California Supreme Court Watch

#22-302 In re Kenneth D., S276649. (C096051; 82 Cal.App.5th 1027; Placer County Superior Court; 53005180.) Petition for review after the Court of Appeal affirmed an order in a juvenile dependency proceeding. This case presents the following issues: May an appellate court take additional evidence to remedy the failure of the child welfare agency and the trial court to comply with the inquiry, investigation, and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.), and if so, what procedures must be followed?

Petition for review granted: 11/30/2022

Case fully briefed: 6/15/2023

Cause argued and submitted: 5/22/2024

Opinion filed: Judgment reversed: 8/19/2024

See the Court of Appeal Opinion.

See the Petition for Review.

See the Oral Argument.

See the California Supreme Court Opinion.  (In re Kenneth D. (2024) 16 Cal.5th 1087.)

“The federal Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and California implementing law require juvenile dependency courts and appropriate agencies to inquire into a child’s native heritage and to notify a relevant tribe if there exists ‘reason to know that an Indian child is involved . . . .’ (25 U.S.C. § 1912(a); see Welf. & Inst. Code, §§ 224.2, 224.3, subd. (a).) The question here is, when the required initial inquiry was inadequate, may an appellate court consider postjudgment evidence to conclude the error was harmless?

We hold that, absent exceptional circumstances, a reviewing court may not generally consider postjudgment
evidence to conclude the error was harmless. The sufficiency of an ICWA inquiry must generally be determined by the juvenile court in the first instance. Because no exceptional circumstances exist here, the Court of Appeal’s consideration of previously unadmitted evidence on appeal was error. In In re Dezi C. [(2024) 16 Cal.5th 1112] (Dezi C.), also filed today, we address the appropriate standard of harmless error review where the inquiry into a child’s native heritage was inadequate, and conclude that a judgment must be conditionally reversed when error results in an inadequate ICWA inquiry (Dezi C., at p. ___ [p. 38.]) Here, as in Dezi C., there is no dispute that the inquiry below was inadequate. We reverse the Court of Appeal’s judgment with directions to conditionally reverse the juvenile court’s order terminating parental rights and remand for compliance with ICWA and California implementing statutes.”

Justice Corrigan authored the opinion of the Court, in which Chief Justice Guerrero and Justices Liu, Kruger, Groban, Jenkins, and Evans concurred.

Justice Groban filed a concurring opinion, in which Chief Justice Guerrero concurred.