In re Dezi C. (2024) · DecisionDepot

In re Dezi C.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 12, 2024 No. S275578MPublished

Filed 9/11/24

IN THE SUPREME COURT OF CALIFORNIA In re DEZI C. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANGELICA A., Defendant and Appellant.

S275578

Second Appellate District, Division Two B317935

Los Angeles County Superior Court 19CCJP08030A and 19CCJP08030B

ORDER MODIFYING OPINION

THE COURT:

The opinion in this matter, which was filed August 19, 2024, is modified as follows:

1. The third sentence of the paragraph on page 16, which states, “ ‘By contrast, other courts have applied “a hybrid substantial evidence/abuse of discretion standard, reviewing for substantial evidence whether there is reason to know a child is an Indian child, and for abuse of discretion a

juvenile court’s finding that an agency exercised due diligence and conducted a ‘proper and adequate’ ICWA inquiry” ’ ” is modified to read:

“By contrast, other courts have used a hybrid standard, reviewing for substantial evidence whether there is reason to know a minor is an Indian child, and reviewing a finding of due diligence and proper inquiry for abuse of discretion.”

This modification does not affect the judgment.

IN THE SUPREME COURT OF CALIFORNIA

In re DEZI C. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANGELICA A., Defendant and Appellant.

S275578

Second Appellate District, Division Two B317935

Los Angeles County Superior Court 19CCJP08030A and 19CCJP08030B

August 19, 2024

Related research

why Watson does not apply. Nor does the majority make any attempt to reconcile article VI, section 13 of the California Constitution with its decision. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 785 (Dezi C.) [The majority’s “automatic reversal rule seemingly elevates ICWA above the constitutional mandate that reversal is only required when there would be a miscarriage of justice. But it is well settled that constitutional provisions trump statutory law, not the other way around”].) I would not so lightly dispense with our precedent or our Constitution. Instead, I would apply Watson in this case by adopting the Court of Appeal’s “reason to believe” standard. (See Dezi C., supra, 79 Cal.App.5th at p. 779.) Under the “reason to believe” standard, “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. For this purpose, the ‘record’ includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal.” (Ibid.) This standard appropriately balances the interests of the child in avoiding delay and instability in permanent placement while at the same time requiring reversal if a threshold showing can be made that further ICWA or Cal-ICWA inquiry would be useful. But it avoids condemning children to further delay and instability in cases where there is zero evidence that the child is Indian. “By limiting a remand for further inquiry to those cases in which the record gives the reviewing court a reason to believe that the remand may undermine the juvenile court’s ICWA finding, the ‘reason to believe’ rule effectuates the rights of the tribes in those instances in which those rights are most likely at risk, which are

contained conflicting hearsay statements concerning Indian ancestry: “Kenneth D.’s father ‘stated that he thought he might have Cherokee ancestry out of Oklahoma’ while the paternal grandmother stated the father’s statement was ‘not accurate’ and that she was ‘unaware of any Native American Heritage.’ ” (Kenneth D., supra, ___ Cal.5th at p. ___ [p. 1] (conc. opn. of Groban, J.).) On this record, there simply was no basis to conclusively determine that the child was not of Indian descent. The circumstances in Kenneth D. simply were not “ ‘exceptional.’ ” (Ibid.) Conversely, here, as described, both parents signed ICWA forms under penalty of perjury indicating that they did not have Indian ancestry and the court then confirmed with the parents at the initial detention hearing that they did not have Indian ancestry. Code of Civil Procedure section 909 exists for exactly these kinds of exceptional cases and our Courts of Appeal are well equipped to distinguish between unexceptional fact patterns like Kenneth D. and exceptional cases like the one presented here. The majority offers a variety of other reasons for requiring automatic conditional reversal, stating that “Cal-ICWA ‘broadly imposes on social services agencies and juvenile courts (but not parents) an “affirmative and continuing duty to inquire” ’ ” (maj. opn., ante, at p. 23, original italics); “ICWA was enacted to protect tribal integrity and sovereignty” (id. at p. 24); adequate initial inquiry “maximizes the chances that potential Indian children are discovered and tribes are notified” (id. at p. 26); and that the ICWA implementing regulations state that early inquiry is “ ‘critically important’ ” (ibid.). These arguments redound to: “Because we think Cal-ICWA is a very important piece of legislation, and because we think a state actor failed in its duty to follow the law, we are going to require automatic conditional reversal when the statute is violated.” But until today, it had been our longstanding

