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


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  • Filed 2/10/23 In re T.C. 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 T.C., a Person Coming Under
    the Juvenile Court Law.
    D080529
    SAN DIEGO COUNTY HEALTH
    AND HUMAN SERVICES
    AGENCY,                                                         (Super. Ct. No. EJ4570)
    Plaintiff and Respondent,
    v.
    T.C. et al.,
    Defendants and Appellants.
    APPEALS from an order of the Superior Court of San Diego County,
    Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.
    Jamie A. Moran, under appointment by the Court of Appeal, for
    Defendant and Appellant, T.C.
    Robert McLaughlin, under appointment by the Court of Appeal, for
    Defendant and Appellant, C.H.
    Claudia G. Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
    Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
    Respondent.
    T.C. (Father) and C.H. (Mother) appeal the juvenile court’s order
    terminating their parental rights to their son, T.C., under Welfare and
    Institutions Code1 section 366.26. The sole issue on appeal is whether the
    San Diego County Health and Human Services Agency (Agency) and the
    juvenile court failed to conduct an adequate initial inquiry under section
    224.2 into T.C.’s possible Native American ancestry, as defined by the Indian
    Child Welfare Act (ICWA; 
    25 U.S.C. § 1901
     et seq.). The Agency concedes
    error but contends that remand for additional investigation is unnecessary
    because it subsequently conducted further inquiry in cases involving the
    same parents and T.C.’s full siblings, K.C. and C.H., which showed T.C. was
    neither enrolled nor eligible for membership in the identified tribes. In a
    separately filed motion, the Agency requests that we augment the record
    with documents from these cases that demonstrate the Agency’s further
    inquiry efforts with extended family members and the tribes. The Agency
    submits that the augmented record would show that the ICWA errors in this
    case have been rendered moot or harmless.
    As we shall discuss, we agree that the Agency and juvenile court erred,
    deny the augmentation request, conclude that the initial inquiry errors were
    prejudicial, conditionally reverse the termination order, and remand the
    matter for further proceedings.
    1     Undesignated statutory references are to the Welfare and Institutions
    Code.
    2
    FACTUAL AND PROCEDURAL BACKGROUND2
    In October of 2020, the Agency petitioned the juvenile court under
    section 300, subdivision (b)(1) on behalf of then three-month-old T.C., alleging
    that the parents repeatedly exposed him to violent confrontations, and that
    Mother continued to allow Father to care for T.C. despite Father’s ongoing
    abuse of methamphetamine. At about the same time, a social worker
    completed an ICWA-010(A) form, indicating that the Agency had spoken with
    both parents and had no reason to believe the child was an Indian child.
    Mother, Father, and the maternal grandfather participated in the
    subsequent detention hearing. Counsel for Mother indicated that Mother
    had “no Native American Indian heritage,” and that she would submit the
    appropriate form to the court at a later date. There is no indication in the
    record that Mother ever submitted an ICWA-020 form.
    Counsel for Father also stated that his client denied any known Native
    American ancestry. The court did not ask the maternal grandfather whether
    he had any reason to believe T.C. had Indian heritage. The court then
    determined that the ICWA did not apply.
    It appears from the record that the Agency conducted no further ICWA
    inquiries after this hearing. Several of the Agency’s subsequent reports
    simply indicate that “[o]n 10/15/2020, the [c]ourt found that the Indian Child
    Welfare Act does not apply.” The juvenile court also did not further address
    T.C.’s potential Indian ancestry.
    2     Because the parents’ sole contention on appeal challenges the Agency’s
    and the juvenile court’s compliance with their section 224.2 inquiry duties,
    we limit our discussion of the facts and procedural history to information
    necessary to determine those issues.
    3
    On December 16, 2020, the juvenile court sustained the petition, as
    amended (the allegations remained substantially the same).
    In the course of investigating T.C.’s case, the Agency communicated
    with the maternal grandfather, the maternal grandmother and her husband,
    a maternal uncle, the paternal grandmother, and the paternal great-
    grandmother regarding various issues including safety planning, providing
    temporary childcare, and possible placement of T.C. The Agency also sent
    letters to the maternal grandmother and paternal grandmother, as well as
    nine additional relatives, asking if they would be interested in placement.
    Although the letters are not included in the record, the Agency’s
    jurisdiction/disposition report summarizes the placement-related information
    relayed to these individuals. The summary does not include any ICWA-
    related inquiries. Nor is there any indication elsewhere in the record that the
    Agency ever asked any of these relatives about T.C.’s possible Native
    American ancestry.
