Filed 12/10/18 In re Christine D. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.

William Hook, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

K.D., father of Christine D., appeals from a postjudgment order[1] denying his petition under Welfare and Institutions Code section 388[2] to change Christine's placement with a relative, and the order terminating parental rights under section 366.26 and selecting adoption as the permanent plan for Christine. K.D.'s sole contention on appeal is that the San Diego County Health and Human Services Agency (the Agency) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and therefore the matter must be remanded with directions to the juvenile court to direct compliance with those provisions.[3] Specifically, K.D. contends the Agency erred by failing to question the maternal grandfather about Christine's possible Indian heritage. The Agency concedes that the ICWA inquiry and notice were deficient and a limited remand is appropriate to ensure compliance with ICWA's inquiry and notice provisions. The parties have stipulated to the issuance of an immediate remittitur. We will conditionally reverse and remand for compliance with ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

The Agency filed a petition under section 300, subdivision (b)(1), on behalf of three-month-old Christine in August 2017, alleging K.D. and Christine's mother, Elizabeth R., had recently tested positive for acetylmorphine, amphetamine, codeine, methamphetamine, and morphine and had lengthy histories of substance abuse. The petition further alleged K.D. had been arrested for possession of heroin and Elizabeth had been arrested for forgery and possession of counterfeit money. In November 2017, the court assumed jurisdiction over Christine and declared her a dependent of the court. She was placed with her maternal great-aunt and great-uncle.

On July 27, 2018, the court denied a petition filed by K.D. under section 388 seeking placement of Christine with either the maternal grandmother or paternal grandmother. At a section 366.26 hearing on August 1, 2018, the court terminated parental rights and ordered adoption as Christine's permanent plan.

ICWA notice

Elizabeth claimed Indian ancestry through her father (the maternal grandfather). She indicated the maternal grandfather could provide more information and provided his telephone number. An Agency social worker had a phone conversation with the maternal grandfather in September 2017, but the report of that conversation does not indicate that ICWA or the maternal grandfather's Indian ancestry was discussed. The Agency sent ICWA notices to the relevant tribes, but the notices did not contain contact information for the maternal grandfather or any information regarding his parents. The notices also did not contain contact information for other relatives who were known to the Agency and were participating in the case. At a hearing on March 14, 2018, the court found ICWA did not apply in this case.

DISCUSSION

California has enacted statutes "that affirm ICWA's purposes [citation] and mandate compliance with ICWA '[i]n all Indian child custody proceedings.' " (In re Isaiah W. (2016) 1 Cal.5th 1, 9; § 224 et seq.) Under that statutory scheme, 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." (§ 224.3, subd. (a).) If the court or Agency social worker "subsequently receives any information required under paragraph (5) of subdivision (a) of Section 224.2 that was not previously available or included in the notice issued under Section 224.2, the social worker . . . shall provide the additional information to any tribes entitled to notice . . . ." (§ 224.3, subd. (f), italics added.) Notice to a tribe must include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (§ 224.2, subd. (a)(5)(C), italics added.)

As noted, the Agency concedes it should have conducted further inquiry and noticing under ICWA based on the information Elizabeth provided about the maternal grandfather's possible Indian heritage, and that a limited remand to ensure compliance with ICWA is appropriate. (In re Karla C. (2003) 113 Cal.App.4th 166, 175, 178.) Accordingly, we will reverse the order terminating parental rights and remand the case to the juvenile court for further ICWA inquiries and noticing based on the information provided by Elizabeth regarding the maternal grandfather. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 710.)

DISPOSITION

The order terminating parental rights and selecting adoption as Christine's permanent plan is conditionally reversed. The matter is remanded to the juvenile court with directions to order the Agency to comply with the notice provisions of the ICWA regarding Christine's possible Indian ancestry. After proper notice under the ICWA, if it is determined that Christine is an Indian child and ICWA applies to her case, the court shall proceed in conformity with ICWA. If, after proper notice, the court finds Christine is not an Indian child and ICWA therefore does not apply in this case, the order terminating parental rights and selecting adoption as Christine's permanent plan shall be reinstated. Remittitur shall issue immediately.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.