In re M.W.

Filed 8/31/07 In re M.W. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Stephen Marpet, Commissioner. Reversed and remanded.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant Deanna W. (Mother).

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant, Deanna S. (Grandmother).

Raymond G. Fortner, Jr., County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Deanna W. (Mother) and Deanna S. (Grandmother) appeal from an order of the juvenile court terminating Mothers parental rights to M.W., and from the courts order finding that M. was suitably placed with a prospective adoptive family rather than with Grandmother. They contend that the court failed to independently determine the relative placement issue, and abused its discretion by denying a request for a brief continuance to permit Mother and Grandmother to present evidence and testimony on the subject. We conclude that regardless of whether the court abused its discretion in denying a continuance (an issue we do not reach), the record shows that the court did not exercise independent judgment in denying Grandmothers request for placement. Therefore, we vacate the order terminating parental rights, and remand with instructions to consider Grandmothers request following an assessment by the Los Angeles County Department of Children and Family Services (DCFS).

Mother also contends the order must be reversed because DCFS failed to give notice of the dependency proceedings as required by the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C.  1901 et seq.) DCFS concedes error in this regard. We therefore direct DCFS to comply on remand with the notice provisions of ICWA.

factual and procedural background

On August 21, 2004, Mothers older children Faith J. (then almost three years old) and Robert J. (then almost two years old) fell from a third-story window while in her care. The children survived the fall, but suffered serious injuries requiring hospitalization. Dependency proceedings were initiated and they were ordered detained.[1] M. was born shortly thereafter, at the end of August 2004, and a Welfare and Institutions Code section 300[2]petition was filed on his behalf. DCFS alleged therein that Mothers negligent supervision of the older children endangered M.s health and well-being. It further alleged that Mother had inappropriately disciplined the older children by striking them with a cloth belt, and that she had a history of involvement in violent relationships. The initial detention report stated that Mother and Grandmother indicated that the maternal great-grandmother might have Native American ancestry from the Blackfeet Tribe from Louisiana.

DCFS detained M., and he was placed with his maternal great-grandmother. Mother was permitted to reside in the same home, but was not allowed to have unmonitored contact with M. Andrew W. (Father) was identified as M.s alleged father.[3] DCFS was ordered to send notice of the proceedings to Father, who resided in Iowa.

At the adjudication hearing in November 2004, the juvenile court ordered with regard to M.s two half-siblings a permanent plan of placement with their father, who lived in Minnesota. Mother informed the court that she had been approved for a townhouse in Iowa, a three-hour commute from the older childrens fathers home in Minnesota, and intended to relocate as soon as possible. The court indicated that it would entertain a walk-on request by Mother to determine whether M. could be returned to her custody before she moved.

Mother filed a section 388 petition requesting that M. be released to her custody so he could live with her in Iowa, where she had already moved. Hearing on the matter took place on December 6, 2004. In response, DCFS expressed concern that Mother might be living with Father in Iowa. The couple had a history of engaging in domestic violence, and Mother had only completed six weeks of counseling in domestic violence. The court ordered an evaluation of Mothers home in Iowa pursuant to the Interstate Compact for the Placement of Children (ICPC), and continued the hearing to January 2005.

At the hearing in January, the court indicated that Mother had not demonstrated that she was in compliance with the case plan. It also noted that Mothers decision to move to Iowa, rather than Minnesota where the older children lived, was questionable. The court continued the matter for two weeks to receive the results of the ICPC evaluation. That evaluation stated that the home study for placement of the child with Mother was denied. The social worker in Iowa reported that Mother had not visited her older children in Minnesota, and she continued to display emotional instability and anger management problems. Accordingly, the juvenile court denied Mothers section 388 petition requesting placement of M. with her.

For the six-month review hearing in February 2005, DCFS reported that Mother had not visited M. since moving to Iowa in November 2004. M. continued to live with the maternal great-grandmother, and was receiving excellent care. The court found that Mother was in partial compliance with the case plan, and that conditions continued to exist justifying jurisdiction. Mother was ordered to participate in individual counseling to address anger management issues.

