Filed 11/1/17 In re Z.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Z.R. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.R. et al.,

Defendants and Appellants.


E068545

(Super.Ct.Nos. J260061 and J260062)

OPINION


APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Reversed with directions.
Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant and Appellant Father.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant Mother.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother and Father appeal the juvenile court’s order terminating parental rights of their two sons, Za (born in 2012), and Zy (born in 2013), under Welfare and Institutions Code section 366.26. The parents contend the court committed reversible error by not complying with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). The parents argue San Bernardino County Children and Family Services (CFS) failed to provide notice to the Blackfeet tribe, and did not attempt to interview the paternal grandmother regarding the family’s Indian ancestry.
The parents and CFS agree that the record on appeal fails to show that CFS complied with ICWA notice requirements. The parties therefore request this court to remand this case to the juvenile court for the limited purpose of compliance with ICWA.
Upon review of the record, this court concludes ICWA notice was insufficient and, as requested by the parties, remands this case to the juvenile court to allow CFS to comply with ICWA notice and investigation requirements, including providing notice to the Blackfeet tribe and interviewing the children’s paternal grandmother. If further investigation produces additional information substantiating Mother and Father’s claims of Indian ancestry, notice must be provided to any additional tribe that is identified. If after proper notice, a tribe intervenes in the case or determines that the children are Indian children within the meaning of ICWA, the court shall proceed accordingly. If no tribe intervenes, or responds that the children are not Indian children, the order terminating Mother and Father’s parental rights shall be reinstated.
II
FACTUAL AND PROCEDURAL BACKGROUND
In April 2015, CFS filed a juvenile dependency petition under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). CFS alleged in the petition that the parents had substance abuse problems and a history of domestic violence, which prevented them from adequately parenting their children. Father also had a criminal history. Mother’s whereabouts were unknown, as was her ability and willingness to care for her children. The petition further states that the children might have Indian ancestry.
CFS reported in the detention report that Zy remained in the custody of Father, and Za, who had undergone a heart transplant and would require extensive follow-up medical care, was detained in a special health care needs foster home. Za’s surgeon, the hospital social worker, and CFS were concerned the parents would not adequately provide for Za’s medical care needs.
The detention report further stated that Father reported Lightfoot Indian and Cherokee ancestry on the paternal grandmother’s side. A maternal uncle reported Mother was Cherokee, “but not very much.” At the April 2015 detention hearing, the court asked Father if he had indicated on his form that he had Blackfoot or Cherokee ancestry. Father responded, “It’s Cherokee, but the tribe is Blackfoot.”
When the jurisdiction/disposition report was filed in May 2015, Mother’s whereabouts were unknown. The report stated the children may have Lightfoot and Cherokee Indian ancestry. Father filed a form stating he might have Indian ancestry in the “Cherachet” and “Lightfoot” tribes. The court set the matter for a contested jurisdiction/disposition hearing. On June 15, 2015, CFS filed an ICWA declaration of due diligence, stating it had sent ICWA notices to the Bureau of Indian Affairs (BIA), Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians in Oklahoma.
On June 15, 2015, CFS also filed on behalf of Za and Zy, Notices of Child Custody Proceeding for Indian Child (ICWA form 030), stating that ICWA notice of the juvenile dependency proceedings was sent to the Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians in Oklahoma. In June and July, 2015, these tribes sent letters indicating the children were not descendants, were not registered or eligible to register as tribe members, and were not children of enrolled members. On June 17, 2015, Mother filed a form indicating she had no American Indian ancestry (ICWA form 020).
On July 8, 2015, CFS filed an amended petition. CFS reported in its amended detention report that Father had not complied with his case plan, had not complied with his substance treatment program, and had not kept CFS informed of Zy’s whereabouts at all times. The day after the amended petition was filed, Zy was removed from Father and detained in foster care. The court sustained the amended petition and ordered the children removed from parental custody. The children were placed in separate foster homes because Za required special medical needs.
CFS recommended in its 18-month status review report filed in December 2016, that the court terminate family reunification services. CFS reported that both children had been placed in the same home, with a paternal cousin who had agreed to adopt the children. Mother was dealing with issues related to her arrest in May 2016 for first degree robbery and it was unknown where she was living. Father informed CFS that he was unable to participate in services because of his work schedule. He was living in Los Angeles. His address was unknown. At the 18-month status review hearing in January 2017, the court terminated family reunification services and set a section 366.26 hearing, with adoption as the permanent plan.
