Filed 8/24/18 In re A.B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Brian M. Arax, Judge.

Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.

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Anna V. appeals from an order terminating her parental rights of minor A.B., with adoption selected as the permanent plan. She contends the order should be reversed and remanded due to the failure of the juvenile court to further inquire into E.B.’s (father) claim of Indian ancestry. (Cal. Rules of Court, rule 5.481.)[1] She also contends that if further inquiry leads to evidence supporting the claim, the juvenile court should comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et. seq.). The Fresno County Department of Social Services (the department) concedes and we accept the concession.

FACTS AND PROCEDURAL HISTORY

Detention

On August 1, 2016, the department filed a Welfare and Institutions Code section 300[2] petition, alleging A.B. had suffered, or was at a substantial risk of suffering, serious physical harm or illness due to her mother’s and father’s history of substance abuse and domestic violence issues. An ICWA-010 report was filed stating that an inquiry of Indian ancestry had been made and the child had no known Indian ancestry. The report stated the social worker asked about the Indian ancestry of the child, but it was not reported whether mother or father was asked.

In the August 2, 2016, detention report, the department stated the ICWA did not apply. The report was inconsistent as it also stated the court had reason to know the child was an Indian child under the ICWA and recommended the parents and the department look further into the child’s Indian heritage. The report stated that father completed an ICWA- 020 form but the mother was unable due to her incarceration. Father’s ICWA -020 form indicated that he may have Indian ancestry but the name of the tribe was unknown. Mother filed an ICWA-020 on August 3, 2016, stating she had no known Indian ancestry.

On August 3, 2016, the detention hearing took place and both parents were present with counsel. During the hearing, the father stated he believed his family was of Indian ancestry but was unsure of what side of the family or what tribe although he believed he could find out. The juvenile court found no reason to believe that the child was of Indian ancestry but advised both parents look into the matter. The juvenile court ordered the removal of A.B. from the home. The jurisdiction/disposition hearing was set for August 31, 2016.

Jurisdiction and Disposition

The jurisdiction/disposition report indicated that ICWA was not applicable. At the contested jurisdiction/disposition hearing held October 19, 2016, the mother was present with counsel and the father was represented by counsel but not present. During the hearing, the court discussed and concluded with the department’s counsel that ICWA was inapplicable. The juvenile court removed A.B. from the custody of her parents.

The Section 366.26 Hearing

The report dated December 27, 2017, prepared in anticipation of the 366.26 hearing, stated a social worker attempted to contact father on December 20, 2017, to complete a second ICWA inquiry but his phone had been disconnected. The 366.26 hearing was held on January 24, 2018, at which time both parents were present with counsel. No further ICWA findings were made by the juvenile court. The juvenile court ordered the termination of both the mother’s and father’s parental rights and ordered adoption as a permanent plan.

Mother appeals from the January 24, 2018, order terminating her parental rights.

DISCUSSION

1. ICWA

Mother’s appeal concerns the department’s failure to further inquire into father’s claim of Indian ancestry. Respondent concedes further inquiry of the child’s family was required under the ICWA and that, depending on the results of the further inquiry, ICWA notices may be required.

Applicable Law

Congress enacted ICWA to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children in foster or adoptive homes that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 195.) An “‘Indian child’” is defined as a child who is either (1) “a member of an Indian tribe” or (2) “eligible for membership in an Indian tribe and … the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).)

In any involuntary proceeding in state court, where the court knows or has reason to know that an Indian child is involved, the party that seeks termination of parental rights must notify the child’s tribe of the proceeding and of their right to intervene. (25 U.S.C § 1912(a).) This notice serves two purposes; (1) to enable the tribe to investigate and determine whether a child is an Indian child and (2) to advise the tribe of pending proceedings and their right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)

In all dependency proceedings, the court and the county welfare department have an “‘affirmative and continuing duty’” to inquire whether a child is or may be an Indian child. (In re Isaiah W. (2016) 1 Cal.5th 1, 9; § 224.3; rule 5.481(a).) The department or it’s social workers have a duty to further inquire if they “‘know[]or have reason to know’” of the child’s possible Indian ancestry and this duty includes interviewing parents, extended family members, and any other person that may be expected to have information concerning the child’s status. (In re Breanna S. (2017) 8 Cal.App.5th 636, 652; § 224.3, subd. (a); rule 5.481(a)(4).)

Analysis

In this case, the juvenile court and the department had reason to know A.B. might have Indian ancestry due to the discussion during the detention hearing between father and the court and the ICWA-020 form filed by the father. Although father was unsure of the tribe or which side of his family may have Indian ancestry, he believed that he could ask relatives to find out.

This information created a duty to further inquire into the father’s claim. The social worker’s only further inquiry was a phone call made before the 366.26 hearing, but father’s phone was disconnected. There is nothing else in the record to indicate the juvenile court or department did any other inquiry into father’s claim of Indian ancestry. The juvenile court and the department failed in their affirmative and continuing duty to inquire whether A.B. was of Indian ancestry. Therefore, we accept the concession and recommend the case be remanded for further inquiry into father’s claim of Indian ancestry and, if applicable after inquiry, full compliance with ICWA notice requirements be made.

DISPOSITION

The order terminating mother’s parental rights is conditionally reversed and the matter remanded to the juvenile court for the sole purpose of complying with its duty of inquiry. If the court determines that ICWA does not apply, the orders shall be reinstated. If information is presented to the juvenile court that indicates A.B. is an Indian child and the juvenile court finds that the ICWA applies to this case, the juvenile court is ordered to conduct a new review hearing in conformance with all provisions of the ICWA.