Opinion
A167448
10-31-2023
N.L., Petitioner and Respondent, v. T.B., Objector and Appellant.
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FFL161177
HIRAMOTO, J. [*]
Appellant T.B. (Father) appeals a judgment terminating his parental rights to his now five-year-old son due to abandonment pursuant to Family Code section 7822, subdivision (a)(3). On appeal, he argues there is no substantial evidence that he left his son in care and custody of respondent N.L. (Mother) with the intent to abandon him. Father also contends the judgment must be reversed because the court failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Mother has not filed a responsive brief or otherwise appeared in the appellate proceedings. While we find that the order terminating Father's parental rights is supported by substantial evidence, we agree that the court's failure to comply with ICWA requires reversal of the order. Accordingly, we will conditionally reverse the order and remand for limited proceedings to ensure compliance with ICWA.
Family Code section 7822, subdivision (a)(3) authorizes a proceeding to terminate parental rights where "[o]ne parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication from the parent, with the intent on the part of the parent to abandon the child." All further statutory references are to the Family Code.
Background
In September 2018, at the time of the child's birth, Mother and Father were no longer in a relationship, and Father was subject to a three-year domestic violence restraining order. In October 2018, in response to a petition for custody and visitation filed by Father, the court awarded Mother sole legal and physical custody and provided Father with one hour of supervised visitation per week.
Father visited with his son three times in November 2018 at the Vacaville Visitation Center but has not had any contact with his son since. Shortly after the visits, Father objected to the location of visitation center because it was in a church, which he claimed conflicted with his religious beliefs. He also claimed that he lacked the financial means to pay for the visitation.
In February 2019, the court modified the custody order to award physical custody to Mother and legal custody to both parents. The order provided for two hours supervised visitation per week for Father and gave Father authority to identify an alternative location for supervised visitation if he was unhappy with the prior location.
At a review hearing on June 4, 2019, the court found that Father had not participated in any supervised visits. The court modified the custody order to award Mother sole legal and physical custody and suspended Father's visitation. Father did not provide the court with alternative locations for visitation and later admitted he never did look for an alternative location for the visits. Father did not appear at the hearing.
On June 8, 2019, Father was arrested in San Mateo County on charges unrelated to the parties involved in the present proceeding. After being charged with various offenses, including kidnapping, Father pled no contest to a felony violation of a domestic violence restraining order. Father was in custody from June 8, 2019 through September 16, 2019.
In September 2019, Father filed a request for visitation. His request was taken off calendar, however, on December 9, 2019 when he failed to appear.
During the Covid-19 pandemic, Father lived in various places, including New Mexico, San Francisco, and Los Angeles. Father missed custody hearings when he traveled out of state during the pandemic and after being removed from his home in Fairfield due to the issuance of a restraining order.
The restraining order requiring Father to leave his home in Fairfield listed a person other than Mother as the protected party.
Eighteen months after he filed a request for visitation, in February 2021, Father placed a letter to his son in Mother's mailbox. Mother reported this incident to police, and defendant was found to have violated the restraining order by coming to her home. On September 7, 2021, Mother was granted a permanent renewal of the restraining order and the child was added as a protected party on the new, permanent order. Father appeared briefly at the hearing on the renewal of the restraining order and requested visitation. A hearing was set for October 19, 2021, but was taken off calendar when Father failed to appear.
Although Mother testified that the child was added as a protected party under the permanent restraining order entered on September 7, 2021, the restraining order contained in the record does not list the child as a protected person. Nonetheless, the trial court's order dated March 9, 2023 recited that the child was added to the order at that time, so for purposes of this appeal, we will assume Mother's representation at the hearing was correct. We also note that the record includes two additional restraining orders: a criminal restraining order, endorsed filed January 8, 2019, under a criminal case number, which names both Mother and child as protected parties but appeared to allow for visitation pursuant to family court orders and an amended domestic violence restraining order, filed on February 9, 2019, under the case number assigned to Father's custody and visitation petition, which does not name the child as a protected party. Neither party, however, referenced either order at the hearing on Mother's petition, and Father has not cited to either on appeal.
