In re Juliana P. CA4/3

Filed 12/10/21 In re Juliana P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 JULIANA P., a Person Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
G060338
Plaintiff and Respondent,
(Super. Ct. No. 19DP0625)
v.
OPINION
MONICA P.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Isabel
Apkarian, Judge. Conditionally affirmed and remanded.
Richard L. Knight, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
INTRODUCTION
The sole issue in this appeal from a juvenile court order placing minor
Juliana P. in legal guardianship is the application of the Indian Child Welfare Act
(ICWA) to the facts of this case. Specifically, Juliana’s mother, Monica P., asserts that
the juvenile court and Orange County Social Services Agency (SSA) did not fulfill their
duty of inquiry under ICWA.
The record in this case indicates that the court and SSA did not fulfill their
duty of inquiry under ICWA. SSA simply dismissed Monica’s statements regarding
possible Indian ancestry without, apparently, seeking to interview family members who
would presumably have been able to confirm or negate Monica’s claims. The court
likewise did not, at least as far as this record indicates, conduct any inquiry into Juliana’s
possible Indian ancestry.
Accordingly, we conditionally affirm the juvenile court’s order of legal
guardianship for Juliana and remand the matter to the juvenile court for further
proceedings with respect to compliance with ICWA.
FACTS
Juliana was 10 years old when she was detained in May 2019. Monica had
left her with an elderly roommate, who called police, stating that she did not know where
Monica had gone or when she would return. Juliana told SSA at a later interview that she
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had been “‘scared all night.’”
The detention report documented telephone calls from two of Monica’s
sisters regarding Juliana and a conversation with the husband of one sister. SSA also
spoke with Juliana’s adult sibling, with whom Juliana had been staying just before she
and Monica moved in with the roommate. Monica told her case worker in late May 2019
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When she finally appeared, Monica’s explanation to police of where she had been and what she
had been doing raised questions about her mental health.
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that her mother lived in Ontario, California. Diane G., another maternal relative who
resided in Georgia, was identified as a possible relative placement in October 2020.
At the detention hearing on May 22, 2019, her attorney disclosed to the
court that Monica may have American Indian ancestry. She had spoken to the ICWA
worker, who would do the necessary investigations. She completed and filed the ICWA
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form, and the court found that the Act may apply. Notice of Child Custody Proceeding
for Indian Child was filed on June 12 and served on the Sacramento Director of Indian
Affairs. Proof of delivery was filed on June 20.
In the detention report, SSA stated that Monica “believed there is Native
American heritage in her family of origin, did not know the name of the tribe, and
provided family information available to her. [She] was unable to provide contact
information to relatives with further information.” She also stated that she had a DNA
test revealing North American Indian heritage, “despite her family of origin being from
El Salvador.”
Juliana was moved from Orangewood to a foster home at the end of May
2019. She moved to another foster home on September 30, 2020.
At the hearing on June 20, 2019, Monica pleaded no contest to the amended
petition. The minute order of that date stated “[ICWA] documentation has been filed
with the court” and “Court finds notice of hearing was given to the BIA and all
appropriate tribes in accordance with [ICWA].” The reporter’s transcript of the hearing,
however, records no mention whatsoever of ICWA; the main topic of the day was
whether Monica had knowingly waived her rights by pleading no contest.
Between June 2019 and August 2020, the only notations in the minute
orders concerning ICWA are that ICWA documents had been filed with the court.
Finally, in June 2020, someone at SSA noticed that the court had not made the required
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On the form, Monica stated “I may have Indian ancestry.” The spaces for name of tribe and name
of band were blank.
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ICWA findings and asked the court to make them. After another prodding from SSA, the
court found, on August 4, 2020, that “ICWA does not apply.” No reporter was present at
the hearing.
The status review report of November 19, 2020, stated that “[n]o new
information has come to light, which would warrant a new search” regarding Indian
ancestry. The record does not indicate any further investigation on SSA’s part of Indian
ancestry.
On May 4, 2021, the juvenile court selected legal guardianship as Juliana’s
permanent plan and terminated dependency proceedings. In light of Juliana’s age (12),
her close relationship with her mother, and her wish not to be adopted, the court found
that the parental benefit exception applied. Through her counsel, Juliana asked for phone
calls with her mother to be limited to one per week and visits to be limited to one per
month, a request the court granted. Monica left the hearing before its conclusion.
DISCUSSION
The sole issue Monica has raised on appeal is compliance with ICWA. She
asserts that SSA and the juvenile court did not fulfill their duty of inquiry under the Act.
Our record requires us to agree.
An “‘Indian child’” is “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, subd.
