Opinion
D071185
02-14-2017
In re Emily M. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ARTHUR M., Defendant and Appellant.
Lelah S. Fisher, under appointment by the Court of Appeal for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Daniela Davidian, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NJ4936BC) APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Judge. Reversed and remanded with directions. Lelah S. Fisher, under appointment by the Court of Appeal for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Daniela Davidian, Deputy County Counsel for Plaintiff and Respondent.
Arthur M. appeals from orders terminating his parental rights to his daughters, Emily M. and Christina M., under Welfare and Institutions Code section 366.26. He contends the juvenile court erred by terminating parental rights in violation of the inquiry and notice provisions of the Indian Child Welfare Act, title 25 United States Code section 1901 et seq. and section 224 et seq. (together, ICWA). Arthur asserts he has Chippewa, Cherokee and Blackfeet heritage. He submitted an ICWA long form but it was missing pertinent information the social worker may have obtained from interviewing the paternal grandmother and other relatives. As a result, inadequate notice was sent to the tribes. In addition, the San Diego County Health and Human Services Agency (Agency) did not send notice to two of the Chippewa tribes.
Unspecified statutory references are to the Welfare and Institutions Code. --------
The Agency acknowledges the juvenile court did not comply with the inquiry and notice provisions required by ICWA. The parties stipulate to reversing the juvenile court finding the children were not Indian child within the meaning of ICWA, conditionally reversing the judgment terminating parental rights, remanding the matter to the juvenile court with direction to ensure proper ICWA inquiry and notice, and the issuance of an immediate remittitur in this matter.
We have reviewed the record and agree the Agency and the juvenile court did not comply with inquiry and notice provisions under ICWA. The juvenile court and the social worker have an affirmative and continuing duty in all dependency proceedings to inquire whether a dependent child is, or may be, an Indian child. (§ 224.3, subd. (a).) The circumstances that may provide reason to know the child is an Indian child include when a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe, or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of the tribe. (Id., subd. (b).) Any suggestion in the record that the child may have Native American ancestry triggers ICWA notice provisions. (In re D.C. (2015) 243 Cal.App.4th 41, 60.) A social worker who knows or has reason to know that the child is an Indian child is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members, to gather the information required for notice. (§ 224.3, subd. (c); In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)
The Agency concedes, and the record shows, the social worker did not make a full inquiry regarding the possible Indian status of the children. When the children were detained, Arthur informed the social worker he had Chippewa, Cherokee and Blackfeet heritage. The social worker was in contact with the paternal grandmother and other relatives but did not ask them for information necessary for adequate notice to the tribes. As a result, inadequate notice was sent to the tribes. The Agency did not notice two of the Chippewa tribes. Therefore, a limited remand is necessary to effect and document proper inquiry under ICWA. (In re J.N. (2006) 138 Cal.App.4th 450, 461-462.)
DISPOSITION
The order terminating parental rights is conditionally reversed. The case is remanded to the juvenile court with directions to vacate its finding that ICWA does not apply and complete notice in accordance with ICWA. The juvenile court shall direct the Agency to interview the paternal relatives. If, after proper inquiry, there is new information, the juvenile court shall direct the Agency to send notice to the Indian tribes. If, after proper inquiry and notice, the court finds that Emily and Christina are not Indian children, the order terminating parental rights and selecting adoption as the permanent plan shall be reinstated. If the juvenile court finds that the children are Indian children, the court shall proceed in conformity with ICWA. Remittitur shall issue immediately.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
AARON, J. /s/_________
IRION, J.