In February 2022, Father filed another request to modify custody and visitation. On May 2, 2022, at the hearing on his request, Father's attorney again represented that Father was unwilling to go to the visitation center based upon his religious beliefs. Father requested that the child be enrolled in play therapy and that visitation be supervised by the child's therapist. The court agreed to order supervised therapeutic visitation and directed Father's attorney to establish the therapy sessions. In response to Mother's claim that Father continued to violate the restraining order, the court issued a no contact order and directed that all contact between Father and son be at the discretion of the child's therapist.
On July 18, 2022, Mother filed the present petition seeking to declare the child free from Father's custody and terminate his parental rights. The petition alleged that Father had left the child in her care and custody for more than a year without communication or support and with the intent to abandon the child within the meaning of section 7822, subdivision (a)(3).
The petition also sought to terminate Father's parental rights under section 7825, subdivision (a), which requires a showing that the parent has been convicted of a felony and that the facts of the crime are "of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child." The trial court rejected this ground. Accordingly, we omit from our statement of facts evidence presented at the hearing in support of this allegation.
On December 14, 2022, at the contested hearing on the petition, Mother reviewed the history of the case as set forth above and testified that she had not requested nor received any financial support from Father. Father testified that he did not initially participate in the court ordered visitation with his son because it took place in a church which conflicted with his religious beliefs. He also testified that he had difficulty paying for the supervised visits because he only received $900 a month in disability income. He explained that he did not appear in court to request alternate visitation between 2019 and 2022 because he was incarcerated for some of the time and was mostly homeless otherwise. He explained that after being awarded supervised therapeutic visitation in February 2022, he attempted to make arrangements with several providers but he was informed that such services were only available for children over 10 years old.
On March 10, 2023, the court issued its ruling on Mother's petition. The court found, among other things, that (1) Father had not had any contact with the child since the three visits in November 2018; (2) after objecting to the location of the supervised visitation center, the court granted Father the opportunity to find an alternative supervised visitation provider which he did not do; (3) Father did not financially support his son in any manner either directly or indirectly since his birth; and (4) the totality of Father's actions and inaction, coupled with his undisputed lack of any contact with his son for more than one year, demonstrates his intent to abandon the child. Based thereon, the court terminated Father's parental rights.
Father timely filed a notice of appeal.
Discussion
1. Termination of Parental Rights
Father contends there is no substantial evidence that he left his son in Mother's care and custody with the intent to abandon him. We disagree.
a. Applicable law
Under section 7822, subdivision (a)(3), a court may terminate the parental rights of one parent if that parent has left the child with the other parent for a period of one year with the intent to abandon the child. "The parent need not intend to abandon the child permanently; it is sufficient the parent had the intent to abandon the child during the statutory period." (In re E.M. (2014) 228 Cal.App.4th 828, 839.) Although the statute requires that "the one-year statutory period of abandonment must occur prior to the filing of the termination petition," does not require that the period "immediately preced[e] the filing of the petition." (Adoption of A.B. (2016) 2 Cal.App.5th 912, 919.)
We apply the substantial evidence standard of review to the trial court's findings under section 7822. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010.) "Although a trial court must make such findings based on clear and convincing evidence [citation], this standard of proof' "is for the guidance of the trial court only; on review, our function is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard." '" (Ibid.).
b. Substantial evidence supports the finding that Father voluntarily left his son with Mother for the requisite time period.
Father argues he did not voluntarily leave his son with Mother because the separation was the result of the custody order. We disagree.
"In determining the threshold issue of whether a parent has 'left' his or her child, the focus of the law is 'on the voluntary nature of a parent's abandonment of the parental role rather than on physical desertion by the parent.'" (In re Marriage of Jill &Victor D. (2010) 185 Cal.App.4th 491, 504.) Thus, "a parent will not be found to have voluntarily left a child in the care and custody of another where the child is effectively 'taken' from the parent by court order." (Ibid.) Courts, however, have "long agreed" that "the leaving-with-intent-to-abandon-the-child requirement of section 7822 can be established by evidence of a parent's voluntary inaction after an order granting primary care and custody to the other parent. [Citations] [¶] Simply stated, 'nonaction of the parent after a judicial decree removing the child may convert a [judicial] "taking" into a "leaving" [of a child by the parent].'" (Ibid.)
