Opinion
G055962
05-25-2018
In re A.R. et al, Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.R., Defendant and Appellant.
Robert McLaughlin, 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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DP025940-001 & DP025941-001) OPINION Appeal from a judgment of the Superior Court of Orange County, Gassia Apkarian, Judge. Conditionally affirmed and remanded with directions. Robert McLaughlin, 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.
A.R. (Father) appeals from the juvenile court's judgment terminating his parental rights to Jane Doe (Jane) and John Doe (John). Father argues we must conditionally reverse the court's judgment because the Orange County Social Services Agency (SSA) and the court did not comply with the Indian Child Welfare Act (ICWA). SSA concedes the issue. We agree SSA and the court failed to adequately investigate Jane and John's American Indian heritage. We conditionally affirm the court's judgment terminating Father's parental rights to Jane and John, and remand the matter to allow SSA and the juvenile court to fully comply with ICWA.
Appellate courts have a policy regarding nondisclosure of the names of innocent minors. (Cal. Style Manual (4th ed. 2000) § 5.9, pp. 179-180.) Anonymity is ordinarily achieved through the use of minor's initials. In this case, the children have the same initials, and thus, we conclude it is in their best interests to refer to them by the above listed fictitious names.
FACTS
Detention
Father and D.G. (Mother) had three children, two of which are the subject of this appeal, Jane and John. Father shot and killed Mother; Jane was six years old and John was 17 months old.
The third and oldest child suffered severe behavioral problems affecting her, and Jane's and John's, placements. The court ultimately ruled the oldest child was unadoptable and placed her in long term foster care. She is not the subject of this appeal, and we limit our discussion accordingly.
SSA filed a petition alleging Jane and John were children as described in Welfare and Institutions Code section 300, subdivisions (b), failure to protect, and (g), no provision for support. The petition alleged Father was arrested for shooting Mother in the head. Additionally, Father was physically abusive and had anger management and substance abuse problems. The petition alleged the children may have Indian ancestry. The detention report stated ICWA "does or may apply," but SSA had not obtained statements of American Indian heritage. Father filed notice denying American Indian ancestry.
All further statutory references are to the Welfare and Institutions Code.
At the detention hearing, the court concluded a prima facie case had been made and ordered Jane and John detained (§§ 319, 300). The court acknowledged receipt of Father's ICWA notice and concluded ICWA may apply. The court stated SSA would investigate the children's American Indian heritage.
Jurisdiction/Disposition
In the jurisdiction/disposition report, SSA recommended the court sustain the dependency petition and order no reunification services for Father. Social worker Lisa Follmer stated SSA deferred the ICWA determination because Mother was deceased and Father invoked his Fifth Amendment rights.
The court held a combined jurisdiction/disposition hearing. Father submitted to the petition. The court found the allegations true, sustained the petition, declared Jane and John dependent children, and ordered no reunification services for Father. The court set a section 366.26 hearing. Section 366.26
In the section 366.26 report, SSA recommended terminating Father's parental rights and concluded the children were adoptable. Social worker Anita Schultz stated ICWA did not apply, but she did not provide any explanation. For over two years, the parties litigated placement, between maternal relatives in Arizona, or paternal relatives in Northern California. There were numerous addendum reports during this period, none of which addressed the ICWA investigation.
Shortly after SSA filed this report, the matter was transferred from Judge Andre Manssourian to Judge Gassia Apkarian.
In October 2016, SSA filed an interim review report recommending continuing the section 366.26 hearing to determine the children's best placement. Social worker Anita Schultz stated ICWA did not apply. In her interim review reports dated November and December 2016, Schultz stated the same regarding ICWA. The interim review reports included no explanation concerning ICWA.
At the section 366.26 hearing in February 2018, the juvenile court terminated Father's parental rights and ordered adoption as the permanent plan for Jane and John; maternal relatives in Arizona planned to adopt them. The court made no mention of ICWA.
DISCUSSION
"[T]he burden of [producing] information to determine whether an Indian child may be involved and ICWA notice required in a dependency proceeding 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.] This affirmative duty to inquire is triggered whenever the child protective agency or its social worker 'knows or has reason to know that an Indian child is or may be involved.' [Citation.] At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. [Citations.]" (In re Michael V. (2016) 3 Cal.App.5th 225, 233 (Michael V.).)
Here, SSA acknowledges neither it nor the juvenile court questioned Father or maternal relatives about whether Jane and John had any American Indian heritage. SSA concedes this failure requires we remand this matter to make this determination. We agree, conditionally affirm, and remand with the following directions.
DISPOSITION
We remand the case for the juvenile court to direct SSA to conduct a meaningful investigation into whether Jane and John have American Indian ancestry, including making efforts to locate other family members who might have information bearing on the children's possible American Indian heritage. If the investigation produces information substantiating the children's American Indian heritage, SSA must provide notice to any identified tribe, or if the tribe cannot be identified, to the Bureau of Indian Affairs. SSA shall thereafter notify the court of its actions and file certified mail return receipts for any ICWA notices that were sent, together with any responses received. The court must determine whether the ICWA inquiry and notice requirements have been satisfied and whether Jane and John are American Indian children. If the court finds they are American Indian children, it shall conduct a new section 366.26 hearing, as well as all further proceedings, in compliance with ICWA and related California law. If not, the court's original section 366.26 order is reinstated. (Michael V., supra, 3 Cal.App.5th at p. 236 [failure to adequately investigate ICWA required conditional affirmance].)
O'LEARY, P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.