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Failure of Dependency Court to Inquire As to Indian Ancestry Requires Remand—C.A.
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has held that a judge in dependency case commits reversible error by not inquiring whether the child is of American Indian ancestry even if there is no basis for suspecting that to be so.
The opinion, filed Thursday and not certified for publication, was authored by Acting Presiding Justice William W. Bedsworth. He said that Orange Superior Court Judge Antony C. Ufland, in in terminating parental rights of Erica U. to two children, failed to make the required inquiry as to whether the minors came under the federal Indian Child Welfare Act (“ICWA”).
The jurist pointed to Welfare & Institutions Code §224.2(a) which provides that the court, as well as the relevant agencies, has “an affirmative and continuing duty to inquire whether a child” who is the subject of a dependency proceeding, “is or may be an Indian child.”
Agency’s View
Bedsworth noted that the Orange County Social Services Agency (“SSA”) took the position that the judge’s oversight was not prejudicial because nothing in the records hinted that the children (each by a different father) was of Indian ancestry.
“We sympathize with that position,” he responded, “but believe we are bound to remand the matter for further proceedings in compliance with ICWA while conditionally affirming the juvenile court’s judgment terminating Erica’s parental rights.” He noted that the SSA’s efforts to inquire included securing a statement from Erica U. at the outset of its investigation that she had no Native American ancestry and a statement on a form signed by one of the fathers that, so far as he knew, he had no such ancestry. The other father could not be located.
The mother testified at a jurisdictional/dispositional hearing but was not asked about possible Indian ancestry.
Oct. 22 Opinion
Bedsworth drew attention to the Oct. 22 opinion by Justice Michael J. Raphael if the Fourth District’s Div. Two in In re Benjamin which declared that “where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child” and the agency did not pursue the information, there must be a reversal.
Indicating agreement with that proposition, Bedsworth said the SSA did not follow through with the mother to obtain additional assurances and did not seek information from the parents of the missing father.
The dispositional order as to the two children was conditionally affirmed. The opinion directs:
“The matter is remanded to the juvenile court for compliance with the inquiry, and if necessary, notice provisions of ICWA and related California law. If there is no Indian ancestry, our affirmance resolves the case.”
The case is In re A.U., G060569.
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