In this case, the record reflects that Father had no contact with his son, and failed to appear at custody and visitation hearings during the three year period between February 2019 and February 2022. (See In re Marriage of Jill &Victor D., supra, 185 Cal.App.4th at pp. 501-502 [statutory period for abandonment commences at the time care and custody is relinquished voluntarily by parent, not necessarily at the point at which child the child came into the care and custody of the other parent].) In February 2019, Father was awarded shared legal custody of his son with weekly visitation. In the same order, the court authorized Father to submit for approval a different location for supervised visitation based on his objections to the Vacaville Visitation Center. The court's written order expressly advised Father that failure to utilize supervised visitation for a period of greater than 60 days would result in the suspension of the visitation order pending further hearing. Father later admitted that he never looked for alternative locations. Father failed to appear at the next review hearing on June 4, 2019. The court modified the custody order to give Mother sole legal and physical custody and suspended visitation after finding that Father failed to participate in visitation. Father filed a request in September 2019 to modify the custody and visitation order, but failed to appear at the December 2019 hearing set on his own request. On September 7, 2021, Father appeared at a hearing on Mother's request to renew the family law restraining order and orally requested visitation, but failed to appear on October 19, 2021 at the hearing set at his request. Father did not file a second petition for custody and visitation until February 2022. Father's complete lack of visitation with his son, his failure to comply with conditions that would have allowed contact, and failure to attend any hearings regarding custody and visitation thus spanned three years.
The courts recognize a parent's failure to attend court hearings and failure to comply with conditions that would have allowed contact with one's child as evidence that the parent voluntarily surrendered their parental role and left the child within the meaning of section 7822. (See Marriage of Jill &Victor D., supra, 185 Cal.App.4th at p. 506 [father's failure to attend court hearings, to seek modification of the court order, or to comply with the conditions that would have allowed him to contact the minors was "substantial evidence that father voluntarily surrendered his parental role and left the minors within the meaning of section 7822"]; In re Amy A. (2005) 132 Cal.App.4th 63, 70 [substantial evidence supported finding that the father "left" the child because "repeated inaction in the face of the custody order" demonstrated he "voluntarily surrendered his parental role"].)
Defendant cannot rely on the restraining order or his periods of incarceration to establish his leaving was involuntary. As Father acknowledges, "the domestic violence restraining order and the periods of incarceration were due to his actions." (See In re H.D. (2019) 35 Cal.App.5th 42, 51 ["a parent voluntarily abandons their parental role if they choose to commit criminal acts that result in incarceration"].) We note that Father's incarceration from June 8, 2019 to September 16, 2019 would not have precluded him from attending the family court hearings on June 4, 2019 and in December 2019. While the record is somewhat unclear regarding the exact legal limitations placed on Father's ability to communicate with his child by the various restraining orders, it is undisputed that no restraining order precluded his participation in the court-ordered supervised visitation.
Father's reliance on the Covid-19 pandemic and his homelessness is also unavailing. Father's parental inaction and failure to visit his son began a solid year before the pandemic began (February 2019 to February 2020). In addition, the trial found that Father missed court hearings in the custody case for reasons including traveling out of state during Covid-19. Without minimizing the obstacles that Father's homelessness surely presented, he is not without responsibility for some of that circumstance. Father explained at the hearing on Mother's petition that he became homeless after a temporary restraining order was entered against him requiring that he move out of his five bedroom home in Fairfield.
Father cites In re Jacklyn F. (2003) 114 Cal.App.4th 747, for the proposition that as of October 23, 2018, the child's custody "was a matter of judicial decree, not abandonment" by Father. In that case, the child was removed from Mother's custody by court order and thereafter, did not participate in court ordered visitation for a period of years. As a result of a restraining order against her, Mother's communication with her child was restricted to sending letters by mail to the child's therapist, which she did. (Id. at pp. 750-752.) The court held that in the face of a court order removing a child from the parent's custody, Mother's conduct "which included sending 'stacks' of letters to the minor but failing to visit her-did not constitute 'parental nonaction' amounting to a leaving." (Id. at p. 756.) The court was careful to state, however, "[A]lthough we do not discount the possibility that, under different circumstances, it might be proper to conclude that a parent has 'left' a child within the meaning of section 7822 despite court intervention, we conclude this is not such a case." (Ibid.) In contrast, the record here reflects that after Father was granted supervised visitation in February 2019 and through February 2022, he never looked for an alternative location for his custody visits; he did not participate in a single visit; he delivered only one letter to his son, filed two requests for visitation, and missed all court hearings in his own custody case despite being out of jail. There is substantial evidence that it was not a judicial decree, but Father's actions and inaction that support the trial court's finding that he "left" his son with Mother withing the meaning of section 7822 for the statutory period.
c. Substantial evidence establishes Father's intent to abandon his son.
