Filed 5/12/15 In re M.C. CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



In re M.C., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E062648

         Plaintiff and Respondent,                                       (Super.Ct.No. J251586)

v.                                                                       OPINION

V.C.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall, Cheryl C. Kersey and A. Rex Victor,1 Judges. Reversed with directions.

         Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and

Appellant.


         1
         Judge Victor is a retired judge of the San Bernardino Superior Court assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

                                                             1
       Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County

Counsel, for Plaintiff and Respondent.

       V.C., the father of M.C., appeals from an order terminating his parental rights. He

contends that the failure of the juvenile court and the social services agency to comply

with their duty of inquiry into the child’s possible Indian heritage requires reversal.

County Counsel concedes, and we agree.

                      FACTUAL AND PROCEDURAL HISTORY

       The sole issue we address does not require an extensive restatement of the

underlying facts. Briefly stated, M.C. and his half siblings were detained when their

mother, who is not a party to this appeal, failed to provide adequate care and housing for

them. V.C. was not married to mother, and throughout the proceedings below was

incarcerated at Centinela State Prison.

       At the detention hearing on October 16, 2013, the court appointed counsel to

represent V.C. as an alleged father. The court ordered V.C., who was not present in

court, to complete and submit an ICWA-020, or Parental Notification of Indian Status,

form.2 On November 5, 2013, respondent San Bernardino County Children and Family

Services (CFS) filed a proof of service stating that on October 25, 2013, V.C. was served

with various documents, including what the proof of service described as “ICWA.”




       2 ICWA refers to the Indian Child Welfare Act of 1978, 25 United States Code
section 1901 et seq.

                                              2
       Genetic testing established V.C.’s paternity, and at the jurisdiction and disposition

hearing on January 6, 2014, the court found him to be M.C.’s biological father and

ordered him to participate in reunification services.

       V.C. did not fill out or return the ICWA-020 form. The mother submitted hers,

stating that she had no Indian ancestry, and the half siblings’ father stated in court that he

had no Indian ancestry. The minutes of the jurisdiction and disposition hearing state that

the court found that ICWA does not apply. V.C. was not present at that hearing, and

there was no discussion on the record as to his failure to return the ICWA-020 form.

       Services were terminated at the six-month review hearing, upon the court’s finding

that neither parent had participated in services. Parental rights were terminated on

December 29, 2014.

       V.C. filed a timely notice of appeal.

       On March 13, 2015, V.C. filed a motion pursuant to Code of Civil Procedure

section 909, asking this court to take additional evidence on appeal. The motion included

his declaration, which stated that he has “Apache/Cherokawa” ancestry and that his

paternal grandparents were members of those two tribes. He stated that he has a paternal

cousin who is a member of the Apache tribe and receives tribal benefits. He stated that if

there had been an inquiry, he would have stated that he has Apache/Cherokawa ancestry.

He also stated that neither his juvenile court attorney nor any CFS worker had asked him

if he had any Indian ancestry. He stated that he did not recall receiving a form that

inquired about his Indian ancestry.

       By separate order, we granted V.C.’s motion.

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                                   LEGAL ANALYSIS

                           LIMITED REMAND IS REQUIRED

       “The court, county welfare department, and the probation department have an

affirmative and continuing duty to inquire whether a child for whom a petition under

Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all

dependency proceedings and in any juvenile wardship proceedings if the child is at risk

of entering foster care or is in foster care.” (Welf. & Inst. Code, § 224.3, subd. (a).) V.C.

contends that because there is no executed Parental Notification of Indian Status form in

the record or any discussion on the record of his possible Indian status, the juvenile court

failed to discharge this duty.

       V.C.’s statement of the court’s duty of inquiry is overbroad. The court must

inquire into a parent’s possible Indian ancestry, and must, at the parent’s first appearance

in a juvenile dependency matter, order the parent to fill out and return the ICWA

notification form. (Welf. & Inst. Code, § 224.3, subd. (a); Cal. Rules of Court,

rule 5.481(a)(2), (3).) However, if the court or the social services agency provides the

form or asks the parent if the child has or may have Indian ancestry and the parent fails to

respond, the initial duty of inquiry is discharged. The duty to make further inquiry is

triggered only if the court or social services agency receives information from another

source which suggests that the child may be an Indian child. (Welf. & Inst. Code,

§ 224.3, subds. (b)-(d); Cal. Rules of Court, rule 5.481(a)(4); In re Aaliyah G. (2003) 109

Cal.App.4th 939, 941-942.)



                                              4
       Here, the record is ambiguous as to whether V.C. actually received the ICWA

notification form. As noted above, there is a proof of service which states that documents

including “ICWA” were served on V.C. at Centinela State Prison, apparently by someone

who works at the prison. However, the jurisdiction/disposition report states that V.C.

informed the social worker in a telephone conversation “that he was personally served at

his home and his aunt received the paperwork and provided it to him on October 25,

2013.” This statement may be inconsistent with the proof of service, although it is

entirely possible that the aunt provided the documents to prison authorities, who then

served the documents on V.C.

       Under most circumstances, in the absence of a contention litigated in the juvenile

court that the parent was not served with the ICWA notification form, we would take the

proof of service at face value. V.C., however, stated in his declaration in support of his

motion for taking evidence on appeal that he did not recall having received a document

inquiring about his Indian ancestry. He also stated that his paternal grandparents were

members of the “Apache/Cherokawa” tribe or tribes, that his paternal cousin is a member

of the Apache tribe, and that if he had been asked, he would have so informed the court.

One of the goals of ICWA is to protect the interests of Indian tribes, which have a

federally declared right to be informed of dependency proceedings concerning children

who are or who are eligible to become members of the tribe (25 U.S.C. § 1901 et seq.; In

re Holly B. (2009) 172 Cal.App.4th 1261, 1266), and the information before us suggests

that M.C. may indeed be an Indian child within the meaning of ICWA. Inquiry error may

be deemed harmless where no such information exists, but where it does exist, the error

                                             5
requires reversal for a limited remand. (In re H.B. (2008) 161 Cal.App.4th 115, 121-122;

In re J.N. (2006) 138 Cal.App.4th 450, 460-461.) Here, while it is not clear that there

was a failure to inquire, the information V.C. has provided is sufficient to persuade us

that it is appropriate to reverse the termination of parental rights and to remand the matter

for the limited purpose of obtaining further information from V.C. and giving notice to

the pertinent tribe or tribes.

                                      DISPOSITION

       The judgment terminating parental rights is reversed, and the case is remanded to

the juvenile court with directions to order San Bernardino County Children and Family

Services to obtain all available information concerning M.C.’s possible status as an

Indian child within the meaning of ICWA and to comply with the notice requirements of

ICWA. If, after proper inquiry and notice, the juvenile court finds that M.C. is an Indian

child as defined by ICWA, the court shall proceed in conformity with all provisions of

ICWA. If, on the other hand, the court finds that M.C. is not an Indian child, the

judgment terminating parental rights shall be reinstated.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                McKINSTER
                                                                                 Acting P. J.
We concur:


KING
                            J.


CODRINGTON
                            J.

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