Filed 2/15/22 In re T.D. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, Mary Kreber-Varipapa, Judge. Conditionally reversed and remanded with directions.

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

Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

Kelsey M., mother of T.D. (the child), appeals from the juvenile court’s orders made at a juvenile dependency proceeding. (See Welf. & Inst. Code, § 366.26.) Kelsey M. contends the Orange County Social Services Agency (SSA) failed to adequately investigate a claim of Native American (Indian) ancestry by Jason E., the child’s biological father. County counsel concedes the juvenile court violated the notice and investigation provisions of the Indian Child Welfare Act (ICWA).

Thus, we conditionally reverse the juvenile court’s section 366.26 orders. On remand, we instruct the juvenile court to ensure compliance with the ICWA and related California law. If the child is not found to be an Indian child, then the juvenile court’s prior orders are to be reinstated.

I

FACTS AND PROCEDURAL HISTORY

In October 2018, Kelsey M. gave birth to the child. Kelsey M. and the child both tested positive for methamphetamine.

In December 2018, the juvenile court declared the child a dependent child of the court and ordered him removed him from parental custody. The court ordered Kelsey M. and the child’s presumed father (not Jason E.) to participate in reunification services; over the several months, they made inconsistent progress on their case plans. The child was eventually moved into the home of prospective adoptive parents and was doing well.

In August 2020, the juvenile court terminated reunification services and set the matter for a permanency planning hearing. (§ 366.26)

In April 2021, Jason E. contacted SSA, claiming he was the child’s biological father, which was later confirmed in a paternity test.

In July 2021, Jason E. notified SSA he had Indian heritage from the Blackfoot tribe on his maternal side. Jason E. said his grandmother would have further information and indicated he would ask her about it. An SSA investigation indicated Jason E. had previously sexually abused a child and he had an unresolved history of substance abuse.

On August 3, 2021, the juvenile court ordered SSA “to continue following up as to Indian heritage as to the [biological] father. [¶] Court defers findings as to ICWA.”

On August 26, 2021, SSA filed a report stating: “The Indian Child Welfare Act does or may apply. [¶] The biological father . . . reported that he has Blackfoot heritage in his family. [Jason E.] stated he has no knowledge of a family member residing on a reservation. [Jason E.] did not know which state the Blackfoot tribe in his family resided. On August 18, 2021, an ICWA Notice Referral was submitted.”^[1]

On August 26, 2021, the juvenile court conducted the permanency planning hearing. (§ 366.26.) Jason E. stipulated to the termination of his paternal rights. The court terminated the parental rights of Kelsey M., the presumed father, and Jason E. The court found “the permanent plan of adoption is appropriate and is ordered as the permanent plan.” The court made no findings as to the ICWA.

II

DISCUSSION

The ICWA is a federal law concerning the removal of Indian children from their families. (25 U.S.C. § 1901 et seq.) The ICWA gives tribal governments presumptive jurisdiction over foster care placement proceedings for Indian children who do not live on a reservation. (Mississippi Ban of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 49.) Generally, when an Indian child is involved in a juvenile dependency proceeding, the identified tribe must receive notice of the pending proceeding, as well as notice of its right to intervene. (25 U.S.C. § 1912(a).)

“The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child.” (§ 224.2, subd. (a).) A duty of further inquiry is triggered if there is “information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe.” (§ 224.2, subd. (e)(1).) A non-Indian mother has standing to contend that the juvenile court erred by failing to ensure notice was given in accordance with the ICWA. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338-339.)

“If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court shall confirm, by way of a report, declaration, or testimony included in the record that the agency or other party used due diligence to identify and work with all of the tribes of which there is reason to know the child may be a member, or eligible for membership, to verify whether the child is in fact a member or whether a biological parent is a member and the child is eligible for membership.” (§ 224.2, subd. (g).)

Here, the parties agree the child’s biological father Jason E. triggered the SSA’s duty of further inquiry after he indicated he possibly had Indian heritage from the Blackfoot tribe. The juvenile court subsequently ordered SSA to follow up as to the child’s Indian heritage and deferred making an ICWA finding. However, the record does not indicate that SSA made any further efforts to conduct an inquiry with Jason E.’s grandmother, or any other paternal relatives. Further, the court never made a ruling as to the ICWA status of either the biological father (Jason E.) or the child.

Thus, “we conditionally reverse the orders for legal guardianship and remand the matters to allow [SSA] and the juvenile court to rectify their errors and to take all other necessary corrective actions.” (In re T.G. (2020) 58 Cal.App.5th 275, 280-281, 298-299 [conditional reversal proper where county agency failed to provide notice under the ICWA, and the juvenile court failed to make the required ICWA findings].)

III

DISPOSITION

The section 366.26 orders of the juvenile court are conditionally reversed. On remand, the court is directed to ensure compliance with the inquiry and notice provisions of the ICWA and related California law, and to conduct further proceedings consistent with this opinion. If the child is not found to be an Indian child under the ICWA, then the prior section 366.26 orders of the court are to be reinstated.

MOORE, ACTING P. J.

WE CONCUR:

GOETHALS, J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^[1] “Indian tribes ‘retain “attributes of sovereignty over both their members and their territory,” [citation], and . . . “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.”’” (People ex rel. Becerra v. Rose (2017) 16 Cal.App.5th 317, 324.)