Filed 9/29/17 In re H.T. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed in part; reversed in part.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent.

K.H. appeals from a dispositional order in which the juvenile court found that her children were not Indian children within the meaning of the Indian Child Welfare Act (ICWA), title 25 U.S.C. section 1901 et seq., and that notice was not required. She contends the San Diego County Health and Human Services Agency (Agency) and the juvenile court did not conduct a sufficient inquiry in compliance with ICWA and Welfare and Institutions Code section 224 et seq. The Agency concedes error. We reverse the finding.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2017, K.H. was arrested on multiple felony charges. Her two children were detained in protective custody. The social worker asked K.H. if she were a member of an Indian tribe. K.H. said, "No." K.H. filed form ICWA-020 in which she declared to the best of her knowledge she had no Indian ancestry. At the detention hearing, the juvenile court found that ICWA did not apply.

In March, K.H. told the social worker that her maternal great-grandfather was full Cherokee and had lived on a Cherokee reservation in North Carolina. K.H. did not receive any services or assistance from the tribal community.

The jurisdictional and dispositional hearing was held on April 18, 2017. The juvenile court found that reasonable inquiry was made to determine whether the children are or may be Indian children, and that ICWA notice was not required because the children were not Indian children.[1] The court sustained the petition and removed the children from the custody of their parents.

DISCUSSION

A

The Agency's Motion to Augment the Record on Appeal

K.H. filed her opening brief on July 21, 2017. The only issue she raises on appeal concerns the adequacy of ICWA inquiry and notice.

On August 31, 2017, the Agency filed an untimely motion to augment the record with postjudgment evidence concerning further inquiry and notice under ICWA. Although the motion was not designated as a dismissal motion, the Agency asked this court to augment the appellate record and dismiss the appeal as moot. The Agency stated it did not intend to file a respondent's brief and if this court did not grant the motion to augment, the Agency would concede that limited remand would be necessary for full compliance with ICWA.

K.H. opposed the motion to augment on the grounds she did not have the opportunity to challenge in juvenile court the Agency's conclusions that it has fully complied with ICWA inquiry and notice requirements, and that it is improper for this court to assume the role of the juvenile court in making factual determinations concerning ICWA compliance.

This court ordered the opposed motion to be considered with the appeal.

On September 18, 2017, the Agency filed a letter in lieu of respondent's brief again asking this court to augment the appellate record with the postjudgment ICWA evidence and to dismiss the appeal as moot or, alternatively, to accept the Agency's concession of error.

We deny the Agency's untimely motions to augment the record with postjudgment evidence. The trial court, not the reviewing court, receives evidence of the Agency's notice efforts and determines whether it meets ICWA standards. (In re Nikki R. (2003) 106 Cal.App.4th 844, 852.) If the Agency is to concede ICWA inquiry and notice error, the better practice is to file a concession letter in this court as soon as is practicable. This will help conserve limited judicial and attorney resources, promote the expeditious resolution of the appeal and further the prompt resolution of the child's custody status. (Cf. In re Z.N. (2009) 181 Cal.App.4th 282, 300; In re Jesusa V. (2004) 32 Cal.4th 588, 625; In re Marilyn H. (1993) 5 Cal.4th 295, 308.)

B

We Accept the Agency's Concession of ICWA Error

The court and 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. (Welf. & Inst. Code, § 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. (Id., subd. (b).) 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. (Id., subd. (c); In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)

The Agency concedes, and the record shows, the court and the social worker did not make adequate inquiry regarding the possible Indian status of the children. Reversal of the ICWA findings that were made at the dispositional hearing is therefore required. (See In re J.N. (2006) 138 Cal.App.4th 450, 461-462.)

DISPOSITION

The ICWA findings made at the dispositional hearing are reversed. In all other respects, the dispositional findings and orders are affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

HUFFMAN, J.