Orange Cnty. Soc. Servs. Agency v. G.V. (In re E.V.)

• Decision Date: 30 June 2022
• Docket Number: G061025
• Parties: IN RE E.V., a Person Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent, v. G.V., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

80 Cal.App.5th 691

296 Cal.Rptr.3d 387

IN RE E.V., a Person Coming Under the Juvenile Court Law.

Orange County Social Services Agency, Plaintiff and Respondent,

v.G.V., Defendant and Appellant.

G061025

Court of Appeal, Fourth District, Division 3, California.

Filed June 30, 2022

Sean Angele Burleigh, 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.

OPINION

O'LEARY, P. J.

G.V. (Father) appeals from the juvenile court's judgment terminating his parental rights as to his newborn daughter (E.V.) and selecting adoption as the permanent plan. He raises the following issue on appeal: The court and the Orange County Social Services Agency (SSA) failed to adequately inquire into the child's Indian ancestry under the Indian Child Welfare Act of 1978 ( 25 U.S.C. § 1901 et seq. ) (ICWA). SSA concedes there were two errors with respect to duties under ICWA, but they were harmless. Alternatively, SSA moves this court to receive additional new evidence (not before the juvenile court) that allegedly renders the appeal moot, or at least demonstrates any inquiry errors as to ICWA must be deemed harmless. We deny the motion. In the case of In re A.R. (2022) 77 Cal.App.5th 197, 292 Cal.Rptr.3d 234 ( A.R. ), this court established a clear rule that requires reversal in all cases where the ICWA inquiry rules were not followed. County counsel has misconstrued the A.R. opinion as advising SSA to promptly address any defects and inviting SSA to submit evidence of its belated efforts to avoid reversal of the judgment. The Court of Appeal is not the appropriate venue for determining if SSA's postjudgment investigation was adequate. Moreover, Father's appellate claims relate to both SSA's and the court's errors regarding ICWA. The additional evidence is not dispositive of Father's appellate claims regarding court error. We conditionally reverse the judgment and remand for compliance with ICWA.

FACTS¹

SSA took the minor into protective custody in October 2020, shortly after her birth. She and her mother (Mother) tested positive for amphetamines. Father was incarcerated and unable to care for the minor. The detention report, dated November 6, 2020, stated Mother and Father "denied any Native American ancestry at this time."

The petition raised allegations under Welfare and Institutions Code section 300, subdivision (b) [failure to protect].² It described Mother's and Father's criminal histories and unresolved substance abuse problems. Father had a domestic violence conviction. Mother lost custody of two other children, due to her substance abuse, and she no longer had contact with them. E.V.’s half-siblings lived with legal guardians, their paternal grandparents.

A social worker attached an ICWA-010 form to the petition, indicating she was unable to complete the inquiry about the minor's Indian status with Father because he was incarcerated. The social worker noted Mother gave her "no reason to believe the child is or may be an Indian child." No further explanation was provided.

The assigned social worker determined E.V. could not be placed with the legal guardians of the minor's older half-siblings. The social worker also spoke with the minor's maternal great-aunt, C.P., about possible placement. SSA held a team meeting to discuss a plan for E.V. Mother, the minor's maternal grandmother, and a family friend attended the meeting. There was no discussion or inquiry about Native American heritage.

By the time of the detention hearing on November 9. 2020, the minor was living with C.P. and Father wanted his sister (R.V.) to be assessed for placement. The court's minute order stated, "Court orders ... [ICWA] finding deferred." The hearing was continued, and the court considered the parties’ arguments through video conference software. At the hearing, Father's counsel stated his client did not "have [ICWA]." Mother's counsel requested that the court defer the issue because Mother was not attending the video hearing.

In the social worker's jurisdiction/disposition report dated November 30, 2020, she reported both parents denied Native American ancestry. In the report, the social worker mentioned C.P. was a good placement for the minor. She had previously adopted the E.V.’s two cousins from Mother's adult sister (Maternal Aunt). The social worker reported on SSA's investigation of possible placements with relatives, but did not mention any ICWA inquiry with those family members.

In January 2021, the court held the jurisdiction hearing and sustained the petition. The court removed E.V. from her parents’ custody and ordered reunification services. The court did not address ICWA on the record. Its minute order also failed to mention ICWA. However, the court indicated it was adopting SSA's recommendations, which were attached to the minute order. Those recommendations indicated ICWA did not apply.

The social worker's April 2021 interim report contained no new information regarding ICWA. The social worker merely noted, "On November 9, 2020, ICWA was reserved." Due to Covid-19 related court closures, the court accepted the appointed attorneys’ written stipulation waiving their appearance. Based on the stipulation, the court continued reunification services. It made no ICWA findings.

In July 2021, the social worker prepared a report for the six-month review hearing and recommended additional reunification services for Mother. The social worker also requested the court terminate services for Father and ordered ICWA did not apply. The social worker again noted ICWA "was reserved" in November 2020. The report contained no new information regarding ICWA.

At the six-month review hearing, the court's minute order stated it read and considered the signed stipulation. The court stated it would make orders and findings pursuant to the signed stipulation and ICWA did not apply. It scheduled a hearing on the matter for August 2021. The attached stipulation noted ICWA did not apply.

Before the hearing, the social worker filed addendum reports changing her previous recommendation regarding services. She requested that the court terminate the parents’ reunification services and schedule a permanency hearing. These reports do not mention ICWA.

The court's minute order for the six-month review hearing noted the court was making orders and findings pursuant to the stipulation signed August 11, 2021. The attached stipulation noted ICWA did not apply. The hearing was continued.

The social worker's next addendum report for the six-month review hearing noted E.V. was nine months old. The recommendation to terminate parental rights was not changed. The report does not mention ICWA.

After a short continuance, the court held the review hearing in September 2021. The court terminated reunification services and scheduled a permanency hearing. The court did not address ICWA on the record or in its minute order. Rather, the minute order stated the court was making "orders and findings" pursuant to the proposed orders and findings filed September 10, 2021. The proposed orders, signed by counsel, left unchecked all the boxes related to ICWA documentation and findings.

On January 10, 2022, the social worker prepared a final report regarding then one-year-old E.V. The summary recommendation stated the minor was adoptable and the court should terminate parental rights and free her for adoption. E.V.’s caretakers wished to adopt her. In addition, the social worker requested the court "find ICWA does not apply in regard to the child." Later in her report, the social worker explained that early in the case both parents denied Native American ancestry but the court reserved the issue on November 9, 2020. Before writing her report, the social worker asked Father about ICWA and he replied, " ‘I'm not too sure, so I can't really answer that.’ " The social worker tried to contact Mother two times to discuss ICWA, but she had failed to reply.

At the permanency hearing, the court denied the parents’ continuance requests and terminated their parental rights. It freed E.V. for adoption. The minute order stated, "[The c]ourt finds [ICWA] does not apply" but the reporter's transcript reflects the court did not mention ICWA at the hearing.

DISCUSSION

I. Reversible Error

A different panel of this court recently considered an appeal raising ICWA issues remarkably similar to the ones before us. ( A.R., supra , 77 Cal.App.5th 197, 292 Cal.Rptr.3d 234.) In that case, county counsel conceded SSA erred by failing to conduct an adequate inquiry into whether the dependent minors had Native American ancestry. ( Id. at p. 201, 292 Cal.Rptr.3d 234.) County counsel maintained the judgment should be affirmed because the mother failed to demonstrate the error resulted in a manifest miscarriage of justice. ( Ibid. )

In A.R. , this court held, which bears repeating, the following: "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...