In re C.H. CA4/3 ( 2023 )

Filed 5/12/23 In re C.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 C.H., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G062135
Plaintiff and Respondent,
(Super. Ct. No. 22DP1549)
v.
OPINION
A.M.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Daphne G.
Sykes, Judge. Conditionally reversed and remanded with directions.
Clare M. Lemon, under appointment by the Court of Appeal, for Defendant
and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
A.M. (Mother) appeals from the jurisdiction findings and disposition
order in which her minor son, C.H. (Minor), was declared a dependent of the court and
removed from Mother’s custody. Mother’s sole contention on appeal is that the juvenile
court and Orange County Social Services Agency (the Agency) failed to sufficiently
inquire into claims that Minor may have Native American ancestry, as mandated by the
Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law
(Welf. & Inst. Code, § 224 et seq.).1 The Agency concedes remand is proper because it
hadn’t presented enough details of its properly conducted ICWA inquiry to the court
below. We accept the Agency’s partial concession, conditionally reverse the judgment,
and remand this matter for further proceedings.
FACTS
We set forth only those facts needed to resolve the ICWA issue and to
provide relevant context.
Minor is twelve years old. Minor’s father is deceased. In November 2022,
Minor and Mother were staying at the maternal grandmother’s home. The Agency
received a report that Mother was using drugs, was experiencing delusions and paranoia,
and had stolen the grandmother’s car in the middle of the night to drive Minor to his
maternal grandfather’s home. When asked about the driving incident, Minor reported
that at some point during the trip Mother pushed in Minor’s eyes because she wanted to
take the “magnets” out of them. Around five in the morning, Mother parked the car on a
hill to watch the sunrise, but left the engine on. When the car began rolling backwards,
Minor woke up Mother, who had fallen asleep at the wheel, so she could stop the car.
The Agency applied for and obtained a protective custody warrant. Minor
was removed from Mother’s custody and placed with the maternal grandmother. As
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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reflected in the Agency’s application, the maternal grandmother reported the maternal
great-grandfather may have been Native American, possibly belonging to a tribe from
Nebraska.
The next day, the Agency filed a petition pursuant to section 300,
subdivision (b)(1) and (j), alleging, among other things, that Mother has unresolved
mental health issues, an unresolved substance abuse problem, a criminal record, and a
long history of substance abuse; that Minor reported that Mother would slap him
sometimes on his cheek; that Mother’s two other children (Minor’s half-sisters) were
declared dependents initially due to the parents’ substance abuse issues and domestic
violence; and that in 2005 Mother’s parental rights to Minor’s half-sisters were
terminated.
The Agency asked Minor’s family members about possible Native
American ancestry. The paternal grandmother denied having any. Mother and the
maternal grandfather reported possible Choctaw ancestry. The maternal grandmother,
however, gave conflicting answers: She reported to a social worker that the maternal
great-grandfather may have been Native American, possibly belonging to a tribe from
Nebraska, but when speaking to another social worker, she denied Native American
ancestry in the family. This information was included in the Agency’s detention report.
At the detention hearing, Mother repeated her belief that she may have
Choctaw heritage based on her grandmother from Oklahoma, while Minor and maternal
grandparents stated they had “no clue.” The juvenile court (Judge Lindsey E. Martinez)
noted that “ICWA may apply,” deferred on making the ICWA finding, and ordered the
Agency “to continue to investigate possible [Native American ancestry] and provide
notice to [the] appropriate tribe, Choctaw.”
In its jurisdiction and disposition report, the Agency provided essentially
the same ICWA information as it had in its detention report, adding that Minor stated that
to his knowledge he did not have Native American ancestry and that the “ICWA Unit
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Response” was “[p]ending.” The jurisdiction and disposition report did not indicate
whether notice had been given to the Choctaw tribe.
On December 19, at the jurisdiction and disposition hearing, the juvenile
court (Judge G. Daphne Sykes) received both reports into evidence without objection,
heard argument from counsel, and sustained the section 300 petition in its entirety. The
court declared Minor a dependent of the court, removed him from parental custody, and
ordered that Mother receive reunification services. No one raised the ICWA issue at the
hearing, and the court did not make any ICWA findings.
