In re Michael R. CA4/3 ( 2022 )

Filed 5/20/22 In re Michael R. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re MICHAEL R., a Person Coming
Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060829
Plaintiff and Respondent,
(Super. Ct. No. 20DP0088)
v.
OPINION
MIGUEL R. et al.,
Defendants and Appellants.
Appeals from an order of the Superior Court of Orange County, Robert
Gerard, Judge. Conditionally affirmed.
Patricia K. Saucier, under appointment by the Court of Appeal, for
Defendant and Appellant Miguel R.
Christine E. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant C.B.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
* * *
INTRODUCTION
We have been seeing a distinct pattern in recent juvenile dependency
appeals. Pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., and
its implementing provisions under California law, our trial courts and social services
agencies are responsible for conducting appropriate inquiries and giving notice, if
required, to Native American tribes of the potential involvement of tribal members in
child custody proceedings. This responsibility falls on our state judicial and
administrative systems precisely because we have an unfortunate national history of
failing to “recognize the essential tribal relations of Indian people and the cultural and
social standards prevailing in Indian communities and families.” (25 U.S.C. § 1901,
subd. (5).) Thus, the inquiry and notice requirements of ICWA and related state law are
not a ministerial exercise. They are an essential safeguard of rights.
Of late, however, this important ball seems to be overlooked – apparently
through inadvertence – in a growing number of cases. Agencies are too often neglecting
necessary inquiries or inadequately documenting the inquiries they do make. And
juvenile courts are too often rubber-stamping inadequate inquiries, forcing appellate
courts like us to remand their orders on appeal. We remand as we must, but in this
circumstance, little comfort can be taken in doing what we believe to be our duty under
the law. Any type of remand in an otherwise proper proceeding to terminate parental
rights causes damaging delays in permanency planning for vulnerable children. We
realize these inquiries are usually futile enterprises, but that is not always the case, and
even if it is rare to come up with something, the law requires it.
2
So we find ourselves again in such an unenviable position here. Appellant
mother and father argue the agency and juvenile court failed to comply with inquiry and
notice requirements in their very young child’s case, and they seek a reversal of the
termination of their parental rights. We were not asked to review the merits of the latter
decision. But inquiry and notice requirements under ICWA were not followed and we do
not have the information that would be necessary to conclude the error was harmless. We
therefore conditionally affirm the order, remand for a proper inquiry. and hope to see
fewer and fewer such appeals.
FACTS
Michael R., now two years old, was born to appellant C.B. in January 2020.
At the time C.B. was admitted to the hospital for Michael’s birth, she tested positive for
methadone. She told hospital staff she had been using methadone since mid-October
2019 to treat heroin addiction. However, she was still testing positive for heroin until
nearly the end of November 2019. Michael displayed symptoms of withdrawal upon his
birth and was administered morphine.
On January 16, 2020, the Orange County Social Services Agency (SSA)
filed for protective custody of Michael. The application for protective custody warrant
stated C.B. was cagey about her methadone treatment and would not say why she was
receiving it. She acknowledged she had a history of heroin use prior to pregnancy, but
refused to confirm whether she was in a methadone program for that reason. Both C.B.
and Michael’s father, Miguel R., had unresolved substance abuse issues and Miguel had a
long history of drug and alcohol-related offenses. C.B. and Miguel were also declining
standard newborn immunizations and vitamins for Michael, and C.B. was not visiting
Michael while he was in the neonatal intensive care unit after birth. The juvenile court
issued a protective custody warrant on January 16, 2020, and Michael was placed on a
hospital hold.
3
The court took jurisdiction of Michael on June 1, 2020. Then commenced
a largely fruitless period of reunification services, which the court terminated on April
20, 2021, while leaving SSA with discretion to fund existing services through the date of
the August 17, 2021 permanency planning hearing under Welfare & Institutions Code
section 366.26 – what is known as a “soft .26 hearing”.1 On November 1, 2021, C.B.’s
and Miguel’s parental rights to Michael were terminated and the child was placed for
adoption.
DISCUSSION
C.B. and Michael ask us to reverse the termination of their parental rights
because they contend the trial court and SSA failed to comply with initial inquiry
requirements under ICWA. Our review of the record corroborates their claims.