In May 2005, the maternal great-grandmother decided to relinquish care of M. in order to minimize family conflict. DCFS then placed M. in the foster home of Dolores A. Mother had returned to California for one month, but resumed living in Iowa at the end of March 2005. Grandmother requested that M. be placed with her; however, she was moving to a new apartment in June 2005, so the court ordered DCFS to investigate Grandmothers new home once she moved. Grandmother was granted unmonitored visits with M.

For the twelve-month review hearing in August 2005, DCFS reported that Grandmother visited M. for three hours every week, and telephoned two or three times per week. The foster caregiver reported that Grandmother was very appropriate during visits and appeared to love M. very much. M. responded positively to Grandmother and appeared to be very bonded with her. The report did not address evaluation of Grandmothers home for placement of M. DCFS had begun attempting to find an adoptive home for M., in the event he was not reunified with his parents or placed with a relative. The foster caregiver was not interested in adoption because she felt it was likely that M. would be reunified. At the hearing, the court ordered DCFS to continue providing reunification services to Mother. Counsel for M. noted that DCFS was searching for an adoptive home, and requested that the relatives be considered first.

In February 2006, DCFS submitted an 18-month status review report indicating that social services in Iowa had conducted an ICPC reevaluation of Mothers home, and again denied her home study. DCFS recommended termination of family reunification services.

Grandmother had continued to visit and telephone M. frequently. Grandmother did not have appropriate housing because she had a roommate and did not feel she could bring M. into the home, but hoped to have her own residence by March 2006. DCFS intended to evaluate her new home as soon as she acquired it. The report stated that if Grandmothers home was approved, replacement of M. into her home would be the most appropriate long-term placement option. A progress report prepared by the foster care agency reported that M.s visits with Grandmother were fun-filled; his face would light up when he saw her and he would stay in her arms the entire time. Grandmother was very energetic and kept him entertained for the three-hour visits. Her visits were consistent, and she also called the foster home frequently.

At the 18-month review hearing in February 2006, the court continued the matter for a contested hearing the following month. The court ordered DCFS to prepare a supplemental report regarding placement of the child with Grandmother. In that regard, DCFS reported that as of March 10, 2006, Grandmother had not obtained suitable housing, but the social worker continued to represent to Grandmother that the permanency efforts to place M. in her home continue. Grandmother had completed criminal clearances, and had maintained a strong bond with M. There are no foreseen obstacles to her obtaining custody of [M.] upon her finding appropriate housing. Grandmother stated her willingness to assume legal guardianship of M., or to adopt him, whichever DCFS felt was the most appropriate plan.

At the continued review hearing, the court terminated family reunification services as to M. The court set the matter for a section 366.26 permanency planning hearing in July 2006. The court advised Grandmother to inform the social worker as soon as she obtained suitable housing. She will come out, take a look at the home, and they will place the child with you.

DCFS submitted a brief report for the progress review hearing scheduled for April 2006. Grandmother had moved to a new apartment, and DCFS was preparing to assess the home and had referred the matter to Kinship Supportive Services. At the hearing on April 21, 2006, the court informed Grandmother that she had to submit to another live scan to evaluate her criminal record. The prior live scan results were incomplete because no disposition was shown for three prior arrests for domestic battery. DCFS had submitted to the court a second report indicating that when DCFS told her to submit to another live scan, Grandmother became upset, yelled, and refused to do so unless ordered by the juvenile court. In court, Grandmother readily assented to submit to another live scan, although she expressed considerable frustration that Mother had not been able to regain custody of M. Grandmother felt that Mother had done everything asked of her to comply with the case plan. The court disagreed, and pointed out that Mothers decision to move out of state created many problems, including lack of visitation with M. and Mothers participation in programs that were not approved by DCFS. The court further explained to Grandmother that it is up to [DCFS] to make sure that the caretaker, whoever it is, is an appropriate caretaker. With prior history records, they can get those taken care of, but they need to address them and do the process. It does take some time, but they can do that. So the mere fact you have a history doesnt stop you from being the possible adoptive parent. In your particular case, there are other factors that may blend into this. And we have to go back to when this case first came into the system. Sobut that is up to [DCFS]. That is not up to me. I dont make that decision with regard to the placement. All I do is make other decisions.

