B.B. v. A.R. (In re M.R.)

• Decision Date: 27 September 2022
• Docket Number: C095856
• Parties: Adoption of M.R., a Minor. v. A.R., Defendant and Appellant. B.B., Plaintiff and Respondent,
• Court: California Court of Appeals

Adoption of M.R., a Minor.

B.B., Plaintiff and Respondent,
v.
A.R., Defendant and Appellant.

C095856

California Court of Appeals, Third District, Shasta

September 27, 2022

NOT TO BE PUBLISHED

Super. Ct. No. 21CVSA6601

Duarte, J.

Father of the minor M.R. appeals from the trial court's judgment after court trial freeing the minor from father's custody and control, and freeing the minor for adoption by the maternal great-grandmother (grandmother). (Fam. Code, § 7822; Prob. Code, § 1516.5.) Father contends the court failed to comply with the inquiry and notice

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requirements under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), because (1) the court-appointed investigator and the court failed to investigate extended family members and (2) the court made no findings as to whether the minor is an Indian child. As we next explain, we will conditionally reverse the judgment and remand for limited proceedings to ensure compliance with the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

Because the issue on appeal is limited to ICWA compliance, we dispense with a detailed recitation of the underlying facts and procedure. It suffices to say that grandmother was awarded legal guardianship of the minor (who was then seven years old) in May 2019. She had cared for the minor since 2013, except for a few short periods when the minor briefly returned to mother's care.

In February 2021, mother died. Later that month, grandmother filed a request to adopt the minor.^[1] In May 2021, grandmother filed a petition to declare the minor free from parental custody and control, stating father had abandoned the minor. (Fam. Code, §§ 7820 et seq.) Father refused to consent to the adoption. The court appointed counsel for father and the minor, and set a contested hearing.

In March 2021, grandmother filed an ICWA-020 form (Parental Notification of Indian Status) informing the court she had no known Indian ancestry. Father also completed an ICWA-020 form in May 2021 informing the court he had no known Indian ancestry. In July 2021, a court-appointed investigator filed a report stating that there was no indication the minor had any Indian heritage.

The trial court held a contested hearing in December 2021, during which father and other relatives testified. The court did not ask about possible Indian heritage or otherwise address the issue during the hearing. The court indicated it would consider the

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petition under both Family Code section 7822 (abandonment) and Probate Code section 1516.5 (best interests).

The trial court issued a tentative written ruling in January 2022 granting the petition under both Family Code section 7822 and Probate Code section 1516.5, and allowing the adoption to proceed. The court signed a judgment to the same effect later that month, but did not address the ICWA or make any related findings in either the tentative written ruling or the judgment. On March 10, 2022, the Department of Social Services, Adoption Services Bureau filed a report that included an ICWA-010(A) form stating that it had made an inquiry and determined that the minor had no known Indian ancestry. That same day, father timely appealed the court's judgment after trial.

The case was fully briefed on August 19, 2022, and respondent subsequently requested oral argument. The case was argued on September 21, 2022.

DISCUSSION

Father contends the trial court and its appointed investigator failed to make an adequate inquiry of...