In January 2017, CFS filed a final ICWA declaration of due diligence, stating that CFS had received responses from its ICWA form 030 notices to the BIA, Secretary of the Interior, and the three Cherokee tribes (Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band). CFS confirmed that the responses indicated the children do not qualify for membership, and that the BIA and Secretary of the Interior had failed to respond within 65 days after receiving notice. CFS concluded that therefore ICWA does not apply and no further notice is required. Accordingly, the juvenile court found compliance with ICWA notice requirements, and that the 65-day period following notice had passed with no affirmative response of tribal membership. The court therefore ordered that ICWA did not apply.
In April 2017, CFS filed a section 366.26 hearing report recommending that the court terminate parental rights and free the children for adoption. The children were bonded to their paternal second cousin, who was willing to adopt them. In an addendum report filed in June 2017, the CFS again recommended termination of parental rights.
During the section 366.26 hearing on June 14, 2017, the juvenile court found the children adoptable and ordered parental rights terminated. The juvenile court stated in its minute order that, “[i]f this case involves an Indian child, the court finds that the agency has made active efforts to provide remedial and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful.” Father appealed from the order terminating parental rights, and Mother joins in Father’s appeal.
III
ICWA
ICWA provides: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) “This notice requirement, which is also codified in California law (Welf. & Inst. Code, § 224.2 . . .), enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice. (25 U.S.C. § 1912(a); see Welf. & Inst. Code, § 224.2, subd. (d).)” (In re Isaiah W. (2016) 1 Cal.5th 1, 5.)
“When the court has reason to know Indian children are involved in dependency proceedings, as here, it has the duty to give the requisite notice itself or ensure the social services agency’s compliance with the notice requirement. [Citations.] In our view, the court’s duty is sua sponte, since notice is intended to protect the interests of Indian children and tribes despite the parents’ inaction.” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261; see Cal. Rules of Court, rule 5.481(b).) Because ICWA imposes on the juvenile court a continuing duty to inquire whether a child is an Indian child, “an error in not giving notice is also of a continuing nature and may be challenged at any time during the dependency proceedings.” (Ibid.; see In re Isaiah W., supra, 1 Cal.5th at p. 6.)
If either the social services agency or the juvenile court has reason to know an Indian child may be involved, the social services agency “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 . . . , contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.’” (§ 224.3, subd. (c); see also Cal. Rules of Court, rule 5.481(a)(4).)
The social services agency and court may have reason to know an Indian child is involved when “[a] person having an interest in the child . . . 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); Cal. Rules of Court, rule 5.481(a)(5).)
“‘“Since . . . failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, notice requirements are strictly construed.”’ [Citations.] The notice requirement applies even if the Indian status of the child is uncertain. [Citation.] The showing required to trigger the statutory notice provisions is minimal; it is less than the showing needed to establish a child is an Indian child within the meaning of ICWA. [Citation.] A hint may suffice for this minimal showing. [Citation.]” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549.)
Here, the record demonstrates CFS and the juvenile court knew or had reason to know the children may have Blackfeet ancestry, and that the paternal grandmother might have information regarding the family’s Indian ancestry. The parties recognize that CFS did not comply with its duty to attempt to contact the paternal grandmother for purposes of obtaining information regarding the children’s Indian ancestry, and also did not comply with ICWA by not notifying the Blackfeet tribe of the pending proceedings and the tribe’s right of intervention. (25 U.S.C. § 1912, subd. (a); §§ 224.3, subd. (d), 224.2, subds. (a)(3) and (5); Cal. Rules of Court, rule 5.481(b).) This matter must therefore be remanded to the juvenile court to allow CFS to comply fully with ICWA notice requirements. (In re Isaiah W., supra, 1 Cal.5th at p. 6; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at pp. 251, 261.)
IV
DISPOSITION
The order terminating Mother and Father’s parental rights is conditionally reversed because CFS has not fully complied with ICWA investigation and notice requirements. The case is remanded to the juvenile court with directions to ensure full compliance with ICWA, including providing notice of the instant juvenile dependency proceedings to the Blackfeet tribe, and attempting to interview the paternal grandmother regarding the family’s Indian ancestry. If that investigation produces additional information substantiating Mother and Father’s claims of Indian ancestry, notice must be provided to any additional tribe that is identified. If after proper notice, a tribe intervenes in the case or determines that the children are Indian children within the meaning of ICWA, the court shall proceed accordingly. If no tribe intervenes, or responds that the children are not Indian children, the order terminating Mother and Father’s parental rights shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.

We concur:


McKINSTER
Acting P. J.


MILLER
J.