Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF-113456, Michael J. Rushton, Judge.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Ramirez, P.J.
P.D. (mother), the mother of A.R.1 and A.R.2, and A.R.1 and A.R.2 (individually child, collectively children) by the same presumed father, A.R. (father), appealed from a judgment obtained by respondent Riverside County Department of Public Social Services (respondent) terminating her parental rights to them. (Welf. & Inst. Code, § 366.26.) Mother filed an opening brief contending that the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.; § 224 et seq.; Cal. Rules of Court, rule 5.480 . As to the inquiry and notice requirements, see §§ 224.2, 224.3; rule 5.481(a), (b).) On October 22, 2009, the parties filed a joint application and stipulation for reversal with directions to order respondent to make proper inquiry, to comply with ICWA notice requirements, and to either conduct a new hearing under section 366.26 in conformity with ICWA if a tribe determines that the children are Indian children, or (2) reinstate all previous findings and orders if no response is received under ICWA or the tribes determine that the children are not Indian children.
All section references are to the Welfare and Institutions Code unless otherwise specified.
All rule references are to the California Rules of Court.
In view of father’s presumed paternity, we will refer to the children collectively, since both children or neither child are Indian children depending on their father’s ancestry. If for any reason this assumption proves incorrect, then this opinion and its disposition should be interpreted to enforce ICWA as to either child who may be an Indian child.
After our own careful review of the entire record, we conclude that the juvenile court did fail to comply with the inquiry and notice requirements of ICWA, and we reverse with the requested directions.
FACTS
The detention report filed December 8, 2006, contained three statements about the children’s Native American ancestry, each on its own line. “The Indian Child Welfare Act does or may apply.” “Per prior CWS/CMS history there is no Native American ancestry.” “I was unable to explore ICWA with the father due to the fact that he is currently incarcerated.” Nevertheless, the report incongruously requested a finding that “ICWA does not apply to this case.”
“CWS/CMS” is the Child Welfare Services/Case Management System. It is a statewide case information system used by child welfare services agencies to manage their cases and provide statewide access to information about children receiving services. (See § 16501.5-16501.7.)
At the detention hearing on December 11, 2006, the court asked, “Is the[re] any American Indian blood in your family?” Mother replied, “Not that I’m aware of, ma’am.” The court asked, “Dad’s side either?” Mother answered, “I don’t believe so, either, ma’am.” The court stated, “Court finds ICWA does not apply.” The children’s counsel interjected, “Can we reserve?” The court replied, “Until Dad tells us differently.” The minutes correctly recorded the court’s reservation of jurisdiction on the application of ICWA. Mother filed a parental notification of Indian status (Judicial Council Forms, former form JV-130, now ICWA-020) on December 11, 2006, confirming her testimony that she had no Native American ancestry to her knowledge. The record contains no indication that a parental notification form was ever mailed to father.
Father never told the court about his ancestry and was never asked in part because of intermittent periods of incarceration throughout the proceedings. However, father did attend the combined and contested jurisdictional and review hearing on August 7, 2007, but no inquiry was made. At that hearing, nevertheless, apparently following a recommendation in a report, the court found ICWA did not apply. Thereafter, father’s ancestry was not mentioned except inferentially by repeated denials ICWA applied.
Parental rights of both parents were terminated on June 2, 2009, and mother appealed.
STIPULATION
Code of Civil Procedure section 128, subdivision (a)(8), permits a stipulated reversal in a dependency case when, as in this case, the parties agree that reversible error occurred and the stipulated reversal will expedite the final resolution of the case on the merits. (In re Rashad H. (2000) 78 Cal.App.4th 376, 380-382 [stipulated reversal of order terminating parental rights advanced, on balance, the interests of the adoptive parents by avoiding delay].)
In the stipulation the parties acknowledge appellant’s contention and agree that the judgment terminating parental rights should be reversed with directions that the juvenile court order the respondent “to make proper inquiry as to possible Native American heritage with respect to the father” and “to comply with the notice provisions of the ICWA and related federal and state law, if the [respondent’s] investigation indicates that the father may have Indian heritage....” This reversal with directions is appropriate given respondent’s and the court’s omission of the necessary inquiry into the father’s ancestry. (See, e.g., In re A.B. (2008) 164 Cal.App.4th 832, 839, 843 [failure to ask a parent about Indian heritage requires limited reversal absent exceptional circumstances].)
The stipulation provides essentially that, after proper inquiry and notice, the court will make the appropriate finding that, if ICWA applies, a new section 366.26 hearing should be held in conformity with applicable ICWA provisions, but that, if ICWA does not apply, the original findings and orders from the previous section 366.26 hearing be reinstated. This is the disposition required when the juvenile court fails to comply with the ICWA inquiry requirements. (See, e.g., In re A.B., supra, 164 Cal.App.4th at p. 839 [directions for appropriate inquiry and notice as required].)
Although only the mother appealed, the parental rights termination order is reversed as to both mother and father to avoid reliance on a defective termination of the father’s parental rights in A.R.1’s and A.R.2’s prospective adoption proceedings. (Compare Estate of McDill (1975) 14 Cal.3d 831, 840 [reversal as to nonappealing party where judgment “‘so interwoven and connected’”].)
DISPOSITION
The order terminating parental rights is reversed as to both parents.
The juvenile court is directed to order respondent: (1) to inquire whether father has, or may have, any Native American ancestry (see rule 5.481(a)(1)-(3)); (2) if, after this initial inquiry, respondent knows, or has reason to know, that the children are or may be Indian children (see rule 5.481(a)(5) [circumstances that may provide reason to know]), to make further inquiry by interviewing father and father’s family and extended family, and by contacting the Bureau of Indian Affairs, California Department of Social Services, Indian tribes, and anyone else who may be expected to have information concerning the children’s membership or eligibility (see rule 5.481(a)(4)); (3) if, after completion of the inquiry ordered in clauses (1) and (2), respondent knows, or has reason to know, that the children are Indian children, to provide notice as required by ICWA (see § 224.2; rule 5.481(b)); (4) if, after the initial or further inquiry ordered in clauses (1) and (2), respondent does not know, and does not have reason to know, that the children are or may be Indian children, to notify the parties and the court of respondent’s findings and the reasons for them.
If respondent notifies the parties and the court as ordered in clause (4), the juvenile court is directed to determine whether proper inquiry has been made in compliance with clauses (1) and (2); and, if the juvenile court so determines, to find that the children are not Indian children and that ICWA does not apply.
If, after respondent’s giving notice as required in clause (3), a determinative response is received within 60 days after notice was received that both children are or are not Indian children, the juvenile court is directed to find in accordance with the response. If after 60 days from receipt of notice no determinative response is received, the juvenile court is directed to determine whether proper inquiry has been made in compliance with clauses (1) and (2), and whether proper notice was provided in compliance with clause (3). If the juvenile court so finds, then the juvenile court is directed to find that the children are not Indian children and that ICWA does not apply. (See § 224.3, subd. (e).)
If the juvenile court finds that the children are not Indian children and that ICWA does not apply, it is directed to reinstate the original order terminating parental rights.
If the juvenile court finds that the children are Indian children and that ICWA does apply, it is directed to set a new section 366.26 hearing and to conduct all further proceedings in compliance with the ICWA and all related federal and state law.
Pursuant to the parties’ stipulation, the clerk of this court is directed to issue the remittitur immediately. (Rule 8.272(c)(1).)
We concur: McKinster, J., King, J.