    On January 20, 2022, the Agency placed T.C. and his sibling, K.C., with
    caregivers who seek to adopt T.C. The court terminated Mother’s and
    Father’s parental rights on June 8, 2022, at a contested section 366.26
    hearing. Father and Mother separately filed timely appeals from the order,
    challenging only the court’s ICWA finding, made at the time of the detention
    hearing.3
    3      Neither parent appealed from the juvenile court’s October 2020
    detention order in which the court expressly found that ICWA did not apply.
    Ordinarily, “California follows a ‘one shot’ rule under which, if an order is
    appealable, appeal must be taken or the right to appellate review is
    forfeited.” (In re Baycol Cases I & II (2011) 
    51 Cal.4th 751
    , 761, fn. 8.)
    However, because the duty of inquiry under ICWA is a continuing one, the
    one-shot rule does not apply here. (See § 224.2, subd. (a); In re Isaiah W.
    (2016) 
    1 Cal.5th 1
    , 6 (Isaiah W.) [“Because ICWA imposes on the juvenile
    4
    DISCUSSION
    I. Governing Law
    Congress enacted the ICWA to address rising concern that Indian
    children were being separated from their tribes through adoption or foster
    care and placed with non-Indian families. (Isaiah W., supra, 1 Cal.5th at
    p. 7.) California subsequently enacted its own statutes specifying the steps
    the Agency and juvenile courts are required to take to determine whether a
    child is an Indian child before making placement decisions. (In re D.S. (2020)
    
    46 Cal.App.5th 1041
    , 1048 (In re D.S.).) Under these statutes, the juvenile
    court and the Agency have an “affirmative and continuing duty to inquire”
    during dependency proceedings whether a child “is or may be an Indian
    child.” (§ 224.2, subd. (a).) “This continuing duty can be divided into three
    phases: the initial duty to inquire, the duty of further inquiry, and the duty
    to provide formal ICWA notice.” (In re D.F. (2020) 
    55 Cal.App.5th 558
    , 566
    (In re D.F.).)
    The Agency’s initial inquiry duty, which is at issue in this appeal,
    includes, but is not limited to, “asking the child, parents, legal guardian,
    Indian custodian, extended family members, others who have an interest in
    the child, and the party reporting child abuse or neglect, whether the child is,
    or may be, an Indian child and where the child, the parents, or Indian
    custodian is domiciled.” (§ 224.2, subd. (b).) ICWA defines “ ‘extended family
    member’ ” by “the law or custom of the Indian child’s tribe” or, absent such
    law or custom, as “a person who has reached the age of eighteen and who is
    the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-
    court a continuing duty to inquire whether the child is an Indian child, we
    hold that the parent may challenge a finding of ICWA’s inapplicability in an
    appeal from the subsequent [termination of parental rights] order, even if she
    did not raise such challenge in an appeal from the initial [detention] order”].)
    5
    law or sister-in-law, niece or nephew, first or second cousin, or stepparent.”
    (
    25 U.S.C. § 1903
    (2); Welf. & Inst. Code, § 224.1, subd. (c) [“ ‘extended family
    member’ . . . defined as provided in [§] 1903” of ICWA].)
    If the initial inquiry reveals a reason to believe the child is an Indian
    child, then further inquiry into whether there is a reason to know the child is
    an Indian child is required. (In re D.F., supra, 55 Cal.App.5th at p. 566.) If
    there is reason to know that a child is an Indian child (§ 224.2, subd. (d)),
    then notice must be sent to the pertinent tribe to allow the tribe to make a
    determination regarding the child’s tribal membership. (In re D.F., at
    pp. 567–568.)
    We review ICWA findings for substantial evidence, “[b]ut where the
    facts are undisputed, we independently determine whether ICWA’s
    requirements have been satisfied.” (In re D.S., supra, 46 Cal.App.5th at
    p. 1051.)
    II. Analysis
    A.    Insufficient Initial ICWA Inquiry
    In this case, the parents assert, and the Agency concedes, that the
    Agency failed to comply with its initial ICWA inquiry obligations under
    section 224.2 because it did not question the extended family members
    available to it about possible Native American ancestry. We agree.