Mother filed a section 388 petition in May 2006 seeking custody of M. Finding that Mother had very little contact with M. since November 2004 when she moved to Iowa, the court found the proposed order was not in M.s best interest, and denied the petition.

In its report for the July 5, 2006 permanency planning hearing, DCFS noted that it was ordered to assess Grandmother for placement and possible adoption of M. It stated: However, prior to and throughout the assessment, there have been concerns with [Grandmother] assuming custody of her grandchild. [Grandmother] has consistently noted her disagreement with the suitable placement order as to [M.]. In addition, [Grandmother] has consistently advocated for her daughter to an extent as to raise concern as to her intentions in obtaining custody of [M.]. Attached to the report was a letter written by Grandmother to DCFS, dated June 1, 2006, in which she asks what else Mother needed to do to reunify with M., and further states that [w]e have been through enough. Our time is served & those are our children. DCFS reported that no adoptive family had been identified. Grandmother continued to have regular visits with M. The report did not address the results of Grandmothers live scan.

Attached to the DCFS report was a quarterly progress report prepared by the foster family agency. It stated: The current permanent plan for [M.] is family reunification with his grandmother. [M.]s grandmother looks forward to having [M.] placed with her in the near future but she still wishes that he could be placed with his biological mother. [Foster care social worker] and [foster mother] have talked to her about the importance of redirecting her anger over this whole process and channeling her energy into caring for [M.].

At the hearing in July 2006, Mother was present and questioned why M. had not been placed with Grandmother, since her home had apparently been assessed and approved. Mother acknowledged that concerns had been raised about Mother and Grandmothers relationship. The court indicated that those issues would be addressed at a later date, because the matter was being continued to August 25, 2006 for a contested hearing and in order to properly notice Father. The court ordered DCFS to prepare a supplemental report to address placement with Grandmother.

The supplemental report stated that a prospective adoptive family was identified on August 15, 2006. M. was expected to be placed with the family by the date of the continued permanency planning hearing. DCFS simply stated that no appropriate relatives have been noted for adoptive placement of [M.], but did not expand any further on the subject of placing M. with Grandmother.

At the hearing on August 25, 2006, counsel for DCFS informed the court that M. had been placed in a prospective adoptive home. Mothers counsel asked that the court trail the matter until the following court day or continue it briefly so Mother could be present. The court denied the request, noting that it was then 11:35 a.m. Mother does not appear to have any (c)(1)(A) exception, that she has had little or no contact with this child for a significant period of time, and there is no (c)(1)(E) exception as well. The court proceeded to terminate parental rights, and to order adoption as the permanent plan. The court also stated that M.s placement was appropriate. The courts minute order states: The court notes that the Mother called the judicial assistant in the morning at 9 AM indicating that she is running a little late but is suppose[d] to appear in court. The court waited until 11:40 AM before calling the case. Mothers counsel objected to the court going forward without his client being present. The court further notes that the Mother called back the court at 3 PM indicating that she knocked at the courts door but was informed that the courtroom was now dark. She indicated that she appeared a little after noon for the court hearing. Furthermore, the Mother spoke to the judicial assistant regarding the case and that she has filed an appeal and also a request for the court transcript of todays hearing. The judicial assistant did not provide her detailed information regarding what happened in court but indicated that he would document her phone call and also relay her message to her attorney to the court on Monday 8-28-06.

Mother filed a notice of appeal from the order of August 25, 2006 on that date. Grandmother also filed a notice of appeal. That appeal was assigned case No. B193422.