practice to inquire, in accordance with our state Constitution (Cal. Const., art. VI, § 13), whether the violation of a directory statute was prejudicial. (In re R.L. (2016) 4 Cal.App.5th 125, 143 [when “a statute does not provide any consequence for noncompliance, the language should be considered directory rather than mandatory”]; In re C.T. (2002) 100 Cal.App.4th 101, 111.) “Only in a ‘very limited class of cases’ has the Court concluded that an error is structural, and ‘thus subject to automatic reversal’ on appeal.” (Greer v. United States (2021) 593 U.S. 503, 513.) The majority’s resolution of this appeal ignores the way we and lower courts have applied Watson in literally thousands of cases. In every Watson case, an important interest is at stake (see cases below involving the rights of a criminal defendant to admit evidence at trial; cases involving the right of a criminal defendant to have a properly instructed jury; and cases involving the statutory right to counsel) and in every case, a state actor has failed to comply with state law. But we do not adopt the automatic reversal rule applied here. Instead, for state law error, we have, for almost seven decades, quite logically gone on to ask if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836; see, e.g., People v. Lewis (2021) 11 Cal.5th 952, 973 [Watson applies to trial court’s failure to appoint counsel in hearing on resentencing petition as required by statute]; People v. Sivongxxay (2017) 3 Cal.5th 151, 187 [Watson applies when the trial court fails to expressly reference the special circumstance allegation in the jury trial waiver colloquy or otherwise fails to seek a separate waiver regarding the allegation, as required by statutes construed in People v. Memro (1985) 38 Cal.3d 658, 704]; People v. Anzalone (2013) 56 Cal.4th 545, 555 [Watson applies to trial court’s failure to ask jury foreperson to

(maj. opn., ante, at p. 35), this is how Watson works: even in the face of a blatant and admitted error by a state actor that violated the party’s rights, the party still must show that the error made a difference in the outcome. And, in many of these cases requiring a showing of prejudicial error, the party relies on evidence in the record or actually attempts to come forward with new evidence to show prejudice. (See Vivar, supra, 11 Cal.5th at p. 530 [“In a declaration submitted with his [Penal Code] section 1473.7 motion, Vivar claims he would never have entered this plea had he understood that it would require his deportation”]; Vargas, supra, 9 Cal.5th at p. 834 [finding defendant had not demonstrated prejudice on a claim, based on evidence presented in a new trial motion, that he was denied due process of law for consular notification violations].) I suppose we could have quite easily concluded in countless of these cases that automatic reversal was required because the statute that was violated “ ‘broadly imposes’ ” a duty on the state actor (maj. opn., ante, at p. 23); we could have highlighted that the burden to act was imposed on the state and not upon the party (ibid.); we could have noted that requiring compliance with the statute that was violated is “ ‘foundational to fulfilling [its] purpose’ ” (id. at p. 24); and we could have cited to implementing regulations that stated that compliance with the statute is “ ‘critically important’ ” (id. at p. 26). But that is not what our Constitution requires. (See Cal. Const., art. VI, § 13 [“No judgment shall be set aside . . . 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”].) Where a state law has been violated, article VI, section 13 makes clear that we do not automatically reverse the judgment, but that we instead ask whether “it is reasonably probable that a result more favorable to the appealing party would have been

