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Orange Cnty. Soc. Servs. Agency v. Donald H. (In re Luna H.)

California Court of Appeals, Fourth District, Third Division
Sep 12, 2023
No. G062444 (Cal. Ct. App. Sep. 12, 2023)

Opinion

G062444

09-12-2023

In re LUNA H., a Person Coming Under the Juvenile Court Law. v. DONALD H. et al. Defendants and Appellants. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,

Elizabeth Klippi, under appointment by the Court of Appeal for Defendant and Appellant Donald H. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant Jessica A. Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.


NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 21DP1349, Lindsey E. Martinez, Judge.

Elizabeth Klippi, under appointment by the Court of Appeal for Defendant and Appellant Donald H.

Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant Jessica A.

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

No appearance for the Minor.

OPINION

BEDSWORTH, ACTING P. J.

INTRODUCTION

In light of a string of recent appellate decisions scrutinizing child welfare agencies' inquiry into the possibility of a dependent child's Native American tribal membership, both the juvenile courts and the agencies themselves have had to be quite nimble in crafting new procedures. Today, we have a case in which the agency has admirably conceded in its responsive brief that its inquiry failed to comply with its newly appreciated statutory obligations. That is to say, both appellants and respondent concur as to how we must dispose of this appeal - they both seek conditional reversal and remand so that the proper inquiry can be made. We agree conditional reversal is the proper result here.

FACTS

Jessica and Donald's daughter, Luna H., was born in November 2021. Jessica and Donald have been in a self-described "on and off" relationship for 11 years. Both parents have significant substance abuse and physical and mental health challenges, and they have experienced either homelessness or housing instability over the years. Additionally, Jessica has several other children, all of whom have been removed from her care by Orange County Social Services Agency (SSA) and its counterparts in Michigan, the state where she was born and raised.

One of these children, M.H., was removed in January 2021 by SSA when he was only one month old. The particulars of M.H.'s case are irrelevant to the issue before us. We mention M.H. only to provide context surrounding Luna H.'s removal.

Ten days after Luna H.'s birth, SSA filed for a protective custody warrant to remove her from her parents. SSA had concerns for Luna H.'s safety because she was born while M.H.'s dependency case was still open. The child was removed shortly thereafter, and SSA filed a dependency petition on November 22, 2021.

It is not clear from the record whether Donald was also M.H.'s father, but M.H. does appear to have been given Donald's last name. Donald himself seems to have been unsure as to whether he is M.H.'s father.

In its detention report filed the same day, SSA reported the Indian Child Welfare Act (ICWA) "does or may apply." Jessica had denied any Native American heritage, but Donald advised that he is a Seminole Indian but was "not registered." SSA attached an Indian Child Inquiry Attachment form (Judicial Council Forms, form ICWA-010(A)), indicating Jessica and Donald had been questioned about potential Native American ancestry.

At the detention hearing held on November 23, the juvenile court ordered SSA to give notice to the Seminole tribe as well as the Bureau of Indian Affairs (BIA) and the Secretary of the Interior that Luna H. might be an Indian child. Any ICWA findings were deferred pending the response to those communications. A jurisdictional hearing was set for January 19, 2022.

On January 3, 16 days prior to the scheduled hearing, SSA filed its jurisdiction/disposition report. On the ICWA issue, SSA reported it had interviewed Donald on December 22, 2021. He reported Seminole heritage through his father, but he was unable to provide his father's contact information. SSA obtained the contact information for two Seminole tribes through the BIA - the Seminole Nation of Oklahoma and the Seminole Nation of Florida. Contacts were attempted with both tribes via telephone, e-mail and certified mail. Neither tribe had responded as of December 23, 2021.

In the course of its investigation of the parents' backgrounds, SSA learned Jessica had one living parent - her father, with whom she had no relationship. Additionally, she had two half-sisters and a paternal aunt who raised her. As for Donald, he reported both of his parents, though separated, were still alive and lived in Michigan. While he did not have contact with his father, he regularly spoke to his mother. He also said he had three sisters. There is nothing in the record to indicate SSA tried any particular means to locate or contact these family members.

At the January 20, 2022 jurisdictional hearing, Jessica and Donald submitted on the petition, and the court set a dispositional hearing which was ultimately held on July 6, 2022. The court found Luna H. a dependent and set a November 2022 date for a selection and implementation hearing under Welfare and Institutions Code section 366.26. The court also ordered SSA to "continue" to comply with section 224.2 with respect to its further inquiry obligations. Donald and Jessica were ordered to provide SSA with any names or contact information for relatives who might have information about Luna H.'s potential Native American ancestry.

