Orange Cnty. Soc. Servs. Agency v. M.G. (In re A.R.)

• Decision Date: 29 March 2022
• Docket Number: G060677
• Parties: In re A.R. et al., Persons Coming Under the Juvenile Court Law. v. M.G., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
• Court: California Court of Appeals Court of Appeals

In re A.R. et al., Persons Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.G., Defendant and Appellant.

G060677

California Court of Appeals, Fourth District, Third Division

March 29, 2022

Certified for Publication 4/7/22

Appeal from a judgment of the Superior Court of Orange County, Nos 21DP0090, 21DP0091 Antony C. Ufland, Judge. Reversed.

Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.

Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the minors.

OPINION

GOETHALS, J.

M.G. (Mother) appeals from the judgment terminating her parental rights to her 11-year-old daughter, A.R., and her 10-year-old son, C.R., and placing them in a permanent plan of adoption by their paternal grandparents. M.G. does not challenge the merits of the order; instead, she argues it must be reversed because the Orange County Social Services Agency (SSA) failed to conduct an inquiry into whether the children had Native American ancestry, as required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA).

County counsel concedes SSA erred in failing to comply with ICWA but contends the judgment should nonetheless be affirmed because Mother failed to make any showing that her children may have Native American ancestry, and she has thus failed to demonstrate the error resulted in a manifest miscarriage of justice in this case.

We disagree. The interests protected by ICWA include the broad interest of Native American tribes in maintaining cultural connections with children of Native American ancestry. Those tribes have no standing to intervene in a dependency case unless Native American ancestry is first uncovered and established, and thus no way of protecting their tribal interests unless child welfare agencies comply with ICWA and then notify the appropriate tribe when the inquiry reveals Native American ancestry.

That is why the law requires that an ICWA inquiry be conducted in every case. The tribes have a compelling, legally protected interest in the inquiry itself. It is only by ensuring that the issue of Native American ancestry is addressed in every case that we can ensure the collective interests of the Native American tribes will be protected. Thus, the failure to conduct the inquiry in each case constitutes a miscarriage of justice.

What troubles us about county counsel's position, and by extension, SSA's, is that it seems to reflect a belief that the inquiry into Native American ancestry is not important. That cannot be the case. Until the inquiry is conducted, and the issue is put to rest, the interests of the Native American tribes have not been adequately protected, and the judgment in this case would remain vulnerable to a potential collateral attack.

The required inquiry here could have been conducted in significantly less time than it took to defend this appeal. In the interest of limiting any further delay, we conditionally reverse and remand the case with instructions that SSA conduct the inquiry immediately, and that the trial court likewise resolve the issue as soon as possible. If the initial inquiry reveals no Native American heritage, then the judgment shall be reinstated forthwith. (See In re Francisco W. (2006) 139 Cal.App.4th 695) (Francisco W. [applying similar rule in cases where improper notice was given to tribes].)

FACTS

This dependency case arose out of tragic circumstances. In January 2021, Mother stabbed the children's father to death during an altercation in their bedroom, while the children were also at home in their own bedroom. The children heard the parents arguing earlier; they heard a '"commotion"' and their father '"crying and sounding like he was in pain."' The children banged on the door for about 15 minutes before the screaming stopped. They both believed Mother "was killing [their father.]"

Mother was taken into custody by police and later charged with murder. The children were taken into protective custody; SSA later filed a petition alleging the court should take jurisdiction over the children under Welfare and Institutions Code section 300, subdivisions (b)(1), (c) and (g).^[1] SSA did not initially interview Mother on the advice of law enforcement officials, and Mother later invoked her Fifth Amendment right not to speak.

The children were placed in the custody of their paternal grandparents, where they remain. Mother submitted on the petition, which was sustained in April 2021. The court then bypassed Mother for reunification services and scheduled a section 366.26 hearing to determine a permanent plan for the children.

In September 2021, the court found that the children's placement was necessary and appropriate, that it was likely the children would be adopted, and terminated Mother's parental rights.

It is undisputed that at no point during the proceedings did either SSA or the court conduct any inquiry into whether the children had Native American heritage.

DISCUSSION

1. ICWA

"ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation. [Citations.] Congress enacted ICWA to further the federal policy '"that, where possible, an Indian child should remain in the Indian community . . . .""" (In re W.B. (2012) 55 Cal.4th 30, 48, fn. omitted.)

ICWA provides that "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).) As explained by our Supreme Court, "[t]his notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice." (In re Isaiah W. (2016) 1 Cal.5th 1, 5 (Isaiah W))

"ICWA notice ensures that an Indian tribe is aware of its right to intervene in or, where appropriate, exercise jurisdiction over a child custody proceeding involving an Indian child." (Isaiah W., supra, 1 Cal.5th at p. 8.)

In California, section 224.2 "codifies and elaborates on ICWA's requirements of notice to a child's parents or legal guardian, Indian custodian, and Indian tribe, and to the [Bureau of Indian Affairs]." (Isaiah W., supra, 1 Cal.5th at p. 9.)

"Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case. These requirements are sometimes collectively referred to as the duty of initial inquiry. [Citation.] [¶] The duty of initial inquiry arises, in part, from federal regulations under ICWA stating that '[s]tate courts must ask each participant in an . . . involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child' and that '[s]tate courts must instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.'" (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741 (Benjamin M).)

"State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an 'affirmative and continuing duty to inquire' whether a child in the dependency proceeding 'is or may be an Indian child.' (§ 224.2, subd. (a).) When the agency takes the child into temporary custody, its duty to inquire 'includes, but is not limited to, asking 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.' (§ 224.2, subd. (b).) State law also expressly requires the juvenile court to ask participants who appear before the court about the child's potential Indian status. (§ 224.2, subd. (c).)" (Benjamin M., supra, 70 Cal.App.5th at pp. 741-742; see Isaiah W., supra, 1 Cal.5th at p. 9.)

As these authorities make clear, the primary parties protected under ICWA are the Native American tribes, whose right to intervene in an appropriate case will likely never be discovered absent the statutorily required inquiry and notice procedures. Thus, the law allows a parent to raise failure to comply with ICWA on appeal, even if the issue was not raised in the trial court, because "[t]he parent is in effect acting as a surrogate for the tribe in raising compliance issues on appeal." (In re K.R. (2018) 20 Cal.App.5th 701, 708.)

If ICWA is not complied with, "'the dependency proceedings, including an adoption following termination of parental rights, [are] vulnerable to collateral attack if the dependent child is, in fact, an Indian child.'" (In re E.H. (2018) 26 Cal.App.5th 1058, 1072; see 25 U.S.C. § 1914.)

2. The Consequence of Failing to Inquire in this Case

SSA and the trial court erred by not conducting the required ICWA inquiry. The sole issue before us is whether the error is reversible.

The published cases seem to fall into three groups: the first concludes that the conceded error warrants reversal in every case because the duty to inquire was mandatory and unconditional. (See, e.g., In re Y W. (2021) 70 Cal.App.5th 542, 556 (Y...