Filed 8/8/17 In re J.G. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
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In re J.G. et al., Persons Coming Under the Juvenile Court Law. C083529


SAN JOAQUIN COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

S.S,

Defendant and Appellant.

(Super. Ct. Nos. STK-JV-DP-2015-0000135, J07210)



Appellant S.S., mother of minors J.G. and J.S., appeals from the juvenile court’s orders terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) She contends the San Joaquin County Health and Human Services Agency (Agency) failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) because it failed to inquire of one father (G.G., father of minor J.G., hereafter “father 1”) and failed to exercise reasonable diligence to locate and inquire of the other father (G.M., father of minor J.S., hereafter “father 2”). We agree and shall reverse the orders terminating parental rights and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of the facts to those relevant to the resolution of the issues raised on appeal.
On May 11, 2015, a section 300 petition was filed on behalf of the two minors (J.G., born in 2015, and J.S., born in 2011) as a result of mother’s ongoing methamphetamine abuse. Three older half siblings were previously removed from mother, and she had failed to reunify with those children. Prior to the detention hearing, the social worker interviewed both mother and father 1. The social worker reported that mother was asked if she had any Indian ancestry and “she reported Indian ancestry of unknown type on her side of the family.” No report was made as to father 1.
The detention hearing took place on May 13, 2015. Neither of the two minors’ fathers appeared. The juvenile court asked mother if she had any Indian ancestry and she responded that she did not. The juvenile court ordered ICWA form JV-020s to be filled out by “absent parents” and by maternal and paternal relatives. The minors were ordered detained.
Father 1 appeared at the May 28, 2015 jurisdiction hearing and participated in most of the proceedings thereafter.
Father 2 was never located by the Agency. The Agency performed an absent parent search in June 2015, using his full name, birth date, and social security number, and searched California Department of Motor Vehicle (DMV) records, the telephone directory, the local case record system, the California state medical database, San Joaquin County jails, the state prison system, and VINElink in California. The juvenile court found the Agency had exercised reasonable diligence in attempting to locate father 2.
The Agency’s jurisdiction report, filed July 28, 2015, stated that “The [ICWA] does not apply as per the parents at the detention hearing on May 13, 2015 and signed ICWA JV 20 forms from both parents.” (Italics added.) The report also provided a criminal history for father 2, with his most recent convictions as follows: 2009 conviction in Tulare County; 2010 conviction in Vancouver, Clark County, Washington; 2012 conviction in Josephine County Circuit Court, Oregon; 2013 and 2014 convictions in 77th District Court Big Rapids/Reed City, Michigan; and 2014 convictions in Clark County, Washington.
The juvenile court sustained the allegations in the petition. At the disposition hearing, held on January 15 and February 1, 2016, the juvenile court adjudged the minors dependent children, denied reunification services for both mother and father 1, and set a section 366.26 hearing.
In March 2016, the Agency performed another unsuccessful absent parent search for father 2. The Agency searched DMV records, RAP sheet sources (but results could not be determined because the social security number and birth date did not match), the local case record system, the California state medical database, San Joaquin County jails, and the California state prison system. The Agency submitted a declaration of due diligence, and requested and received authorization to serve father 2 notice of the section 366.26 hearing by publication for four successive weeks in The Record--a newspaper of general circulation published in Stockton (San Joaquin County), California.
The section 366.26 hearing took place on October 27, 2016, with mother and father 1 present. Over their objection and on the recommendation of the Agency, the juvenile court terminated all three parents’ parental rights and identified adoption as the two minors’ permanent plan.
DISCUSSION
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. (See 25 U.S.C. § 1902; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) The juvenile court and the Agency have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) Section 224.3, subdivision (a) also imposes “an affirmative and continuing duty to inquire” whether a child is or may be an Indian child.
If, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C. § 1912; § 224.2; Cal. Rules of Court, rule 5.481(b).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
Mother contends the Agency did not fulfill its obligations under ICWA because it failed to inquire of father 1 whether he has Indian ancestry, and failed to exercise reasonable diligence in locating father 2 and inquiring about his Indian ancestry. We agree.
Although mother was asked about her possible Indian ancestry, father 1 was not. The jurisdiction report erroneously chronicled that father 1 was present at the detention hearing and submitted the necessary form, however, as we have outlined, the remainder of the record disagrees. According to the minute orders as well as the transcript, father 1 was not present in court at any point during the detention hearing. Form No. JV-020 for father 1 was never filed with the court. Nor does the record reflect that anyone asked father 1 about possible Indian heritage, either during the social worker’s initial interview, at the jurisdiction hearing (father 1’s first appearance in this case), or at any other time. There is no record--other than the apparently erroneous statement in the jurisdiction report--that father 1 was ever asked if he was of Indian ancestry. The ICWA’s inquiry requirement was not satisfied as to father 1.