Mother filed a section 388 petition on August 25, 2006, contending she was in compliance with the courts orders and wanted the court to reevaluate her progress. On September 6, 2006, Mother also filed a motion for reconsideration of the order terminating parental rights. Therein, Mother indicated that on August 25, 2006, she and Grandmother had car trouble, which resulted in their late arrival in court. The court denied the section 388 petition at a hearing on September 7, 2006. Regarding the motion for reconsideration, counsel for Mother stated that Mother wanted to argue at the section 366.26 hearing that it was an abuse of discretion for DCFS to refuse to place M. with Grandmother, who had been visiting consistently and was prepared to have M. placed with her. The court replied, Well, that is an issue that has long since come and gone. There is no priority for parents at this stage.

A progress hearing was held on September 11, 2006. DCFS confirmed that M. had been placed in a prospective adoptive home. Grandmother was present and asked to address the court, but was told she could not. She became upset, and the court asked her to step outside. She responded angrily and swore.

On September 14, 2006, Mother filed an application for rehearing and order from the courts findings and orders of September 7, 2006. The application was denied on October 2, 2006. Mother filed a notice of appeal from the orders of September 7 and 11, 2006. That appeal was assigned case No. B194392.

Mother subsequently filed a motion to consolidate the two appeals. By order dated November 30, 2006, we granted that motion, consolidated the appeals, and ordered all documents previously filed under case No. B194392 to be refiled under case No. B193422.

discussion

I. Section 361.3, Preferential Consideration of Placement with Relatives

A. The Controlling Statute

Because section 361.3 controls the outcome of this case, we briefly review its provisions. Section 361.3, subdivision (a), provides in relevant part that when a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. The term relative includes a grandparent. ( 361.3, subd. (c)(2).) The statute defines preferential consideration as meaning that the relative seeking placement shall be the first placement to be considered and investigated. ( 361.3, subd. (c)(1).) To determine whether placement with a relative is appropriate, the county social worker and the court shall consider, but shall not be limited to consideration, of eight listed factors.[4] ( 361.3, subd. (a).)

Under section 361.3, subdivision (d), whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the childs reunification or permanent plan requirements. In addition to the factors described in subdivision (a), the county social worker shall consider whether the relative has established and maintained a relationship with the child. Further, under subdivision (e), [i]f the court does not place the child with a relative who has been considered for placement pursuant to this section, the court shall state for the record the reasons placement with that relative was denied. When the preference for relative placement applies, the court must exercise its independent judgment rather than simply accede to DCFSs placement decision. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033 (Cesar V.).)

Section 361.3 applies here because M. was living with a foster family that did not plan to adopt him, and thus a new placement was desirable. Hence, under section 361.3, subdivision (d), consideration for placement shall [have] again [been] given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the childs reunification or permanent plan requirements.

B. Standing and Forfeiture

DCFS argues that Mother does not have standing to challenge the juvenile courts ruling on relative placement. We conclude, however, that the issue is properly before us because Grandmother has standing to prosecute the present appeal. [Grandmother], although not a party, has standing to seek appellate review of the denial of her request for placement under section 361.3. [W]hether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.) [Grandmothers] separate interest in her relationship with . . . her grandson[] is legally protected in section 361.3, which confers upon a grandparent the right to preferential consideration for placement. [A]ny person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment is considered a party aggrieved for purposes of appellate standing. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1196.) (Cesar V., supra, 91 Cal.App.4th at pp. 1034-1035.)

DCFS further argues that both Mother and Grandmother forfeited their objections to the contents of the DCFS reports by not objecting to the sufficiency of the reports at the hearing in August 2006 or before. We disagree. As we shall explain, we conclude instead that Mother and Grandmother were never afforded the opportunity to fully address the relative placement issue, but repeatedly attempted to do so, implicitly calling into question the sufficiency of the reports. On July 5, 2006, Mother began to inquire why M. had not been placed with Grandmother despite the apparent existence of an approved home study, but the court stopped her, assuring her that the topic would be covered at the continued, contested section 366.26 hearing set for August 25, 2006. There was no voluntary waiver regarding the sufficiency of the reports.

C. The Court Did Not Exercise Its Independent Judgment Regarding Placement

Turning to the substance of the appeal, our review of the record leads us to conclude that the court did not exercise its independent judgment regarding placement of M. with Grandmother, as it was required to do.

