Filed 12/11/18 In re E.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Conditionally reversed with directions.

Morgan D. Ross, under appointment by the Court of Appeal, for Defendant and Appellant Q.W.

Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant C.G.

Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants and appellants, C.G. (mother) and Q.W. (father), appeal the juvenile court’s order terminating their parental rights over their daughter, E.W. They argue (1) the court erroneously failed to find whether the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) applied, and (2) the inquiries and ICWA notices of plaintiff and respondent, San Bernardino County Children and Family Services (CFS), were defective. The parents seek a conditional reversal of the order terminating parental rights and a limited remand for compliance with ICWA. CFS concedes a conditional reversal and limited remand is appropriate. We agree and therefore conditionally reverse with directions.[1]

II. FACTS AND PROCEDURE

E.W. was the subject of a prior dependency case from March 2015 to November 2016, due to the parents’ substance abuse, absence/incapacity, and general neglect. Mother successfully completed her services and reunified with E.W., while father did not.

Mother relapsed three months after the court dismissed the prior case. In October 2017, 10-year-old E.W. again came to the attention of CFS. Mother’s friend called 911 and suggested E.W.’s half brother had accidentally drowned in the bath. However, hospital staff pronounced her half brother dead due to nonaccidental injuries, and his injuries were not consistent with drowning. Mother had used methamphetamine before the half brother’s injuries were reported. He had a broken nose, bruising on his face and lower back, cuts on the inside of his lip, malnutrition, and a swollen stomach. Mother was arrested for murder. She did not know father’s whereabouts and had not spoken to him for several months. She denied having any Indian heritage, and the court in the prior dependency case had found ICWA did not apply.

CFS filed a dependency petition alleging E.W. came within the meaning of Welfare and Institutions Code section 300, subdivisions (a)[2] (serious physical harm), (b) (failure to protect), (f) (caused another child’s death through abuse or neglect), (g) (no provision for support), and (j) (abuse of sibling). The petition also concerned E.W.’s remaining half siblings, but they are not subjects of this appeal.

Despite mother’s earlier statement that she did not have Indian heritage, she filed a “Parental Notification of Indian Status” (Judicial Council form ICWA-020) indicating that she may be a member of, or eligible for membership in, the Cherokee tribe. At the detention hearing, mother confirmed that she may have Cherokee ancestry through her paternal family. Father made his first appearance at a later hearing and said he had no Indian ancestry. He filed a “Parental Notification of Indian Status” stating the same.

At the next hearing, mother again confirmed that she may have Cherokee ancestry through her paternal family. Deputy county counsel said CFS would “probably have to interview” mother in custody and would have the ICWA notices prepared for a later hearing. Afterward, CFS contacted mother’s cousin and aunt. Mother’s aunt had heard the family had Cherokee ancestry, but she did not know through which family member. She could not provide contact information for any other family members, including mother’s father (maternal grandfather), though she believed he was incarcerated. Mother had no contact with maternal grandfather and did not know his whereabouts. Maternal grandmother was deceased.

Father’s mother (paternal grandmother) appeared at the next hearing and indicated her family had Creek Nation ancestry. CFS filed ICWA declarations of due diligence in advance of the jurisdictional/dispositional hearing. As to mother’s ancestry, it sent ICWA notices to three Cherokee tribes and the Bureau of Indian Affairs. The notices listed maternal grandfather by name, but contained no other information for him. This included the section under maternal grandfather asking for “[t]ribe or band”—it stated “[n]o information available,” rather than Cherokee. CFS’s declaration of due diligence reported that all three tribes had yet to respond, as of 12 days after the notices went out.

As to father’s ancestry, CFS sent ICWA notices to five Creek tribes and the Bureau of Indian Affairs. CFS’s declaration of due diligence reported that two of the five tribes had sent back return receipts, as of 12 days after the notices went out.

At the jurisdiction/disposition hearing, the court found E.W. “may come under ICWA and noticing requirements have been initiated.” The court found most of the allegations of the petition true and denied reunification services to both parents. The same day as the hearing, paternal grandmother filled out a “Family Find and Indian Child Welfare Act (ICWA) Inquiry” (form CFS 309 A) and provided more information: (1) contact information for E.W.’s great-aunt (paternal great-aunt); and (2) the name of E.W.’s great-grandfather (paternal great-grandfather), his date and place of birth, his date of death, his former city of residence, and his former phone number. The form also stated paternal great-grandfather had Creek Nation heritage.