All statutory references are to the Welfare & Institutions Code.

SSA filed an interim review report on July 27, 2022, indicating it had received responses from the two Seminole tribes it had contacted. Both indicated "the family is not eligible." At a progress review hearing held on August 10, 2022, the juvenile court concluded SSA had conducted ICWA inquiries and received responses, and as a result, there was "no reason to know the child is an Indian child, subject to SSA's continuing duty to inquire."

In its report filed November 3, 2022, SSA stated ICWA did not apply. It had no contact with any additional family members as of the date of the report and had not received information requiring further inquiry. On March 20, 2023, parental rights were terminated with adoption chosen as Luna H.'s permanent plan.

DISCUSSION

Jessica and Donald make a single argument on appeal: SSA failed to comply with its obligations under ICWA. SSA agrees its inquiries fell short, as do we.

"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 . . . .) 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).)" (D.F., supra, 55 Cal.App.5th at p. 566.)

The duty of further inquiry comes into play once the court or agency has "reason to believe that an Indian child" is at the center of the dependency case. (§ 224.2, subd. (e).) "There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (Id., subd. (e)(1).) When there is a reason to believe an Indian child may be involved, but the court or agency "does not have sufficient information to determine that there is reason to know that the child is an Indian child," the court or agency "shall make further inquiry regarding" the child's status "as soon as practicable." (Id., subd. (e), italics added.) This further inquiry includes interviewing the parents and "extended family members" to gather information as well as contacting BIA and the tribes to do the same. (Id., subd. (e)(2)(A).) Under ICWA, "'extended family members'" include the child's grandparents and aunts and uncles. (25 U.S.C. § 1903, subd. (2).)

Should any person having an interest in the child inform the court that the child is an Indian child, the duty to provide notice of the proceedings under ICWA kicks in. (See § 224.2, subd. (d)(1); § 224.3, subd. (a).) But if a tribe determines that the child is not a member, the agency or court no longer is required to provide them with notice of hearings. (§ 224.3, subd. (a)(3)(A)(i).)

As appellants point out, this case involved two levels of inquiry - the initial duty to inquire, and the duty of further inquiry once Donald notified SSA that he believed he had Seminole Indian ancestry on his father's side. SSA fulfilled its duty regarding the potential Seminole tribal membership, as both Seminole tribes advised the child was ineligible for membership. The tribe's determination on this issue is conclusive. (§ 224.2, subd. (h).)

However, SSA failed to fulfill its initial duty to inquire as to both parents. As it admits, it was aware of several members of the child's extended family but did not appear to do any follow-up to determine names and contact information. This was a violation of its basic investigative duties under section 309, subdivision (e), under which it was to identify and locate adult relatives. (Id., subd. (e)(1).) Jessica spoke of her father, two half-sisters, and a paternal aunt. Donald had two living parents and three sisters. From our record, it does not appear SSA ever attempted to locate these relatives aside from asking Donald and Jessica for contact information, which they did not have. Indeed, Donald was estranged from his father and Jessica from hers. At this point, SSA should have exercised the required due diligence to locate the relatives by conducting other searches, including through computer-based search engines. (Id., subds. (e)(3)(A) &(B).)

We are somewhat concerned that SSA did not do more to contact Donald's father, knowing that Donald believed he had Native American affiliations through his paternal side. Even if he was not a member of the Seminole tribe, it is quite possible he was mistaken as to the name of the tribe to which his father does belong, if any. This information could only be clarified by locating and contacting Donald's paternal relatives and an attempt should have been made. SSA must do the appropriate inquiry now as to both sides of Luna H.'s family, and with urgency, given the child's permanency plan.

DISPOSITION

The judgment is conditionally reversed and remanded to the juvenile court for the limited purpose of allowing SSA to comply with ICWA. After complying with inquiry and notice requirements, as applicable, if it is determined that ICWA does not apply, the judgment shall be reinstated.

WE CONCUR: GOETHALS, J. DELANEY, J.


Summaries of

Orange Cnty. Soc. Servs. Agency v. Donald H. (In re Luna H.)

California Court of Appeals, Fourth District, Third Division
Sep 12, 2023
No. G062444 (Cal. Ct. App. Sep. 12, 2023)
Case details for

Orange Cnty. Soc. Servs. Agency v. Donald H. (In re Luna H.)

Case Details

Full title:In re LUNA H., a Person Coming Under the Juvenile Court Law. v. DONALD H…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Sep 12, 2023

Citations

No. G062444 (Cal. Ct. App. Sep. 12, 2023)