Filed 3/27/17 In re K.G. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re K.G., a Person Coming Under the Juvenile Court Law.

TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

APRIL H.,

Defendant and Appellant.

F074212

(Super. Ct. No. JJV068741A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Judge.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant April H., mother of K.G., contends the Tulare County Health and Human Services Agency (agency) failed to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA), in that it failed to make an adequate inquiry regarding K.G.’s potential Indian heritage. Consequently, mother contends the juvenile court erred in finding the ICWA was inapplicable to K.C. and in terminating her parental rights. We agree the ICWA notice was deficient and remand with directions.
FACTUAL AND PROCEDURAL SUMMARY
Because the only issue on appeal is whether there was compliance with the ICWA, our facts and procedural history will address those matters relevant to this issue. The agency filed a Welfare and Institutions Code section 300 petition on behalf of K.G. in March 2015. The agency alleged K.G. was at risk because of mother’s substance abuse and mental health issues, as well as father’s substance abuse. The petition stated an ICWA-010(A) form was attached; however, no such form was attached to the petition.
On March 9, 2015, mother provided an ICWA 020 form, parental notification of Indian status, stating that she had Cherokee Indian heritage through her great-grandparents. At the March 24, 2015, detention hearing, the juvenile court ordered the agency to provide ICWA notice due to mother’s claim of Cherokee heritage. K.G. was ordered detained.
The social worker spoke with mother on April 7, 2015. Mother indicated she had Indian heritage with the Cherokee tribe on the maternal side of her family. Mother provided some information to the social worker for completion of the ICWA notice. Mother also indicated none of her family members were registered members of any tribe.
According to the social worker, ICWA notices were sent to the Bureau of Indian Affairs (BIA), the Secretary of the Interior (Secretary), the Eastern Band of Cherokee Indians, the Cherokee Nation, and the United Keetowah Band of Cherokee Indians on April 10, 2015, via certified mail. As of April 23, 2015, acknowledgement of receipt of the ICWA notice had been received from all those noticed except the Secretary.
The social worker met with the maternal grandmother on February 27, 2015. There is no indication the social worker asked for family information to more completely fill out the ICWA forms and make further inquiry about ICWA. The social worker was inquiring about mother’s drug use.
At the jurisdiction and disposition hearing held on April 30, 2015, the juvenile court removed K.G. from mother’s custody and ordered reunification services for mother.
The agency received paternity test results in May 2015. In a report dated June 11, 2015, the agency reported paternity testing had revealed that John G. was the father of K.G. The social worker met with father to develop a case plan for him. At a hearing on July 14, 2015, the juvenile court ordered reunification services for father.
The status review report dated March 22, 2016, contains the agency’s recommendation that reunification be terminated as to both parents and a section 366.26 hearing be set. The report for the section 366.21 hearing, however, fails to indicate whether ICWA applies, does not apply, or is pending results from the BIA. The section 366.26 report also fails to state whether ICWA applies, does not apply, or is pending.
Prior to the section 366.26 hearing, the agency filed responses it had received from the Eastern Band of Cherokee Indians and the Cherokee Nation. Both tribes stated that K.G. was not a member of and not eligible to be a member of the tribe based upon the information provided by the agency.
The section 366.26 report from the agency recommended adoption as K.G.’s permanent plan. The report stated that K.G. was an adoptable child and that the minor was placed with the prospective adoptive parent on July 1, 2016.
At the section 366.26 hearing on July 12, 2016, the juvenile court found that the ICWA did not apply based upon the responses received from the tribes. The juvenile court terminated mother’s and father’s parental rights and ordered a permanent plan of adoption.
Mother filed a notice of appeal on August 15, 2016.
DISCUSSION
Mother contends the agency failed to make an adequate inquiry into K.G.’s potential Indian heritage and, consequently, mother contends the juvenile court erred in finding the ICWA was inapplicable and in terminating her parental rights.
ICWA
Congress enacted ICWA to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children in foster or adoptive homes that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 195.) An “‘Indian child’ is defined as a child who is either (1) ‘a member of an Indian tribe’ or (2) ‘eligible for membership in an Indian tribe and … the biological child of a member of an Indian tribe .…’ (25 U.S.C. § 1903(4).)” (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.) ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8); In re Jonathon S., supra, at p. 338; In re B.R. (2009) 176 Cal.App.4th 773, 783 [federal definition of “‘Indian’” includes “Eskimos and other aboriginal peoples of Alaska”; see 25 U.S.C. § 5129]; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166–168 [Canadian tribe is not federally recognized tribe under ICWA].)
In state court proceedings involving the foster care placement of or termination of parental rights to an Indian child, the Indian custodian of the child and the Indian child’s tribe have the right to intervene at any point in the proceeding. (25 U.S.C. § 1911(c).) However, this right is meaningless unless the tribe is notified of the proceedings. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.) Notice serves the dual purpose of (1) enabling the tribe to investigate and determine whether a child is an Indian child and (2) advising the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
