May the 'initial inquiry' be with you

In In re Dezi C., 16 Cal.5th 1112 (2024) (Dezi C.), the California Supreme Court did something usually reserved for movies and television--it "retconned" a fundamental issue, and left that issue open for future resolution.

"Retconning" (short for "retroactive continuity") refers to the literary technique of introducing a new piece of information that imposes a changed interpretation of previously described events.

The Star Wars movies provide perhaps the highest-profile example of retconning. The initial Star Wars movie ("A New Hope") told the story of Luke Skywalker, a teenager who discovers he can wield "the Force" and who bands together with a ragtag group of other teenagers to fight the evil Empire. During that tale, Alec Guinness's Obi-Wan Kenobi character describes "the Force" as "what gives a Jedi his power. It is an energy field created by all living things. It surrounds us and penetrates us. It binds the galaxy together." So described, the Force has a decidedly mythical--and almost magical--tenor. The initial prequel movie, released 22 years later ("The Phantom Menace"), told the story of Anakin Skywalker (and, in its prequel sequels, his fall from grace). During that tale, Liam Neeson's Qui-Gon Jinn character describes "the Force" as a byproduct of microscopic and symbiotic "life forms" called "midi-chlorians" that somehow impart knowledge of the Force and whose concentration in a particular individual can be quantified. So described, the Force has a decidedly less magical, and more "scientific" feel. More to the point, this retroactive shift in what the Force is arguably altered a key piece of Star Wars mythos.

The Supreme Court granted review in Dezi C. to resolve a deep split among California's intermediate courts about one aspect of the Indian Child Welfare Act of 1978, 25 U.S.C. section 1901 et seq. (ICWA).

ICWA is a federal statute enacted in response to "rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). To prevent this dilution of cultural identity, ICWA grants Indian tribes a right to participate in court proceedings involving the welfare of "Indian children," 25 U.S.C. sections 1902, 1911, and places a precursor duty upon the child welfare agencies and the courts to ascertain whether a child may be such an "Indian child," id. section 1912. For these purposes, an "Indian child" is defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."  25 U.S.C. § 1903(4).

The California Legislature has enacted ICWA as a matter of state law (so-called Cal-ICWA). Dezi C., 16 Cal.5th at 1131.

Specifically, California law obligates the child welfare agency--as part of its "initial inquiry," Dezi C., 16 Cal.5th at 1125--to (1) "ask[]" anyone "reporting child abuse or neglect whether [they] ha[ve] any information that the child may be an Indian child," Cal. Welf. & Inst. Code section 224.2(b)(1); (2) "inquire" of "the child and each family member, including extended family members," "[a]t the first contact," "whether the child is or may be an Indian child," id., and (3) "ask[] 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," "[i]f a child is . . . received and maintained in temporary custody of a county welfare department" under California Welfare and Institutions Code section 306 or "taken into protective custody pursuant to warrant described in Section 340," id. section 224.2(b)(2).

Because the child welfare agency in Dezi C. conceded that its "initial inquiry" under California's version of ICWA was inadequate in that case, the sole issue before the Supreme Court in Dezi C. was the appropriate remedy for such an "inadequate [initial] inquiry." Dezi C., 16 Cal.5th at 1125, 1134. In a 5-2 decision penned by Justice Kelli Evans, the Court held that "an inadequate Cal-ICWA [initial] inquiry requires conditional reversal of [a] juvenile court's order terminating parental rights with directions to the agency to conduct an adequate inquiry . . . ." Id. at 1125.

Up until Dezi C., however, the Supreme Court had yet to offer an insight into what constitutes an "adequate" initial inquiry. The Court of Appeal decision in Dezi C. (which I authored) proceeded from the premise that the California statutes require an exhaustive inquiry of everyone listed in section 224.2 and that an inquiry would be deemed inadequate if there is "any stone . . . left unturned." In re Dezi C., 79 Cal.App.5th 769, 785 (2022). That is how the statutory text reads, as other courts noted before going on to hold that the text cannot really mean what it says. See In re Ezequiel C., 81 Cal.App.5th 984, 1005-1006 (2022). To quote a Star Wars parody, Spaceballs, an initial inquiry might be inadequate under the statutory text for failure to inquire of a "father's brother's nephew's cousin's former roommate"--at least if that roommate had an "interest in the child."

But all seven Supreme Court justices in Dezi C. seemingly retconned that premise.

Justice Evans's majority sidestepped the issue, commenting only that "the juvenile court's fact-specific determination that an inquiry is adequate" entails "'a quintessentially discretionary function'" that is "subject to a deferential standard of review." Dezi C., 16 Cal.5th at 1141. The majority further suggested that an initial inquiry could be adequate "even if the agency did not inquire of everyone who has an interest in the child." Id.

A different, 4-3 majority of the Court took a more affirmative position on when an initial inquiry might be deemed adequate under the California statutes. Justice Joshua Groban, dissenting with Chief Justice Patricia Guerrero, articulated a view that "Cal-ICWA itself confers significant discretion on juvenile courts in determining whether an inquiry [is] adequate" and "does not require an inquiry of every single extended family member and person listed in the statute." Id. at 1167. In a separate concurrence, Justice Leondra Kruger, along with Justice Carol Corrigan, expressed agreement with the dissent that "Cal-ICWA does not . . . require the juvenile court to leave no stone unturned in an '"open-ended universe of stones."'" Id. at 1153.

Beyond offering these broad contours of how to approach whether an initial inquiry under the California statutes was adequate, none of the Justices purported to provide a concrete definition--undoubtedly because that issue was not squarely before the court. Id. at 1167 n.4 (Groban, J., dissenting) (so noting).

In so doing, Dezi C. ostensibly retconned a question that could, in many cases, obviate the need to reach the question Dezi C. itself resolved. Dezi C. resolved the question of what remedy is appropriate for an inadequate ICWA inquiry, but that question only comes up if the inquiry is inadequate in the first place. By suggesting a deferential standard of review entrusted to a juvenile court's discretion, and by suggesting that an initial inquiry can be adequate even if directed at fewer than all the individuals listed in the California statutes, Dezi C. seemingly left a lot of leeway to the lower courts in resolving this retconned issue.

Review is still pending before the Supreme Court in In re Ja.O., 91 Cal.App.5th 672 (2023), No. S280572, which presents the question of whether this initial inquiry into a child's status as a possible "Indian child" is required in situations beyond those in which a "child has been placed into . . . temporary custody pursuant to [California Welfare and Institutions Code] section 306." Id. at 678. Although not likely, that case may give the court an opportunity to define when an initial inquiry is adequate.

In the meantime, however, the lower courts will try to fill in this gap. Whether they do (or do not) do so correctly will likely be resolved by the Supreme Court in the inevitable sequel to Dezi C.