California Cases March 07, 2023: Orange Cnty. Soc. Servs. Agency v. M.B. (In re Riley V.B.)

Case Description

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NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Orange County No. 21DP0396, Isabel Apkarian, Judge. Conditionally reversed.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

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

No appearance for the Minor.

OPINION

BEDSWORTH, ACTING P. J.

INTRODUCTION

M.B., the mother of minor Riley V.B., appeals from an order terminating her parental rights on the sole ground that the juvenile court and Orange County Social Services Agency (SSA) did not fulfill their duty of inquiry under the Indian Child Welfare Act (ICWA). M.B. claimed Cherokee ancestry, and she maintains that SSA should have made further inquiries among her siblings as to Riley's eligibility for ICWA consideration.

Although SSA inquired into Riley's ICWA status, it missed a potential source of information - M.B.'s four siblings. The relevant statute requires SSA to inquire of "extended family members," such as siblings. SSA had the information it needed to contact these people. Failing to do so means that SSA did not fulfill its statutory duty to inquire. We reverse for the limited purpose of allowing SSA to complete its ICWA inquiry.

So that resolution of Riley's status may not be delayed any longer, we suggest that the juvenile court give SSA 30 days to contact M.B.'s siblings. We also invite the parties to stipulate to an immediate issuance of the remittitur, pursuant to California Rules of Court, rule 8.272(c).

FACTS

M.B. has two older children who were or are dependents of the court. One child was adopted, and the other was due for a hearing at which termination of parental rights was recommended. As the problems leading to the removal of the two older

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children had not been resolved, SSA was concerned about the Riley's safety in M.B.'s care as a newborn.

Riley's meconium tested positive for amphetamine and methamphetamine at his birth in April 2021. He was detained in the hospital. Shortly after his birth, he went into foster care.

At the detention hearing of April 22, 2021, M.B. claimed to have Cherokee heritage. The court ordered SSA to continue to investigate and to notify the Cherokee tribe and the Bureau of Indian Affairs.

SSA interviewed M.B. on April 27, 2021. She stated she was not an enrolled member of any tribe, but claimed her father was 50 percent Cherokee and her grandmother (her father's mother) was 100 percent Cherokee. She also stated she had used another first name, Misty. She informed SSA she had four siblings with whom she had good relationships and with whom she was in frequent contact.

SSA then interviewed M.B.'s father, Michael B. Michael stated he was not an enrolled member of any tribe, but claimed Cherokee ancestry through his mother, Loretta H. He provided SSA with his own birth date and place and Loretta's birth year and place and her death year and place. Michael also stated that his sister had "paperwork verifying their Indian status," but that he did not know where she was. He was also unable to provide contact information for other relatives who could have information regarding Native American ancestry.

There are three federally recognized Cherokee tribes: Eastern Band of Cherokee Indians (Eastern Region), Cherokee Nation (Eastern Oklahoma Region), and United Keetoowah Band of Cherokee Indians in Oklahoma (Eastern Oklahoma Region).

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(87 Fed.Reg. 22552.) SSA contacted each tribe in May 2021, and each tribe responded either that M.B. was not a member or that Riley was not eligible for membership.

In May 2022, the court continued the hearing on terminating parental rights to allow SSA to conduct a further inquiry into Riley's ICWA status. SSA contacted M.B., who had no additional information. Michael B. did not return SSA's detailed phone message. SSA did not contact M.B.'s siblings.

At the hearing on June 23, 2022, the court found that ICWA does not apply and terminated M.B.'s parental rights.

DISCUSSION

M.B.'s sole claim of error on appeal is that SSA did not fulfill its duty of inquiry because it did not contact her four siblings to ask them about possible Indian ancestry. We review the juvenile court's determination of the adequacy of SSA's inquiry for substantial evidence. (Welf. &Inst. Code, § 224.2, subd. (i)(2).)

A child protection agency must conduct a "further inquiry" if the agency has "reason to believe" that a child is or might be an "Indian child." (§ 224.2, subd. (e)). "The required further inquiry includes (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child's membership or eligibility in a tribe. At this stage, contact with a tribe 'shall, at a minimum,' include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of ICWA notice, and 'sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.' [Citation.]" ( In re D.S . (2020) 46 Cal.App.5th 1041,1049, fns. omitted.)

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If the further inquiry gives the agency a "reason to know" that the child is an Indian child, then the relevant tribe must be given formal notice. If, on the other hand, a "proper and adequate" inquiry does not discover a "reason to know" that the child is an Indian child, the juvenile court may make a finding that ICWA does not apply. ( In re D.S., supra, 46 Cal.App.5th at p. 1050; see also In re Austin J. (2020) 47 Cal.App.5th 870, 884 [duty of notice narrower than duty of inquiry].)

"A family member's belief that a child may have Indian ancestry or heritage must be investigated. The duty to inquire 'obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child." [Citations.].) The agency's duty to inquire expressly includes asking 'extended family members' whether they know or have reason to know that the child is an Indian child. (§ 224.2, subd. (b).)" ( In re G.H. (2022) 84 Cal.App.5th 15, 29-30.)

SSA limited its inquiry to M.B.'s father. But M.B. has four siblings with whom she is in weekly contact. The siblings could have additional information regarding Native American ancestry that M.B. does not have. They also might know the whereabouts of the aunt with "paperwork verifying their Indian status," which could also shed light on Native American ancestry. It was worth a few phone calls to find out. Contacting the tribes was a good idea but not enough in and of itself.

In In re E.V. (2022) 80 Cal.App.5th 691, this court found that SSA had not conducted an adequate inquiry into a child's Native American ancestry. Our solution was to conditionally reverse the order terminating parental rights to allow compliance with ICWA. If ICWA did not apply, the order was to be reinstated. ( Id. at p. 701.) We employ the same solution in this case.

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DISPOSITION

The order terminating parental rights is conditionally reversed and remanded to the juvenile court for the limited purpose of allowing SSA to comply with ICWA. If after SSA has complied with applicable inquiry and notice requirements the court determines that ICWA does not apply, the order shall be reinstated. We suggest that the court allow SSA 30 days to conduct the inquiry, subject to prevailing circumstances. We also invite the parties to stipulate to an immediate issuance of the remittitur, pursuant to California Rules of Court, rule 272(c).

WE CONCUR: SANCHEZ, J. DELANEY, J.

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