Section 7822, subdivision (b), provides, "The failure to provide . . . support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent . . . ha[s] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent ...." The question"' "whether [an] intent to abandon exists and whether it has existed for the statutory period is a question of fact for the trial court, to be determined upon all the facts and circumstances of the case."' [Citations.] In making this determination, the court 'must objectively measure the parent's conduct, "consider[ing] not only the number and frequency of his or her efforts to communicate with the child, but the genuineness of" the parent's efforts.'" (In re Aubrey T. (2020) 48 Cal.App.5th 316, 327.) The court in In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212 recognized, "When the evidence permits the conclusion of only token efforts to communicate with the child, 'unless the presumption of abandonment raised by [that] fact has been overcome as a matter of law, the findings and order of the trial court under [section 7822, subdivision (b)] must be sustained.' "
The trial court found that, collectively, Father's failure to locate a suitable alternative location for visitation, failure to follow through with his requests for custody, failure to provide any financial support for his son, and his lack of contact with his son for well over a year demonstrated his intent to abandon his son. Father challenges the sufficiency of this evidence to establish his intent.
Father acknowledges the rebuttable presumption of intent to abandon under section 7822 but argues that "[w]hile it is true that [he] had not provided support or communicated with [his son] during this timeframe, this should not give rise to the presumption" because Mother did not make a request for financial support and the restraining order restricted his ability to communicate with his son. Alternatively, he argues that even if the presumption did apply, his actions rebutted the presumption. He asserts, "While he did not always follow through with his efforts to seek visitation after [his son's] birth, he continued to make efforts as evidenced by the most recent request that was filed in February 2022."
Given Father's apparent financial hardship, we agree that his failure to provide financial assistance for his son does not demonstrate an intent to abandon his child. (See In re H.D., supra, 35 Cal.App.5th 42, 53 ["A parent's failure to support a child when they do not have the ability to do so does not, by itself, prove intent to abandon"]; In re Cattalini (1946) 72 Cal.App.2d 662, 667 [when a parent's failure to provide financial support "was by reason of the inability to do so, less evidence than under other circumstances would naturally be required to overthrow [the] presumption" of intent to abandon].)
Father's failure to communicate, however, gave rise to a presumption of intent to abandon and Father's actions did not rebut that presumption. We acknowledge that Father's ability to communicate with his son was limited by various restraining orders, however, supervised visitation remained available to him throughout the time period from February 2019 onward. Father's assertion that he was unable to participate in supervised visitation at the Vacaville Visitation Center due to a conflict with his religious beliefs does not excuse his failure to make alternative arrangements as allowed by the court's February 2019 order. His admitted failure to look for alternative supervised visitation locations constitutes evidence of intent to abandon.
Contrary to Father's suggestion, he was not entitled to an "obstacle free path to communication" with his son, particularly when it was his conduct that gave rise to the purported obstacles. He merely needed to demonstrate that he took more than token action that was inconsistent with an intent to abandon. (See, e.g., In re Jacklyn F., supra, 114 Cal.App.4th at p. 756 [no intent to abandon where mother sent "stacks" of letters]; In re H.D., supra, 35 Cal.App.5th at p. 52 [no intent to abandon where undisputed evidence established that mother repeatedly tried to maintain contact with her children but was prevented by father from doing so]; In re Aubrey T., supra, 48 Cal.App.5th at p. 328 [no intent to abandon child with maternal grandparents where father communicated regularly with mother to arrange visits and did in fact visit 10 times within the one year period].) Father was offered a means of communication - supervised visitation - and it was incumbent on him to use, or at least attempt to use, the means of communication provided. His failure to do so evidences an intent to abandon.