When section 361.3 applies to a relative placement request, the juvenile court must exercise its independent judgment rather than merely review [the social service agencys] placement decision for an abuse of discretion. The statute itself directs both the county social worker and court to consider the propriety of relative placement. ( 361.3, subd. (a).) The cases, too, discuss the relative placement preference in the context of an independent determination by the juvenile court. [T]he statute expresse[s] a command that relatives be assessed and considered favorably, subject to the juvenile courts consideration of the suitability of the relatives home and the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 320, italics omitted.) (Cesar V., supra, 91 Cal.App.4th at p. 1033.)

As in Cesar V., the case before us involves the relative roles of [DCFS] and the juvenile court before parental rights [were] terminated. Notwithstanding the termination of reunification services here, parental rights [were] still intact and the [child had] not yet been referred to [DCFS] for adoptive placement. Under these circumstances, the juvenile court [had] the power and the duty to make an independent placement decision under section 361.3. (Id. at p. 1034, italics added; cf.  366.26, subd. (j); Fam. Code,  8704.)

The record shows, however, that the court did not independently consider which placement would be in M.s best interest. At a progress review hearing in April 2006, the court told Grandmother with regard to placement: [T]hat is up to [DCFS]. That is not up to me. I dont make that decision with regard to the placement. All I do is make other decisions.

At the subsequent hearings in July 2006 and August 2006, the court did not entertain argument on the placement issue. At no time did the court state its assessment of Grandmothers suitability for placement before it terminated parental rights. At the hearing on Mothers motion for reconsideration in September 2006, the court stated that the relative placement issue had long since come and gone. However, the court had never addressed it directly. The court also did not comply with the directive set forth in section 361.3, subdivision (e), that [i]f the court does not place the child with a relative who has been considered for placement pursuant to this section, the court shall state for the record the reasons placement with that relative was denied.

DCFS asserts that, regardless of any arguable error, Grandmother was not prejudiced because the reports submitted by DCFS were sufficient to establish that Grandmother was not suitable for placement because she wanted Mother to regain custody and her motivation in pursuing custody was therefore suspect, and because her criminal record precluded her from being a suitable placement. We disagree.

We do not here review a decision in which discretion was exercised; we review one in which no discretion was exercised. Thus, it is not enough that the record might support an exercise of independent judgment to deny Grandmothers request for placement, had such independent judgment been exercised. DCFS must demonstrate that, as a matter of law, placement with Grandmother was inappropriate. It fails to do so.

In its report for the July 5, 2006 permanency planning hearing, DCFS expressed concern for the first time with [Grandmother] assuming custody of her grandchild. [Grandmother] has consistently noted her disagreement with the suitable placement order as to [M.]. In addition, [Grandmother] has consistently advocated for her daughter to an extent as to raise concern as to her intentions in obtaining custody of [M.]. The report did not, however, include a recommendation that the court should find that Grandmother was not suitable for placement. The subsequent report for August 25, 2006 did not expand any further on Grandmothers suitability.

The burden was on DCFS to justify its decision not to place M. with Grandmother, but it failed to do so. It did not explore or explain whether it would be suitable to have Grandmother declared the childs legal guardian so the child could continue to be monitored, or whether Grandmother would accept that M. could not be returned to Mothers custody such that Grandmother could be trusted to adopt him. Merely expressing concern about Grandmothers motivation in assuming custody was not sufficient, as a matter of law, to justify rejecting her as a suitable placement for M.

Similarly, DCFS contends that Grandmothers angry reactions and statements about mothers reunification did not satisfy sections 361.3, subdivision (a)(7)(A), regarding providing a safe, secure, and stable environment for the child, and 361.3, subdivision (a)(7)(D), regarding protecting [M.] from his parents. Grandmothers anger and frustration might well be a factor favoring denial of her request for placement, but the court was required to make an independent determination on the point, and did not do so.

