Filed 3/20/17 In re S.B. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


In re S.B., a Person Coming Under the Juvenile Court Law. H044052
(Santa Cruz County
Super. Ct. No. DP002985)

SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

W.B.,

Defendant and Appellant.

I. INTRODUCTION
W.B. is the mother of S.B., the child at issue in this juvenile dependency matter. The mother appeals after the juvenile court terminated her parental rights at a Welfare and Institutions Code section 366.26 selection and implementation hearing.
On appeal, the mother contends the juvenile court erred by finding that the Santa Cruz County Human Services Department (the Department) complied with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA). (See 25 U.S.C. § 1901 et seq.) The mother requests this court conditionally reverse the order terminating her parental rights and remand the matter with directions that the juvenile court order the Department to conduct a further inquiry into the child’s Indian heritage and provide proper notice to tribes. The Department acknowledges that its ICWA notices contained “inadvertent omissions” and does not oppose a conditional reversal. We agree a conditional reversal is required.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Proceedings
On January 22, 2015, the Department filed a petition under section 300, subdivisions (b) [failure to protect] and (g) [no provision for support], alleging that the four-year-old child, S.B., came within the jurisdiction of the juvenile court. The petition alleged that the mother was homeless and that the address of the father, B.B., was unknown. The mother had recently moved to Santa Cruz from Arizona with the child, following a domestic violence incident.
The petition further alleged that the mother’s alcohol abuse put the child at significant risk of harm. On January 20, 2015, the mother had left the child with a shelter resident without telling the resident where she was going. The mother ended up being hospitalized with a blood-alcohol level of 0.254 percent. The mother had previously been discharged from a shelter for alcohol abuse. The father also had a history of alcohol abuse and drug use, and he had engaged in domestic violence in the child’s presence. The mother had failed to protect the child from the domestic violence.
Following the January 20, 2015 incident, the child had been taken into protective custody and placed in a foster home.
The Department noted that the child might have Indian ancestry. The mother had reported no Indian ancestry on her side of the family but said that there was Cherokee heritage on the father’s side of the family.
At the detention hearing held on January 23, 2015, the juvenile court ordered the child detained and ordered supervised visitation for the mother.
B. Jurisdiction and Disposition
The Department filed a jurisdiction/disposition report on March 10, 2015, recommending the mother and father (who had been located in Arizona) both be provided with reunification services. The mother indicated that she wanted to complete alcohol treatment, and the Department had referred her for an alcohol and drug assessment. The father had “wavered” about whether he would participate in services. The child remained in a foster home, which was a concurrent placement. The mother had been visiting with the child. The Department recommended that the mother and father’s case plans both include a domestic violence program, counseling, and substance abuse services. The mother’s recommended case plan also included mental health services.
With respect to the ICWA, the father had reported having Cherokee and Chickasaw heritage on his mother’s side. The father stated that his family was in the process of registering with the “Chickasaw Cherokee” tribe, but the social worker had found “no such tribe.” The Department had sent notice of the jurisdiction/disposition hearing to the Cherokee and Chickasaw tribes as well as to the Bureau of Indian Affairs. The notice included the father’s name and address but no information about the paternal grandparents, indicating that information about the paternal grandparents was unknown. One tribe, the United Keetoowah Band of Cherokee Indians in Oklahoma, had responded that it had found no evidence that the child was a descendant from anyone on that tribe’s enrollment records.
At the jurisdiction and disposition hearing held on March 12, 2015, the mother submitted on the Department’s report, and the juvenile court sustained the section 300 petition. The juvenile court ordered reunification services for both parents.
C. Six-Month Review
The Department filed a six-month review report on September 14, 2015, recommending the parents both continue to receive reunification services. The Department had received responses from additional tribes: the Eastern Band of Cherokee Indians, the Cherokee Nation, and the Chickasaw Nation. Each tribe had found the child was not a member nor eligible for membership based on the information provided by the Department.
The father had previously indicated that he had “no interest in participating in this dependency case.” His phone numbers were out of service and the Department had been attempting to reconnect with him.
The mother had completed residential treatment but then relapsed. She had been transported to a hospital for a psychiatric hold during a visit with the child. She had then reentered residential treatment and completed the program. She had been participating in counseling but had not been participating in a domestic violence program.
At the six-month review hearing held on September 15, 2015, the juvenile court adopted the Department’s recommendations, granted de facto parent status to the child’s caregivers, and found that the ICWA did not apply.
D. 12-Month Review
The Department filed a 12-month review report on March 15, 2016, recommending that reunification services be terminated and that a selection and implementation hearing be set.
The Department had still been attempting to contact the father. The social worker had been able to locate the paternal grandmother, B.H., but the paternal grandmother did not know where the father was living.
