In re R.C. CA3

Filed 5/1/23 In re R.C. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
In re R.C., a Minor. C097058
C.K., (Super. Ct. No. 22SA-06733)
Petitioner and Respondent,
v.
T.C.,
Objector and Appellant.
Appellant T.C. (father) appeals from a family court judgment terminating his
parental rights as to the minor, R.C. (Fam. Code, § 7822.)1 Father contends the family
court did not comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 19011 Undesignated statutory references are to the Family Code.
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et seq.). We agree with father’s claim and will reverse and remand to the family court for
further ICWA proceedings.
BACKGROUND
Because the sole issue on appeal is ICWA compliance, a detailed recitation of the
non-ICWA related facts and procedural history is unnecessary to our resolution of this
appeal.
Father was once married to the minor’s mother, A.C. (mother). The parents
separated in 2017, and mother married C.K. (stepfather) in 2022.
In April 2022, stepfather filed an adoption request and a petition to declare the
minor free from the parental control and custody of father. Stepfather requested the court
terminate father’s parental rights and allow stepfather to adopt the minor, alleging father
intentionally abandoned the minor. The adoption request stated that “inquiry required
under law to determine whether the child may be an Indian child has been made, and a
completed Indian Child Inquiry Attachment (form ICWA-010(A)) is attached.” The
attached ICWA-010(A) form stated that stepfather asked mother about the minor’s
possible Indian status and was given “no reason to believe the child is or may be an
Indian child.”
Father made his initial appearance in the case by telephone at the June 17, 2022
hearing on stepfather’s petition. Father stated his opposition to the petition and the court
set the matter for a contested hearing. The court subsequently appointed counsel for
father on its own motion.
A court-appointed investigator interviewed mother and stepfather in preparation
for her report. Father, who was incarcerated on charges related to the abuse of mother
and the minor, was not interviewed for the report. The investigator’s report
recommended the court terminate father’s parental rights and grant stepfather’s petition
for adoption. The report made no mention of the ICWA.
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Father was again present by telephone at the contested hearing on August 5, 2022.
Father’s counsel noted that, through no fault of father, the prison was unable to arrange
for the court-appointed investigator to speak with father. Mother, father, and stepfather
all testified and, after hearing argument and considering the investigator’s report, the
court took the matter under submission. Neither the ICWA nor the minor’s possible
Indian heritage were addressed during the hearing.
The court issued its written tentative ruling on September 1, 2022, granting
stepfather’s petition and terminating father’s parental rights over the minor, freeing the
minor for adoption by stepfather. The court’s ruling did not mention the ICWA.
DISCUSSION
Father contends the record on appeal does not show compliance with the
requirements of the ICWA. He claims the court terminated his parental rights in the
absence of any ICWA inquiry despite that he appeared in court several times. We agree.
“[A] proceeding to terminate parental rights under Family Code section 7800
et seq. is a ‘child custody proceeding’ within the meaning of the ICWA.” (In re
Suzanna L. (2002) 104 Cal.App.4th 223, 229, quoting In re Crystal K. (1990) 226
Cal.App.3d 655, 660-666.)
Rule 5.481 of the California Rules of Court 2 provides that where, as here, a party
is seeking a declaration freeing the minor from the custody or control of at least one of
the parents, or termination of a parent’s parental rights, or a subsequent adoption, that
party and the court “have an affirmative and continuing duty to inquire whether a child is
or may be an Indian child . . . .” (Rule 5.481(a).) Additionally, that party “must ask . . .
the parents . . . whether the child is or may be an Indian child” and “must complete the
Indian Child Inquiry Attachment (form ICWA-010(A)) and attach it to the petition . . . .”
2 Undesignated references to rules are to the California Rules of Court.
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(Rule 5.481(a)(1).) Further, the court must, at the first appearance by a parent, ask
whether he or she knows or has reason to know the child is an Indian child, instruct the
parties to inform the court of any subsequently received information that provides a
reason to know the child is an Indian child, and order the parent to complete a Parental
Notification of Indian Status (form ICWA-020). (Rule 5.481(a)(2)(A)-(C).)
Father was present for his first appearance in court on June 17, 2022, and then
again on August 5, 2022. At no time during either of those hearings did the court ask
father about possible Indian ancestry or otherwise address the ICWA issue. While the
record reflects that stepfather inquired of mother about Indian heritage, nothing in the
record suggests stepfather or anyone, including the court investigator, inquired of father
about Indian heritage, and there is no evidence that father completed an ICWA-020 form
declaring the absence of Indian ancestry. The court took the matter under submission at
the August 5, 2022 hearing and, on September 1, 2022, issued a written tentative and
proposed statement of decision which did not address the ICWA or make any findings in
that regard. Under these circumstances, we cannot say the lack of inquiry was harmless
because we do not know if a tribe was deprived of an opportunity in this case.
Accordingly, we will reverse and remand.
DISPOSITION
The order terminating father’s parental rights is conditionally reversed and the
matter remanded to the family court with directions to conduct further inquiry and
proceedings in accordance with the ICWA and, if applicable, notice as required by the
provisions of the ICWA. If the family court determines proper inquiry and notice has
been effected, and no tribe asserts its rights under the ICWA, the family court shall
reinstate its order terminating parental rights. If the inquiry raises a reason to believe the
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minor is an Indian child, the family court shall proceed according to the dictates of the
ICWA.
KRAUSE , J.
We concur:
HULL , Acting P. J.
BOULWARE EURIE , J.
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