Opinion
A165360
02-14-2023
In re R.P., A Person Coming Under the Juvenile Court Law. v. S.P., Defendant and Appellant. NAPA COUNTY HEALTH & HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. 22JD000017)
SIMONS, J.
In this dependency action, S.P. (Father) appeals the juvenile court's disposition order. Father's sole argument on appeal is the juvenile court failed to ensure an initial inquiry as to Father's Indian ancestry as required by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). The Napa County Health and Human Services Agency (Agency) concedes the error but the parties dispute the appropriate disposition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We omit facts not relevant to this appeal.
In September 2021, the Placer County Department of Health and Human Services (Placer Agency) filed a Welfare and Institutions Code section 300 petition alleging S.W. (Mother) abused methamphetamine and left R.P. (Minor), then three months old, unsupervised in a car for over an hour.Father was incarcerated due to a domestic violence incident involving Mother.
All undesignated section references are to the Welfare and Institutions Code.
Mother is not a party to this appeal.
Mother told the Placer Agency she was a registered member of the Citizen Potawatomi Tribe (Tribe) and the Tribe confirmed Minor was eligible for membership. A Tribe representative appeared at the December 2021 jurisdiction hearing and the court found ICWA applied. Minor was placed with a maternal aunt, an ICWA-compliant placement approved by the Tribe.
The Placer Agency was unable to interview Father, who was released from prison in December 2021, but did interview the paternal grandmother. There is no evidence the Placer Agency asked the paternal grandmother about Indian ancestry.
In January 2022, the case was transferred to Lake County, where Mother was then living. There is no evidence the child welfare agency or court inquired as to Father's Indian ancestry. In February, after Mother reported she was moving to Napa County, the case was transferred to Napa County. The Agency interviewed Father multiple times and interviewed the paternal grandmother, but there is no evidence either were asked about Indian ancestry.
An ICWA expert testified at the May 2022 contested disposition hearing. The expert testified active efforts had been made to prevent the breakup of the Indian family and agreed with the Agency that removal from both parents was necessary for Minor's safety. The expert agreed with the Agency's recommendations to remove Minor and provide reunification services to both parents. At a previous hearing, the expert stated the Tribe would be opposed to bypassing services for Father, a recommendation the Agency was apparently considering at that time.
The juvenile court ordered Minor removed with reunification services to both parents. This appeal followed.
DISCUSSION
Father argues the failure to ask Father or the paternal grandmother about Indian ancestry was prejudicial and this court should conditionally reverse. The Agency concedes the error but urges us to follow a recent case, In re S.H. (2022) 82 Cal.App.5th 166, and affirm.
In In re S.H., the mother appealed from the dispositional order, arguing ICWA inquiry failure, and the agency conceded the failure. (In re S.H., supra, 82 Cal.App.5th at pp. 170-171.) The court held, "when a social services agency accepts its obligation to satisfy its inquiry obligations under ICWA, a reversal of an early dependency order is not warranted simply because a parent has shown that these ongoing obligations had not yet been satisfied as of the time the parent appealed." (Id. at p. 171.) Instead, if "the social service agency acknowledges error and we thus have reason to believe that its duty of inquiry will be satisfied[,] ... we see no reason to set aside the jurisdiction/disposition order-even conditionally" because "the duty to inquire is a continuing one [citing § 224.2, subd. (a)]" and a conditional reversal "may lead to unnecessary additional hearings, delay, and the micromanagement of further ICWA inquiry." (Id. at pp. 176-177.) The court affirmed the appealed-from order with the understanding that "[t]he Agency must comply with its broad duty to comp[l]ete all appropriate inquiries and apprise the court, and the court has a continuing duty to ensure that the Agency provides the missing information." (Id. at pp. 179-180.)
Father argues In re S.H. is distinguishable because in that case there had been some inquiry, the parents were "motivated" to find Indian ancestry, and the court's finding regarding Indian ancestry was not final. Any differences are not material. We agree with and follow In re S.H.
The Agency's request to submit additional evidence regarding postjudgment events (Code Civ. Proc., § 909) is denied as moot.
DISPOSITION
The juvenile court's order is affirmed.
We concur. JACKSON, P. J. WISEMAN, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.