children and Family Services to inquire of G.S.’s “extended family members” as to whether G.S. has Native American ancestry.

Substantial Evidence

Baker opined that substantial evidence supports Shapiro’s conclusion that the case does not come under the federal Indian Child Welfare Act or California’s Welfare and Institutions Code §224.2. The state statute requires, in subd. (b), that “the county welfare department” inquire of “extended family members…whether the child is, or may be, an Indian child.”

Both parents indicated, in a form, that G.S. did not have Indian blood and the mother so testified, Baker recited, declaring that this sufficed under the statute. He added:

“Furthermore, in readily conceding error, the Department neglects to discuss the significance of Minor’s placement with Maternal Grandmother (and her status as the prospective adoptive parent). As another court has held, and as holds true here, placement of a minor with a family member who necessarily shares any assumed maternal Indian ancestry that Minor has means any posited deficiency in conducting ICWA-related inquiry would be harmless.”

That other court was Div. Eight of this district’s Court of Appeal. Baker quoted from its July 19, 2022 opinion in In re J.W., authored by Presiding Justice Maria Stratton.

Kim’s Opinion

Kim said in her “Separate Opinion”:

“…I conclude the Los Angeles County Department of Children and Family Services (Department) did not comply with the requirements of ICWA and related California law because the Department did not interview maternal grandmother and maternal uncle about Indian ancestry….Further, the Department’s placement of the child with the maternal grandmother does not render the failure to comply harmless.”

Although Baker’s opinion comes first and mimics a majority opinion —if it is not partially constituting such—it contains no dispositional pronouncement at the end. (Idiosyncratically, Baker uniformly desists from stating the outcome in the introduction, merely advising as to what issue or issues will be addressed.)

Kim set forth:

“The disposition of the appeal is accordingly this:  the juvenile court’s orders are conditionally affirmed and the cause is remanded for additional ICWA-related inquiry of available maternal relatives, including maternal grandmother and maternal uncle.”

A question that might be debated by appellate attorneys is whether Kim’s opinion impliedly incorporates by reference Baker’s pronouncements on the first two issues and decides the third issue, thereby standing as the opinion of the court, and Baker’s opinion being in the nature of a concurring and dissenting opinion.

The case is In re G.S., B322367.


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