The mother had relapsed two or three times since the six-month review hearing. She was still participating in counseling but not a domestic violence program. She had been regularly visiting with the child. The social worker did not believe it would be safe to return the child to the mother’s care.
At the 12-month review hearing held on April 13, 2016, the juvenile court terminated reunification services and set a selection and implementation hearing for August 16, 2016. Notice of the selection and implementation hearing was sent to the paternal grandmother, at an address in Arizona, and to the paternal grandfather, at an address in Visalia.
E. Section 366.26 Report and Section 388 Petition
The Department filed a section 366.26 report on August 16, 2016, recommending adoption as the permanent plan for the child. The mother filed a section 388 petition on the same date, requesting the selection and implementation hearing be set aside and that reunification services be reinstituted. The mother alleged that she had maintained sobriety, completed a parenting class, “reached stability in regards to her mental health,” and had regularly visited with the child.
The juvenile court denied the mother’s section 388 petition without a hearing, finding that the mother had not stated new evidence or a change of circumstances and that the proposed change of order would not promote the child’s best interest.
On August 16, 2016, the juvenile court set the matter for a contested hearing.
F. Selection and Implementation Hearing
The juvenile court held a selection and implementation hearing on September 12, 2016. The mother testified at the hearing. She described her visits with the child and claimed she had learned a lot during the dependency proceedings. She wanted to continue to have the child in her life.
The juvenile court terminated the mother’s parental rights and selected adoption as the child’s permanent plan, finding that the benefits of adoption outweighed the preservation of the beneficial relationship between the mother and the child. (See § 366.26, subd. (c)(1)(B)(i).) The mother has now appealed from those orders.
III. DISCUSSION
Under the ICWA, where a state court “knows or has reason to know” that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C. § 1912(a).) Pursuant to section 224.2, subdivision (a)(5)(C), the notice must include “[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.”
The court and the social services agency have “an affirmative and continuing duty to inquire whether a child is or may be an Indian child.” (Cal. Rules of Court, rule 5.481(a); see also § 224.3, subd. (a).) As part of its duty to inquire about a child’s Indian ancestry, the agency must interview extended family members. (§ 224.3, subd. (c); see also rule 5.581(a)(4)(A).) “[A]n error in not giving notice is also of a continuing nature and may be challenged at any time during the dependency proceedings.” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.)
The mother contends the juvenile court erred by finding that the Department had complied with the ICWA. She points out that the Department’s ICWA notices, which were sent out early in the dependency, contained “extremely spare” information, with no paternal relatives identified other than the father. She further points out that the Department subsequently communicated with the paternal grandmother and obtained her address. The mother argues that the Department should have asked the paternal grandmother for “all available identifying information on herself and her lineal descendants with possible Indian ancestry” and that the Department should have provided that information to the relevant tribes prior to the selection and implementation hearing.
The Department acknowledges that its ICWA notices contained “inadvertent omissions” and does not oppose a conditional reversal. We agree that the Department failed to comply with its ongoing inquiry and notice requirements. The record contains no evidence showing that the social worker asked the paternal grandmother for information concerning her Indian ancestry, and no evidence that the Department provided available information about the paternal grandparents to any tribes, despite the father’s representation that he had Indian ancestry.
Therefore, we will reverse the juvenile court’s orders at the selection and implementation hearing and remand the matter for the juvenile court to direct the Department to conduct a further inquiry into the child’s Indian ancestry. The inquiry must include interviewing the paternal grandmother and other family members who might have information bearing on the child’s possible Indian ancestry. Following that inquiry, adequate notice must be provided to any tribe that is identified or, if the tribe cannot be determined, to the Bureau of Indian Affairs. The notice shall include, at a minimum, information regarding the paternal grandmother and paternal grandfather. The Department shall notify the juvenile court of its actions and file certified mail return receipts for any ICWA notices that were sent, together with any responses received. The juvenile court shall then determine whether the ICWA inquiry and notice requirements have been satisfied and whether the child is an Indian child. If the juvenile court finds she is an Indian child, it shall conduct a new selection and implementation hearing in compliance with the ICWA and related California law. If the juvenile court determines that the child is not an Indian child, the original selection and implementation order shall be reinstated.
IV. DISPOSITION
The juvenile court’s order terminating parental rights is conditionally reversed. The matter is remanded to the juvenile court with directions to proceed in compliance with the inquiry and notice provisions of the Indian Child Welfare Act and Welfare and Institutions Code section 224 et seq. If, after proper inquiry and notice, the juvenile court finds that the child is an Indian child, the juvenile court shall proceed in accordance with the Indian Child Welfare Act and Welfare and Institutions Code section 224 et seq. If the juvenile court finds that the child is not an Indian child, the juvenile court shall reinstate the order terminating parental rights.




___________________________________________
BAMATTRE-MANOUKIAN, J.





WE CONCUR:




__________________________
ELIA, ACTING P.J.







__________________________
MIHARA, J.