Filed 7/20/17 In re A.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re A.B. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

G.C. et al.,

Defendants and Appellants.


E067651

(Super.Ct.No. J266419 &
J266420)

OPINION


APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Reversed.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Respondent G.C.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Respondent. J.B.
Jean-Rene Basle, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
The sole contention raised by defendants and appellants J.B. (father) and G.C. (mother; collectively parents) is that plaintiff and respondent San Bernardino County Children and Family Services (CFS) failed to provide accurate notice under the Indian Child Welfare Act (ICWA). CFS agrees with the parents.
FACTUAL AND PROCEDURAL HISTORY
On July 19, 2016, a juvenile dependency petition was filed under Welfare and Institutions Code section 300, subdivisions (a), (b)(1), and (g), on behalf of three-year-old A.B. and five-year-old L.B (the children). Prior to the detention, the children lived with both mother and father.
The petition alleged that the children’s two-year-old cousin, M.C., sustained non-accidental injuries while in the parents’ care. Later, father admitted to causing M.C.’s injuries and was charged with child endangerment with risk of great bodily harm or death. Father was arrested. In the parental notification of Indian status form (ICWA-020 Form), mother claimed Indian ancestry of unknown origin and father claimed that he may have Cherokee ancestry.
At the July 20, 2016, detention hearing, father stated that his mother and grandmother had Cherokee ancestry. The paternal grandmother was at the hearing and indicated that paternal great-grandmother and paternal great-great-grandparents had Indian ancestry. Mother informed the court that maternal great-grandmother was part Indian; mother did not know which tribe.
The ICWA notice specified that mother, not father, was claiming Indian heritage, and father’s tribe membership information was left blank. The ICWA notice contained paternal grandmother’s name and address; the remaining portions were left blank. There was also no other information about relatives even though CFS had contact with several members of the extended family (i.e., paternal aunts requesting placement of the children with them).
On October 14, 2016, the juvenile court found that ICWA did not apply. The jurisdiction/disposition hearing was held on January 26, 2017. At the hearing, the court found that ICWA noticing was complete and ICWA did not apply. Parents filed separate notices of appeal on February 28, 2017.
DISCUSSION
On appeal, parents contend that CFS failed to comply with ICWA’s notice requirements. CFS agrees.
“Congress enacted ICWA to further the federal policy ‘“that, where possible, an Indian child should remain in the Indian community.”’” (In re W.B. (2012) 55 Cal.4th 30, 48.) “When applicable, ICWA imposes three types of requirements: notice, procedural rules, and enforcement. [Citation.] First, if the court knows or has reason to know that an ‘“Indian child”’ is involved in a ‘“child custody proceeding,”’ . . . the social services agency must send notice to the child’s parent, Indian custodian, and tribe by registered mail, with return receipt requested. [Citation.] . . . [¶] Next, after notice has been given, the child’s tribe has ‘a right to intervene at any point in the proceeding.’ [Citation.] . . . [¶] . . . [¶] Finally, an enforcement provision offers recourse if an Indian child has been removed from parental custody in violation of ICWA.” (Id. at pp. 48-49.) “Thorough compliance with ICWA is required.” (In re J.M. (2012) 206 Cal.App.4th 375, 381.)
Of concern here is the notice requirement. If an agency “knows or has reason to know that an Indian child is involved” in a dependency proceeding, the agency must send notice of the proceeding to, among others, a representative of all potentially interested Indian tribes. (Welf. & Inst. Code, § 224.2, subd. (a).) “[F]ederal and state law require that the notice sent to the potentially concerned tribes include ‘available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.’ [Citations.] To fulfill its responsibility, [CFS] has an affirmative and continuing duty to inquire about, and if possible obtain, this information. [Citations.] Thus, a social worker who knows or has reason to know the child is Indian ‘is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of [Welfare and Institutions Code] Section 224.2 . . . .’ [Citation.] That information ‘shall include’ ‘[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.’ [Citation.] Because of their critical importance, ICWA’s notice requirements are strictly construed.” (In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)
Here, CFS states: “In the interest of expeditiously resolving the underlying juvenile dependency case, CFS concedes that the appellate record in this case fails to show that CFS complied with the notice requirements of the ICWA. Specifically, the ICWA notice should identify [father] as the parent claiming Cherokee heritage and contain any additional information that can be obtained by the parents or extended family members.”
We agree with the parties that CFS failed to comply with ICWA’s noticing requirements.
DISPOSITION
The juvenile court’s findings and orders that ICWA does not apply to this case are reversed. The case is remanded to the juvenile court with directions to ensure CFS complies with the notice requirements of ICWA. If, after new notices, any of the Cherokee or other tribes claim the children are eligible for membership and seek to intervene, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, none of the tribes make such claims following new notices or the court concludes CFS’s efforts at compliance were adequate, the jurisdiction and disposition hearing order of January 26, 2017, shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
Acting P. J.


We concur:


CODRINGTON
J.


FIELDS
J.