Opinion
D073042
02-07-2018
In re J.L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.L., Defendant and Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John Philips, Chief Deputy, and Lisa Maldonado, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J506651B) APPEAL from an order of the Superior Court of San Diego County, Ronald L. Johnson, Judge. Reversed with directions. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John Philips, Chief Deputy, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
In this case the Minor, J.L., was taken into protective custody in January 2016. A petition was filed under Welfare and Institutions Code section 300, subdivisions (b) and (g). The Minor was removed from parental custody. Appellant Father was not located by the social worker until July 2017. Father made his first appearance in the case on September 12, 2017. By that time a permanency and planning hearing (§ 366.26) had been scheduled for October 31, 2017. Father's request for a continuance was denied. Following the section 366.26 hearing, the court terminated parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Father appeals contending the Agency failed to inquire regarding Father's native American ancestry as required by the Indian Child Welfare Act (25 U.S.C. § 1902 (ICWA); § 224 et seq.). Father does not raise any other issue regarding the termination of parental rights.
The Agency concedes error in that there was a failure to inquire as to Father's native American ancestry. Thus there was a failure to comply with ICWA and the relevant state statutes. The parties have stipulated to the immediate issuance of the remittitur upon reversal.
We have reviewed the record and agree the Agency and the court erred in proceeding with the section 366.26 hearing without complying with the requirements of ICWA. Accordingly, we are compelled to conditionally reverse the trial court's order.
Since no issue other than ICWA compliance has been raised, our reversal is for the purpose of permitting the Agency and the court to comply with ICWA. If a tribe is identified and comes forward to participate, the court must proceed in accordance with ICWA. If, after proper inquiry, it is determined that ICWA does not apply to this case the court shall reinstate its order terminating parental rights.
DISPOSITION
The order terminating parental rights is reversed and the case remanded for the court to comply with the requirements of ICWA. If upon proper inquiry it is determined that ICWA applies the court shall undertake further proceedings as required by ICWA. If it is determined that ICWA does not apply, the court shall reinstate the order terminating parental rights. The remittitur shall issue immediately. (Cal. Rules of Court, rule 8.272(c)(1).)
HUFFMAN, Acting P. J. WE CONCUR: BENKE, J. AARON, J.