In re A.U. CA4/3

Filed 12/23/21 In re A.U. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re A.U. et al., Persons Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY, G060569 Plaintiff and Respondent, (Super. Ct. Nos. 19DP1583 v. & 19DP1584)

ERICA U., OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Antony C. Ufland, Judge. Affirmed in part and remanded. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant.

Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors. * * * INTRODUCTION We deal here with the question of whether a juvenile dependency court’s failure to follow its “affirmative and continuing duty to inquire” whether a subject minor “is or may be an Indian child” under the Indian Child Welfare Act (25 U.S.C. § 1901 et 1 seq.) (ICWA) constitutes reversible error. (See Welf. & Inst. Code, § 224.2, subd. (a).) ICWA was enacted to give Indian tribes concurrent jurisdiction with state courts in child custody proceedings involving Indian children. (See In re Benjamin M. (2021) 70 Cal.App.5th 735, 740 (Benjamin M.).) Under federal regulations implementing ICWA, as well as California state statutes, dependency courts must ask participants whether they know or have reason to know a subject minor is an Indian child and child protective agencies must conduct adequate inquiries on the matter. (In re Y.W. (2021) 70 Cal.App.5th 542, 551.) This appeal concerns two minors born to appellant Erica U. by two different fathers. Our record lacks evidence showing the proper inquiry was made. SSA argues this failure was not prejudicial because Erica offered no evidence, even on appeal, that either child is subject to ICWA, and there is no evidence in the record that ICWA applies. We sympathize with that position but believe we are bound to remand the matter for further proceedings in compliance with ICWA while conditionally affirming the juvenile court’s judgment terminating Erica’s parental rights.