Filed 5/5/17 In re A.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.T. et al, Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

T.T.,

Defendant and Appellant.


E067243

(Super.Ct.Nos. J258720 &
J258721 & J258722)

OPINION


APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin, Judge. Affirmed in part; reversed in part and remanded with directions.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Respondent.
Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant T.T. (Mother) is the biological mother of J.H. (a female, born March 1999), A.C. (a female, born October 2001), and A.T. (a male, born March 2008) (collectively, the children). This appeal only involves A.C. (Minor) Mother’s sole issue on appeal is that San Bernardino County Children and Family Services (CFS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). CFS agrees that the notice was inadequate. We agree with both parties that CFS failed to comply with ICWA and remand the matter, with directions, to the juvenile court to ensure CFS’s compliance with ICWA’s notice requirements. We affirm the orders of the juvenile court in all other respects.
FACTUAL AND PROCEDURAL HISTORY
A. PETITION AND DETENTION
On February 10, 2015, CFS filed a petition under Welfare and Institutions Code section 300. The petition alleged (1) failure to protect—Mother left Minor without appropriate adult supervision on numerous occasions, placing Minor at substantial risk of harm; (2) Mother had a history of substance abuse which placed Minor at risk of harm; and (3) Minor’s father knew of should have known that Mother was leaving Minor without appropriate supervision for extensive periods of time and Minor’s father took no action to ensure Minor’s safety.
In a detention report dated February 11, 2015, CFS reported that it had received information that Mother was leaving the children home alone while she worked as a truck driver. The children’s ages ranged from 17 years to six years old. Mother had a child welfare history and Minor’s father, K.C. (Father), had a prior court case where he was awarded custody of his son, who was not a child of Mother’s. Minor tested positive for cocaine at birth. Minor had been living with Father, but ran away twice to live with Mother. She did not want to follow Father’s rules. Mother wanted Minor to return to Father’s home as Mother thought there would be fewer problems among the children; Minor refused. Moreover, Minor was due to return to court for assaulting Mother. The detention report recommended that Minor and her siblings be maintained in Mother’s custody.
On February 11, 2015, Mother and Father both signed a parental notification of Indian status stating that they may have Indian ancestry—tribe unknown. At the detention hearing on February 18, 2015, Mother advised the court that she had unknown Indian status, and Father advised the court that he had Cherokee and Blackfeet Indian ancestry.
Mother lived with Father from 1999 to 2007. Mother stated that Father held Minor out as his child but did not provide financial support, only emotional support. She was unaware if he had signed a voluntary declaration of paternity, but he was listed on Minor’s birth certificate.
The court found that a prima facie case had been established for detention and that the children would remain in the custody of Mother under the supervision of the court with CFS to supervise and report.
On March 18, 2015, CFS filed a first amended petition on behalf of Minor. The additional allegations stated that (1) Father also had a history of substance abuse, which placed Minor at risk of harm under section 300, subdivision (b); and (2) Father had molested Minor’s half-sibling, and another child of Father’s, which placed Minor at substantial risk of sexual abuse by Father under section 300, subdivision (j).
The first amended detention report recommended that Minor be maintained in Mother’s custody.
B. JURISDICITON AND DISPOSITION
The jurisdiction and disposition report recommended that the court sustain the allegations of the original and amended petitions, and Minor remain in Mother’s custody. Minor had denied any sexual abuse by Father. Minor felt that Father treated her half-sister, J.H. (not Father’s daughter) better than he had treated Minor. The social worker found a substantiated referral from Los Angeles alleging that Father had sexually abused one of his daughters.
At the combined detention and jurisdiction/disposition hearing on the amended petition, Father submitted on the amended petition but denied the allegations. Mother set the jurisdiction/disposition hearing contested.
At the contested hearing on March 30, 2015, CFS noted that Mother had indicated unknown Indian heritage. County counsel stated that there was a claim of Cherokee or Blackfeet ancestry. Neither Father nor Mother corrected county counsel’s error that it was Father who had Blackfeet or Cherokee ancestry, not Mother. CFS then moved to dismiss the allegation of Mother’s substance abuse. CFS acknowledged that ICWA notice was not required because there was no removal, but CFS was going to comply with the noticing requirements anyway.