The majority’s conclusion is all the more confounding because we have routinely rejected claims that other state statutory violations in dependency proceedings constitute structural error, explaining that the interest in providing an expedited proceeding to resolve the child’s status without further delay “would be thwarted if the proceeding had to be redone without any showing the new proceeding would have a different outcome.” (Jesusa V., supra, 32 Cal.4th at p. 625.) We stated that “the price that would be paid [by treating error as structural], in the form of needless reversals of dependency judgments, is unacceptably high in light of the strong public interest in prompt resolution of these cases so that the children may receive loving and secure home environments as soon as reasonably possible.” (In re James F. (2008) 42 Cal.4th 901, 918; see also In re A.R. (2021) 11 Cal.5th 234, 249 [“We emphatically agree that dependent children have a critical interest in avoiding unnecessary delays to their long-term placement”]; Christopher L., supra, 12 Cal.5th at p. 1081 [“[I]n the dependency context, automatic reversal for errors that do not invariably lead to fundamental unfairness would exact a particularly steep cost. ‘There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged’ ”].) As we said in Celine R. in the context of a failure to appoint separate counsel for siblings in an adoption proceeding: “We add another reason criminal cases [and per se reversal] are inapt. In a criminal case, reversal of a criminal judgment is virtually always in the defendant’s best interest. The situation in a dependency case is often different. Reversal of an order of adoption, for example, might be contrary to the child’s best interest because it would delay and might even prevent the adoption. . . . The delay an appellate

reversal causes might be contrary to, rather than in, the child’s best interests. Thus, a reviewing court should not mechanically set aside an adoption order because of error in not giving that child separate counsel; the error must be prejudicial under the proper standard before reversal is appropriate.” (Celine R., supra, 31 Cal.4th at p. 59, original italics.) The majority does not explain its departure from our numerous decisions reaffirming that Watson’s standard of review applies to dependency proceedings. The majority also justifies its automatic reversal rule because ICWA protects the rights of nonparties, i.e., the tribe. (Maj. opn., ante, at p. 24.) But the entire scheme at play here is structured so that other entities — the parents, the Department, and the court — seek to vindicate the rights of the tribe through adequate inquiry. We do not change any of the other applicable rules, e.g., what evidence is admissible, the burden of proof, the relevant statutory deadlines, simply because the rights of a third party (the tribe) may be implicated. The rules are what the rules are. It therefore seems very strange to conclude that though Watson has typically provided the standard of review for state law error for almost 70 years, we will dispense with Watson because a Cal-ICWA violation might implicate the rights of a non-party. This is especially odd since the Watson standard is routinely applied when the rights of a criminal defendant have been violated. Are we prepared to hold that where the statutory rights of a criminal defendant are violated, harmless error review is appropriate, but where the rights of a third-party in a non-criminal proceeding are implicated, then automatic reversal is required? Apparently so. The majority concedes that it is not “concerned with the outcome” of the inquiry, i.e., whether the child is or may be an Indian child. (Maj. opn., ante, at p. 32; see also id. at pp. 38–39.) However, the outcome of the inquiry goes to the heart of ICWA,

which, as the majority also emphasizes, is designed “ ‘to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .’ ” (Maj. opn., ante, at p. 7, quoting 25 U.S.C. § 1902.) Determining whether the child is or may be an Indian child is a critical step to protecting “ ‘the best interests of Indian children’ ” and to promoting “ ‘the stability and security of Indian tribes and families.’ ” (Ibid.) Though the majority resists requiring parents to affirmatively come forward with information on appeal involving their Indian ancestry, the entire ICWA structure places affirmative requirements upon parents to assist the court in establishing Indian ancestry. “Because early identification of Indian children is critical to ICWA’s proper implementation, we believe the statute must be interpreted in a way that requires all participants — child protective agencies, the parents, all counsel, and the juvenile courts — to work together to determine whether children are Indian children.” (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1002 (Ezequiel G.).) “[P]arents are required at their first appearances to fill out ICWA-020 forms in which they declare their Indian status under penalty of perjury, and they are instructed that if they get new information, they must ‘let [their] attorney, all the attorneys on the case, and the social worker . . . know immediately.’ ” (Id. at p. 1003, citing Judicial Council of Cal., Form ICWA-020 [rev. Mar. 25, 2020].) Cal-ICWA also requires parents, per court instruction, to notify the court if they receive subsequent information that provides a reason to know the child is an Indian child. (Welf. & Inst. Code, sec. 224.2, subd. (c).) Simply put,