(4).) An “‘Indian tribe’” is “any Indian tribe . . . or community of Indians recognized as
eligible for the services provided to Indians by the Secretary [of the Interior] because of
their status as Indians . . . .” (Id., subd. (8).)
California Rule of Court, rule 5.481(a)(1) provides, “Inquiry The court,
court-connected investigator, and party seeking a foster-care placement, guardianship,
conservatorship, custody placement under Family Code section 3041, declaration freeing
a child from the custody or control of one or both parents, termination of parental rights,
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preadoptive placement, or adoption have an affirmative and continuing duty to inquire
whether a child is or may be an Indian child in all proceedings identified in rule 5.480.
The court, court-connected investigator, and party include the county welfare department,
probation department, licensed adoption agency, adoption service provider, investigator,
petitioner, appointed guardian or conservator of the person, and appointed fiduciary. [¶]
(1) The party seeking a foster-care placement, guardianship, conservatorship, custody
placement under Family Code section 3041, declaration freeing a child from the custody
or control of one or both parents, termination of parental rights, preadoptive placement,
or adoption must ask the child, if the child is old enough, and the parents, Indian
custodian, or legal guardians, extended family members, others who have an interest in
the child, and where applicable the party reporting child abuse or neglect, whether the
child is or may be an Indian child . . . .” (Italics added.)
“[T]he burden of coming forward with information to determine whether an
Indian child may be involved . . . does not rest entirely – or even primarily – on the child
and his or her family. Juvenile courts and child protective agencies have ‘an affirmative
and continuing duty to inquire’ whether a dependent child is or may be an Indian child.
[Citations.]” (In re Michael V. (2016) 3 Cal.App.5th 225, 233; see also In re Breanna S.
(2017) 8 Cal.App.5th 636, 652 (Breanna S.), overruled on other grounds In re Caden C.
(2021) 11 Cal.5th 614.) Adequate investigation of family members is essential because
the parents themselves may not even be aware of Indian ancestry. (See In re S.R. (2021)
64 Cal.App.5th 303, 314-315 [parents unaware of tribal affiliation; duty of court and
welfare department to ask “all relevant individuals” and to interview “extended family
members”].)
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The record in this case indicates that Monica was not always a reliable
witness. Sometimes she appeared to grasp what was going on, but at other times she
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reportedly made some rather bizarre statements.
SSA, however, had easy access to at least two members of Monica’s family
who appeared to be quite reliable – her sisters. In addition, SSA knew that Monica’s
mother resided in Southern California, and it became aware of a maternal cousin in
Georgia before filing the November 2020 status report. The record does not indicate any
effort whatsoever to interview Monica’s sisters about possible Indian ancestry, even
though they were contacted at least twice on other subjects. Nor is there any indication
that SSA ever tried to contact Monica’s mother. SSA initiated an application for an out-
of-state relative placement for Monica’s cousin Diane, but does not appear to have
questioned her about possible Indian ancestry.
As stated above, the court has an independent duty to inquire about Indian
ancestry. (See In re Samuel P. (2002) 99 Cal.App.4th 1259, 1266-1267.) As far as this
record shows, the court merely belatedly accepted a conclusion by SSA that was not
based on any facts in our record. “[T]he court has a responsibility to ascertain that the
agency has conducted an adequate investigation and cannot simply sign off on the notices
as legally adequate without doing so.” (In re K.R. (2018) 20 Cal.App.5th 701, 709.)
We agree with SSA that it is unlikely that Monica, whose immediate family
comes from El Salvador, is affiliated with an Indian tribe to which ICWA applies.
Nevertheless, the statute requires an inquiry, and simply dismissing Monica’s statement
that she was – without any effort to follow up with other known and nearby relatives –
does not fulfill SSA’s duty of inquiry. (See Cal. Rules of Court, rule 5.481(a)(1).)
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For example, she attributed positive drug patch tests for codeine and methamphetamine to drugs
having got into her personal items while she was sleeping at a local church or to having an intimate relationship with
a drug user.
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Accordingly, we conditionally affirm the juvenile court’s order of legal
guardianship for Juliana. (See Breanna S., supra, 8 Cal.App.5th at p. 656; In re Michael
V., supra, 3 Cal.App.5th at p. 236.) The condition is that SSA will inquire regarding
Indian ancestry from Monica’s available relatives and the court will hold a hearing on the
outcome of this inquiry. If it turns out there is some foundation to Monica’s claims, the
court will proceed in accordance with the statutory dictates. Otherwise, the order of
guardianship is affirmed.
DISPOSITION
The Welfare and Institutions Code section 366.26 order of legal
guardianship is conditionally affirmed. The matter is remanded to the juvenile court for
compliance with the inquiry and notice provisions of ICWA and related California law
and for further proceedings not inconsistent with this opinion.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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