In re A.T.























Filed 1/11/13 In
re A.T. CA3











NOT TO BE PUBLISHED











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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD
APPELLATE DISTRICT

(Yolo)

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>

In re A. T., a Person Coming Under the Juvenile Court Law.
YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, Plaintiff and Respondent, v. J. T., Defendant and Appellant.	C071893 (Super. Ct. No. JV10329)

J.T., father of minor A.T., appeals
from orders terminating his parental
rights. (Welf. & Inst. Code,
§§ 366.26, 395.)href="#_ftn1"
name="_ftnref1" title="">[1]
Father contends the juvenile court did not inquire about father’s Indian
heritage in violation of the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Respondent Yolo County href="http://www.fearnotlaw.com/">Department of Employment and Social Services
agrees. We will reverse the orders of
the juvenile court to permit compliance with ICWA requirements for inquiry and
notice.

BACKGROUND

Two-year-old A.T. was
removed from parental custody in August 2010 due to mother’s substance abuse
and mental health problems. Father was
in custody at the time and remained in custody throughout the proceedings. The social worker interviewed mother but did
not interview father. Mother did not
claim any Indian heritage.

Father first appeared
at the disposition hearing. He was not asked about Indian heritage and he
waived reunification services. The
juvenile court adopted a finding that ICWA did not apply and ordered
reunification services for mother.
Mother failed to reunify and her services were terminated in November
2011. The juvenile court subsequently
terminated parental rights.

DISCUSSION

Father contends he has
Cherokee and Cree heritage but the juvenile court did not inquire about his
Indian heritage in violation of ICWA.

ICWA protects the
interests of Indian children and promotes the stability and security of Indian
tribes by establishing minimum standards for, and permitting tribal
participation in, dependency actions.
(25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the social worker have
an affirmative duty to inquire at the outset of the proceedings whether a child
who is subject to the proceedings is, or may be, an Indian child. (§ 224.3, subd. (a); Cal. Rules of
Court, rule 5.481(a).)

“At the first
appearance by a parent . . . in any dependency case . . . the
court must order the parent, . . . if available, to complete >Parental Notification of Indian Status
(form ICWA-020).” (Cal. Rules of Court,
rule 5.481(a)(2).) “If the parent
. . . does not appear at the first hearing, or is unavailable at the
initiation of a proceeding, the court must order the person or entity that has
the inquiry duty under this rule to use reasonable diligence to find and inform
the parent . . . that the court has ordered the parent
. . . to complete Parental
Notification of Indian Status (form ICWA-020).” (Cal. Rules of Court, rule 5.481(a)(3).)

Our review of the
record in this case indicates that the juvenile court did not make the
necessary ICWA inquiry of father at his first appearance, did not order father
to complete the ICWA-020 form, and did not order respondent to use reasonable
diligence to inform father that he was ordered to complete the form. The error is not harmless because father
claims Indian heritage.

DISPOSITION

The orders of the juvenile court
terminating parental rights are reversed and the matter is remanded to permit
the juvenile court and respondent to make the necessary inquiry regarding
father’s Indian heritage and, if applicable, to provide notice as required by
ICWA. If, after proper inquiry and
notice, it is determined that the minor is not an Indian child, the orders of
the juvenile court shall be reinstated.
But if a tribe determines the minor is an Indian child as defined by
ICWA and the juvenile court determines ICWA applies in this case, the juvenile
court shall conduct a new section 366.26 hearing in compliance with ICWA.









MAURO , J.





We concur:






BLEASE , Acting P. J.





HOCH , J.