I. Duty of Inquiry
Both the juvenile court and SSA “have an affirmative and continuing duty
to inquire whether a child for whom a petition under Section 300, 601, or 602 may be or
has been filed, is or may be an Indian child. The duty to inquire begins with the initial
contact, including, but not limited to, asking the party reporting child abuse or neglect
whether the party has any information that the child may be an Indian2 child.” (Welf. &
Inst. Code, § 224.2, subd. (a).)3 Under California Rules of Court, rule 5.481, such an
initial inquiry requires SSA to ask parents, “extended family members,” other parties
with an interest, or a party reporting child abuse or neglect “whether the child is or may
be an Indian child[.]” (Id., subd. (a)(1).) An extended family member is defined
according to “the law or custom of the Indian child’s tribe or, in the absence of such law
or custom, . . . a person who has reached the age of eighteen and who is the Indian child’s
1 We denied Miguel and C.B.’s previous petition for writ of mandate challenging the termination of
services and setting of the soft .26 hearing in an opinion issued on August 6, 2021.
2 We are not unaware of the problematic nature of this term; we use it for clarity because the
statutes, written long ago, use it.
3 All statutory references are to the Welfare & Institutions Code.
4
grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin, or stepparent.” (25 U.S.C. § 1903, subd. (2); cited in Cal.
Rules of Court, rule 5.481, subd. (a)(4).) Upon such initial questioning, SSA must attach
the Indian Child Inquiry Attachment (Cal. Judicial Council Form ICWA-010(A)) to any
dependency petition. (Cal. Rules of Court, rule 5.481, subd. (a)(1).)
The first time the parents appear at a dependency hearing, the court must
ask them whether they either know or have reason to know their child is an Indian child,
and instruct them to advise the court should they receive subsequent information
indicating as much. (Cal. Rules of Court, rule 5.481, subd. (a)(2).) The court must also
order the parents to fill out California Judicial Council form ICWA-020, the parental
notification of Indian status form. (Id. at subd. (a)(2)(C).)
There are six circumstances under which the court and social services
agency has “reason to know” a child is an Indian child. (§ 224.2, subd. (d).) These
circumstances include the court being informed that the child is an Indian child or that
someone has “discovered information indicating that the child is an Indian child.” (Id.,
subd. (d)(1) & (3).) But if the court or agency “has reason to believe that an Indian child
is involved . . . but does not have sufficient information to determine that there is reason
to know that the child is an Indian child,” both the court and the agency must “make
further inquiry regarding the possible Indian status of the child . . . as soon as
practicable.” (Id., subd. (e), italics added.)
There is reason to believe a child is an Indian child if the court or agency
“has information suggesting that either the parent of the child or the child is a member or
may be eligible for membership in an Indian tribe,” and such information would include
any information indicating, but not establishing, one of the reason to know
circumstances. (§ 224.2, subd. (e)(1).) The existence of such reason to believe
information triggers the court and agency’s duties of further inquiry. (Id., subd. (e).) A
proper further inquiry includes interviewing the parents and “extended family members”
5
in order to determine information about the child and his or her parents, grandparents,
and great-grandparents. (§ 224.2, subd. (e)(2)(A); § 224.3, subd. (a)(5); Cal. Rules of
Court, rule 5.481, subd. (a)(4).) It also includes contacting the Bureau of Indian Affairs
and the California Department of Social Services in order to identify name and contact
information for tribes for which the child may be eligible for membership. (§ 224.2,
subd. (e)(2)(B); Cal. Rules of Court, rule 5.481, subd. (a)(4).) And, of course, the tribes
involved must be contacted through, “at a minimum,” phone, facsimile, or e-mail to share
information the tribe would need to make a membership determination. (§ 224.2, subd.
(e)(2)(C); Cal. Rules of Court, rule 5.481, subd. (a)(4).)
If the juvenile court finds “that proper and adequate further inquiry and due
diligence as required” by section 224.2 “have been conducted and there is no reason to
know whether the child is an Indian child,” the court may find ICWA does not apply. (§
224.2, subd. (i)(2).)
II. Inquiry Made in Michael’s Case
When SSA filed its dependency petition for Michael on January 21, 2020, it
attached the required form ICWA-010 indicating an initial inquiry had been made. The
form did not state the results of the inquiry. But SSA’s detention report, filed on January
21, 2020, showed it had asked C.B. and Miguel about Native American ancestry. C.B.
had reported she had Cherokee heritage, but was not a member of the tribe, and Miguel
claimed Native American ancestry but could provide no other information on it. It was
not clear from the report what other inquiries had been made as of then.
At the initial detention hearing on January 22, 2020, both mother and father
filled out and submitted the required California Judicial Council form ICWA-020, the
parental notification of Indian status. C.B. again reported her Native American heritage
and told the judge she was Cherokee on her mother’s side. Miguel reported he might
have Indian ancestry but told the court his mother, Felipa A., was more knowledgeable
than he on the subject. The court ordered SSA to continue to investigate in order to
6
determine if ICWA applied. It also ordered C.B. and Miguel to provide to social workers
any contact information for knowledgeable relatives.