DCFS also argues that section 361.4 strictly prohibited [DCFS] and [the] juvenile court from placing [M.] with [G]randmother.[5] However, the record does not support that contention. At the hearing in April 2006, the court ordered Grandmother to submit to another live scan to determine the disposition of three prior arrests for domestic battery; Grandmother agreed to do so after the hearing. DCFS contends that there is no indication in the record that Grandmother submitted to another live scan, and therefore she cannot satisfy section 361.3, subdivision (a)(5), regarding the good moral character of the relative . . . including . . . any . . . prior history of violent criminal acts. However, the onus was on DCFS to adequately address the issue and report whether she submitted to a live scan and, if so, what results were obtained. None of the subsequent reports from DCFS indicated whether Grandmother had submitted to another live scan. Thus, the record supports only the conclusion that Grandmother had three prior arrests, not convictions, as required to strictly prohibit[] placement of M. in her home. As was the case in Cesar V., the assessment of Grandmother remained incomplete, and reversal is required. (Cesar V., supra, 91 Cal.App.4th at p. 1036.) We therefore reverse the order terminating parental rights and remand the matter to the juvenile court for further consideration of the placement issue regarding Grandmother.

II. ICWA

Mother contends the order terminating parental rights must also be reversed because DCFS failed to give proper notice of the dependency proceedings to certain Indian tribes, as required by the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C.  1901 et seq.) DCFS correctly concedes error in failing to give proper notice pursuant to the ICWA. Absent proper notice in compliance with the ICWA, it was error to proceed to terminate parental rights. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; 25 U.S.C.  1914.)

Grandmother reported to DCFS after Faith and Robert were detained that the childrens maternal great-grandmother may be from the Tribe of Black[feet] from the State of Louisiana. Accordingly, at the detention hearing on August 25, 2004, DCFS was ordered to investigate Mothers Indian heritage and send notice pursuant to the ICWA. When M. was born and detained, his detention report indicated the possible Indian heritage, but no further orders were made concerning ICWA notice with regard to M.

Thereafter, DCFS sent ICWA notices to Mother and Father, to Faith and Roberts father, to the Bureau of Indian Affairs (BIA) in Washington, D.C. and Sacramento, and to the Blackfeet Tribal Business Council in Montana. DCFS indicated therein that Mother had a possible affiliation with the Blackfeet tribe. Each notice included a printed statement certifying that an endorsed-filed copy of the notice, with a copy of the petition, was mailed. The maternal great-grandfathers statistical information was provided. However, the notices listed only Faiths name, and the date and place of her birth. The notices contained no information regarding M.s date and place of birth, or about his paternal relatives.[6]

DCFS submitted the receipts of certified mailing, and the domestic return receipts for the notices sent to Mother, the Blackfeet Tribe, the Sacramento BIA, and Faith and Roberts father. The Sacramento BIAs response referred only to Faith and Robert, and indicated that insufficient information was provided to substantiate any ancestry on the maternal side from a federally recognized tribe. The letter stated that [t]he family must provide a history back to the year 1900 with names, birth dates and/or birthplaces of ancestors to help in establishing a biological link with the original ancestral tribal member(s). (Boldface in original.)

On November 3, 2004, the juvenile court made the finding that the ICWA did not apply as to any of the children.

Mother asserts on appeal that the notices were insufficient because they did not pertain specifically to M., and furthermore, that the social worker apparently did not perform any investigation to identify any other tribes from Louisiana that should have been noticed, but was required to do so. We agree that the notices were insufficient because they did not pertain to M., but we do not find that the social worker was obligated to perform an investigation to the extent Mother contends.

The social worker interviewed maternal family members regarding any possible Indian heritage, and apparently gathered from the family all available information. DCFS does not indicate why the prior notice was sent to the Blackfeet Tribal Business Council in Montana, but we would assume that perhaps it is the only federally recognized tribe of Blackfeet. Mother does not assert that there are any federally recognized Blackfeet tribes in Louisiana.