    Over the course of the dependency proceedings, the Agency failed to
    take advantage of many opportunities to make ICWA inquiries of readily
    available relatives. The Agency had telephonic contact with the maternal
    grandfather, the maternal grandmother and step-grandfather, a maternal
    uncle, and the paternal grandmother, but did not ask any of these extended
    family members whether the child “[was] or may be an Indian child” as
    required in an initial ICWA inquiry. (§ 224.2, subd. (b); In re Benjamin M.
    6
    (2021) 
    70 Cal.App.5th 735
    , 744 (Benjamin M.) [failure to ask father’s known
    relatives about possible Indian ancestry violated ICWA requirements].) The
    Agency also spoke with the paternal great-grandmother without inquiring
    about Indian ancestry. Although great-grandparents do not fall within the
    definition of “extended family members,” the duty of inquiry also extends to
    “others who have an interest in the child . . . .” (§ 224.2, subd. (b); see also In
    re Dominick D. (2022) 
    82 Cal.App.5th 560
    , 564, fn. 2, 567 [requiring initial
    inquiry of a maternal great-grandfather who served as the dependent’s
    caregiver because he was included under “others who have an interest in the
    child”]; In re S.R. (2021) 
    64 Cal.App.5th 303
    , 314 (In re S.R.) [“[t]he statute
    obligates the court and child protective agencies to ask all relevant involved
    individuals . . . ‘whether the child is, or may be, an Indian child’ ”].) In this
    case, both parents requested that the Agency evaluate the paternal great-
    grandmother as a placement option. She initially declined to be considered,
    but volunteered to speak with her daughter about possibly taking T.C. Later,
    she called back and requested that the Agency assess her for placement.
    Thus, the paternal great-grandmother demonstrated an obvious interest in
    the child and should have been questioned by the Agency as to whether she
    was aware of any Indian ancestry. Finally, although the Agency sent
    placement letters to nine other relatives, it does not appear the letters
    included any ICWA inquiries. As a result, we are left to conclude that the
    Agency did not satisfy its inquiry duties.
    The juvenile court also did not fully comply with its ICWA inquiry
    obligations. “At the first appearance in court of each party, the court shall
    ask each participant present in the hearing whether the participant knows or
    has reason to know that the child is an Indian child” (§ 224.2, subd. (c), italics
    added), and “[o]rder the parent . . . to complete” the ICWA-020 form. (Cal.
    7
    Rules of Court, rule 5.481(a)(2)(C).) 4 Here, although Mother’s counsel
    indicated that Mother would submit the appropriate form later, the juvenile
    court did not order the parents to complete the ICWA-020 form. Nor did the
    court inquire of the maternal grandfather at his first appearance at the
    detention hearing whether he knew or had reason to know that T.C. is an
    Indian child.
    In sum, because neither the Agency’s nor the court’s initial ICWA
    inquiries were adequate, we conclude there is insufficient evidence to support
    the juvenile court’s finding that ICWA did not apply. Such an error requires
    reversal if we find that the error was prejudicial. (Benjamin M., supra, 70
    Cal.App.5th at p. 742.)
    The Courts of Appeal have applied varying analytical frameworks to
    evaluate whether ICWA initial inquiry errors are prejudicial or harmless.
    We need not address these various approaches because this division has
    adopted the approach articulated in Benjamin M., supra, 
    70 Cal.App.5th 735
    .
    (In re Y.M. (2022) 
    82 Cal.App.5th 901
    , 916 (In re Y.M.).) Under this
    approach, “a court must reverse where the record demonstrates that the
    agency has not only failed in its duty of initial inquiry, but where the record
    indicates that there was readily obtainable information that was likely to
    bear meaningfully upon whether the child is an Indian child.” (Benjamin M.,
    at p. 744.) This “standard does not require ‘proof of an actual outcome (that
    the parent may actually have Indian heritage).’ [Citation.] The missing
    information need only be relevant to the ICWA inquiry, ‘whatever the
    outcome will be.’ ” (In re Ricky R. (2022) 
    82 Cal.App.5th 671
    , 679 (Ricky R.);
    
    id. at p. 680
     [applying Benjamin M. standard and finding reversible initial
    4     All further references to rules are to the California Rules of Court.
    8
    inquiry error where agency “asked the parents about Indian ancestry” but
    “failed to ask extended family members about it”].)
