Filed 12/14/17 In re J.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.M., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.S.,

Defendant and Appellant.


E068103

(Super.Ct.No. J261633)

OPINION


APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Reversed and remanded with directions.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
J.S. (Mother) appeals from the juvenile court’s order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26 as to her five-year-old daughter J.M. Mother’s sole contention on appeal is that the juvenile court and social service agencies failed to comply with the notice and inquiry provisions of the Indian Child Welfare Act (ICWA). After a thorough review of the entire record, we agree that there was inadequate compliance with the ICWA notice provisions and will remand the matter for that limited purpose.
II
FACTUAL AND PROCEDURAL BACKGROUND
J.M. initially came to the attention of the San Diego County Health and Human Services Agency (HHS) on May 7, 2015, due to allegations of general neglect and emotional abuse caused by Mother’s homelessness and use of methamphetamine. Further investigation revealed J.M. had been sexually abused by a paternal uncle, who was a registered sex offender. Mother, however, did not believe J.M. had been sexually abused, and was uncooperative with HHS. Mother’s three older children had been raised by other family members due to Mother’s long term substance abuse problems and chronic homelessness. E.M. (Father) was residing in Texas at the time. J.M. was detained and placed with a maternal aunt in San Bernardino County.
When interviewed, Mother reported that she did not have any Native American ancestry. Father was unsure about his ancestry but said he had heard his family talk about it once, and thought that “ ‘a long time ago we had a little tiny bit in us.’ ” He stated that he would check with his grandmother to get more details.
On June 18, 2015, a petition was filed on behalf of J.M. pursuant to section 300, subdivision (b) (failure to protect due to Mother’s long term substance abuse problems and J.M.’s sexual abuse). The petition indicated that both parents were questioned and reported that the child had no known Indian ancestry.
At the June 19, 2015 detention hearing, the juvenile court formally detained J.M. and ordered supervised visitation for Mother. Mother’s trial counsel informed the court that Mother may have Native American heritage, and the court ordered the parents to complete the Judicial Council Form, form ICWA-030 (ICWA-030 form), before the next hearing.
HHS recommended the allegations in the petition be found true and Mother be provided with reunification services. The social worker indicated that ICWA may apply and detailed her efforts to gather relevant information as follows: On June 26, 2015, the ICWA noticing clerk informed the social worker that she had been calling various maternal relatives to gather information and concluded that there was possible Cherokee, Blackfeet, or Choctaw heritage on the maternal side. Neither parent had filled out the ICWA-030 form, and the noticing clerk was still trying to make contact with Father. On July 1, 2015, the noticing clerk reported that the maternal aunt had given her “all the information on the maternal side” but that she did not have enough information from the paternal side. On July 6, 2015, the noticing clerk reported that she had not received a reply from Father, and wanted to wait to send out notification to the tribes because she did not want to send them out with incomplete information.
The social worker provided Mother with an ICWA-030 form, but on July 1, 2015, Mother reported that she did not fill out the form because she did not have any information to provide regarding her Native American ancestry. Mother reported that the maternal aunt would have the information. Mother also reported that she did not know if any family member had ever lived on a reservation, and that she did not know if any family member spoke a Native American language. The maternal aunt reported that the maternal great-grandmother was “full Blackfoot” Indian. Mother believed that the maternal grandfather may qualify for tribal assistance through the Blackfeet tribe and that the maternal great-grandmother may have attended tribal activities.
On July 7, 2015, the social worker made contact with the paternal grandparents and they provided additional information to include on the ICWA-030 form for Father. The paternal grandmother reported that she was adopted so she could not provide information on her side of the family, but the paternal grandfather stated that Father may have Cherokee or Choctaw heritage. The paternal grandfather verified that the information collected for the ICWA-030 form was correct.
The maternal grandfather resided in Pasadena and Mother had a good relationship with him. The maternal aunt had given the social worker “all the information on the maternal side of [her] family” but she did not have enough information about the paternal side of her family. The social worker attempted to contact the maternal grandfather twice but did not receive any return phone calls. The maternal aunt reported that she had spoken to the maternal grandfather and he had reported that he had never lived on a reservation. On July 7, 2015, the maternal aunt confirmed that the information she had provided on the ICWA-030 form was accurate.
