In re C.M. CA4/1
- Proceeding
- appeal from orders
- Trial court
- Superior Court of San Diego County · No. J520785
- Trial judge
- Marissa Bejarano
- Outcome
- reversed — Conditionally reversed with directions.
- Area
- dependency
- Panel
- William S. Dato (author), Truc T. Do, Michele M. Castillo
Analysis
The trial court terminated the father's parental rights, finding that reasonable inquiry into the child's possible Indian ancestry had been made and that ICWA did not apply. The Court of Appeal conditionally reversed the order, finding the agency's initial inquiry deficient, and remanded for the agency to comply with ICWA and Welfare and Institutions Code section 224.2.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order terminating parental rights based on findings that reasonable ICWA inquiry was made and ICWA did not apply“Because substantial evidence does not support the juvenile court’s findings that reasonable inquiry had been made into C.M.’s possible Indian Ancestry and ICWA did not apply, 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 correctly applied the substantial evidence standard to the juvenile court's factual findings regarding the scope of the agency's inquiry. The court identified specific failures in the agency's compliance with statutory duties (failure to ask the paternal grandfather and other extended family members), which logically undermines the finding that 'reasonable inquiry' was conducted. The conditional reversal is the appropriate remedy to allow the agency to cure the procedural defect without necessarily vacating the termination if the inquiry ultimately yields no indication of Indian ancestry. |
Authorities
- relied: In re Y.W. (2021) 70 Cal.App.5th 542 — The purpose of asking other relevant individuals about possible Indian ancestry is to obtain information the parent may not have.
The appellate opinion: sound — The opinion is sound because it correctly identifies the agency's failure to comply with specific statutory inquiry requirements under ICWA and Section 224.2. The conditional reversal is a standard and appropriate procedural mechanism to ensure compliance without unnecessarily delaying the finality of the termination if the inquiry is negative.
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 reasonable ICWA inquiry had been made and that ICWA did not apply. The Court of Appeal, accepting the parties' agreement that the Agency never asked the paternal grandfather or other known extended family members about Indian ancestry, held the ICWA findings unsupported by substantial evidence and conditionally reversed with a limited remand for compliance with ICWA and section 224.2.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Juvenile court's findings that reasonable ICWA inquiry had been made and ICWA did not apply, underlying the section 366.26 order terminating parental rights“Because substantial evidence does not support the juvenile court’s findings that reasonable inquiry had been made into C.M.’s possible Indian Ancestry and ICWA did not apply, we conditionally reverse the order terminating parental rights” | substantial evidence | error (fact finding unsupported) | agree with court Section 224.2, subdivision (b) requires the Agency to ask extended family members about possible Indian ancestry. The record showed the paternal grandfather appeared at the disposition hearing seeking placement yet was never asked, and the Agency knew of other grandparents and siblings but made no effort to contact them. The Agency conceded the deficiency. On that record a finding of adequate inquiry cannot rest on substantial evidence, and conditional reversal with limited remand is the standard remedy. The court did not separately analyze prejudice, but the Agency's concession made that unnecessary as a practical matter. |
Authorities
- relied: In re Y.W. (2021) 70 Cal.App.5th 542 — The purpose of asking extended family members about possible Indian ancestry is to obtain information the parent may not have; failure to make such inquiry renders the initial ICWA inquiry deficient.
The appellate opinion: sound with gaps — The court correctly identified the statutory inquiry duty under section 224.2, subdivision (b), applied the substantial evidence standard, and ordered the conventional conditional reversal with limited remand, consistent with In re Y.W. It did not, however, address whether the conceded inquiry error was prejudicial, an issue on which the Courts of Appeal were then divided, relying instead on the parties' agreement.
Opinion
Filed 5/23/23 In re C.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 C.M., A Person Coming Under the Juvenile Court Law. D081536 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J520785) Plaintiff and Respondent, v. C. M., Sr., Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Marissa Bejarano, Judge. Conditionally reversed with directions.
1 Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Claudia G. Silva, County Counsel and Emily Harlan, Senior Deputy County Counsel, for Plaintiff and Respondent.
MEMORANDUM OPINION1
C.M., Sr. (Father) appeals from a juvenile court order terminating his parental rights. (Welf. & Inst. Code, § 366.26.)2 His sole contention on appeal is that the San Diego County Health and Human Services Agency (Agency) did not comply with its initial inquiry duties under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) and section 224.2. The parties agree that the Agency’s initial ICWA inquiry was deficient because the Agency failed to ask the paternal grandfather about the possibility of Indian ancestry even though he appeared at the disposition hearing in February 2020 seeking placement of C.M. Additionally, the Agency had the names of other maternal and paternal grandparents and knew the parents had siblings, yet nothing in the record indicates the Agency ever attempted to locate these extended family members to make a similar inquiry. (§ 224.2, subd. (b); In re Y.W. (2021) 70 Cal.App.5th 542, 556 [The point of asking other relevant individuals about possible Indian ancestry is “to obtain information the parent may not have.”].)
1 We resolve this case by memorandum opinion because it “is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application.” (Cal. Stds. Jud. Amin., § 8.1(1).)
2 All undesignated statutory references are to the Welfare and Institutions Code.
2 Because substantial evidence does not support the juvenile court’s findings that reasonable inquiry had been made into C.M.’s possible Indian Ancestry and ICWA did not apply, we conditionally reverse the order terminating parental rights with a limited remand for the Agency to comply with ICWA and section 224.2. DISPOSITION The juvenile court’s order terminating parental rights is conditionally reversed and the matter is remanded to the juvenile court with directions that the Agency comply with the inquiry provisions of ICWA and section 224.2. If, after completing ICWA inquiry, neither the Agency nor the juvenile court has reason to know C.M. is an Indian child, the order entered at the section 366.26 hearing shall be immediately reinstated. If the Agency or juvenile court has reason to know C.M. is an Indian child, the court shall proceed accordingly.
DATO, Acting P. J.
WE CONCUR:
DO, J.
CASTILLO, J.