Father's reliance on his request for visitation, filed February 2022, is also misplaced. The relevant question is whether Father demonstrated an intent to abandon his son for any one-year period. The evidence establishes an intent to abandon, at a minimum, for a three-year period from February 2019 to the filing of his petition in February 2022. Father's belated attempt to secure visitation does not rebut the presumption of intent to abandon during the relevant time period. For the same reason, Father's attempts to locate a therapist to supervise visitation after February 2022 are irrelevant because they took place outside the relevant time period.
Adoption of A.B., supra, 2 Cal.App.5th at pages 923-924 is instructive. In that case, the evidence established that the father was not present for the birth, but visited the hospital two or three hours later, and paid child support, but, with the exception of a few initial visits, had no contact with his child for four years. (Id. at pp. 915-916.) After resolving his prior "drinking problem[]," the father attempted to establish visitation. (Id. at p. 916.) The petition to terminate his rights was filed shortly thereafter. The court did not consider the father's attempts at communicating with the child in the months preceding the filing of the petition because they were outside the relevant time period. The court explained, "Although [the father] may not have intended to abandon [his child] permanently and his efforts toward selfimprovement were admirable, the law does not require that [the child's] life be kept in limbo based on such circumstances." (Id. at p. 923.) The court found that substantial evidence supported a finding that the father intended to abandon the child in the well over one year period preceding his rehabilitation and attempt to re-establish contact with the child. (Id. at pp. 923-924.)
The inadequacy of Father's efforts to rebut the presumption of intent to abandon in this case mirrors the evidence faced by the court in Adoption of A.B., supra, 2 Cal.App.5th at pages 916-917, when it held that a biological parent made only "token" efforts to support or communicate with a child. Like the father in Adoption of A.B., in this case, Father had a few visits shortly after the birth of his child and then no communication with his child for a period of three years. To the extent any of Father's actions such as the delivery of a single letter may constitute attempts to communicate, they are token attempts and do not defeat the presumption. (§ 7822, subd. (b) ["If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents."].) Accordingly, substantial evidence supports a finding that Father intended to abandon his son within the meaning of section 7822, subdivision (a)(3).
2. ICWA
Father contends the order terminating his parental rights must be reversed because the court failed to comply with its duty under ICWA and related California provisions to inquire as to whether his son is or may be an Indian child. We agree.
Because ICWA uses the term "Indian" and "Indian child" we do so on occasion as well, not out of disrespect, but because of the need for clarity and consistency, even though we recognize that other terms, such as Native American, Indigenous American, or American Indian are preferable. (In re A.A. (2023) 88 Cal.App.5th 393, 396.)
a. Applicable Law
"' "The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. [Citations.] A major purpose of the ICWA is to protect 'Indian children who are members of or are eligible for membership in an Indian tribe.'"' [Citation.] An' "Indian child"' is a child who 'is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.'" (Adoption of M.R. (2022) 84 Cal.App.5th 537, 541.)
The ICWA applies to proceedings under section 7822 to terminate a parent's rights. (Adoption of M.R., supra, 84 Cal.App.5th at p. 541; California Rules of Court, rule 5.480.) In this context, "the court, petitioner, and court-appointed investigator have an affirmative and continuing duty to inquire whether the child is, or might be, an Indian child." (Adoption of M.R., supra, 84 Cal.App.5th at p. 541; rule 5.481(a).) Under rule 5.481(a)(1), the party seeking a declaration freeing a child from the custody or control of the other parent must complete the required ICWA form and attach it to the petition. Under rule 5.481(a)(2), at the first appearance in a section 7822 proceeding, "the court must: [¶] (A) Ask each participant present whether the participant knows or has reason to know the child is an Indian child; [¶] (B) Instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child; and [¶] (C) Order the parent, Indian custodian, or guardian, if available, to complete Parental Notification of Indian Status (form ICWA-020)." If the investigator or petitioner "knows or has reason to know or believe that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable." (Rule 5.481(a)(4).) "When there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court must confirm, by way of a report, declaration, or testimony included in the record that the agency or other party used due diligence to identify and work with all of the tribes of which there is reason to know the child may be a member, or eligible for membership, to verify whether the child is in fact a member or whether a biological parent is a member and the child is eligible for membership." (Rule 5.481(b)(2).) Once the court is satisfied with the inquiry, the court must make a finding as to whether the child is an Indian child and whether ICWA applies to the proceedings. (Rule 5.481(b)(3).)
