San Diego Cnty. Health & Human Servs. Agency
v.
Anthony B. (In re Emma S.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIAFeb 8, 2017
D071018 (Cal. Ct. App. Feb. 8, 2017)

D071018

02-08-2017

In re Emma S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ANTHONY B., Defendant and Appellant.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ4017) APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Reversed and remanded with directions. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

Anthony B. appeals from a judgment terminating his parental rights to his daughter, Emma S., under Welfare and Institutions Code section 366.26. He contends the juvenile court erred by terminating parental rights before sending notice to the Cherokee Nation pursuant to the Indian Child Welfare Act, title 25 United States Code section 1901 et seq. and California Welfare and Institutions Code section 224 et seq. (together, ICWA).

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. --------

The San Diego County Health and Human Services Agency (Agency), acknowledges the juvenile court did not comply with the inquiry and notice provisions required by ICWA. Minor's counsel agrees. The parties stipulate to reversing the juvenile court finding that the child was not an 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 agree that the Agency and the juvenile court did not comply with inquiry and notice provisions under ICWA. We conditionally reverse the judgment terminating parental rights for compliance with ICWA. The order terminating parental rights is subject to reinstatement if, after proper inquiry and notice, the juvenile court determines ICWA does not apply.

FACTUAL AND PROCEDURAL BACKGROUND

Emma S. was born in January 2016. Five weeks later, her mother died from a drug overdose. The Agency detained Emma in protective care and filed a section 300 petition on her behalf. At the detention hearing, Anthony B. denied having any Native American heritage. Emma's maternal uncle said Emma's great-grandmother was part Cherokee but he did not believe he qualified as a Native American. The juvenile court found that ICWA did not apply. The Agency did not make any further inquiry into Emma's Indian heritage.

Anthony acknowledged he could not care for Emma and asked that she be placed with his brother for adoption. Emma was welcomed into her uncle and aunt's home but several months later they decided they could not adopt her. The Agency removed Emma from their home and placed her in foster care. The juvenile court did not make any ICWA inquiries or findings at the section 387 proceedings or the section 366.26 hearing. On September 7, 2016, the juvenile court selected a plan of adoption for Emma and terminated parental rights.

DISCUSSION

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. (§ 224.3, subd. (b)(1).) 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 further inquiry regarding the possible Indian status of the child. 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 the ICWA does not apply and complete notice in accordance with the ICWA. If, after proper notice, the court finds that Emma is an Indian child, the court shall proceed in conformity with the ICWA. If, after proper notice, the court finds that Emma is not an Indian child, the order terminating parental rights and selecting adoption as the permanent plan shall be reinstated. Remittitur shall issue immediately.

BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.