Filed 4/28/22 In re T.G. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re T.G., A Person Coming Under
the Juvenile Court Law.
D080038
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. J520793B)
Plaintiff and Respondent,
v.
M.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Rohanee Zapanta, Judge. Conditionally reversed and remanded with
directions.
M.G. (Father) appeals from an order issued at the contested disposition
hearing where the juvenile court denied his request for reunification services
and found without prejudice that the Indian Child Welfare Act (ICWA; 25
U.S.C. § 1901 et seq.) did not apply. Counsel for Father and the San Diego
County Health and Human Services Agency (Agency, together the parties)
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
compliance with the ICWA.
In July 2021, Father initially told a social worker that he had no Native
American heritage but later disclosed possible Cherokee heritage in his
maternal and paternal lineages. Mother, A.M., claimed possible Cherokee
ancestry through the maternal great-great-grandmother. Father and Mother
ultimately denied Indian ancestry at a hearing held in September 2021.
The parties agree that the Agency did not comply with its initial duty of
inquiry in this case by failing to inquire of available extended family
members regarding any potential Indian ancestry. (Welf. & Inst. Code,
§ 224.2, subds. (a) & (b).)1 Additionally, the Agency did not include all known
relatives on its ICWA-030 form, and the Agency sent the ICWA-030 form to
some Cherokee tribes before it satisfied its initial inquiry duty.
We also note additional issues not mentioned by the parties. First, the
juvenile court failed to order the parents to complete the ICWA-020 form.
(Cal. Rules of Court, rule 5.481(a)(2)(C).) Although the parents ultimately
denied Indian ancestry, this denial does not “relieve[] the [Agency] of its
broad duty to seek that information from ‘all relevant’ individuals.” (In re
Y.W. (2021) 70 Cal.App.5th 542, 554.) A contrary rule would “ignore[] the
reality that parents may not know their possible relationship with or
connection to an Indian tribe.” (Ibid.; In re S.R. (2021) 64 Cal.App.5th 303,
314 [“the children’s parents apparently had no idea of their family’s
1 Further undesignated statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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connection to the . . . tribe . . . , even though the children’s great-grandmother
was a member”].) Finally, before the juvenile court can make a finding that
the ICWA does not apply, it must make a finding that “due diligence as
required in this section have been conducted.” (§ 224.2, subd. (i)(2).)
Before reversing or vacating a judgment based upon a stipulation of the
parties, an appellate court must find “both of the following: [¶] (A) There is
no reasonable possibility that the interests of nonparties or the public will be
adversely affected by the reversal. [¶] (B) The reasons of the parties for
requesting reversal outweigh the erosion of public trust that may result from
the nullification of a judgment and the risk that the availability of stipulated
reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc.,
§ 128, subd. (a)(8).)
The present case involves reversible error because the parties agree,
and we concur, that the Agency failed to comply with the ICWA and related
California provisions. Because this case would be subject to reversal to
permit compliance with ICWA and corresponding California statutes and
rules absent the parties’ stipulation, a stipulated remand advances the
interests identified by Code of Civil Procedure section 128, subdivision (a)(8).
(See In re Rashad H. (2000) 78 Cal.App.4th 376, 379-382.)
DISPOSITION
The orders issued at the January 14, 2022, disposition hearing are
conditionally reversed and the matter is remanded to the juvenile court with
directions that within 30 days of the remittitur, the Agency must file (1) a
completed Form ICWA-020 for each parent and (2) a report demonstrating its
compliance with the inquiry provisions of the ICWA and section 224.2,
subdivision (b), and, if required, conduct further inquiry under section 224.2,
subdivision (e). Within 45 days of the remittitur, the juvenile court must
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conduct a hearing to determine if the Agency’s investigation satisfied its
affirmative duty to investigate. The juvenile court has the discretion to
adjust these time periods on a showing of good cause.
If neither the Agency nor the juvenile court has reason to believe or to
know that T.G. is an Indian child, the orders issued at the January 14, 2022,
disposition hearing shall be reinstated. Alternatively, if after completing the
inquiry the Agency or the juvenile court has reason to believe that T.G. is an
Indian child, the court shall proceed accordingly. The remittitur shall issue
immediately.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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