In re M.C.

Filed 10/30/07 In re M.C. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

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Michael C., father of the minor, appeals from orders terminating his parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant contends the record does not reflect there was any inquiry as to his possible Indian heritage and reversal is required. We reverse and remand with directions.

FACTS

The five-year-old minor and her siblings were removed from the mothers custody in August 2004. Appellants whereabouts were initially unknown, but he was eventually located and served with notice of the proceedings.

According to the disposition reports first in San Joaquin County and then in Sacramento County, where the case was briefly transferred in late 2004 before returning to San Joaquin County in early 2005, the Indian Child Welfare Act (ICWA) 25 U.S.C. 1901 et seq., did not apply. The disposition report stated appellant was listed as the father on the minors birth certificate and that he should be considered a presumed father. The mother failed to reunify and her services were terminated in July 2006.

Appellant did not contact the social worker until November 2006 when, in a letter, he claimed paternity of the minor and sought return of the minor to his custody. Appellant had never visited the minor during the dependency.

Appellant first appeared in court in January 2007, having been transported from state prison for the selection and implementation hearing. The court set a contested hearing and ordered paternity testing. There was no inquiry made by the court at that time or later regarding appellants Indian ancestry.

The report for the selection and implementation hearing stated that appellant was in state prison and had no relationship with the minor. The report stated the ICWA did not apply, but did not indicate whether anyone had asked appellant about his Indian heritage and no completed JV-130 appears in the record.

Appellant did not appear at the contested selection and implementation hearing and there is no record of a paternity test being done. At the hearing, the juvenile court terminated parental rights.

DISCUSSION

Appellant contends reversal is required because the court and the San Joaquin County Human Services Agency (HSA) failed to inquire whether he had Indian heritage.

The 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 HSA 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. (Cal. Rules of Court, rule 5.664(d).)

The duty of inquiry is continuing and the social worker is required to interview parents to accumulate information to be included in the notice which is sent to the tribe. (Welf. & Inst. Code, 224.3, subds. (a) and (c).) Thus, when a parents first appearance is late in the case, inquiry must be made of the parent at that time and the JV-130 form must be completed. (Cal. Rules of Court, rule 5.664(d)(3).)

Here, we may infer from the statement in the two disposition reports from San Joaquin and Sacramento counties that the social worker made inquiry of the minors mother and unearthed no Indian heritage at that time, thus the ICWA did not apply as to her. (Evid. Code, 664; In re S.B. (2005) 130 Cal.App.4th 1148, 1161.) However, by the time appellant appeared in the case, the relevant Rule of Court had changed and the court was required to order him to complete a JV-130 information form. (Cal. Rules of Court, rule 5.664(d)(3).) No such order appears in the record and no report suggests that such a form was provided to appellant or received from him. Thus, the statement in the assessment for the selection and implementation hearing that the ICWA does not apply does not support the same inference as did similar statements in 2004. Based on the state of the record, we cannot discern whether or not an inquiry was made.

HSA argues appellant lacks standing to assert an ICWA violation because he is not a biological parent. However, the unrebutted evidence in the record is that he is named on the minors birth certificate as the biological father. Certainly, his letter claims paternity. In any case, the duty of inquiry applies to a parent or guardian at their first appearance in the case. It is an information gathering process and precedes questions of notice and whether the ICWA applies, both of which would implicate the fact of biological paternity. The inquiry now required by rule is independent of biological connection.

HSA also argues the claim is forfeited for failing to assert the inquiry issue in the juvenile court. Because the inquiry is foundational to ICWA compliance, the claim can be raised for the first time on appeal. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.)

Because we cannot determine whether the required inquiry of appellants Indian heritage has been made, limited reversal is required.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded to the juvenile court for the limited purpose of determining whether any inquiry was made regarding appellants Indian heritage in compliance with California Rules of Court, rule 5.664(d)(3) and Welfare and Institutions Code section 224.3. If such inquiry was made, the orders terminating parental rights shall be reinstated. If, however, no inquiry has been made, the court is directed to order appellant to complete a JV-130 form and to proceed thereafter in compliance with the requirements of the ICWA. If, after such inquiry, the court determines the ICWA does not apply, the orders shall be reinstated. However, if information is presented to the juvenile court that affirmatively indicates the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile

court is ordered to conduct a new selection and implementation hearing in conformance with all provisions of the ICWA.

HULL, J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

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