In re E.M. CA4/1

Filed 5/16/22 In re E.M. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, FOUTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re E.M., A Person Coming Under the Juvenile Court Law. D080085 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J510365H) Plaintiff and Respondent,

v.

P.M., et al.

Defendants and Appellants.

APPEAL from an order of the Superior Court of San Diego County, Browder A. Willis III, Judge. Conditionally reversed and remanded with directions. Robert McLaughlin, under appointment by the Court of Appeal for Defendant and Appellant P.M. William Hook, under appointment by the Court of Appeal for Defendant and Appellant J.L.

P.M. (Father) and J.L. (Mother, together the parents) appeal from an order issued at the Welfare and Institutions Code1 section 366.26 hearing terminating parental rights to their daughter, E.M., and finding without prejudice that the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.) did not apply. Counsel for the parents and the San Diego County Health and Human Services Agency (Agency) have conferred and agree that the Agency’s investigation under the ICWA was inadequate, under the relevant statutory and decisional authority. The parties filed a joint stipulation seeking the issuance of an immediate remittitur. We accept the stipulation, conditionally reverse, and remand for the limited purpose of ensuring compliance with ICWA’s requirements. DISCUSSION In November 2019, the parents denied any Indian ancestry and completed ICWA-020 forms indicating no knowledge of Indian ancestry. In February 2020, Father indicated possible Indian heritage. The social worker, however, was unable to obtain any further information from Father. Although the social worker had the names of the paternal grandparents and three paternal aunts, the record does not indicate that the Agency attempted to contact these individuals to inquire about possible Indian ancestry. The Agency also had direct communication with three of E.M.’s adult step-sisters but failed to inquire about Indian ancestry. The Agency also failed to ask E.M. about any possible Indian ancestry. The parties agree, and we concur, that the Agency did not comply with its initial duty of inquiry in this case by failing to inquire of the child and available extended family members regarding any potential Indian ancestry.