In re Andy M. CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. J511253
- Trial judge
- Daniel Lamborn
- Outcome
- reversed — Reversed with direction.
- Area
- dependency
- Panel
- O'Rourke (author), Alex C. McDonald, Joan K. Irion
Analysis
The trial court terminated Tyrone M.'s parental rights, relying on a prior judicial finding in a sibling's case that ICWA did not apply, without conducting a specific inquiry or providing notice in the current case. The Court of Appeal reversed the judgment and remanded the case with directions to conduct the required ICWA inquiry and notice.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Termination of parental rights based on the finding that ICWA did not apply due to a prior judicial ruling in a sibling's case.“The court took "judicial notice of the prior finding in this case, and [found] that ICWA does not apply in this case because of a prior judicial ruling on January 28, 2009 in [Eric's] case . . . ."” | unclear | error | agree with court The appellate court found that the trial court erred by relying on a prior finding without conducting the specific inquiry and notice required by ICWA for the current child, noting the record contained no evidence of such inquiry or notice in the current case. |
Authorities
- relied: In re Robert A. (2007) 147 Cal.App.4th 982 — ICWA requires specific inquiry and notice in each dependency case; a prior finding in a sibling's case does not satisfy the statutory duty for the current child if no inquiry or notice was documented in the current record.
The appellate opinion: sound — The opinion correctly identifies that the trial court's reliance on a prior judicial finding in a sibling's case, without a specific inquiry or notice in the current case, fails to meet the requirements of ICWA. The court properly cites In re Robert A. to support the necessity of case-specific inquiry and notice, and the disposition appropriately remands for these procedural steps to be completed.
How this analysis was made · dispute it
unusual dispositionThe juvenile court found ICWA did not apply based on judicial notice of a prior finding in a sibling's case, without any ICWA inquiry of the mother or notice to tribes, and later terminated Tyrone M.'s parental rights to Andy M. On appeal, with the Agency conceding the ICWA record was insufficient, the Court of Appeal reversed and remanded with directions to conduct ICWA inquiry and notice, with the judgment to be reinstated if no tribe claims Andy is an Indian child.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that ICWA does not apply, based on judicial notice of a prior finding in the sibling's (Eric M.'s) dependency case, without conducting ICWA inquiry or giving notice to tribes despite father's claim of possible Cherokee and Crow ancestry“The only information in the record regarding ICWA in Eric's case is the mere fact that there was an ICWA finding. There is no information there was an ICWA inquiry or ICWA notice in Eric's case.” | unclear | error (procedure) | agree with court Father expressly claimed possible Cherokee and Crow ancestry and identified the paternal grandmother as a source of information, which triggered the Agency's and court's affirmative duties of inquiry and notice under ICWA and rule 5.481. A bare prior finding in a sibling's case, with no record that inquiry or notice was ever performed there, cannot substitute for compliance; the mother was never even asked. The Agency conceded the error and In re Robert A. supports limited remand for compliance. The opinion does not state a standard of review, but the result is correct under settled ICWA law. |
Authorities
- relied: In re Robert A. (2007) 147 Cal.App.4th 982 — Where ICWA inquiry and notice requirements were not satisfied, the appropriate remedy is a limited reversal and remand for the agency to conduct proper inquiry and notice, with the judgment to be reinstated if no tribe claims the child is an Indian child.
The appellate opinion: sound with gaps — The court correctly held that a prior ICWA finding in a sibling's case, unsupported by any record of inquiry or notice, cannot discharge the Agency's and court's ICWA duties once a parent claims possible Indian ancestry, and it ordered the standard limited remand remedy. The opinion is very brief, states no standard of review, and cites only one authority, but given the Agency's concession the result is plainly defensible.
Opinion
Filed 3/13/15 In re Andy 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 ANDY M., a Person Coming Under the Juvenile Court Law. D067007 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J511253) Plaintiff and Respondent, v. TYRONE M., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Daniel Lamborn, Judge. Reversed with direction.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana Shoffner, Deputy County Counsel, for Plaintiff and Respondent. Tyrone M. appeals the judgment terminating his parental rights to his son, Andy M. (Welf. & Inst. Code, § 366.26.) Tyrone contends the San Diego County Health and Human Services Agency (the Agency) and the juvenile court failed to fulfill their duties of inquiry and notice pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.). The Agency "concedes the record concerning ICWA notice was insufficient" and "limited remand is necessary to effect and document proper [ICWA]
notice."
BACKGROUND
In October 2013, the Agency filed a dependency petition for Andy, who was nearly four years old. Andy was detained in foster care. The court had previously found ICWA did not apply in all cases regarding the other children of Andy's mother, E.B. In this case, the social worker did not ask E.B. about possible Indian heritage. At the detention hearing in this case, Tyrone declared he might have Cherokee and Crow ancestry and the paternal grandmother had information. The court found ICWA might apply, deferred ruling on the issue and directed Tyrone to complete an ICWA-030 form (Cal. Rules of Court, rule 5.481(a)(4)(A) [Notice of Child Custody Proceeding for Indian Child]) and return it to the social worker.
At the next hearing, the court noted that in the dependency case of Tyrone and E.B.'s son Eric M., "the court found there was no [ICWA] history." The court then asked Tyrone if he had any new information. Tyrone said no. The court took "judicial notice of the prior finding in this case, and [found] that ICWA does not apply in this case because of a prior judicial ruling on January 28, 2009 in [Eric's] case . . . ."
2 In December 2013, the court made jurisdictional findings and ordered Andy removed from parental custody. In October 2014, the court terminated parental rights.
DISCUSSION
The only information in the record regarding ICWA in Eric's case is the mere fact that there was an ICWA finding. There is no information there was an ICWA inquiry or ICWA notice in Eric's case. In this case, the record reflects no investigation, beyond the inquiries of Tyrone noted above, and no ICWA notice. We therefore reverse the judgment and remand the case for the required ICWA inquiry and notice. (In re Robert A. (2007) 147 Cal.App.4th 982, 989-990.)
DISPOSITION
The judgment is reversed. The case is remanded to the juvenile court with directions to order the Agency to (1) conduct an ICWA inquiry; (2) provide ICWA notice to any tribes the inquiry identifies; and (3) file all required documentation with the court.
If, after proper notice, a tribe claims Andy is an Indian child, the court shall proceed in conformity with ICWA. If, on the other hand, no tribe makes such a claim, the court shall reinstate the judgment.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
IRION, J.
Cites, in this corpus
- San Diego County Health & Human Services Agency v. Robert A. D048994 · 2007-01-25