All references to rules are to the California Rules of Court.
It is error for a court to fail to determine whether ICWA applies. (Adoption of M.R., supra, 84 Cal.App.5th at p. 541; rule 5.481(b)(3); see also section 7892.5 [requiring additional findings before termination of a parent's rights under section 7822 if child is an Indian Child].) "We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence." (Adoption of M.R., supra, 84 Cal.App.5th at p. 542.)
b. Factual Background
Shortly after the filing of her petition, Mother filed the required ICWA form indicating she had no known American Indian ancestry. At the hearing on Mother's petition, Mother testified that she did not believe the child had any American Indian ancestry and confirmed that he did not have any such ancestry from her side of the family. She testified that Father "would say, in conversation, that he was pretty sure that his dad had some Indian in him" but "[w]hen he would ask [the maternal grandmother] to validate his claims, she would just dismiss him." According to Mother, Father never claimed the paternal grandfather belonged to a particular tribe or that he was an enrolled member in any tribe.
Following Mother's testimony, Father's counsel questioned whether a sufficient "ICWA inquiry" had been conducted in this case but after it was determined that Mother had filed the required ICWA form, counsel indicated he was "satisfied" with the inquiry. Counsel advised the court that he would "voir dire [Father] later on ICWA." Father, however, was not questioned about possible American Indian ancestry when he testified, and the court did not make an ICWA finding at the hearing. The court's order also does not include a finding that ICWA is not applicable.
c. Analysis
The court's failure to make the required ICWA findings was error. Given the limited inquiry conducted, we cannot conclude the error was harmless.
The Courts of Appeal have taken varying approaches to assessing prejudice in this context, and our Supreme Court ultimately will decide that question. (In re Dezi C. (2022) 79 Cal.App.5th 769, 777-779, review granted Sept. 21, 2022, S275578.) In In re G.A. (2022) 81 Cal.App.5th 355, 362-363, review granted October 12, 2022, S276056, the trial court's failure to make the required ICWA findings was found harmless where the duty of inquiry was satisfied and there was no reason to believe the minor was an Indian child. (See Adoption of M.R., supra, 84 Cal.App.5th at pp. 542-543 [failure to make required findings at hearing on section 7822 petition was not harmless under standard set forth in In re G.A., supra, because only limited inquiry was attempted].) For purposes of this appeal, we apply this standard and conclude, as the court did in Adoption of M.R., that the error was not harmless.
Here, we acknowledge that Mother's testimony regarding Father's claimed American Indian ancestry was equivocal and arguably amounted to speculative family lore. (See In re J.L. (2017) 10 Cal.App.5th 913, 923 [a "general or vague" reference to possible American Indian heritage does not trigger a duty to conduct a "further inquiry" into a child's possible Indian ancestry]; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1468-1469 [speculative "family lore" does not give rise to duty to question relatives]; In re J.D. (2010) 189 Cal.App.4th 118, 125 [paternal grandmother's "vague, attenuated and speculative" statement did not give the dependency court reason to believe the minor may be an Indian child].) The court, however, made no such finding, and the record establishes that question of ICWA applicability was left entirely unresolved. Father was present in court and his attorney indicated that he would be questioned. The trial court's failure to question Father even minimally given Mother's testimony and, as required by rule 5.481(a)(2), precludes a finding the failure to make the required findings was harmless.
We therefore conclude that we must conditionally reverse and remand this case for compliance with ICWA. After conducting the required inquiry, the trial court shall enter findings on the applicability of ICWA to these proceedings. "[I]f it finds the child is not an Indian child, it shall reinstate the judgment. If it finds the child an Indian child, it shall conduct a new [hearing] and proceed in accordance with the ICWA." (Adoption of M.R., supra, 84 Cal.App.5th at p. 544.)
Disposition
The order terminating Father's paternal rights is conditionally reversed and remanded for the limited purpose of compliance with ICWA. If, after proper and complete inquiry, the minor is found not to be an Indian child falling within the provisions of ICWA, the judgment shall be reinstated. However, if a tribe determines the minor is an Indian child as defined by ICWA and the court determines ICWA applies to this case, the court is ordered to conduct a new hearing and proceed in accordance with ICWA.
WE CONCUR: STREETER, Acting P.J., GOLDMAN, J.
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.