IN RE C.M.

No. D071165.

In re C.M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CHRISTOPHER M., Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.


Attorney(s) appearing for the Case

Christopher R. Booth , under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery , County Counsel, John E. Philips , Chief Deputy County Counsel, and Paula J. Roach , Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

NARES, J.

Christopher M. appeals from a judgment terminating parental rights to his son, C.M., under Welfare and Institutions Code1 section 366.26. The sole issue on appeal is whether the court erred by terminating parental rights without ensuring proper notice to Indian tribes pursuant to the Indian Child Welfare Act, title 25 United States Code section 1901 et seq. and Welfare and Institutions Code section 224 et seq. (together, ICWA).

Respondent, the San Diego County Health and Human Services Agency (Agency), acknowledges the court did not comply with the notice provisions required by ICWA. Minor's counsel agrees. The parties filed a joint stipulation asking this court to reverse the court's finding that C.M. is not an Indian child within the meaning of ICWA, conditionally reverse the judgment terminating parental rights, remand the matter to the court with directions to ensure proper ICWA inquiry and notice, and issue an immediate remittitur in this matter.

We agree the Agency and the court did not comply with notice provisions under ICWA. We conditionally reverse the judgment terminating parental rights for compliance with ICWA. The order terminating parental rights is subject to reinstatement if, after proper inquiry and notice, the juvenile court determines ICWA does not apply.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2014 the juvenile court took jurisdiction over C.M., who was then two years old, due to his mother's substance abuse and inability to provide regular care to him. Christopher M. was incarcerated on a 19-year sentence for armed robbery. C.M. was placed with his maternal grandmother, who had cared for him since his birth.

When C.M. was detained, Christopher told the social worker his mother told him he had Indian heritage through the Navajo and Blackfeet tribes. Christopher was adopted at age two months. At a hearing on May 7, 2014, the juvenile court made further inquiry into Christopher's Indian heritage. Minor's counsel represented that any potential Indian heritage was through his adoptive family. It was her understanding it was the biological relationship that controlled whether a child was an Indian child within the meaning of ICWA. The court asked whether Christopher had information concerning Indian heritage in his biological family. Christopher said he would ask his father. The court clarified that Christopher did not know of any Indian heritage at that moment and found that ICWA did not apply. The court asked Christopher to advise the court or Agency if he discovered any further information about his Indian heritage.

At the section 366.26 hearing in September 2016, the court found that ICWA notice was not required because the child was not an Indian child within the meaning of ICWA. The court terminated parental rights.

DISCUSSION

We have reviewed the record. Here, Christopher asserted he had Navajo and Blackfeet heritage through his adoptive family. Under ICWA, tribal membership is a matter of political affiliation rather than racial origin. (In re B.R. (2009) 176 Cal.App.4th 773, 783 [ICWA recognizes the political affiliation that follows from tribal membership, rather than a racial or ancestral Indian origin].) The definition of an Indian child for ICWA purposes does require either that the child's biological parents be members of a tribe or that one of the child's biological parents have tribal ancestry. (In re D.C. (2015) 243 Cal.App.4th 41, 59-60.) The tribe's determination whether a child is an Indian child is conclusive. (In re Edward H. (2002) 100 Cal.App.4th 1, 5.) We agree with the parties the court erred when it found that ICWA did not apply without providing notice to the named tribes. Accordingly, the court's findings and orders must be conditionally reversed to ensure compliance with ICWA.

DISPOSITION

The order terminating parental rights to C.M. is reversed. The case is remanded to the court with directions to vacate its finding that ICWA does not apply and complete notice in accordance with ICWA. If, after proper notice, the court finds that C.M. is an Indian child, the court shall proceed in conformity with ICWA. If, after proper notice, the court finds that C.M. is not an Indian child, the order terminating parental rights and selecting adoption as the permanent plan shall be reinstated. Remittitur shall issue immediately.

BENKE, Acting P. J. and AARON, J., concurs.

FootNotes


1. Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

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