The juvenile Court found allegations under section 300, subdivisions (b)(1), (b)(4), and (j)(5) to be true. The court dismissed the allegation under section 300, subdivision (b)(2), and found the allegation under section 300, subdivision (b)(3) not true. Minor came within the provisions of section 300, subdivisions (b) and (j).
The court found Father to be the noncustodial presumed Father of Minor. The court ordered CFS to begin noticing requirements under ICWA. The court also ordered Minor to remain in Mother’s custody and ordered family maintenance services with Mother. The court authorized CFS to request dismissal by approval packet.
C. ICWA FINDINGS AND ORDERS
In the Notice of Child Custody Proceeding for Indian Child form (ICWA-030 form), Blackfeet and Cherokee tribes were listed as Mother’s Indian heritage. Under Father’s heritage, CFS stated that there was no tribe specified so notice was sent to the Bureau of Indian Affairs. Moreover, the form did not include any family history for Father. CFS filed its final ICWA Declaration of Due Diligence on June 19, 2015.
On June 22, 2015, the juvenile court found notice was conducted as required under ICWA, and ordered that ICWA did not apply in this case, and no further notice was required.
D. SECTION 387 JURISDICTION/DISPOSITION
On August 25, 2015, CFS filed a section 387 supplemental petition on behalf of Minor. CFS recommended that she be detained in a confidential foster care placement.
Mother was hostile and paranoid when the Wraparound team visited the home to initiate services in May 2015. Mother could not stay focused and appeared confused. She admitted taking medication to “liven” her up. Mother admitted that she would not hesitate to hit her children if they attacked her or became aggressive. CFS and the Wraparound team decided to continue to work with Mother since services had just commenced.
On June 20, 2015, CFS received a referral alleging general neglect and reporting that Mother wanted Minor out of the home because she was aggressive and out of control. Mother believed that Minor was the cause of CFS’s intervention. In July 2015, police arrived at the home because of a physical altercation between Minor and her sibling. Minor was handcuffed and cited.
On August 12, 2015, CFS received another referral alleging general neglect. Mother had left A.T. (then age 7) home alone. After a risk assessment meeting, it was decided that Mother did not benefit from CFS interventions to ensure the children’s safety. Mother admitted to her inability to control her children and supervise them. CFS filed a supplemental section 387 petition on August 25, 2015.
When Mother was notified about the petition and recommendation, she appeared relieved. She told the social worker that “this is the best thing that could have happen[ed] to all of us . . . . My children will get help.”
At the detention hearing on August 26, 2015, Father’s mother (PGM) was present. Father asked that Minor be placed with her. Minor was detained from Mother and placed in foster care.
The jurisdiction/disposition report recommended that Minor remain in out-of-home placement and family reunification services be provided to Mother. The report noted that ICWA may apply, but there was no information on whether there was any further inquiry and/or notice regarding ICWA.
On September 16, 2016, PGM was present at the jurisdiction/disposition hearing. Mother set the hearing contested and the court ordered mediation. The parties came to full agreement during mediation and Mother agreed to reunification services with supervised visitation.
On October 5, 2015, the juvenile court found that Minor came within section 387, removed her from the home, and ordered reunification services between her and Mother. There was no mention of ICWA.
E. SECTION 361.21 SUBDIVISION (E) REVIEW
The status report dated April 5, 2016, recommended that Minor continue as a dependent of the court in out-of-home care, and Mother continue to receive reunification services. The report noted again that ICWA may apply, but there was nothing else reported on fulfilling the requirements under ICWA.
At the hearing on April 19, 2016, Mother submitted on the recommendation of continued services and asked for unsupervised visitation. The court continued Minor as a dependent and authorized CFS to liberalize visitation to unsupervised, overnights, and weekends by approval packet.
F. SECTION 361.21, SUBDIVISION (F) REVIEW
The status review report filed September 26, 2016, recommended that Mother’s services be terminated. The report noted that ICWA may apply, but no other ICWA information was provided.
Mother resisted addressing her mental health issues, and was unwilling to comply with her medication dosage. Moreover, Mother did not make sufficient progress toward reunifying with Minor. She missed several visits. Although Mother had been offered 18 months of service, she did not complete her individual counseling. Mother also moved to Los Angeles County.