    On this record, we cannot say the Agency’s failure to comply with its
    initial inquiry duties was harmless. Extended family members and a relative
    with an interest in the child—including the maternal grandfather, maternal
    grandmother, maternal step-grandfather, maternal uncle, paternal great-
    grandmother, and paternal grandmother—were readily available, and their
    responses would likely have borne meaningful information, regardless of the
    outcome of the inquiry. (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
    Furthermore, the fact that the parents denied any Indian heritage does not
    relieve the Agency of its “broad duty” to inquire of readily ascertainable
    extended family members whether the child was an Indian child. (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., supra, 64 Cal.App.5th at p. 314 [“the
    children’s parents apparently had no idea of their family’s connection to
    the . . . tribe . . . , even though the children’s great-grandmother was a
    member”]; see also In re T.G. (2020) 
    58 Cal.App.5th 275
    , 295 [noting that
    ICWA’s “expansive” duty of inquiry “is premised on the commonsense
    understanding that, over time, Indian families, particularly those living in
    major urban centers . . . , may well have lost the ability to convey accurate
    information regarding their tribal status”].) Accordingly, we conclude that
    the Agency’s error was prejudicial.
    B.    Motion to Augment the Record
    By separate motion, the Agency moves to augment the record with
    information obtained during the ICWA inquiries the Agency conducted in
    dependency cases involving T.C.’s full-siblings, K.C. and C.H. The Agency
    9
    contends that these additional documents demonstrate that remanding the
    case for further inquiry would be futile, thus rendering the case moot or the
    error harmless.
    According to the Agency, both the Agency and the juvenile court
    conducted an initial inquiry with the parents in C.H.’s case. The court also
    questioned the paternal grandfather directly during C.H.’s detention hearing.
    At the same hearing, Mother apparently claimed ancestry with the “Taino”
    tribe, and said she was waiting to hear from other family members about
    additional tribal ancestry. The paternal grandfather believed his
    grandfather was “ ‘half-Indian’ ” and his great-grandmother was “ ‘all
    Indian,’ ” and Father opined that T.C.’s grandmother or great-grandmother
    might have further information.
    The Agency then prepared a jurisdiction/disposition report
    documenting its further inquiry efforts with the tribes as well as its
    discussions with various extended family members. At a subsequent hearing,
    the court ordered Father to complete the ICWA-020 form. It is not clear from
    the Agency’s motion whether the Agency or the juvenile court ever followed
    up on the ICWA information in C.H.’s case, and it does not appear the court
    ever made a finding as to C.H.’s ICWA status.
    In K.C.’s case, it is not apparent from the motion whether the Agency
    and the court conducted their own initial inquires or whether they built off
    the proceedings involving C.H. The Agency references only a summary of two
    special hearings in K.C.’s case during which the court evaluated the Agency’s
    further ICWA inquiry with the family, its notices to the tribes, and the tribes’
    responses. At some point, the Cherokee Nation sent a response requesting
    the middle name and date of birth of the maternal grandfather. The Agency
    provided it and received word from the tribe’s enrollment designee that none
    10
    of the family members were eligible to enroll in the tribe. The Agency noted
    that the juvenile court found that reasonable inquiry had been made as to
    whether K.C. was an Indian child, and that the court concluded that ICWA
    did not apply.
    Mother responds that augmentation is not appropriate because the
    materials were not before the trial court and it is for the juvenile court, not
    the appellate court, to decide questions of fact. Father did not oppose the
    motion.
    “It has long been the general rule and understanding that ‘an appeal
    reviews the correctness of a judgment as of the time of its rendition, upon a
    record of matters which were before the trial court for its consideration.’ ” (In
    re Zeth S. (2003) 
    31 Cal.4th 396
    , 405 (Zeth S.).) Under certain circumstances,
    a reviewing court may “take additional evidence of or concerning facts
    occurring at any time prior to the decision of the appeal” and may make
    factual determinations, particularly when doing will result in final disposal of
    a matter in a single appeal without further proceedings in the trial court.
    (Code Civ. Proc., § 909.) However, this authority “should be exercised
    sparingly” and only under “exceptional circumstances.” (Zeth S., at p. 405
    [noting that “[t]here is no blanket exception to the general rule for juvenile
    dependency appeals”].)
    We do not believe that such exceptional circumstances exist in this
    case. Indeed, if this case is exceptional, then nearly all cases in which the
    Agency belatedly conducts the required ICWA inquiry and seeks to
    11
    supplement the appellate record will qualify.5 Here, the Agency asks us to
    augment the record with 180 pages of additional information. The records
    include a detention hearing transcript, Mother’s ICWA-020 form, Agency
    reports, and court minute orders filed in two separate cases involving two
    different children. None of the material has been filed in the juvenile court in
    T.C.’s case. It is not the province of appellate courts to sift through a
    voluminous collection of documents that were filed piecemeal in two different
    cases, weigh the evidence, and decide whether the Agency conducted a
    sufficient ICWA inquiry. (Cf. In re Jennifer A. (2002) 
    103 Cal.App.4th 692
    ,
    703 [“[m]aking the appellate court the trier of fact is not the solution”].)
