Filed 11/4/22 In re A.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.D., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G061418
Plaintiff and Respondent,
(Super. Ct. No. 20DP0799)
v.
OPI NION
J.D.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Daphne
Grace Sykes, Judge. Conditionally reversed and remanded.
Lelah S. Fisher, 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.
No appearance for the Minor.
* * *
J.D., the father of three-year old A.D., appeals from the judgment
terminating his parental rights which makes A.D. eligible for adoption. J.D. does not
challenge the merits of the order; instead, he argues the judgment must be reversed
because the juvenile court and Orange County Social Services Agency (SSA), failed to
conduct sufficient inquiry into whether A.D. had Native American ancestry, as required
by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We agree.
SSA concedes the error in failing to comply with ICWA requirements, and
further concedes, based on published authority, that the error cannot be deemed harmless.
The case must therefore be remanded to the juvenile court with directions that the court
and SSA comply with their respective ICWA duties.
FACTS
A.D. was born in January 2019. In June 2020, SSA sought a warrant to
take her into protective custody based on evidence that she had no relationship with J.D.,
and that her mother had left her in the custody of a paternal relative since mid-2019. That
relative, in turn, passed custody of A.D. to unrelated third parties who wished to adopt
her.
On July 2, 2020, SSA filed a juvenile dependency petition, alleging that
dependency jurisdiction was proper under Welfare and Institutions Code1 section 300
based on the parents’ failure to protect and provide for A.D., and their inability to provide
for her based on mental illness, developmental disability, or substance abuse.
1
All further statutory references are to this code.
2
The petition alleged the parents initially resided with A.D. in an unsanitary
home, but had subsequently left A.D. in the custody of third parties.2 It alleged that
A.D.’s mother vacillated on the issue of relinquishing her parental rights and allowing
A.D. to be adopted by her caretakers. The petition further alleged that A.D.’s mother
may have unresolved mental health issues, that she engages in self-harming behavior, and
that she has a history of hospitalization in a psychiatric facility. The petition also alleged
the parents had a history of domestic violence, and that J.D. had unresolved anger
management issues.
The detention report indicated A.D.’s mother denied having any Native
American heritage, and J.D. had denied any connection during a prior child abuse
investigation. The report concluded “[t]he Indian Child Welfare Act does not apply.”
SSA repeated that conclusion in a subsequent report.
A.D. was formally placed in the custody of the family that had been caring
for her. She has remained in their care throughout the dependency.
SSA could not initially locate J.D. and engaged in efforts to find him.
When reached by telephone in August 2020, J.D. claimed that A.D.’s mother had been
keeping her away from him and had given A.D. away “three or four times,” while
insisting “I’m not giving up any rights anytime soon.”
In September 2020, both parents pleaded no contest to the jurisdictional
petition and the court sustained the petition. The court ordered J.D. to participate in
substance testing for 60 days and to participate in individual counseling to address his
anger management and history of domestic violence. The court allowed J.D. to have
supervised visitation as recommended by SSA.
2 In contrast to the custody warrant, the petition alleged it was J.D. who
initially left A.D. in the custody of a friend (not a relative) identified only as “Gabe,” and
it was A.D.’s mother who eventually allowed her to live with the third parties who
wished to adopt her.
3
In November 2020, SSA reported that J.D. had been inconsistent in his
visitation and in his communication with SSA. He failed to participate in drug testing.
In March 2021, in connection with the six-month hearing, SSA reported that J.D. had not
participated in either drug testing or individual counseling services. In April 2021, J.D.
had a positive drug test result and then missed his next test. His visitation with A.D.
continued to be inconsistent.
SSA attempted to assess the homes of the paternal grandparents and
maternal grandmother to determine whether they qualified as a suitable placement for
A.D.; SSA was unable to establish suitable placement with either.
In June 2021, the court found a substantial probability that A.D. could
return to parental custody within the next six months and continued reunification services
for both parents.
During the second reunification period, J.D. continued his pattern of failing
to drug test. His therapy referral was terminated for the third time because he had not
responded to efforts to initiate services. J.D. signed up for a new referral and was put on
a wait list. J.D.’s visitation remained inconsistent. Between July 16 and August 24, he
did not respond to efforts to arrange visitation.
In August 2021, in connection with the 12-month review hearing, SSA
reported, “The Indian Child Welfare Act may or may not apply” without further
explanation. The report recommended termination of reunification services.
