Filed 8/16/17 In re C.M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment of the Superior Court of San Diego County, Marian F. Gaston, Judge. Reversed and remanded with directions.

Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant S.M.

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

Thomas E. Montgomery, County Counsel, and Dana Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

V.S. (Father) and S.M. (Mother) appeal from the juvenile court's termination of parental rights over their daughter, C.M. They contend the San Diego County Health and Human Services Agency (Agency) did not fulfill its continuing duty of inquiry and notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and thus the court's finding that ICWA did not apply must be reversed. In particular, after Mother provided additional information regarding her Indian heritage, the Agency did not make further inquiries regarding whether C.M. may be an Indian child or provide further notice to certain tribes. The Agency concedes that Mother provided additional statistical and genealogical information in her ICWA worksheet, that it did not provide this additional information to the tribes, and that the case should be remanded for ICWA compliance. The parties have stipulated to the issuance of an immediate remittitur. We conditionally reverse and remand for compliance with ICWA.

BACKGROUND

Given the sole issue on appeal, we provide a highly condensed version of the factual underpinnings of C.M.'s dependency case. The court took jurisdiction under Welfare and Institutions Code section 300, subdivision (b),[1] based on the parents' longstanding drug addictions, rendering them incapable of caring for one-year-old C.M. The record is replete with evidence of the parents' prior and/or current drug use and their inability to care for her. Prior to the Agency's involvement, Mother's cousin had essentially been caring for the baby. The parents failed to engage in services, and the court terminated their parental rights.

ICWA Compliance

At the jurisdiction and disposition stage of the case, Mother reported that her father lived on the Campo Indian (Campo) reservation, received financial assistance from the tribe, and spoke a Native American language. She subsequently reported on her ICWA-020 form that she may be a member of, or eligible for membership in, the Campo or Kumeyaay tribes. In April 2016, the Agency formally notified various Indian tribes of the dependency proceedings. Based on response letters from the tribes indicating that C.M. was not enrolled or eligible for enrollment in a given tribe (and a lack of response from the Campo tribe), the court found ICWA did not apply.

In January 2017, following the section 366.26 hearing, Mother provided the Agency with an updated ICWA inquiry worksheet, which included additional personal and contact information for her biological father. The Agency was unable to make contact with the maternal grandfather and did not send the new information to the tribes based on its conclusion that Mother had not provided any new information. At the continued section 366.26 hearing, the court found that ICWA did not apply.

DISCUSSION

The Agency concedes that proper inquiry and noticing under ICWA was not completed, and we accept its concession. Specifically, the additional information provided by Mother was not provided to the tribes. 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).) "f the court, social worker, or probation officer [i]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.) The Agency should have conducted further inquiry and noticing under ICWA. (In re Karla C. (2003) 113 Cal.App.4th 166, 175, 178.) Accordingly, we reverse the judgment and remand the case to the juvenile court for further ICWA inquiries and noticing based on the additional information provided by Mother. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 710.)

DISPOSITION

The judgment is reversed. This case is remanded to the juvenile court with directions to conduct a further ICWA inquiry and noticing, determine whether ICWA applies and, if necessary following the inquiry and determination, order ICWA notice and conduct any further proceedings in compliance with ICWA. If, after proper notice, any tribes claim C.M. is an Indian child, the court shall proceed in conformity with ICWA; if not, the court shall reinstate the judgment. Remittitur shall issue immediately.

DATO, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.