In every dependency proceeding, the department and the juvenile court have an “affirmative and continuing duty to inquire whether a child … is or may be an Indian child .…” (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165 (Gabriel G.).) Once the court or department “knows or has reason to know that an Indian child is involved, the social worker … is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable .…” (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4); Gabriel G., supra, at p. 1165.) The department’s duty of “further inquiry” requires “interviewing the parents, Indian custodian, and extended family members …, contacting the Bureau of Indian Affairs … 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); Cal. Rules of Court, rule 5.481(a)(4); Gabriel G., supra, at p. 1165.)
ICWA applies to children who are eligible to become or who are members of a tribe, but does not limit the manner by which membership is defined. (In re Jack C. (2011) 192 Cal.App.4th 967, 978.) A “tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) The tribe’s determination that a child is a member of or eligible for membership in the tribe is conclusive. (§ 224.3, subd. (e)(1).)
Standard of Review
A juvenile court’s ICWA finding is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Karla C. (2003) 113 Cal.App.4th 166, 178–179.) Thus, we must uphold the juvenile court’s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) A juvenile court’s ICWA finding is also subject to harmless error analysis. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
Analysis
Because ICWA was enacted by Congress with the intent to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902), the juvenile court had an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (In re Isaiah W. (2016) 1 Cal.5th 1, 14.) Once there is information indicating a minor may have Indian ancestry, the agency and juvenile court must provide notice to the tribe or tribes; notice requirements are strictly construed. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
Here, the juvenile court required the agency to provide ICWA notice to the Cherokee tribes based upon mother’s representation of possible Cherokee ancestry. Notice under ICWA, however, must contain sufficient information to constitute meaningful notice. (In re Karla C., supra, 113 Cal.App.4th at p. 175.) The social worker has an affirmative duty to interview the extended family to obtain the information necessary to complete the ICWA notice forms. (Cal. Rules of Court, rule 5.481(a)(4); In re S.M. (2004) 118 Cal.App.4th 1108, 1115–1116.)
Section 224.2, subdivision (a)(5)(C) requires that the ICWA notice include the names of the minor’s biological parents, grandparents, and great-grandparents; including maiden, married, and former names or aliases; birthdates; places of birth and death; current and former addresses; and other identifying information if known. As much information as possible needs to be provided to enable the tribe to determine possible tribal identity.
Here, the ICWA notices failed to contain critical information and there is no evidence in the record that the agency interviewed family members, other than mother, to obtain information. The ICWA notice did not include the birthdate, place of birth, or any address for the minor’s maternal great-grandmother, even though mother indicated the Indian ancestry flowed from this family member; this is all listed as unknown on the form. The agency had the ability to obtain further information from the minor’s maternal grandfather; mother lived with him and the social worker interviewed him, albeit not about Indian ancestry. Additionally, the ICWA notice indicates the maternal great-grandmother was living and presumably could have been interviewed directly by the social worker.
Moreover, there is no indication in the record that the agency made any ICWA inquiry of the biological father. The notice sent to the tribes did not even include a date of birth for father.
The Cherokee nation’s response stated that it was unable to make a determination on ICWA eligibility because there was inadequate information provided. The Eastern Band of Cherokee Indians stated that their determination was based on information provided, but that omitted information could alter the determination.
While it may be that the agency will be unable to obtain more information from mother’s family and biological father and his family in order to fully complete the ICWA notice forms, the agency must make the effort to obtain the information and not limit itself to interviewing only mother. The record is simply devoid of any evidence that the agency attempted to obtain the necessary information to complete the ICWA form from anyone except mother. It is the tribes that must make a determination on ICWA eligibility, which they can do only after proper notice has been given. (In re Isaiah W., supra, 1 Cal.5th at p. 15.)
The incomplete ICWA notice form, absent evidence of the agency’s due diligence in interviewing other family members to obtain information, simply constitutes inadequate notice. (In re A.G. (2012) 204 Cal.App.4th 1390, 1396–1397.)
Mother is seeking to invalidate the order terminating her parental rights and placing K.G. for adoption based upon the failure to make an adequate ICWA inquiry and provide proper notice to the tribes and BIA. (In re Isaiah W., supra, 1 Cal.5th at p. 13.) It is preferable to err on the side of giving notice and to examine thoroughly whether the minor may be an Indian child. (Id. at p. 15.)
Consequently, we must reverse the order terminating parental rights and placing K.G. for adoption and remand the matter to the juvenile court for further proceedings. The agency must exercise due diligence to obtain all the necessary information from mother’s and father’s families to thoroughly complete the ICWA notice form and to serve a properly completed form on the tribes and the BIA. If no determinative response is received from any tribe or the BIA within 60 days of receipt of a properly completed ICWA notice form, then the juvenile court shall reinstate its order terminating parental rights and placing K.G. for adoption.
DISPOSITION
The matter is remanded to the juvenile court for further proceedings. The agency is hereby directed to exercise due diligence to obtain all the necessary information from mother’s and biological father’s families to thoroughly complete the ICWA notice form and to serve a properly completed form on the tribes and the BIA. If no determinative response is received from any tribe or the BIA within 60 days of receipt of a properly completed ICWA notice form, then the juvenile court shall reinstate its order terminating parental rights and placing K.G. for adoption. If a response is received that the ICWA applies to K.G., then the juvenile court shall treat K.G. as an Indian child and proceed pursuant to the ICWA.