CENTRAL CALIFORNIA APPELLATE PROGRAM

The juvenile court erred by failing to determine if it had jurisdiction over the minors under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The minors were removed from Mother and a dependency action initiated. The whereabouts of the minors’ respective fathers remained unknown throughout the proceedings. Both of the minors were born in Texas, where Mother claimed she had recently fled to escape an abusive relationship. Mother told the Agency she had previously lived in Florida and Arizona and mentioned a prior child welfare case involving the minors in Texas, but assured the Agency that the case had been closed. Neither the Agency nor the juvenile court inquired further into the existence of child welfare proceedings in Texas or carried out the jurisdictional analysis required by the UCCJEA. Mother appealed the termination of her parental rights, and the appellate court conditionally reversed the orders to permit the juvenile court to determine if it had jurisdiction under the UCCJEA. The reviewing court declined to apply the forfeiture doctrine, despite Mother not having raised this issue in the trial court, because where a statute protects the interests of other sovereigns that are separate and distinct from the interests of parents, the parents’ inaction does not constitute a waiver or otherwise preclude appellate review. Where the information before a juvenile court objectively suffices to raise a genuine question about whether another jurisdiction is the child’s home state, a juvenile court must obtain additional information as necessary to make a home state determination. There was evidence in the record that the minors were both born in Texas and lived there until shortly before their removal, raising the question of whether Texas may be their home state. Further, Mother’s statements that the children had been subjects of dependency proceedings in Texas is evidence that further inquiry needed to be made to determine whether California had jurisdiction under the UCCJEA, and the juvenile court’s failure to do so cannot be deemed harmless. [Editor’s Note: Justice Moor wrote a concurring opinion noting that the UCCJEA is significant because the minors’ fathers were never located and there is a potential concern that another state may have had information about the absent fathers or an interest in those fathers’ relationships with the minors.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B322778.PDF

Tribes are a real party in interest who are prejudiced by the Agency’s failure to conduct an adequate initial ICWA inquiry. The minor was removed from his parents and placed with maternal relatives who wished to adopt them. The Agency followed up after receiving information that Mother may have Indian heritage, but did not question three paternal relatives, for whom they had contact information, about possible Indian heritage. Following the termination of parental rights, Mother appealed and the Court of Appeal reversed the ICWA findings. Tribes are real parties in interest and the Agency’s failure to conduct an adequate initial ICWA inquiry prejudices them. The 2018 initial inquiry amendment adds minimal extra work for the Agency because it already has the mandate to contact extended family members, and the effort is vital to tribes striving to locate children to sustain tribal cultures. This inquiry serves the goal of preserving and transmitting native cultures because there is a chance extended family members may have otherwise unavailable information that the child has Indian ancestry. In light of a long and troubling history, there is no good reason for the Agency to fail to ask about Indian ancestry when the cost of so slight. Placing the minor with maternal family members does not dispel this prejudice because the Tribe was not given the opportunity to assert tribal jurisdiction or formally intervene in the proceedings. When a relative does not acknowledge a tribe, that relative cannot be expected to carry forward a tribal heritage. [Editor’s Note: Dissent would have held that any ICWA error was harmless because the minor was placed with a biological relative, which is the first placement priority under ICWA.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B318794.PDF

The initial ICWA inquiry requirements of section 224.2, subdivision (b) do not apply when a minor is removed pursuant to a warrant under section 340. The Agency sought and received a protective custody warrant for minor due to concern that Father was physically and sexually abusing the minor. After a failed attempt at reunification, parental rights were terminated, which Mother appealed. The Court of Appeal affirmed, finding that section 224.2, subdivision (b) does not apply when a minor is taken into custody pursuant to a warrant under section 340. The plain language of section 224.2, subdivision (b), which states “[i]f a child is placed into the temporary custody of a county welfare department pursuant to Section 306,” is clear and therefore controls. Because a removal under section 340 is not an “emergency removal” and thus requires neither imminent danger nor the threat of physical harm, it is fundamentally different than temporary custody under section 306. A warrantless detention triggers time-sensitive requirements that are not present when removal is under section 340. Further, the legislative history of SB 3176, which made the relevant 2018 amendment to section 224.2, recommended initial inquiry of extended family members in emergency situations, but not in all cases. Therefore, there was no failure to discharge a duty of initial inquiry in this case.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/E080073.PDF