Filed 1/25/18 In re B.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 B.M., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

C.G.,

Defendant and Appellant.


E069240

(Super.Ct.No. J269726)

OPINION


APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Reversed and remanded with directions.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant..
Michelle D. Blakemore, County Counsel, Adam Ebright, Deputy County Counsel, for Plaintiff and Respondent.
The sole contention raised by defendant and appellant C.G. (Father) is that plaintiff and respondent San Bernardino County Department of Children and Family Services (CFS) failed to provide accurate notice under the Indian Child Welfare Act (ICWA). CFS agrees with Father.
FACTUAL AND PROCEDURAL HISTORY
On February 24, 2017, a juvenile dependency petition was filed under Welfare and Institutions Code section 300, subdivisions (b)(1) and (d), on behalf of B.M. (Minor) who was born that same month. Minor was detained. The petition alleged that Mother and Father had developmental disabilities that negatively affected their ability to provide care, supervision, and protection for Minor. The petition also alleged that Mother and Father had untreated mental illnesses with unknown diagnoses. Moreover, Father had a substance abuse problem from which he had failed to rehabilitate. Furthermore, in 2004, Father was convicted of committing a lewd and lascivious act on a child under the age of 14, and was required to register as a sex offender.
At the February 27, 2017, detention hearing, the juvenile court questioned Father about his Indian ancestry. Father stated that he may have Indian ancestry through his maternal grandmother, “Porez Hicks,” from Ontario, California. Subsequently, ICWA notices were sent out to several tribes listing Father’s maternal grandmother as “Glendora Perez,” from Apple Valley. The record does not provide any explanation as to which is the correct name, or whether one is a maiden name. The responses to the ICWA notices, however, were returned indicating that Minor was not eligible for enrollment.
On June 26, 2017, the juvenile court found that notices had been conducted as required by ICWA, and that 65 days had passed since notice was received by the Bureau of Indian Affairs and the tribes, with no affirmative response of tribal membership. The court, therefore, ordered that ICWA did not apply.
As the case progressed, reunification services were denied. On September 28, 2017, the juvenile court terminated parental rights under Welfare and Institutions Code section 366.26. On the same day, Father filed his notice of appeal.
DISCUSSION
On appeal, Father contends 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, the Agency 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, Respondent, CFS, concedes that the appellate record in this case fails to show that CFS complied with the notice requirements of ICWA. Specifically, that the ICWA notice should be sent to relevant tribes, including the contact name ‘Porez Hicks’ from Ontario, California. Respondent does not believe it is necessary to send any additional information about Father’s paternal grandmother as appellant has made it clear that any possible Indian ancestry was derived from his maternal grandmother, Porez Hicks.”
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 that CFS complies with the notice requirements of ICWA. If, after new notices are sent, any tribe claims that Minor is eligible for membership and seeks to intervene, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, no tribe makes such claims following the new notices, the jurisdiction and disposition hearing order of September 28, 2017, shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


RAMIREZ
P. J.


McKINSTER
J.