Meanwhile, the Agency had consistently maintained it was unable to locate father 2. It now argues it could not ask father 2 about his possible Indian ancestry, because it could not find him. However, the Agency is not absolved of its “affirmative and continuing duty” to inquire about a child’s possible Indian heritage simply because a parent’s whereabouts are unknown. (Cal. Rules of Court, rule 5.481(a).) Where a parent does not appear at the first hearing, the court must order the Agency to use reasonable diligence to find and inform the parent that the court has ordered the parent to complete an ICWA form-020. (Id., Rule 5.481(a)(3).)
Reasonable diligence “ ‘denotes a thorough, systematic investigation and inquiry conducted in good faith.’ [Citations].” (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016; see also In re Arlyne A. (2000) 85 Cal.App.4th 591, 598.) The party conducting the investigation cannot ignore the most likely means of finding an individual. (In re Arlyne A., at p. 598.) The failure to follow up on information, known to the investigating party and likely to reveal an individual’s location, is a failure of reasonable diligence. (Id. at pp. 598-599.)
Father 2 did not appear at the detention hearing, but the record does not reflect that the juvenile court ordered the Agency to use reasonable diligence to locate father 2 at that time. Most importantly, the record does not reflect that the Agency made a reasonably diligent effort to locate father 2, with or without court order.
The Agency filed declarations of due diligence. But the record demonstrates that the Agency unreasonably limited its search to California despite having information that father 2 was elsewhere. J.G., his child, was born in 2011. Father 2’s recent reported criminal convictions were in Washington (2010 and 2014), Oregon (2012), and Michigan (2012 and 2013). His most recent conviction (from February 2014) was a felony and resulted in a one-year sentence in Clark County, Washington.
Notwithstanding this information, the Agency never attempted to contact law enforcement authorities--such as parole or probation in Clark County, or anywhere else in Washington--during its search for father 2. The Agency did not conduct any search in Washington, Oregon, or Michigan, despite knowing father 2 had been in these states between 2010 and 2014, and had been incarcerated in Washington through 2014. This completely ignored information known to the Agency, resulting in a failure to exercise reasonable diligence to locate father 2. (See In re Arlyne A., supra, 85 Cal.App.4th at pp. 598-600; In re Megan P. (2002) 102 Cal.App.4th 480, 489; David B. v. Superior Court, supra, 21 Cal.App.4th at p. 1016.) Accordingly, we agree with mother that the Agency failed to comply with the inquiry and notice provisions of the ICWA as to father 2.
Although the Agency argues harmless error, we disagree. The Agency relies on two decisions to argue that the failure to inquire is not prejudicial. (In re Rebecca R. (2006) 143 Cal.App.4th 1426; In re H.B. (2008) 161 Cal.App.4th 115.) However, both are distinguishable, as they involved the failure of the appellant parent to make an offer of proof about his or her own ancestry. (In re Rebecca R., at p. 1431; In re H.B., at p. 122.) Because the parents in those cases were before the appellate court, “[t]here [was] nothing whatever which prevented [them] ... from removing any doubt or speculation [about Indian ancestry through]” . . . “an offer of proof or other affirmative representation that, [if] asked, [they] would have been able to proffer some Indian connection sufficient to invoke the ICWA.” (In re Rebecca R., at p. 1431; In re H.B., at p. 122.) The knowledge of any Indian connection was a matter wholly within the appealing parents’ knowledge and the disclosure a matter entirely within their control. Thus, the absence of any representation by that party that there was some Indian connection amounted to “nothing more than trifling with the courts.” (In re Rebecca R., at p. 1431.)
Here, in sharp contrast, neither father is before this court. No evidence suggests that mother has any knowledge of their ancestry. Mother’s argument that neither she nor the juvenile court knows whether the fathers have Indian ancestry due to the failure by the Agency to properly inquire is well-taken. Under such circumstances, we cannot find the error harmless. We shall reverse and remand with directions.
DISPOSITION
The orders terminating parental rights are reversed, and the matter is remanded to the juvenile court with directions to: (1) order the Agency to inquire of father 1 regarding his possible Indian heritage and to follow up on his answers; and (2) order the Agency to use reasonable diligence to search for father 2 and, if he is located, to inquire of him regarding his possible Indian heritage and to follow up on his answers.
If relevant information regarding any claim of Indian heritage is obtained, the Agency is to provide notice to the BIA and the relevant tribes in accordance with the provisions of the ICWA. If the tribes or the BIA determine that either minor is an Indian child, the juvenile court shall conduct a new selection and implementation hearing in conformance with all the provisions of the ICWA.
If there is no response from noticed tribes, or if the tribes and the BIA determine that the minors are not Indian children, the juvenile court shall hold a properly noticed hearing prior to reinstating the orders terminating parental rights. If father 2 appears at the hearing, the court shall proceed as appropriate. If father 2 does not appear at the hearing, the court shall reinstate its orders terminating parental rights.



/s/
Duarte, J.

We concur:



/s/
Hull, Acting P. J.



/s/
Mauro, J.