On July 8, 2015, HHS sent ICWA notices to 10 tribal agencies including the Cherokee, Blackfeet, and Choctaw tribes. In addition to Mother’s information, the notices contained the names, addresses, and birthdates of both maternal grandparents and both paternal grandparents. The notices also included the names and married names of the maternal great-grandmothers, J.B. and P.F., and the name and married name of the paternal great-grandmother, M.R. The notices also included the names of the maternal great-grandfathers, F.C. and L.C., and the name of the paternal great-grandfather, E.M.I. The notices as to maternal great-grandmothers, J.B. and P.F., included the date and place of death and their tribal affiliation, but failed to include their date, year, and place of birth. The notices as to the maternal great-grandfathers, F.C. and L.C., stated “unknown” as to their addresses, date and place of birth, tribal affiliation, and if deceased, date and place of death. The notice as to the paternal great-grandmother, M.R., included her current address, date and place of birth, and tribal affiliation. The notice as to the paternal great-grandfather, E.M.I., noted his date and place of birth, and date and place of death. His tribal affiliation was listed as “unknown.”
At the July 13, 2015 hearing, HHS requested a continuance to allow more time for responses to the ICWA inquiries. Father’s trial counsel indicated that Father was denying any Native American heritage for the time being, but would follow up with his grandmother and notify counsel if any Indian heritage was discovered.
In August 2015, the social worker recommended that the case be transferred to San Bernardino County, where Mother and J.M. both resided. The social worker had attempted several times to contact Father to discuss the case, but he was evading her and refused to give her his mailing address.
HHS received responses from the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, the Cherokee Nation, the Blackfeet Tribe of Montana, the Mississippi Band of Choctaw Indians, and the Choctaw Nation of Oklahoma all indicating, based on the information provided to them, that J.M. was not eligible for enrollment and not an Indian child.
The social worker eventually made contact with Father on the day before the contested jurisdictional/dispositional hearing. Father again denied any Native American ancestry, and confirmed that no family member had ever lived on a reservation or been enrolled as a member of a tribe. Meanwhile, Mother had failed to show up for her intake appointment at her drug treatment facility and had moved in with her niece instead.
The jurisdictional/dispositional hearing was held on August 14, 2015. At that time, the court found ICWA did not apply. Specifically, the court noted that Father had denied Native American ancestry and that HHS had provided appropriate notice to the tribes identified as having potential Native American ancestry on Mother’s side. The court found that all of the tribes had indicated that J.M. was not eligible for membership, and concluded that ICWA did not apply in this case. Thereafter, the court found the allegations in the petition true and declared J.M. a dependent of the court. The court also ordered reunification services for Mother, and transferred the case to San Bernardino County.
On September 18, 2015, the case was accepted by the San Bernardino County Juvenile Court. The court continued J.M. as a dependent of the court and maintained her in the custody of her maternal aunt.
On January 13, 2016, the San Bernardino County Children and Family Services (CFS) filed a subsequent section 342 petition alleging serious physical harm to J.M. pursuant to section 300, subdivision (a). The petition alleged Mother had struck J.M., who was three years old at the time, in the face with an open hand leaving visible bruising.
At the January 14, 2016 detention hearing, the court found a prima facie case had been established under the new section 300, subdivision (a) allegation.
CFS recommended that the additional allegation contained in the section 342 petition be found true and that the court set a section 366.26 hearing. Father filed an ICWA-030 form indicating that he had no known Indian ancestry. The social worker reported ICWA did not apply in this case.
CFS later recommended continued services to both parents. At the March 24, 2016 hearing, the juvenile court found the allegation in the section 342 subsequent petition true, ordered continued reunification services for the parents, and ordered weekly visitation.
By July 2016, CFS recommended services be terminated for both parents and a section 366.26 hearing be set. The parents had been provided with services and were ordered to participate in their case plan. However, Mother continued to abuse methamphetamine and failed to participate in her case plan. On September 8, 2016, the juvenile court terminated the parents’ reunification services, and set a section 366.26 hearing.
CFS recommended parental rights be terminated and adoption as the permanent plan. The prospective adopting parent was the maternal aunt, who had been providing care for J.M. since the inception of the dependency in May 2015. The maternal aunt was caring and loving to J.M. and was very committed to providing for J.M.’s emotional, educational, medical, and developmental needs. J.M. and the maternal aunt had a mutual bond, and J.M. looked to the maternal aunt as her parental figure.
On April 3, 2017, Mother filed a section 388 petition, requesting additional reunification services. The court summarily denied the petition.
The section 366.26 hearing was held on April 7, 2017. At that time, following presentation of evidence and argument from counsel, the juvenile court found J.M. adoptable and terminated parental rights.
III
DISCUSSION
Mother argues the juvenile court and the social services agencies failed to comply with the notice and inquiry provisions of the ICWA, and therefore, the case should be reversed conditionally and remanded for proper compliance with the ICWA. Specifically, Mother claims the ICWA notices were inadequate because they did not contain all possible information for the maternal and paternal great-grandparents. CFS responds that HHS substantially complied with the ICWA notices and that the juvenile court correctly found the ICWA did not apply based on the ICWA packets submitted to the court.
