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San Diego Cnty. Health & Human Servs. Agency v. Marisa T. (In re A.R.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 7, 2020
No. D075987 (Cal. Ct. App. Jan. 7, 2020)

Opinion

D075987

01-07-2020

In re A.R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MARISA T., Defendant and Appellant.

Tracy De Soto, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ15378) APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Reversed and remanded with directions. Tracy De Soto, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Plaintiff and Respondent.

Marisa T. (Mother) appeals from the juvenile court's termination of parental rights over her daughter, A.R. Mother contends the San Diego County Health and Human Services Agency (Agency) did not fulfill its duty of inquiry as to A.R.'s presumed father (Father) under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.), and thus, the judgment must be reversed. The Agency concedes there was no inquiry made of Father into his possible Native American heritage and that the case should be remanded for compliance with ICWA. The parties have stipulated to the immediate issuance of remittitur. Accordingly, we conditionally reverse the judgment and remand for compliance with ICWA.

BACKGROUND

Given the sole issue on appeal, a detailed factual background is not necessary. A.R.'s dependency case initiated in Los Angeles County when she was about four months old. A.R. was living in Los Angeles County with her parents at the time. The juvenile court took jurisdiction under Welfare and Institutions Code section 300, subdivision (b), based on severe incidents of domestic violence perpetrated against Mother by Father, both while Mother was pregnant and in the baby's presence after A.R. was born. Father also had a history of alcohol and drug abuse, which fueled his abusive conduct. After A.R. was placed in the home of her maternal grandmother, who lived in San Diego County, the dependency case transferred to San Diego County Juvenile Court. The parents failed to progress in services, and the court terminated parental rights.

Further unspecified statutory references are to the Welfare and Institutions Code.

At the October 6, 2017 detention hearing, the Los Angeles County Juvenile Court elevated Father to presumed father status. Regarding ICWA applicability, the court stated on the record: "I.C.W.A. is a no as to the mother. I don't know as to the father since he is not here." Indeed, Father was not present at the hearing, had not made any court appearances, and had not filed a form ICWA-020. Mother's ICWA-020 form indicated she had no Indian ancestry. Despite the court's oral statements, the minute order filed after the hearing erroneously reflected that Father was present at the hearing. The order also noted, without qualification, that the court did not have a "reason to know that [A.R.] is an Indian child, as defined under ICWA, and does not order notice to any tribe[.]"

California Rules of Court, rule 5.481, requires the juvenile court to order each parent to complete form ICWA-020, Parental Notification of Indian Status, at the parent's first appearance in a dependency case.

In January 2018, A.R.'s case transferred to the San Diego County Juvenile Court. Mother once again filed form ICWA-020, indicating she had no Indian ancestry. Father had not yet appeared or filed any documents in the action. Thereafter, in multiple filed documents, in apparent reliance on the erroneous Los Angeles County minute order, the Agency repeatedly reported that, "On 10/6/2017, the Superior Court of California, County of Los Angeles found that the Indian Child Welfare Act does not apply."

In June 2018, at a six-month review hearing, Father made his first appearance in the case and was appointed counsel. Neither the Agency nor the court made any inquiry into Father's possible Indian ancestry. The record does not show that he ever filed form ICWA-020. After August 2018, Father stopped contacting his counsel and did not appear at any further hearings.

In June 2019, at the contested section 366.26 hearing, the juvenile court found that notice was not required under ICWA because "the court knows the child is not an Indian child. Reasonable inquiry has been made to determine whether the child is or may be an Indian child." The court terminated parental rights, and this appeal followed.

DISCUSSION

The Agency concedes that proper inquiry under ICWA was not completed as to Father, and we accept its concession. No inquiry was made of Father as to his possible Indian ancestry, and thus, A.R. might be an Indian child. (See 25 U.S.C. § 1903(4) [definition of " 'Indian child' "].) The court and Agency have an affirmative and continuing duty to inquire whether a dependent child is or may be an Indian child in all dependency proceedings, beginning with initial contact. (§ 224.2, subd. (a).) "At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) If inquiries yield a basis for believing that the child is an Indian child, then noticing to applicable tribes may be required. (§§ 224.2, 224.3.) Accordingly, we conditionally reverse the judgment and remand the case to the juvenile court with directions to conduct an ICWA inquiry as to Father and noticing as appropriate. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711; In re J.N. (2006) 138 Cal.App.4th 450, 461-462.)

DISPOSITION

The judgment is reversed. This case is remanded to the juvenile court with directions to conduct an ICWA inquiry as to Father, determine whether ICWA applies and, if necessary following the inquiry and determination, order ICWA notice and conduct any further proceedings in compliance with ICWA. If, after proper notice, a tribe claims A.R. is an Indian child, the juvenile court shall proceed in conformity with ICWA. If, however, after proper inquiry of Father, the court has reason to know that A.R. is not an Indian child, or after proper notice, no tribe claims A.R. is an Indian child, the court shall reinstate the judgment. Remittitur shall issue immediately.

GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.


Summaries of

San Diego Cnty. Health & Human Servs. Agency v. Marisa T. (In re A.R.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 7, 2020
No. D075987 (Cal. Ct. App. Jan. 7, 2020)
Case details for

San Diego Cnty. Health & Human Servs. Agency v. Marisa T. (In re A.R.)

Case Details

Full title:In re A.R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 7, 2020

Citations

No. D075987 (Cal. Ct. App. Jan. 7, 2020)