In re D.M. CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. NJ015868
- Trial judge
- Nadia J. Keilani
- Outcome
- reversed — Conditionally reversed and remanded with directions.
- Area
- dependency
- Panel
- Buchanan (author), Joan K. Irion, Truc T. Do
Analysis
The trial court terminated the father's parental rights, finding that ICWA did not apply based on the agency's inquiry. The Court of Appeal conditionally reversed the order, finding the agency failed to adequately inquire of the paternal grandfather and remanding for compliance with ICWA inquiry requirements.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Termination of parental rights under Welfare and Institutions Code section 366.26, including the finding that ICWA did not apply.“Because the record does not contain substantial evidence to support the juvenile court’s findings that ICWA did not apply and its implied finding that proper and adequate inquiry had been made, we conditionally reverse the order terminating parental rights with a limited remand for the Agency to comply with ICWA and section 224.2.” | substantial evidence | error (fact finding unsupported) | agree with court The appellate court found that the agency's failure to inquire of the paternal grandfather meant the record lacked substantial evidence to support the finding that ICWA did not apply. This aligns with the requirement that the agency must inquire of all known family members to determine if ICWA applies. |
Authorities
- relied: In re Dezi C. (2024) 16 Cal.5th 1112 — Supports the standard for conditional reversal and remand when ICWA inquiry is deficient.
The appellate opinion: sound — The opinion is a short memorandum that correctly applies the substantial evidence standard to the agency's ICWA inquiry. It relies on the recent California Supreme Court decision in In re Dezi C. to support the conditional reversal and remand procedure.
How this analysis was made · dispute it
unusual dispositionThe juvenile court terminated Father's parental rights under Welfare and Institutions Code section 366.26 after finding that ICWA did not apply, impliedly finding that a proper and adequate inquiry had been made even though the Agency had not asked the paternal grandfather or two paternal aunts about possible Indian ancestry. On appeal the Agency conceded the inquiry was inadequate, and the Court of Appeal conditionally reversed the termination order and remanded for compliance with ICWA and section 224.2, directing reinstatement of the order if the court thereafter finds ICWA does not apply.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Juvenile court's finding that ICWA did not apply and implied finding that a proper and adequate inquiry had been made, underlying the order terminating parental rights“Because the record does not contain substantial evidence to support the juvenile court’s findings that ICWA did not apply and its implied finding that proper and adequate inquiry had been made, we conditionally reverse the order terminating parental rights” | substantial evidence | error (fact finding unsupported) | agree with court Section 224.2, subdivision (b) requires inquiry of extended family members, and the Agency admittedly never inquired of the paternal grandfather or two paternal aunts who were apparently available. Under In re Dezi C. (2024) 16 Cal.5th 1112, an inadequate initial inquiry is prejudicial and requires conditional reversal with a limited remand; the court correctly applied that binding authority and the Agency's concession confirms the deficiency. |
Authorities
- relied: In re Dezi C. (2024) 16 Cal.5th 1112 — An inadequate initial ICWA inquiry under section 224.2 requires conditional reversal of the order terminating parental rights and a limited remand for the agency to complete the inquiry and for the juvenile court to make new ICWA findings.
The appellate opinion: sound with gaps — The opinion applies the Supreme Court's controlling decision in In re Dezi C., which mandates conditional reversal where the initial ICWA inquiry was deficient, and the Agency conceded the inquiry of the paternal grandfather was inadequate. The result and remedy are correct, but as a memorandum opinion it does not describe the inquiry record in detail or cite the specific subdivision of section 224.2 defining the duty to ask extended family members.
Opinion
Filed 12/23/24 In re D.M. CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.M., a Person Coming Under the Juvenile Court Law. D084844 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ015868) Plaintiff and Respondent, v. D.M., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Nadia J. Keilani, Judge. Conditionally reversed and remanded with directions. Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant D.M., Father. Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Indra N. Bennett, Deputy County Counsel, for Plaintiff and Respondent. MEMORANDUM OPINION D.M. (Father) appeals from a juvenile court order terminating his parental rights. (Welf. & Inst. Code, § 366.26.)1 His sole contention on appeal is that the San Diego County Health and Human Services Agency (Agency) did not comply with its inquiry duty under the Indian Child Welfare Act (ICWA; 25 USC § 1901et seq.) and California ICWA (§ 224.2). Specifically, Father contends the Agency did not adequately inquire as to the paternal grandfather’s heritage. The Agency inquired of the paternal grandmother and Father, but did not inquire of the paternal grandfather or two paternal aunts. The Agency concedes that the record does not contain sufficient inquiry regarding the paternal grandfather’s heritage and that this constitutes error warranting conditional reversal. Because the record does not contain substantial evidence to support the juvenile court’s findings that ICWA did not apply and its implied finding that proper and adequate inquiry had been made, we conditionally reverse the order terminating parental rights with a limited remand for the Agency to comply with ICWA and section 224.2. (In re Dezi C. (2024) 16 Cal.5th 1112, 1141.) DISPOSITION The juvenile court’s order terminating parental rights is conditionally reversed. The matter is remanded to the juvenile court for compliance with the inquiry and notice requirements of sections 224.2. If the juvenile court thereafter finds a proper and adequate inquiry and due diligence has been conducted and concludes that ICWA does not apply (§ 224.2, subd. (i)(2)), then the court shall reinstate the order terminating parental rights. If the 1 Further undesignated statutory references are to the Welfare and Institutions Code. 2 juvenile court concludes ICWA applies, then it shall proceed in conformity with ICWA and California implementing provisions. (See 25 USC § 1912(a); Welf. & Inst. Code, §§ 224.2, subd. (i)(1), 224.3, 224.4.) Remittitur shall issue immediately.
BUCHANAN, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.