SSA social workers began to contact C.B.’s and Miguel’s identified
relatives to see what more information they could provide. C.B.’s mother, Linda, told the
social worker there was no Native American lineage in C.B.’s family. C.B. could not
provide any information on other relatives.
Miguel gave SSA contact information for Felipa but asked social workers
not to contact her; presumably, he wished to try to speak to her himself. But when SSA
did not hear anything for over a week, it attempted to contact Felipa directly. The contact
number on file for her was incorrect, and so the social worker was never able to speak to
her prior to the jurisdictional hearing. And the agency could not obtain any further
information from Miguel about his Native American ancestry. Therefore, in the
jurisdiction/disposition report filed February 24, 2020, SSA stated its belief that it had
exhausted all potential family leads.
On February 14, 2020, SSA sent notice via certified mail to the United
States Secretary of the Interior, the Sacramento area director for the Bureau of Indian
Affairs (BIA), the Cherokee Nation, the Eastern Band of Cherokee Indians, and the
United Keetowah Band of Cherokee Indians in Oklahoma. Return receipts from the
tribes were filed with the court.
On March 12, 2020, the court acknowledged receiving the ICWA
documentation and found the BIA had been given adequate notice of the jurisdictional
hearing. The children were declared dependents on June 1, 2020, and a review hearing
was set for August 31, 2020.
7
On August 27, 2020, SSA filed its interim review report and asked the
court to make ICWA findings even though the tribes had not yet responded to the notice.4
The court obliged at the August 31 review hearing, finding ICWA did not apply.5
III. Analysis
“We review claims of inadequate inquiry into a child’s Indian ancestry for
substantial evidence.” (In re H.V. (2022) 75 Cal.App.5th 433, 438.) And substantial
evidence does not support the finding made by the court here.
As we have very recently stated, courts and agencies are duty-bound to
inquire into a child’s potential Native American ancestry to ensure protection of tribal
interests. (See In re A.R. (2022) 77 Cal.App.5th 197, 240.) And absent such inquiry,
“tribes effectively have no mechanism for ascertaining whether they have an interest in
the care and well-being of any specific child.” (Ibid.) Here, SSA failed to fulfill its duty
of initial and further inquiry. Aside from asking C.B. and Miguel whether they had
Native American ancestry, and following up with C.B.’s mother, Linda, one time, SSA
provided no evidence it had contacted or adequately attempted to contact all “extended
family members” to gather information about potential Indian child status.
And there was reason to believe Michael might have Native American
ancestry. Miguel reported he had Native American ancestry and Felipa would have more
information on the matter. But SSA failed to ask her, even though a social worker was
eventually able to interview her in May 2020. Worse still, at the end of her interview,
4 The record reflects SSA did receive a response from the Eastern Band of Cherokee Indians on
March 13, 2020, stating Michael was “neither registered nor eligible to register as a member” of the tribe.
5 There was no court reporter present for this hearing and so we have no transcript of what was said.
8
Felipa asked not to be contacted by social workers again. So a crucial opportunity to
discover more information about Michael’s potential Native American heritage was lost.
SSA also failed to question any of Miguel’s other relatives on the topic,
including the paternal aunts, Jessica and Christina, with whom social workers spoke on
more than one occasion.
SSA asks us to infer that Felipa had nothing relevant to add because Miguel
said he would speak to her and later said he had no further information on the issue. SSA
contends this inference is bolstered by his counsel’s signing onto the August 31, 2020
stipulation, stating in part that ICWA did not apply.
But this is less an inference than a postulation. Miguel gave SSA Felipa’s
contact information on January 22, 2020, and requested they not contact her. The social
worker spoke to him again on January 31, 2020, and he said he had not yet spoken to his
mother. The next time SSA spoke to Miguel was on February 5 and he “was unable to
provide further information.” After that, SSA did not talk to him again about his
ancestry. There is simply no evidence that Miguel spoke to Felipa about this topic.
SSA then takes its speculation one step further. Assuming Felipa had no
relevant knowledge, it concludes any failure to question Jessica and Christina was
harmless – the theory being: if Felipa had no information, why should Jessica and
Christina? But this argument rings hollow, as we do not know what information Felipa
had.
Because we conclude the court and SSA failed to conduct adequate inquiry
under section 224.2 and California Rule of Court, rule 5.481, we conditionally affirm the
order terminating C.B.’s and Miguel’s parental rights, but remand for the purpose of
conducting the proper ICWA inquiry as soon as practicable.
DISPOSITION
The order terminating parental rights is conditionally affirmed. The matter
is remanded to the juvenile court for compliance with the inquiry, and if necessary, notice
9
provisions of ICWA and related California law. If there is no Indian ancestry, our
affirmance resolves the case.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
GOETHALS, J.
10