The 12-month review hearing was continued until November 2021; by that
time SSA had changed its recommendation to continue reunification services until an
18-month review hearing. The court adopted SSA’s recommendation.
In connection with the 18-month review hearing, SSA reported that
“[t]hroughout this period of supervision, the father seldomly made himself available to
[SSA].” J.D. had no visitation with A.D. during the period; his cooperation with his case
plan and his effort to alleviate the causes for court involvement were described as
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“None.” Once again, SSA reported that “The Indian Child Welfare Act may or may not
apply.”
Neither parent appeared at the 18-month review hearing. SSA asked the
court to make an ICWA finding; the court subsequently stated it had ICWA-020 forms
from both parents and was finding ICWA did not apply to A.D.’s case. The court then
ordered termination of the parents’ reunification services and scheduled the case for a
contested hearing under section 366.26.
The court held that hearing in May 2022. Neither parent was present, but
the mother’s counsel stated she had been authorized to submit the matter on the reports.
Counsel explained that her client understood A.D. was well-cared for in the home she had
been in since before the dependency was initiated, and hoped she could continue “some
sort of relationship” with A.D. going forward.
J.D.’s counsel reported that she had not been in contact with him since the
12-month review hearing. She objected to the termination of J.D.’s parental rights “for
the record” because she was “sure that my client would not want his parental rights
terminated.”
The court found there was clear and convincing evidence that A.D. was
adoptable, terminated parental rights, and ordered a permanent plan of adoption.
DISCUSSION
“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.)
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
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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.).)
In furtherance of ICWA, California law places “an affirmative and
continuing duty” on both the court and the child welfare agency—in this case SSA—“to
inquire whether a child for whom a petition under Section 300, 601, or 602 may be or has
been filed, is or may be an Indian child.” (§ 224.2, subd. (a); In re Isaiah W., supra,
1 Cal.5th at p. 9 [§ 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 [federal
Bureau of Indian Affairs]”].)
If a child is taken into SSA custody, the duty to inquire about Indian status
(i.e., “whether the child is, or may be, an Indian child and where the child, the parents, or
Indian custodian is domiciled”) extends not only to “the child [and] parents,” but also to
“the legal guardian, Indian custodian, extended family members, others who have an
interest in the child, and the party reporting child abuse or neglect.” (§ 224.2, subd. (b).)
“At the first appearance in court of each party, the court shall ask each
participant present in the hearing whether the participant knows or has reason to know
that the child is an Indian child. The court shall instruct the parties to inform the court if
they subsequently receive information that provides reason to know the child is an Indian
child.” (§ 224.2, subd. (c).)
6
In this case, J.D. argues SSA erred by limiting its inquiry about A.D.’s
potential Indian heritage to her parents and failing to inquire of her extended family
members on both sides. He further contends the court erred by failing to directly inquire
of each parent in court, and to advise them as required by statute. We agree.
SSA concedes the error in failing to extend its inquiry to other family
members and interested parties. Based on our prior published cases, In re E.V. (2022)
80 Cal.App.5th 691, 697-698 (In re E.V.), and In re A.R. (2022) 77 Cal.App.5th 197, 206
(In re A.R.), SSA concedes that a remand is required to address the error.
SSA nonetheless argues that the disposition of this appeal should be a
conditional affirmance of the judgment terminating parental rights, with a remand to the
juvenile court with instructions “to comply with the inquiry and notice provisions of
ICWA and California law,” rather than the conditional reversal we ordered in both In re
E.V. and In re A.R. SSA cites In re Antonio R. (2022) 76 Cal.App.5th 421, 436, as
authority for the conditional affirmance disposition in this situation, but the case does not
explain how a disposition “affirming” a judgment could result in a transfer of jurisdiction
back to the juvenile court. Nor does SSA explain why a conditional affirmance would be
advantageous in any other way. We will consequently adhere to the language of our prior
dispositions.
DISPOSITON
The judgment is conditionally reversed, and the case is remanded with
instructions—to both SSA and the juvenile court—to conduct a full initial ICWA inquiry
as soon as possible. If that inquiry reveals evidence of Native American heritage, then
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the additional ICWA requirements must be complied with. If it does not, then the
judgment shall be reinstated forthwith.
GOETHALS, J.
WE CONCUR:
O’LEARY, P. J.
MOTOIKE, J.
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