In re A.U. CA4/3

Filed 12/23/21 In re A.U. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.U. et al., Persons Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060569
Plaintiff and Respondent,
(Super. Ct. Nos. 19DP1583
v. & 19DP1584)
ERICA U., OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Antony
C. Ufland, Judge. Affirmed in part and remanded.
Elena S. Min, under appointment by the Court of Appeal, for Defendant
and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B.
Morse, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
* * *
INTRODUCTION
We deal here with the question of whether a juvenile dependency court’s
failure to follow its “affirmative and continuing duty to inquire” whether a subject minor
“is or may be an Indian child” under the Indian Child Welfare Act (25 U.S.C. § 1901 et
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seq.) (ICWA) constitutes reversible error. (See Welf. & Inst. Code, § 224.2, subd. (a).)
ICWA was enacted to give Indian tribes concurrent jurisdiction with state courts in child
custody proceedings involving Indian children. (See In re Benjamin M. (2021) 70
Cal.App.5th 735, 740 (Benjamin M.).) Under federal regulations implementing ICWA,
as well as California state statutes, dependency courts must ask participants whether they
know or have reason to know a subject minor is an Indian child and child protective
agencies must conduct adequate inquiries on the matter. (In re Y.W. (2021) 70
Cal.App.5th 542, 551.) This appeal concerns two minors born to appellant Erica U. by
two different fathers. Our record lacks evidence showing the proper inquiry was made.
SSA argues this failure was not prejudicial because Erica offered no evidence, even on
appeal, that either child is subject to ICWA, and there is no evidence in the record that
ICWA applies. We sympathize with that position but believe we are bound to remand the
matter for further proceedings in compliance with ICWA while conditionally affirming
the juvenile court’s judgment terminating Erica’s parental rights.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2
FACTS
Erica has ongoing and unresolved mental health and substance abuse
problems.2 She also has three children who were declared dependents under section 300
– A.U., now 12, Y.U., now 7, and a third younger child, whose proceedings were not
appealed. A.U.’s biological father is Francisco D. and Y.U.’s alleged father is Pedro T.
SSA filed an application for a protective custody warrant as to the three
children on December 19, 2019. The application stemmed from an early October 2019
incident in which A.U. became upset at school because of his mother’s behaviors at
home. SSA’s investigation was initiated the following day, resulting in proceedings as to
all three children.
In the early stages of the investigation, SSA had been unsuccessful in
reaching Francisco, and after the October 2019 incident, A.U. went to San Diego to live
with Francisco’s mother, Delia. SSA was later able to make contact with Francisco and
he appeared at the January 23, 2020 pretrial conference. He submitted to the court a
parental notification of Indian status form (California Judicial Council form ICWA-020)
(“parental notification form”) stating he had no Indian ancestry as far as he knew, and the
court accepted the form.
Pedro, on the other hand, was never located. SSA records showed Erica
claimed in 2017 that he was deported and she had no contact with him. His last known
address was the Santa Ana home of his parents, Yolanda and Pedro Sr., with whom Y.U.
had lived since birth.3
SSA included Indian child inquiry attachments (California Judicial Council
form ICWA-010(A)) in its dependency petitions for A.U. and Y.U. Both documents
2 The reasons for the minors’ dependency proceedings are largely irrelevant to the appeal itself, and
so, out of respect for the dignity and privacy of those involved, we only provide details where appropriate for
context.
3 Yolanda and Pedro Sr. had never gained legal custody of Y.U. but Erica allowed the child to live
with them.
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stated inquiries had been made and the children had no known Indian ancestry. But SSA
never provided details on what this inquiry entailed. Its detention report filed on
December 23, 2019, with respect to both children simply stated “[t]he mother denied any
Native American ancestry at this time.”
At the detention hearing for both children on December 24, 2019, the
juvenile court deferred any findings under ICWA because Erica had not appeared. The
children were released to their respective paternal grandparents’ custody for temporary
placement.
Erica first made an appearance in the case on March 27, 2020, but our
record shows no evidence of an inquiry by the juvenile court under ICWA, nor is there
evidence she was offered, signed, or submitted a parental notification form at the
hearing.4 She denied the petition’s allegations through her appointed counsel.
A jurisdictional and dispositional hearing occurred as to the children on
May 15, 2020, at which time the court sustained the allegations in SSA’s petition. Erica
testified at the hearing, but was never asked about the children’s potential Native
American ancestry, either through her or through their respective fathers.
SSA’s status report filed in preparation for the November 2020 six-month
pre-permanency planning review hearing showed ICWA findings were still deferred as of
that point. In its status report dated February 11, 2021, SSA indicated it had attempted
two days prior to inquire with Erica about ICWA, but had received no response from her.
Erica was not participating in her case plan services and had not been consistently
visiting with the children, so SSA recommended terminating reunification services. The
juvenile court did so and set a selection and implementation hearing for July 28, 2021.
SSA made attempts to locate and notify Pedro of the hearing but was unsuccessful.
4 There was no transcript of the March 27 hearing because no court reporter was present.
4
Because SSA recommended adoption as the children’s permanent plan,
they conducted caregiver assessments of both sets of paternal grandparents, and found
they were all from Mexico. Yolanda and Pedro Sr. traveled to Mexico with Y.U.
occasionally and visited relatives there.