In preparation for the section 366.26 hearing, CFS’s report stated that ICWA “does or may apply.” The report contained no further updates on responses from the noticed tribes. The court terminated parental rights and selected adoption as E.W.’s permanent plan at the section 366.26 hearing. It did not find whether ICWA applied.

III. DISCUSSION

ICWA requires notice to Indian tribes “in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights ‘where the court [or social worker] knows or has reason to know that an Indian child is involved.’” (In re Isaiah W. (2016) 1 Cal.5th 1, 8; § 224.3, subd. (d).) The tribe to which the child belongs, or in which the child may be eligible for membership, must receive “notice of the pending proceedings and its right to intervene.” (In re H.B. (2008) 161 Cal.App.4th 115, 120; § 224.2, subd. (a)(3).)

The court and county welfare department have an “affirmative and continuing duty to inquire” whether a child in dependency proceedings “is or may be an Indian child . . . .” (§ 224.3, subd. (a).) If the court or social worker has reason to know an Indian child may be involved, the social worker must, as soon as practicable, interview the parents and extended family members to gather the information required for the ICWA notice. (Id., subd. (c).)

ICWA notices “shall include,” among other things, the identifying information for the child’s biological parents, grandparents, and great-grandparents, to the extent known. (§ 224.2, subd. (a)(5)(C).) The notices should contain “all available information about the child’s ancestors, especially the ones with the alleged Indian heritage.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)

The county welfare department should send notice of all hearings until the court determines ICWA does not apply. (§ 224.2, subd. (b).) For the court to determine whether the county has satisfied the notice requirements of ICWA, “it must have sufficient facts, as established by the [county], about the claims of the parents, the extent of the inquiry, the results of the inquiry, the notice provided any tribes and the responses of the tribes to the notices given. Without these facts, the juvenile court is unable to find, explicitly or implicitly, whether . . . ICWA applies.” (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)

The court may find ICWA does not apply if 60 days have passed since the tribes received notice and no tribe responds to the notice. (§ 224.3, subd. (e)(3).) Even if the court has determined ICWA does not apply, if the court or social worker receives new information that was required to be in the ICWA notice, the social worker shall provide the new information to the applicable tribes. (Id., subd. (f).) Failure to comply with the ICWA notice provisions and determine whether ICWA applies constitute prejudicial errors requiring a limited remand. (In re L.S., supra, 230 Cal.App.4th at p. 1197; In re B.H. (2015) 241 Cal.App.4th 603, 608-609.)

In this case, the parties do not dispute that the ICWA notices were insufficient and the court prejudicially erred when it failed to find whether ICWA applied. We agree. The court should not have terminated parental rights without first making this finding, because if E.W. was an Indian child, the applicable tribe or tribes had a right to intervene. At the same time, the record does not disclose enough information for the court to have made the required determination. Other than saying ICWA “may or does apply” at the time of the section 366.26 hearing, CFS did not update the court regarding the responses to the ICWA notices. There was also no indication CFS had updated the tribes with the new information for paternal great-grandfather—who purportedly had Creek nation heritage—which CFS learned after it sent the first round of ICWA notices. Nor was there an indication that CFS had contacted paternal great-aunt, who it also learned about after the first ICWA notices. We must conditionally reverse the order terminating parental rights for CFS to further inquire with paternal great-aunt and send updated notices containing paternal great-grandfather’s information (and any other pertinent information it might learn during its inquiry). The court must also determine whether ICWA applies, after receiving a complete update from CFS on its investigation and the responses from the tribes.

Mother suggests the record is also unclear on whether the social worker actually interviewed her in custody to obtain any information she might have on maternal grandfather and his Cherokee heritage, and the ICWA notices were deficient because they did not list maternal grandfather’s Cherokee affiliation. It is true CFS’s reports never expressly stated the social worker interviewed mother in custody, but it appears to have happened because the social worker reported that mother had no contact with maternal grandfather and did not know his whereabouts. Given that we are conditionally reversing for other reasons, on remand, CFS should interview mother if it has not already done so. It should also send updated notices to the tribes listing maternal grandfather’s Cherokee heritage and any other pertinent information CFS might learn through its interview with mother.

IV. DISPOSITION

The order terminating parental rights is conditionally reversed. On remand, the juvenile court shall (1) direct CFS to comply with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3, consistent with this opinion, and (2) after receiving an update from CFS on its inquiry and responses from the tribes, determine whether ICWA applies. If the court determines ICWA does not apply, the order terminating parental rights shall immediately be reinstated and further proceedings conducted, as appropriate. If the court determines ICWA applies, it shall proceed in conformity with ICWA and related California law.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.