We begin with an overview of ICWA, which was enacted to “ ‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’ ” (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902.) Under ICWA, an “ ‘Indian child’ ” is a person who is a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) “ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. [Citations.] If there is reason to believe a child that is the subject of a dependency proceeding is an Indian child, ICWA requires that the child’s Indian tribe be notified of the proceeding and its right to intervene.” (In re A.G. (2012) 204 Cal.App.4th 1390, 1396; see 25 U.S.C. § 1912(a).) If the name of the tribe is not known, then notice must be provided solely to the BIA. (In re Louis S. (2004) 117 Cal.App.4th 622, 630; 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (a).) These notice requirements are strictly construed because a tribe’s right to intervene is meaningless if the tribe is unaware of the proceeding. (In re Karla C., at p. 174; In re J.M. (2012) 206 Cal.App.4th 375, 380.)
“[O]ne of the purposes of ICWA notice is to enable the tribe or BIA to investigate and determine whether the minor is an ‘Indian child.’ [Citation.]” (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.) “ ‘[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.’ [Citation.]” (In re Karla C., supra, 113 Cal.App.4th at p. 175, quoting 25 C.F.R. § 23.11(b); see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (a); In re J.M., supra, 206 Cal.App.4th at p. 380; In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) As such, it must include all available information about the child’s parents, maternal and paternal grandparents and great-grandparents, especially those with alleged Indian heritage, including maiden, married and former names and aliases, birthdates, places of birth and death, current and former addresses, and information about tribal affiliation including tribal enrollment numbers. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; 224.2, subd. (a)(5).) “A ‘social worker has “a duty to inquire about and obtain, if possible, all of the information about a child’s family history” ’ required under regulations promulgated to enforce ICWA. [Citation.]” (In re Robert A. (2007) 147 Cal.App.4th 982, 989.)
Juvenile courts and child protective agencies have “ ‘an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child.’ [Citation.]” (In re H.B. (2008) 161 Cal.App.4th 115, 121; Welf. & Inst. Code, § 224.3; Cal. Rules of Court, rule 5.481.) As soon as practicable, the social worker is required to interview the child’s parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. (Welf. & Inst. Code, § 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal. Rules of Court, rule 5.481(a)(4).) “ ‘The [trial] court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation]. We review the trial court’s findings for substantial evidence. [Citation.]’ [Citation.]” (In re Christian P. (2012) 208 Cal.App.4th 437, 451.)
“Substantial compliance with the notice requirements of ICWA is sufficient. [Citation.]” (In re Christopher I. (2003) 106 Cal.App.4th 533, 566; accord, In re Suzanna L. (2002) 104 Cal.App.4th 223, 237.) However, the notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. (In re Karla C., supra, 113 Cal.App.4th at p. 175.) Accordingly, substantial compliance requires the notice to include sufficient information—at least to the extent that it is both available and otherwise required by law—to give the tribe “a meaningful opportunity to evaluate whether the dependent minor is an Indian child within the meaning of the ICWA. [Citation.]” (In re Louis S., supra, 117 Cal.App.4th at p. 629; accord, In re Karla C., at p. 178.)
Here, the record indicates the ICWA notices were incomplete. The ICWA notices failed to include the birth dates, birth places, tribal affiliation, and addresses of the maternal great-grandparents as required by the ICWA. Although the social worker attempted to contact the maternal grandfather twice via phone to obtain more information, there is no evidence to suggest HHS attempted to contact other available relatives to obtain the missing relevant information. There is also no evidence in the record to suggest HHS made contact with the maternal grandfather by other means such as writing him a letter to obtain the missing information concerning the maternal great-grandparents. The missing information concerning the maternal great-grandparents was not unavailable. The maternal aunt reported she could get additional information but did not say from whom. Furthermore, HHS had identified 10 other relatives and had sent them letters concerning relative placement. It would have been very easy for HHS to inquire of the maternal grandfather and other maternal relatives about their Indian ancestry. The maternal great-grandparents birth date, place of birth, and tribal affiliation, other than their names, would have been readily available to HHS had HHS made further appropriate inquiry, especially since HHS determined the date and place of death for the maternal great-grandmothers. There is no indication in the record that the maternal grandfather or other maternal relatives could not supply the relevant missing information concerning the maternal great-grandparents. Nonetheless, with the exception of noting the tribal affiliations, the date and place of death for the maternal great-grandmothers and “July 26” as the birth date for one of the maternal great-grandmothers, HHS noted the birth dates, place of birth, and tribal affiliation for the maternal great-grandparents as “unknown.” In addition, although the paternal grandfather reported the paternal great-grandfather, E.M.I., had Cherokee heritage, the ICWA notice failed to specify the tribal affiliation for E.M.I., and instead noted his tribe was “unknown.”
