Filed 11/20/15 Amber L. v. Superior Court CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
AMBER L., D068782
Petitioner,
(San Diego County
v. Super. Ct. No. EJ3765A-D)
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY et al.,
Real Parties in Interest.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code
section 366.26 hearing. Gary M. Bubis, Judge. Petition granted; request for stay denied.
Dependency Legal Group of San Diego and John P. McCurley for Petitioner.
No appearance by Respondent.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa Maldonado, Deputy County Counsel, for Real Party in Interest San
Diego County Health and Human Services Agency.
Dependency Legal Group of San Diego and Caitlin Zaback for Real Parties in
Interest E.L., J.L., B.L. and A.L., Minors.
Amber L. seeks review of a juvenile court order setting a hearing under Welfare
and Institutions Code section 366.26.1 She contends the San Diego County Health and
Human Services Agency (Agency) and the juvenile court did not conduct a sufficient
inquiry and provide notice in compliance with the Indian Child Welfare Act (ICWA),
title 25 U.S.C. section 1901 et seq. and Welfare and Institutions Code section 224 et seq.
Amber asks that this court conditionally reverse the order setting the hearings under
section 366.26 with directions to conduct the necessary inquiry and provide notice to the
appropriate tribes. The Agency concedes error. After review, we accept the Agency's
concession and therefore grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2014, the Agency filed petitions alleging that Amber had physically
abused one of her four children, and the other three children were at substantial risk of
physical abuse. (§ 300, subs. (a), (j).) In its detention report, the Agency said ICWA
does or may apply, and explained "[t]he maternal grandmother . . . reports that her
grandfather had some Cherokee Indian [h]eritage. [She] states that her grandfather was
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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not registered as a tribal member and did not participate in tribal activities." In Indian
child inquiry attachments to the petitions, the Agency reported "[the maternal
grandmother] states that her grandfather had Cherokee Indian [h]eritage."
At the detention hearing, Amber and the children's father informed the juvenile
court that neither parent had any American Indian heritage. On their parentage inquiries,
the parents represented that as far as they knew, they had no Indian ancestry. The
juvenile court found that ICWA did not apply.
In reports filed for subsequent hearings, the Agency stated: "On 01/21/2014, the
court found the [ICWA] does not apply." The report filed for the 18-month review
hearing states: "The [ICWA] does not apply." The juvenile court did not address ICWA
issues, or make any ICWA findings, at any hearing after the detention hearing. At the
18-month review hearing, the juvenile court terminated reunification services and set
section 366.26 hearings for the children on December 15, 2015.
DISCUSSION
The court and social worker have an affirmative and continuing duty in all
dependency proceedings to inquire whether a dependent child is, or may be, an Indian
child. (§ 224.3, subd. (a).) The circumstances that may provide reason to know the child
is an Indian child include when a member of the child's extended family provides
information suggesting the child is a member of a tribe or eligible for membership in a
tribe, or one or more of the child's biological parents, grandparents, or great-grandparents
are or were a member of the tribe. (Id., subd. (b).) A social worker who knows or has
reason to know that the child is an Indian child is required to make further inquiry
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regarding the possible Indian status of the child, and to do so as soon as practicable, by
interviewing the parents, Indian custodian, and extended family members, to gather the
information required for notice. (Id., subd. (c); In re A.G. (2012) 204 Cal.App.4th 1390,
1396-1397.)
The Agency concedes, and the record shows, that the social worker did not make
further inquiry regarding the possible Indian status of the children. The Agency states
that a limited remand is necessary to effect and document proper inquiry under ICWA.
(In re J.N. (2006) 138 Cal.App.4th 450, 461-462.) We therefore grant the relief
requested.
DISPOSITION
The order setting the section 366.26 hearings is conditionally reversed. The matter
is remanded to the juvenile court with directions to vacate its finding that ICWA does not
apply and direct the Agency inquire into the family's alleged Indian heritage and provide
notice to the children's Indian tribe or tribes, if any, in accordance with ICWA and
section 224.3. If the inquiry produces evidence that the children are or may be Indian
children, then the juvenile court should direct the Agency to give notice of the underlying
proceedings and any upcoming hearings in compliance with ICWA and applicable state
law to any identified tribes. (25 U.S.C. § 1912.) If, after proper inquiry (and notice, if
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indicated), the juvenile court finds that the children are not Indian children within the
meaning of ICWA, the order setting the section 366.26 hearings shall be reinstated.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
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