Minor’s group placement reported that she was struggling with, but was learning to adjust to the structure and strict rules of the program. She had been defiant and had some behavioral issues at school. Minor had been suspended from school because she fabricated a story that another student brought a weapon to school. Minor attended her treatment groups at the group home. The doctor reported that Minor suffered from severe depression, anxiety, insomnia, feelings of unworthiness, and anger outburst. She was placed on a 5150 hold due to suicide ideation and cutting herself. CFS received a seven-day notice for change of placement because of her defiance.
At the hearing on October 5, 2016, Mother was not present. Minor’s counsel requested that Minor be placed with PGM. The juvenile court ordered CFS to assess PGM for placement with authority to place upon RAU (Relative Assessment Unit) approval.
At the hearing on October 19, 2016, Mother was not present when the hearing commenced. Mother’s counsel objected to the recommendation of termination of services. The court terminated Mother’s services and authorized supervised visits for Mother.
On November 17, 2016, Mother filed her notice of appeal.
DISCUSSION
On appeal, Mother contends that CFS failed to comply with ICWA’s notice requirements. CFS agrees.
“Congress enacted ICWA to further the federal policy ‘“that, where possible, an Indian child should remain in the Indian community.”’” (In re W.B. (2012) 55 Cal.4th 30, 48.) “When applicable, ICWA imposes three types of requirements: notice, procedural rules, and enforcement. [Citation.] First, if the court knows or has reason to know that an ‘“Indian child”’ is involved in a ‘“child custody proceeding,”’ . . . the social services agency must send notice to the child’s parent, Indian custodian, and tribe by registered mail, with return receipt requested. [Citation.] . . . [¶] Next, after notice has been given, the child’s tribe has ‘a right to intervene at any point in the proceeding.’ [Citation.] . . . [¶] Finally, an enforcement provision offers recourse if an Indian child has been removed from parental custody in violation of ICWA.” (Id. at pp. 48-49.) “Thorough compliance with ICWA is required.” (In re J.M. (2012) 206 Cal.App.4th 375, 381.)
Of concern here is the notice requirement. If an agency “knows or has reason to know that an Indian child is involved” in a dependency proceeding, the agency must send notice of the proceeding to, among others, a representative of all potentially interested Indian tribes. (§ 224.2, subd. (a).) “[F]ederal and state law require that the notice sent to the potentially concerned tribes include ‘available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.’ [Citations.] To fulfill its responsibility, the Agency has an affirmative and continuing duty to inquire about, and if possible obtain, this information. [Citations.] Thus, a social worker who knows or has reason to know the child is Indian ‘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 to gather the information required in paragraph (5) of subdivision (a) of Section 224.2 . . . .’ [Citation.] That information ‘shall 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.’ [Citation.] Because of their critical importance, ICWA’s notice requirements are strictly construed.” (In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)
Here, as summarized above, Father indicated that he may have Indian ancestry with the Blackfeet or Cherokee tribes. CFS failed to send any ICWA notices to either tribe on Father’s behalf. Therefore, both Mother and CFS agree that CFS failed to comply with ICWA. The parties argue that “[t]here has been a split of authority as to whether the reviewing court must reverse the lower court’s orders because of ICWA noncompliance, or just remand for the limited purposes of giving notice.” Mother argues that the case should be reversed and remanded. CFS argues that we should simply remand this case. In this case, we find that the appropriate remedy would be a conditional reversal of the 12-month review hearing order, and a limited remand for CFS to clarify and cure any ICWA noticing defects.
DISPOSITION
The 12-month review hearing order is conditionally reversed and a limited remand is ordered. The case is remanded to the juvenile court with directions to ensure CFS complies with the notice requirements of ICWA. If, after new notices, any of the Blackfeet, Cherokee or other tribes claim Minor is eligible for membership and seek to intervene, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, none of the tribes make such claims following new notices or the court concludes CFS’s efforts at compliance were adequate, the 12-month review hearing order shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


RAMIREZ
P. J.


FIELDS
J.