    Rather, “[i]t is a trial court function to receive evidence of the [Agency’s]
    notice efforts and to determine if they measure up to ICWA standards.” (In
    re Nikki R. (2003) 
    106 Cal.App.4th 844
    , 852.) If the Agency is to concede
    ICWA inquiry and notice error, the better practice is for the parties to
    “stipulate to a conditional ICWA reversal and an immediate issuance of the
    remittitur.” (Ricky R., supra, 82 Cal.App.5th at p. 683.)
    The Agency nonetheless argues that we should accept the additional
    evidence because it is not being offered for the purpose of reversing the
    court’s order on substantive grounds, but to demonstrate a lack of prejudice.
    Because the Agency contends the subsequent ICWA inquiry evidence shows
    there is no reasonable likelihood of a different outcome should the case be
    5     How appellate courts should handle this issue may eventually be
    answered. Our Supreme Court recently granted review of a case to consider
    the question of whether an appellate court may take additional evidence to
    remedy the failure of the child welfare agency and the trial court to comply
    with the inquiry, investigation, and notice requirements of the ICWA (
    25 U.S.C. § 1901
     et seq.; Welf. & Inst. Code, § 224 et seq.), and if so, what
    procedures must be followed. (See In re Kenneth D. (2022) 
    82 Cal.App.5th 1027
    , 1030 review granted Nov. 30, 2022, S276649.)
    12
    remanded, it submits that augmentation promotes the strong policy of
    resolving dependency cases expeditiously. In support of this point, the
    Agency relies on In re A.B. (2008) 
    164 Cal.App.4th 832
     (In re A.B.) and In re
    Z.N. (2009) 
    181 Cal.App.4th 282
     (In re Z.N.).
    While posttermination6 evidence has been considered by appellate
    courts under limited circumstances, we do not believe that these cases
    require us to consider it in this matter. Our review reveals that the appellate
    courts in In re A.B. and In re Z.N. augmented the record or took judicial
    notice of subsequent ICWA inquiries because the results definitively showed
    that the child would not be eligible for tribal membership. (In re A.B., supra,
    164 Cal.App.4th at p. 843 [augmenting the record to include the mother’s
    Parental Notification of Indian Status form from a half-sibling’s case which,
    together with the father’s form denying Indian heritage, showed A.B. had no
    such ancestry]; In re Z.N., supra, 181 Cal.App.4th at p. 301 [judicially
    noticing tribal notification letters and responses filed in the cases of two half-
    siblings that showed the children were not members or eligible to be such].)
    In that situation, even a limited remand would be “an empty exercise with a
    preordained outcome,” would not further the strong policy favoring resolving
    dependency cases expeditiously, and would not benefit tribes. (In re Z.N. at
    p. 301.)
    We do not believe the outcome of further ICWA inquiry is clearly
    preordained here. Unlike in In re A.B. where the court augmented the record
    with one document disclaiming Indian heritage, the instant case involves 180
    pages of documents that were assembled because both parents claimed
    Indian ancestry. As the In re A.B. court acknowledged, “[w]hen a parent
    6     We refer to evidence obtained after the juvenile court issued its order
    terminating parental rights.
    13
    indicates he or she may have Indian heritage, ‘ “it is preferable to err on the
    side of giving notice and examining thoroughly whether the juvenile is an
    Indian child.” ’ ” ( In re A.B., supra, 164 Cal.App.4th at p. 843.)7
    Furthermore, we have concerns about the completeness of the ICWA
    inquiries conducted in C.H. and K.C.’s cases. From what is before us, it
    appears the court in C.H.’s case was not yet satisfied that the ICWA inquiry
    was complete. The briefing also does not make clear the Agency’s basis for
    providing further notice to the Blackfeet tribe. Initially, the Agency listed the
    paternal grandmother as the individual who suspected the family had
    Blackfeet heritage. The Agency asserts that a social worker “began further
    inquiry correspondence with the Blackfeet tribe on October 20, 2022,” but
    that the tribe had not responded by December 14, 2022, when the court in
    7      This case is also distinguishable from In re A.B. because, whereas the
    agency in In re A.B. filed the new evidence in the juvenile court evaluating
    A.B.’s case before seeking to augment the record on appeal, there is no
    indication that any of the proffered documents in this case have been filed in
    the court below. This is relevant because we are not convinced that we may
    augment the record with documents that were not filed in the case below.
