California Court of Appeal May 12, 2015 No. E062648Unpublished
Filed 5/12/15 In re M.C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re M.C., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E062648
Plaintiff and Respondent, (Super.Ct.No. J251586)
v. OPINION
V.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Cheryl C. Kersey and A. Rex Victor,1 Judges. Reversed with directions.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and
Appellant.
1 Judge Victor is a retired judge of the San Bernardino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1
Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County
Counsel, for Plaintiff and Respondent.
V.C., the father of M.C., appeals from an order terminating his parental rights. He
contends that the failure of the juvenile court and the social services agency to comply
with their duty of inquiry into the child’s possible Indian heritage requires reversal.
rule 5.481(a)(2), (3).) However, if the court or the social services agency provides the
form or asks the parent if the child has or may have Indian ancestry and the parent fails to
respond, the initial duty of inquiry is discharged. The duty to make further inquiry is
triggered only if the court or social services agency receives information from another
source which suggests that the child may be an Indian child. (Welf. & Inst. Code,
§ 224.3, subds. (b)-(d); Cal. Rules of Court, rule 5.481(a)(4); In re Aaliyah G. (2003) 109
Cal.App.4th 939, 941-942.)
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Here, the record is ambiguous as to whether V.C. actually received the ICWA
notification form. As noted above, there is a proof of service which states that documents
including “ICWA” were served on V.C. at Centinela State Prison, apparently by someone
who works at the prison. However, the jurisdiction/disposition report states that V.C.
informed the social worker in a telephone conversation “that he was personally served at
his home and his aunt received the paperwork and provided it to him on October 25,
2013.” This statement may be inconsistent with the proof of service, although it is
entirely possible that the aunt provided the documents to prison authorities, who then
served the documents on V.C.
Under most circumstances, in the absence of a contention litigated in the juvenile
court that the parent was not served with the ICWA notification form, we would take the
proof of service at face value. V.C., however, stated in his declaration in support of his
motion for taking evidence on appeal that he did not recall having received a document
inquiring about his Indian ancestry. He also stated that his paternal grandparents were
members of the “Apache/Cherokawa” tribe or tribes, that his paternal cousin is a member
of the Apache tribe, and that if he had been asked, he would have so informed the court.
One of the goals of ICWA is to protect the interests of Indian tribes, which have a
federally declared right to be informed of dependency proceedings concerning children
who are or who are eligible to become members of the tribe (25 U.S.C. § 1901 et seq.; In
re Holly B. (2009) 172 Cal.App.4th 1261, 1266), and the information before us suggests
that M.C. may indeed be an Indian child within the meaning of ICWA. Inquiry error may
be deemed harmless where no such information exists, but where it does exist, the error
5
requires reversal for a limited remand. (In re H.B. (2008) 161 Cal.App.4th 115, 121-122;
In re J.N. (2006) 138 Cal.App.4th 450, 460-461.) Here, while it is not clear that there
was a failure to inquire, the information V.C. has provided is sufficient to persuade us
that it is appropriate to reverse the termination of parental rights and to remand the matter
for the limited purpose of obtaining further information from V.C. and giving notice to
the pertinent tribe or tribes.
DISPOSITION
The judgment terminating parental rights is reversed, and the case is remanded to
the juvenile court with directions to order San Bernardino County Children and Family
Services to obtain all available information concerning M.C.’s possible status as an
Indian child within the meaning of ICWA and to comply with the notice requirements of
ICWA. If, after proper inquiry and notice, the juvenile court finds that M.C. is an Indian
child as defined by ICWA, the court shall proceed in conformity with all provisions of
ICWA. If, on the other hand, the court finds that M.C. is not an Indian child, the
judgment terminating parental rights shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
KING J.
CODRINGTON J.
6
AI Brief
AI-generated · verify before citing
Holding. The court reversed the termination of parental rights and remanded the case for a limited inquiry into the child's potential Indian heritage, as the father provided new information suggesting he has tribal ancestry that was not previously addressed.
Issues
Did the juvenile court and social services agency fail to satisfy their affirmative duty of inquiry under the Indian Child Welfare Act (ICWA)?
Does the father's newly provided information regarding his tribal ancestry necessitate a limited remand for further ICWA compliance?
Disposition. reversed
Quotations verified verbatim against the opinion
“the information V.C. has provided is sufficient to persuade us that it is appropriate to reverse the termination of parental rights and to remand the matter for the limited purpose of obtaining further information from V.C.”