Erica failed to appear at the selection and implementation hearing. The
juvenile court refused to continue the hearing and terminated the parental rights of Erica,
Francisco, and Pedro, selecting adoption by the paternal grandparents as the children’s
permanent plan.
DISCUSSION
The sole issue Erica raises on appeal is ICWA compliance. “‘The juvenile
court must determine whether proper notice was given under ICWA and whether ICWA
applies to the proceedings. [Citation.]’ (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)
When, as is the case here, the facts are undisputed, we review independently whether the
requirements of ICWA have been satisfied. [Citation.]” (In re A.M. (2020) 47
Cal.App.5th 303, 314.) Here, we cannot find any indication the juvenile court ever
determined whether ICWA applied so we must reverse.
“The juvenile court and [the agency] have ‘an affirmative and continuing
duty to inquire whether a child for whom a petition under Section 300 . . . may be or has
been filed, is or may be an Indian child.’ (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1
Cal.5th 1, 9, 11–12 (Isaiah W.).) This continuing duty can be divided into three phases:
the initial duty to inquire, the duty of further inquiry, and the duty to provide formal
ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).) “The duty to inquire
whether a child is an Indian child begins with ‘the initial contact,’ i.e., when the referring
party reports child abuse or neglect that jumpstarts [the agency’s] investigation. (§ 224.2,
subd. (a).) [The agency’s] initial duty to inquire includes asking the child, parents, legal
guardian, extended family members, and others who have an interest in the child whether
the child is, or may be, an Indian child. (Id., subd. (b).) Similarly, the juvenile court
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must inquire at each parent’s first appearance whether he or she ‘knows or has reason to
know that the child is an Indian child.’ (Id., subd. (c).). The juvenile court must also
require each parent to complete Judicial Council form ICWA-020, Parental Notification
of Indian Status. (Cal. Rules of Court[fn], rule 5.481(a)(2)(C).) The parties are instructed
to inform the court ‘if they subsequently receive information that provides reason to
know the child is an Indian child.’ (25 C.F.R. § 23.107(a); § 224.2, subd. (c).)” (D.F.,
supra, 55 Cal.App.5th at p. 566.)
These procedures do not appear to have been rigorously observed in this
case. The juvenile court deferred ICWA findings at the detention hearing and then did
not return to the matter for the remainder of the proceedings. In fact, aside from
accepting Francisco’s parental notification form at the January 23, 2020 pretrial hearing,
the juvenile court never mentioned ICWA again. It never ordered Erica to complete a
parental notification form, and, according to the record before us, never asked her – even
when she appeared in court – whether she had reason to know the children were Indian
children.
SSA’s only documented inquiry was to ask Erica at the very beginning of
their investigation if she had Native American ancestry.5 But SSA was unable
subsequently to make contact with her to conduct a follow-up inquiry regarding ICWA,
and it never seemingly spoke to her mother on the subject, although her mother was
interviewed.
SSA never made contact with Pedro and he never appeared. No inquiry
was made of Pedro’s parents, Yolanda and Pedro Sr., even though SSA was in contact
with them – and indeed, recommended them to adopt Y.U. ICWA compliance seems not
to have been on anyone’s mind, and the statutory scheme requires that it be.
5 We think the paucity of detail in the record about this inquiry must be held against SSA, as it was
required to “include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and
all information received pertaining to the child’s Indian status, as well as evidence of how and when this information
was provided to the relevant tribes” on an ongoing basis. (See Cal. Rules of Court, rule 5.481, subd. (a)(5).)
6
SSA argues any error was not prejudicial because such an inquiry would
have been futile. Erica initially denied Native American ancestry and all paternal
grandparents were from Mexico. According to SSA, Erica has not pointed to any
evidence showing ICWA would have been applicable in this case even if an initial
inquiry were properly made. We take those points but don’t believe they allow us to
disregard the statutory mandate of thorough inquiry so clearly stated by the legislature.
As our high court has said, the ICWA-related inquiry and notice procedures
“make clear that Indian tribes have interests protected by ICWA that are separate and
distinct from the interests of parents of Indian children. [Citation.] ICWA’s notice
requirements are ‘intended to protect the interests of Indian children and tribes despite the
parents’ inaction.’ [Citations.]” (Isaiah W., supra, 1 Cal.5th at p. 13.) They are “as much
about effectuating the rights of Indian tribes as they are about the rights of the litigants
already in a dependency case.” (Benjamin M., supra, 70 Cal.App.5th at pp. 740-741.)
As such, we agree with our sister court that reversal is required “where the record
indicates that there was readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child.” (Id. at p. 744.) As is evident
from the facts in this case, SSA failed to access such readily obtainable information from
Erica’s mother and Pedro’s parents.
We also find SSA’s logic on the issue of prejudice faulty, at least as it
relates to Y.U. There is no way to know what Pedro might say about his ancestry
because SSA has never been able to find him. His parents may hail from Mexico but
SSA provides us no authority indicating this fact alone forecloses potential tribal
membership. Accordingly, we must conditionally affirm the judgment terminating
parental rights and remand for purposes of further proceedings to comply with ICWA and
related statutes and rules.
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DISPOSITION
The section 366.26 order is conditionally affirmed. The matter is remanded
to the juvenile court for compliance with the inquiry, and if necessary, notice provisions
of ICWA and related California law. If there is no Indian ancestry, our affirmance
resolves the case.
BEDSWORTH, ACTING P. J.
WE CONCUR:
GOETHALS, 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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