In In re Ja.O., the Supreme Court today addresses under what circumstances California statutes complementing the federal Indian Child Welfare Act require a county welfare department to inquire of extended family members whether a child placed in temporary custody is or might be an Indian child. The inquiry is important to promote ICWA’s goal of “ ‘[M]inimizing separation of Indian families and maximizing early placement of Indian children with extended family, other members of the child’s Indian tribe, or other Indian families.’ ”
The specific question is whether the statutes require the extended-family inquiry be made for all children placed in temporary custody or only those in temporary custody without a warrant. The court’s opinion by Justice Martin Jenkins says the inquiry is required “whenever a child is placed into its temporary custody, regardless of how the child was removed from the home.”
After the Supreme Court granted review in Ja.O., the Legislature enacted Assembly Bill 81, which the court concludes — and all parties agree — requires the inquiry in all removal situations. (See here.) The court then analyzes what the law was when Ja.O.’s case was in the superior court, prior to AB 81, and it finds the law was the same back then.
Essentially, then, the Legislature in AB 81 dictated the answer to the question the court granted review in Ja.O. to decide. (The Legislature has done similar things before.) And the court today tells the legislators their action wasn’t necessary because the pre-AB 81 statutes already provided what AB 81 directs.
I guess that just proves the Civil Code section 3537 maxim, “Superfluity does not vitiate.”
The opinion is signed by only five justices. Justice Goodwin Liu, joined by Justice Leondra Kruger, separately concurs to disassociate himself from the majority’s quoting from earlier court decisions that say it’s legitimate to consider a legislative declaration of what an earlier Legislature intended. (The majority said it was not considering that factor in this case, however.)
The opinion resolves a conflict among the Courts of Appeal, mainly an intra-division conflict in the Fourth District, Division Two. The Supreme Court reverses Division Two’s published opinion in this case.