is no reason to know whether the child is an Indian child, the court may make a finding that the federal [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence.” (Welf. & Inst. Code, § 224.2, subd. (i)(2), italics added.) We normally apply a deferential standard of review in assessing the evidence’s sufficiency because “ ‘[c]onflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Second, Cal-ICWA itself confers significant discretion on juvenile courts in determining whether an inquiry was adequate. (See Ezequiel G., supra, 81 Cal.App.5th at pp. 1006–1007.) In my view, Cal-ICWA does not require an inquiry of every single extended family member and person listed in the statute. Welfare and Institutions Code section 224.2, subdivision (b) requires that the Department “inquire whether [a dependent child] is an Indian child,” and then provides that the “[i]nquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child . . . .” (Welf. & Inst. Code, § 224.2, subd. (b).) An “ ‘extended family member’ ” is (unless otherwise defined by an Indian child’s tribe) an adult who is “the Indian child’s grandparent, aunt or uncle, brother or sister,

suggests itself that courts have discretion in determining exactly who these indeterminate “others” are. (Ibid.) This kind of flexibility in interpreting the requirements of Cal-ICWA is crucial. Imagine a case where the Department had interviewed every single person enumerated by the statute, so assume that the Department interviewed 40 people, and all of them had said the child had no Indian ancestry, but the Department failed to speak to one of the child’s eight aunts. Under this hypothetical it would be absurd to conclude that the inquiry was inadequate and automatic conditional reversal was required. Or let us imagine a case involving a child who, with his entire family, recently immigrated from Ukraine, thereby making it highly improbable that the child is a member of, or may be eligible for membership in, a federally recognized Indian tribe. Any court would be hard pressed to find that the Department’s inquiry regarding his or her Indian ancestry was inadequate because it did not ask his or her entire extended (Ukrainian) family about Indian descent. The same would be true for a case where the Department had recently completed an adequate Cal-ICWA inquiry for the child’s sibling in a different dependency case — it would be illogical to hold that the inquiry was inadequate because the Department failed to recontact all the same extended family members. In sum, in reviewing a juvenile court’s Cal-ICWA findings for abuse of discretion, I believe “a proper application of the governing substantial evidence standard of appellate review mitigates some of the flaws in the statutory scheme.” (H.V., supra, 75 Cal.App.5th at p. 441 (dis. opn. of Baker, J.).) I further believe “the focus of the court’s analysis should not be on the number of individuals interviewed, but on whether the agency’s [Cal-ICWA] inquiry has yielded reliable information about a child’s possible tribal affiliation.” (Ezequiel G., supra, 81 Cal.App.5th at p. 1009; accord,

due to the parents’ substance abuse and domestic violence issues. Their paternal grandparents have provided a safe and stable environment and stand ready to permanently adopt them, but the majority today ensures that this crucial permanent placement will again be delayed. The instability and uncertainty caused by removing Dezi C. and Joshua C. from their parents and delaying permanent placement with their paternal grandparents does not serve the best interest of the children. Today, this court strays from its previous repeated and rightful admonitions that a “child has a compelling right to a stable, permanent placement that allows a caretaker to make a full emotional commitment to the child” (Celine R., supra, 31 Cal.4th at p. 59) and that although even a four-month delay “may not seem a long period of time to an adult, it can be a lifetime to a young child.” (Marilyn H., supra, 5 Cal.4th at p. 310.) It also diverges from our constitutional mandate that no judgment shall be set aside unless the error complained of has resulted in a miscarriage of justice. (Cal. Const. art. VI, § 13.) Both parents here signed ICWA forms under penalty of perjury indicating that they do not have Indian ancestry and after years of litigation, there has never been a glimmer of evidence to suggest that the children are Indian. Nonetheless, because the Department failed to ask additional family members about the children’s ancestry, my colleagues invoke a rule of automatic conditional reversal that is wholly inconsistent with the way in which California courts have assessed state law error for almost seven decades. In the process, the majority forgoes a far more practical approach that would avoid automatic reversal but allow for reversal if there were a minimal showing that further inquiry might be useful. And the majority takes this approach even though the mother’s own counsel admits that this delay will likely be for naught, conceding at oral argument that the likelihood of a child in

In re Dezi C.

ORDER MODIFYING OPINION

IN THE SUPREME COURT OF CALIFORNIA

More from California Supreme Court

Related research

AI Brief