Filed 12/20/17 In re B.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re B.G., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY

CHILDREN AND FAMILY SERVICES, E068837

Plaintiff and Respondent, (Super.Ct.No. J-265502)

v. OPINION

ROBERT G.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall, Judge. Reversed with directions.

Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and

Appellant.

Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for

Plaintiff and Respondent.

I

INTRODUCTION

Appellant R.G., (father),^[1] appeals from the juvenile court’s order terminating his parental rights to his child, B.G., pursuant to Welfare and Institutions Code section

366.26.^[2] (§ 395.) Father has also filed a separate petition for writ of habeas corpus, E069268, which this court has ordered to be considered with the appeal.^[3]

The only issue, which respondent concedes, is that CFS^[4] did not comply with the notice requirements of the Indian Child Welfare Act. (ICWA, 25 U.S.C. § 1901 et seq.) Because there is no dispute between the parties, based on the failure to provide the required ICWA notice, we effect a limited reversal and remand the judgment terminating parental rights, directing the trial court to order CFS to comply with ICWA’s notice provisions. If the child is not claimed as Indian after such compliance, the judgment shall be reinstated. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)

II

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the facts briefly, focusing on the ICWA issue. R.G. is the presumed father of B.G., the subject of this dependency appeal. Father’s writ petition includes declarations from him and his lawyer indicating defendant has Comanche or

Cherokee heritage, and B.G.’s mother has no Indian heritage.

B.G. was born in May 2016. The parents lived on disability benefits. Their home was on a dirt road in the desert with no running water. They had no street address and received mail by general delivery.^[5] Mother had a history of methamphetamine use and serious mental health issues. She had been diagnosed with bipolar disorder and schizophrenia and refused to take her psychotropic medications. Mother had one child who was removed and a second who died a few weeks after birth. Father raised chickens and had a small garden and used marijuana for pain relief. Father had spent 15 years in prison.

Because mother did not want the child and father could not provide for her, CFS detained B.G. in foster care. The detention report stated without any explanation ICWA

“does or may apply.” The parents did not appear at the detention hearing on May 19, 2016, but the court ordered the parents to complete an ICWA-020.

In the subsequent jurisdiction/disposition report, CFS recommended that the court sustain the section 300 petition, remove B.G. from the parents, order family reunification (FR) services for father, and bypass services for mother. The report states ICWA “does not apply”—again without explanation.

On June 9, 2016, the court conducted the jurisdiction and disposition hearing— which the parents again failed to attend. The court adopted the CFS recommendations.

The court also made a finding ICWA did not apply without stating any grounds.

The six-month review report recommended termination of father’s FR services to permit adoption. Without any detail, the report stated ICWA did not apply. Father had not communicated with CFS from August until December 2016. Neither parent appeared in court for the six-month review hearing held on December 9, 2016, when the court terminated father’s FR services and set a section 366.26 hearing for April 2017.

The section 366.26 report recommended termination of parental rights to permit B.G.’s adoption. The report again indicated ICWA did not apply. Father made his first appearance in court in May 2017. Unfortunately, no ICWA inquiry was done.

Subsequently, father’s appellate attorney interviewed father about his possible Indian heritage and conducted ICWA inquiries. The writ petition suggests father may have Comanche or Cherokee heritage from his paternal relatives.

III

DISCUSSION

CFS and the juvenile court have an “an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care.” (§ 224.3, subd. (a).) “Section 224.3 outlines the scope of a trial court’s and a county welfare department’s [] duty of inquiry under ICWA.” (In re J.L. (2017) 10 Cal.App.5th 913, 919.) According to section 224.3:

“(b) The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following:

“(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child’s extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (§ 224.3, subd.

(b)(1).)

The social worker has a duty to inquire about and obtain, if possible, all of the information about a child’s family history. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116-1117.) If there is reason to know that an Indian child is involved, then further inquiry by the social worker regarding the possible Indian status of the child must be done as soon as practicable. (§ 224.3, subd. (c).)

The agency must provide the tribe with notice of the pendency of the proceedings and the opportunity to intervene in them. (In re Suzanna L. (2002) 104 Cal.App.4th 223,

232; In re Francisco W., supra, 139 Cal.App.4th at p. 702; In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576; In re K.M. (2009) 172 Cal.App.4th 115, 119.) The notice should contain information reasonably necessary to determine an Indian child’s status. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566-567.) Notwithstanding a determination that ICWA does not apply to the proceedings, if the court or social worker subsequently receives information that was not previously available, the information shall be provided to the BIA and any tribe entitled to notice. (§ 224.3, subd. (f).)

In this case, CFS failed entirely to make proper inquiry of father and to supply ICWA notice. The record does not show whether ICWA does or does not apply. CFS had minimal contact with the parents as they did not engage in services or visit B.G. Mother never attended any dependency proceedings, father only attended two court hearings, and the court did not conduct an ICWA inquiry. On this record alone, a limited reversal and remand is appropriate.

Father has now disclosed possible Indian heritage. The information is concrete enough to trigger the need for ICWA noticing. Noticing to the federally-recognized

Cherokee and Comanche tribes is warranted, given evidence of father’s possible Indian heritage. Respondent concedes that ICWA notice is insufficient and the order terminating parental rights should be reversed on a limited basis. (In re Jonathon S.

(2005) 129 Cal.App.4th 334, 343; In re Francisco W., supra, 139 Cal.App.4th at p. 711.)

IV

DISPOSITION

We reverse and remand, ordering the juvenile court to direct CFS to investigate and give notice in compliance with ICWA. After the juvenile court finds that there has been substantial compliance with the notice requirements, it shall make a finding as to whether B.G. is an Indian child. If she is not, the court is directed to reinstate the original order terminating parental rights. If B.G. is an Indian child, the court is directed to set a new section 366.26 hearing and to conduct all further proceedings in compliance with ICWA.

Pursuant to the parties’ stipulation, the clerk of this court is directed to issue the remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ P. J.

McKINSTER

J.