CFS contends that the social worker’s “endeavors were significant and well documented in the record” and that the social worker and the noticing clerk were able to obtain “ ‘all the information on the maternal side’ from the maternal aunt.” Although the social worker’s efforts to obtain the relevant ICWA information were significant, the record is silent as to whether the social worker was unable to obtain the missing information concerning the maternal great-grandparents from the maternal grandfather or other maternal relatives. In fact, it is reasonable to infer CFS never contacted the maternal grandfather because CFS reported the maternal grandfather’s parents’ information, other than their names, as “unknown.”
CFS further asserts that any error was harmless since there is nothing to indicate J.M. is an Indian child and the relevant tribes responded neither Mother nor J.M. were enrolled members of a tribe or eligible for enrollment. CFS also notes that Mother “left it to the social worker to do the legwork” and that “[e]ven without [Mother’s] help, the social worker discovered the names, addresses, and birthdates of both maternal grandparents, both paternal grandparents, and the names of the maternal great grandmothers, [and] maternal great grandfathers.” However, “[t]he burden is on [CFS] to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S., supra, 117 Cal.App.4th at p. 630.) Additionally, the accuracy and completeness of the information concerning Mother’s Indian ancestry was highly relevant to any assessment of whether J.M. was an Indian child. In this regard, we note the responses received from the tribes stated that their determination J.M. was not an Indian child was “based on the information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination.” The Blackfeet Tribe noted J.M. was not an Indian child but “[i]f you are able to gather more information on the ancestry of the parents, please contact” the tribe again to review the tribal rolls. The United Keetoowah Tribe noted the determination J.M. was not an Indian child was based on the information provided by CFS. Accordingly, we cannot find the error to be harmless because the tribes did not have a meaningful opportunity to search the tribal registry on the basis of accurate and complete information. Therefore, we are unable to discern whether there is a reasonable probability they would still have been unable to determine that J.M. was an Indian child. (See, e.g., In re S.M. (2004) 118 Cal.App.4th 1108, 1116-1117 [because notice contained no information about child’s purported Indian grandmother and great-grandmother, tribes could not conduct a meaningful search]; In re Louis S., at p. 631 [due to misspellings and omissions in notice, “the tribe could not conduct a meaningful search” to determine the child’s tribal heritage].)
Furthermore, as explained in In re Marinna J. (2001) 90 Cal.App.4th 731, the requirement of notice is critical under ICWA because it fosters one of the ICWA’s major purposes “to protect and preserve Indian tribes. (25 U.S.C. § 1901.) In fact, under certain circumstances . . . an Indian tribe possesses exclusive jurisdiction over child custody proceedings involving Indian children. (25 U.S.C. § 1911(b).)” (In re Marinna J., at p. 738; accord, In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425 [“Indian tribes are independent communities possessing their own natural rights” and “Indian children are a tribe’s most valuable resources”].) Given that the failure to provide adequate ICWA notice affected the rights of an Indian tribe, such error was not harmless.
“Because the juvenile court failed to ensure compliance with the ICWA requirements, the court’s order terminating parental rights must be conditionally reversed. This ‘does not mean the trial court must go back to square one,’ but that the court ensures that the ICWA requirements are met. [Citations.] ‘If the only error requiring reversal of the judgment terminating parental rights is defective ICWA notice and it is ultimately determined on remand that the child is not an Indian child, the matter ordinarily should end at that point, allowing the child to achieve stability and permanency in the least protracted fashion the law permits.’ [Citation.]” (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1168, fn. omitted.) A limited reversal “is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice.” (In re Francisco W., supra, 139 Cal.App.4th at p. 704.)
Based on the law and the record in this case, we conclude that the notice given was not in substantial compliance with the ICWA. Because we have not found any other error, the appropriate disposition is a limited remand for the purpose of complying with ICWA. (In re Terrance B. (2006) 144 Cal.App.4th 965, 971-975; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343.)
IV
DISPOSITION
The order of the juvenile court terminating parental rights is vacated, and the matter is reversed and remanded to the juvenile court with directions to order compliance with the ICWA inquiry and notice provisions in compliance with ICWA and related federal and state law. Specifically, the court must order CFS to give valid notice to the Cherokee, Blackfeet and Choctaw tribes. Inquiry should be made of Mother, the maternal grandfather, or any other maternal family members, as to information relating to the maternal great-grandparents in relation to their names, addresses, birth dates and place, and if deceased, date and place of death.
Once the juvenile court finds that there has been substantial compliance with the notice requirements of ICWA, or if the information is not available, it shall make a finding with respect to whether the child is an Indian child. If the juvenile court finds that the child is not an Indian child, it shall reinstate the original order terminating parental rights. If the juvenile court finds that the child is an Indian child, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with ICWA and related federal and state law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



RAMIREZ
P. J.



McKINSTER
J.