We conclude that the entities to which DCFS sent prior notice were sufficient. In In re Edward H. (2002) 100 Cal.App.4th 1, 4 (Edward H.), the appellate court held that proper notice to some but not all possible tribes in which a dependent child may be eligible for membership does not violate the ICWA provided the agency also gives notice pursuant to 25 United States Code section 1912 to the Bureau [of Indian Affairs]. In Edward H., the father of dependent children indicated he belonged to a tribe out of Arkansas, the Choctaw Tribe. The social services agency gave notice to the BIA, as agent for the Secretary of the Interior, the Choctaw Nation of Oklahoma, and the Mississippi Band of Choctaw Indians. Father claimed on appeal that agency also should have given notice to the Jena Band of Choctaw Indians in Arkansas. The appellate court rejected the fathers contention that because the agency did not notify all three federally recognized Choctaw Tribes, the agency failed to fulfill ICWA notice requirements. In that situation, the appellate court held: Under the [federal] statutory scheme, the burden of identifying and providing notice to the proper tribe in these circumstances shifts from the state court to the Secretary, who presumably has resources and skill with which to ferret out the necessary information. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) (Edward H., supra, 100 Cal.App.4th at p. 5.)

In the interest of providing the most complete information possible, the new notice should indicate that the particular Blackfeet tribe was believed to be located in Louisiana. However, providing notice to the BIA when the correct band of a tribe cannot otherwise be identified is sufficient. (Edward H., supra, 100 Cal.App.4th at pp. 4-6.) The notice may be sent to the BIA, as agent of the Secretary of the Interior, in lieu of the tribe. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1422; see also In re C.D. (2003) 110 Cal.App.4th 214, 227.)

disposition

The order of August 25, 2006, terminating parental rights as to M. is vacated, and the matter is remanded to the juvenile court with instructions to order DCFS to conduct an assessment regarding the suitability of placing M. with Grandmother, and to thereafter conduct a new section 366.26 permanency planning hearing to consider the relative placement issue.

The matter is also remanded with directions to order DCFS to properly comply with the notice provisions of the ICWA. If, after proper inquiry and notice, a tribe determines that the minor is an Indian child, or if other information is presented to the juvenile court that suggests the minor is an Indian child, the juvenile court is ordered to conduct the new permanency planning hearing in conformity with all provisions of the ICWA.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. SUZUKAWA, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

[1] Faith and Robert have a different father than M., and are not parties to this appeal.

[2] All undesignated section references are to the Welfare and Institutions Code.

[3] Father is not a party to these proceedings.

[4] The factors listed in subdivision (a) of section 361.3 include:

(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs.

(2) The wishes of the parent, the relative, and child, if appropriate.

(3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement.

(4) Placement of siblings and half-siblings in the same home. . . .

(5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect.

(6) The nature and duration of the relationship between the child and the relative, and the relatives desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful.

(7) The ability of the relative to do the following:

(A) Provide a safe, secure, and stable environment for the child.

(B) Exercise proper and effective care and control of the child.

(C) Provide a home and the necessities of life for the child.

(D) Protect the child from his or her parents.

(E) Facilitate court-ordered reunification efforts with the parents.

(F) Facilitate visitation with the childs other relatives.

(G) Facilitate implementation of all elements of the case plan.

(H) Provide legal permanence for the child if reunification fails. [] However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative.

(I) Arrange for appropriate and safe child care, as necessary.

(8) The safety of the relatives home. For a relative to be considered appropriate to receive placement of a child under this section, the relatives home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309.

[5] Section 361.4 states that [w]henever a child may be placed in the home of a relative . . . the court or county social worker placing the child shall cause a state level criminal records check to be conducted by an appropriate governmental agency through the California Law Enforcement Telecommunications System (CLETS). In addition, the social worker shall cause a check of the Child Abuse Index. ( 361.4, subds. (b) & (c).) If the person has been convicted of a crime that would preclude licensure under Section 1522 of the Health and Safety Code, the child may not be placed in the home, unless a criminal records exemption has been granted by the county, based on substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child. ( 361.4, subd. (d)(2).)

[6] Mother points out that M.s paternal relatives were not listed in the notice, but we do not take this to be a suggestion that the child had Indian heritage through Father. Rather, it appears that Mother points this out as a further indication of the fact that the notices did not contain information specifically pertaining to M., who has a different father than his half-siblings.