In re M.R. CA2/6 ( 2022 )

Filed 10/5/22 In re M.R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re M.R., a Person Coming 2d Juv. No. B318662
Under the Juvenile Court Law. (Super. Ct. No. J072419)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
S.R.,
Defendant and Appellant.
S.R. (Mother) appeals an order of the juvenile court
terminating her parental rights to M.R., her minor child. (Welf.
& Inst. Code, § 366.26.)1 The Ventura County Human Services
Agency (HAS) filed a juvenile dependency petition alleging the
All statutory references are to the Welfare and
1
Institutions Code.
child was a dependent child and was at a substantial risk of harm
because of, among other things, Mother’s untreated substance
abuse. (§ 300, subds. (b)(1), (g) & (j).) The court found the Indian
Child Welfare Act (ICWA) (25 U.S.C. § 1914) did not apply. We
conclude, among other things, that HAS did not conduct a
sufficient inquiry to determine whether the child was an Indian
child as required by ICWA. The court erred by finding ICWA did
not apply. We “conditionally affirm” and remand with
instructions. (In re Antonio R. (2022) 76 Cal.App.5th 421, 436-
437.)
FACTS
On February 19, 2020, HAS filed a juvenile dependency
petition alleging: 1) Mother’s “substance abuse” interferes with
her ability to care for her infant child; 2) Mother engages in
“domestic disputes” that constitute a “substantial risk of physical
and emotional harm” for the child; and 3) the child’s half-siblings
were declared dependents of the juvenile court in 2018 because of
Mother’s “substance abuse and incidents of domestic disputes.”
In a detention report, HAS said Mother has a history of
“mental health concerns” with “diagnosis of bipolar, PTSD, and
depression.” She was hospitalized three times in 2009 for
“suicidal behavior that involved[] cutting and auditory
hallucinations.” Mother had two other children who were
dependents of the juvenile court. She was provided with 12
months of family reunification services which were terminated on
August 20, 2019, due to Mother’s “lack of participation in
services.”
On February 20, the juvenile court found the child comes
“within Section 300,” the child cannot continue to live in Mother’s
home, and he must be temporarily placed with HAS.
2
At an April jurisdiction and disposition hearing, the
juvenile court sustained the petition and declared the child a
dependent of the court. It found Mother has mental health issues
that interfere with her ability to care for the child. It ordered
HAS to provide family reunification services for Mother and
supervised visitation. The court ordered Mother to submit to
random drug testing. (Ibid.)
At an 18-month hearing, the juvenile court found: 1) HAS
offered reasonable services for Mother, and 2) the “extent of
progress made by [Mother] toward alleviating or mitigating the
causes necessitating placement has been minimal.” The court
terminated Mother’s family reunification services. It set the case
for a section 366.26 hearing.
On January 5, 2022, after conducting a section 366.26
hearing, the juvenile court terminated Mother’s parental rights.
ICWA
HAS interviewed Mother in 2020, who indicated that she
was not aware of any Indian ancestry. HAS also interviewed the
child’s maternal grandmother about placement for the child. It
did not interview her regarding the Indian heritage issue.
The trial court found ICWA did not apply. On January 5,
2022, HAS said, “During this review period, there has been no
new information regarding ICWA to provide to the Court, and no
new relatives have been located.” (Ibid.)
DISCUSSION
ICWA
Mother and HAS contend the juvenile court erred by
finding ICWA did not apply because HAS did not conduct a
sufficient inquiry to determine whether the child was an Indian
child as required by ICWA. We agree.
3
Where a child in a dependency proceeding may be an
Indian child, ICWA requires notice to the child’s Indian tribe so
the tribe may decide whether the child in entitled to tribal
membership. (In re Y.W. (2021) 70 Cal.App.5th 542, 551.) The
tribe has a right to intervene in the proceedings where an Indian
child is involved. (Ibid.) ICWA requires HAS to conduct a
sufficient inquiry of the child’s relatives to determine whether the
child may have Indian ancestry. (In re D.S. (2020) 46 Cal.App.5th
1041, 1052.)
Here the parties agree that HAS did not make an inquiry of
the child’s maternal grandmother to determine whether the child
had any Indian ancestry. That failure is prejudicial, and a
“conditional affirmance” and remand are required. (In re
Antonio R., supra, 76 Cal.App.5th at pp. 436-437.)
DISPOSITION
The order terminating Mother’s parental rights is
conditionally affirmed. We remand to the juvenile court: 1) for
HAS “to comply with the inquiry and notice provisions of ICWA
and California law,” and 2) to make a sufficient inquiry to the
maternal family members. If the court on remand finds the child
is an Indian child, it shall conduct a new section 366.26 hearing,
“as well as all further proceedings, in compliance with ICWA and
related California law.” (In re Antonio R., supra, 76 Cal.App.5th
at p. 437.) “If not, the court’s original section 366.26 order will
remain in effect.” (Ibid.)
NOT TO BE PUBLISHED.
4
GILBERT, P. J.
I concur:
PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
5
YEGAN, J., Dissenting:
I respectfully dissent for the reasons stated in my
dissenting opinion in In re J.K. (Sept. 16, 2022, B319316) ___
Cal.App.5th ___ (dis. opn. of Yegan, J.) [2022 Cal.App.LEXIS
794].
NOT TO BE PUBLISHED.
YEGAN, J.
Tari L. Cody, Judge
Superior Court County of Ventura
______________________________________
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Tiffany N. North, County Counsel, Joseph J. Randazzo,
Principal Assistant County Counsel, for Plaintiff and
Respondent.