    (See People v. Brooks (1980) 
    26 Cal.3d 471
    , 484 [“[t]he function of the
    augmentation procedure is to supplement an incomplete but existing
    record . . . [a]ugmentation is not available, however, for the purpose of adding
    material that was not a proper part of the record in the trial court”]; cf.
    Kenneth D., supra, 82 Cal.App.5th at p. 1031 review granted Nov. 30, 2022,
    S276649 [augmenting the record where the child welfare department filed
    the document in the juvenile court below]; In re A.B., supra, 164 Cal.App.4th
    at pp. 839, 843 [same].) The Agency’s motion is filed pursuant to rules
    8.155(a)(1)(A), (a)(1)(B), and (a)(2), as well as 8.340(c), of the California Rules
    of Court. Rule 8.155(a)(1)(A) pertains to “[a]ny document filed or lodged in
    the case in superior court” (italics added) and none of the other rule
    provisions suggest that they apply to documents lodged in other cases or
    other courts. Moreover, even if the Agency had filed the proffered documents
    in the court below, the motion to augment is untimely under rule 8.416(d)(2),
    and the Agency has not provided “an exceptional showing of good cause” (rule
    8.416(f)) to excuse the delay.
    14
    K.C.’s case made its ICWA determination. However, on December 8, 2022,
    the Agency again contacted the Blackfeet tribe, this time providing the
    maternal grandfather’s full name and date of birth. It is not evident from the
    Agency’s briefing if Mother subsequently heard back from relatives about
    possible Blackfeet ancestry or if the Agency simply provided this information
    at the same time it provided it to the Cherokee Nation out of an abundance of
    caution. And, because the Blackfeet tribe has not responded to either
    inquiry, we cannot rely upon a definitive tribal response. (See § 224.2, subd.
    (h) [“[a] determination by an Indian tribe that a child is or is not a member
    of, or eligible for membership in, that tribe, or testimony attesting to that
    status by a person authorized by the tribe to provide that determination,
    shall be conclusive”].) The United Keetoowah Band of Cherokee tribe also
    has not yet responded, though the Agency argues that a social worker’s
    notation implies the tribe “received and/or responded to the Agency’s
    correspondence.” Ultimately, given the number of omissions and
    uncertainties in this submission, we cannot confidently conclude that T.C.
    would not be eligible for tribal membership.
    Although we do not wish to delay permanency for T.C., taking
    additional evidence pursuant to Code of Civil Procedure section 909 is
    generally warranted only when doing so will finally dispose of a matter in a
    single appeal without further trial court proceedings. (Code Civ. Proc.,
    § 909.) Even if we were to consider the supplemental records, we do not
    believe they are sufficient to allow us to fully resolve the matter. Therefore,
    we deny the Agency’s motion to augment the record.
    15
    Because the documents from C.H. and K.C.’s cases are not before us,
    there is no basis for dismissing the appeal as moot.
    DISPOSITION
    The June 8, 2022 order terminating parental rights under section
    366.26 is conditionally reversed. The matter is remanded to the juvenile
    court with directions that, within 30 days of the remittitur, the Agency must
    file a report demonstrating its compliance with the initial inquiry provisions
    of section 224.2, subdivision (b), and, if applicable, the duty of further inquiry
    (§ 224.2, subd. (e)) and the duty to provide notice to the pertinent tribes (
    25 U.S.C. § 1912
    (a); Welf. & Inst. Code, § 224.3). Within 45 days of the
    remittitur, the juvenile court must conduct a hearing to determine whether
    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.
    16
    If neither the Agency nor the juvenile court has reason to believe or to
    know that T.C. is an Indian child, the order issued at the June 8, 2022
    contested section 366.26 hearing shall be reinstated by the juvenile court.
    Alternatively, if after completing the inquiry the Agency or the juvenile court
    has reason to believe that T.C. is an Indian child, the court shall proceed
    accordingly.
    HUFFMAN, Acting P. J.
    WE CONCUR:
    O’ROURKE, J.
    IRION, J.
    17
    

Document Info

Docket Number: D080529

Filed Date: 2/10/2023

Precedential Status: Non-Precedential

Modified Date: 2/10/2023