In re C.M. CA4/1 ( 2023 )

Filed 5/23/23 In re C.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re C.M., A Person Coming Under
the Juvenile Court Law.
D081536
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. J520785)
Plaintiff and Respondent,
v.
C. M., Sr.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Marissa Bejarano, Judge. Conditionally reversed with directions.
1
Jill Smith, under appointment by the Court of Appeal, for Defendant
and Appellant.
Claudia G. Silva, County Counsel and Emily Harlan, Senior Deputy
County Counsel, for Plaintiff and Respondent.
MEMORANDUM OPINION1
C.M., Sr. (Father) appeals from a juvenile court order terminating his
parental rights. (Welf. & Inst. Code, § 366.26.)2 His sole contention on
appeal is that the San Diego County Health and Human Services Agency
(Agency) did not comply with its initial inquiry duties under the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq.) and section 224.2. The parties agree
that the Agency’s initial ICWA inquiry was deficient because the Agency
failed to ask the paternal grandfather about the possibility of Indian ancestry
even though he appeared at the disposition hearing in February 2020 seeking
placement of C.M. Additionally, the Agency had the names of other maternal
and paternal grandparents and knew the parents had siblings, yet nothing in
the record indicates the Agency ever attempted to locate these extended
family members to make a similar inquiry. (§ 224.2, subd. (b); In re Y.W.
(2021) 70 Cal.App.5th 542, 556 [The point of asking other relevant
individuals about possible Indian ancestry is “to obtain information the
parent may not have.”].)
1 We resolve this case by memorandum opinion because it “is determined
by a controlling statute which is not challenged for unconstitutionality and
does not present any substantial question of interpretation or application.”
(Cal. Stds. Jud. Amin., § 8.1(1).)
2 All undesignated statutory references are to the Welfare and
Institutions Code.
2
Because substantial evidence does not support the juvenile court’s
findings that reasonable inquiry had been made into C.M.’s possible Indian
Ancestry and ICWA did not apply, we conditionally reverse the order
terminating parental rights with a limited remand for the Agency to comply
with ICWA and section 224.2.
DISPOSITION
The juvenile court’s order terminating parental rights is conditionally
reversed and the matter is remanded to the juvenile court with directions
that the Agency comply with the inquiry provisions of ICWA and section
224.2. If, after completing ICWA inquiry, neither the Agency nor the juvenile
court has reason to know C.M. is an Indian child, the order entered at the
section 366.26 hearing shall be immediately reinstated. If the Agency or
juvenile court has reason to know C.M. is an Indian child, the court shall
proceed accordingly.
DATO, Acting P. J.
WE CONCUR:
DO, J.
CASTILLO, J.
3