DISCUSSION
Mother contends the Agency and the juvenile court failed to make a proper
inquiry as to whether Minor may be an Indian child. The Agency concedes the present
record does not reflect that a proper inquiry was made. We agree.
Under California law enacted pursuant to ICWA, the Agency and the
juvenile court “have an affirmative and continuing duty to inquire whether a child for
whom a petition under Section 300 . . . has been filed, is or may be an Indian child.”
(§ 224.2, subd. (a); In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).) “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.” (D.F., at p. 566.) At issue here is
whether the court and the Agency satisfactorily completed the second phase, the duty of
further inquiry.
A duty of further inquiry arises when the Agency or the juvenile court has
“reason to believe that an Indian child is involved in a proceeding.” (§ 224.2, subd. (e);
D.F., supra, 55 Cal.App.5th at p. 566.) This duty “includes: (1) interviewing the parents
and extended family members to gather required information; (2) contacting the Bureau
of Indian Affairs and State Department of Social Services for assistance in identifying the
tribes in which the child may be a member or eligible for membership in; and (3)
contacting the tribes and any other person that may reasonably be expected to have
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information regarding the child’s membership or eligibility. (§§ 224.2, subds. (e)(1)-(3)
& 224.3, subds. (a)(5)(A)-(C); [Cal. Rules of Court] rule 5.481(a)(4) [sets forth same
requirements].) Contact with a tribe must include, at a minimum, ‘telephone, facsimile,
or electronic mail contact to each tribe’s designated agent’ and include information
‘necessary for the tribe to make a membership or eligibility determination.’ (§ 224.2,
subd. (e)(3).)” (D.F., at pp. 566-567, fn. omitted.)
Despite the juvenile court ordering the Agency to continue its ICWA
investigation and provide notice to the Choctaw tribe, nothing in appellate record shows
that the Agency contacted the tribe. The record is also silent on whether the Agency
contacted the Bureau of Indian Affairs and the State Department of Social Services for
help in identifying any other tribes that Minor may be a member of or eligible for
membership in. On this record, we accept the Agency’s concession and remand this
matter for compliance with ICWA.
The Agency asks, however, that the jurisdiction findings and disposition
order be conditionally affirmed, rather than conditionally reversed. The Agency argues
conditional affirmance is appropriate because it fully complied with its ICWA duties—it
just failed to submit to the juvenile court an updated report showing its communications
with the Bureau of Indian Affairs and the Choctaw tribe. We disagree. The appellate
record fails to show the ICWA inquiry was properly conducted. We thus “adhere to ‘a
clear rule that requires reversal in all cases where the ICWA inquiry rules were not
followed.’” (In re G.H. (2022) 84 Cal.App.5th 15, 32; see also In re E.V. (2022)
80 Cal.App.5th 691, 698; In re A.R. (2022) 77 Cal.App.5th 197, 207.) And we
conditionally reverse the juvenile court’s orders and remand the matter for further inquiry
and compliance with ICWA.
DISPOSITION
The jurisdiction findings and disposition order are conditionally reversed.
The matter is remanded to the juvenile court with directions that within 30 days of
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issuance of the remittitur the Agency must file a report demonstrating compliance with its
duty of further inquiry under ICWA and section 224.2, subdivision (e). Within 45 days
of issuance of the remittitur, the court must conduct a hearing to determine whether the
Agency’s investigation satisfied its duties of inquiry under ICWA, and if it did, to
determine whether the court or the social worker knows or has reason to know that Minor
may have Native American ancestry. The court may also consider any other ICWA-
related issues that may have arisen during this appeal. To expedite matters, we invite the
parties to stipulate to the immediate issuance of the remittitur. (Cal. Rules of Court, rule
8.272(c)(1).) The court has the discretion to adjust these time periods on a showing of
good cause.
The jurisdiction findings and disposition order shall be reinstated if the
juvenile court finds that (1) the Agency satisfied its duties of inquiry under ICWA, and
(2) the court and the social worker do not know and do not have reason to know that
Minor has Native American ancestry. If the court cannot make both findings, it shall
proceed accordingly.
DELANEY, J.
WE CONCUR:
MOORE, ACTING P. J.
SANCHEZ, J.
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