Filed 7/15/22 In re A.D. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

MEMORANDUM OPINION^[1]

In 2017, Contra Costa County Children and Family Services Bureau (Bureau) filed a petition alleging minor child, A.D., suffered or was at substantial risk of suffering serious physical harm or illness because P.M. (mother) had a history of serious substance abuse that interfered with her ability to parent. (Welf. & Inst. Code, § 300, subd. (b)(1); subsequent statutory references are to this code.) The Bureau asked mother and D.D. (father) whether A.D. had any Indian heritage — an inquiry required under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.),

a statute establishing minimum standards that state courts must follow before removing an Indian child from their family. (25 U.S.C. § 1903(4); § 224.1, subds. (a)–(b); In re T.G. (2020) 58 Cal.App.5th 275, 287.) Both denied A.D. had Indian heritage. On that basis, the Bureau’s social worker reported A.D. had no known Indian ancestry. After a detention hearing, the juvenile court concluded A.D. was not an Indian child, and the court ultimately terminated parental rights. (§ 366.26.)

On appeal, mother argues the Bureau and juvenile court failed to comply with its initial inquiry obligations under ICWA. The Bureau agrees, and after reviewing the record de novo, we do as well. (In re D.S. (2020) 46 Cal.App.5th 1041, 1051 [de novo review of ICWA compliance where facts are undisputed].) The court and county welfare department have “an affirmative and continuing duty to inquire whether a child” who is the subject of a juvenile dependency petition “is or may be an Indian child.” (§ 224.2, subd. (a), italics added.) An inquiry includes, but is not limited to, asking parents, legal guardians, extended family members, and others who have an interest in the child whether the child is or may be an Indian child. (§ 224.2, subd. (b); In re J.S. (2021) 62 Cal.App.5th 678, 686.) That inquiry was not satisfied here. Despite being in contact with A.D.’s extended family — including the child’s grandmother and aunt — the record does not indicate the Bureau made the required inquiry of those family members. We conditionally reverse the court’s order terminating parental rights for

a limited remand to ensure compliance with ICWA’s inquiry obligations. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1437.)

DISPOSITION

The juvenile court’s order terminating parental rights is conditionally reversed. The matter is remanded to permit the Bureau and the court to comply with the inquiry and notice provisions of ICWA and California law. If the court finds A.D. is an Indian child, it shall conduct a new section 366.26 hearing and all further proceedings in compliance with ICWA and related California law. If the court concludes ICWA does not apply, its section 366.26 order shall be immediately reinstated.

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Rodríguez, J.

WE CONCUR:

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Fujisaki, Acting P. J.

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Petrou, J.

A164450

[1] Consistent with the California Standards of Judicial Administration, section 8.1, subdivision (2), we conclude this case is properly resolved through a memorandum opinion.