Filed 9/27/17 In re S.F. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Reversed with directions.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

I

INTRODUCTION

Appellant C. H., (father), appeals from the juvenile court’s order terminating his parental rights to three children, pursuant to Welfare and Institutions Code section 366.26.[1] (§ 395, subd. (a)(1).)[2] The only issue, which respondent concedes, is that DPSS[3] did not comply with the notice requirements of the Indian Child Welfare Act (ICWA). Because there is no dispute between the parties, we reverse and remand the judgment terminating parental rights, based on the failure to provide the required ICWA notice, and direct the trial court to order DPSS to comply with ICWA’s notice provisions. If after such compliance, the children are not claimed as Indian, the judgment shall be reinstated. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)

II

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the facts briefly, focusing on the ICWA issue. The dependency case commenced in August 2013 when mother left four children, ages two, three, six, and eight, locked in a hot vehicle, and mother was arrested.[4] Eventually, when father was unavailable, two children were placed with a maternal cousin and two were placed in a foster home. The juvenile court detained the children in August 2014 and found that “there [was] reason to know” that an Indian child was involved.

Father claimed he had Blackfeet or Cherokee ancestry through his maternal family. He told DPSS that his maternal grandmother (the children’s paternal GGM) was a registered member with the tribes. DPSS mailed and filed the ICWA notice in August and September 2014. The notice included information about the biological parents but not the GGM. The notice was mailed to the parents, the Bureau of Indian Affairs (BIA), the Blackfeet tribe, and three Cherokee tribes—Cherokee Nation of Oklahoma, Eastern Band of Cherokee Nations, and United Keetowah Band of Cherokee. The Blackfeet tribe responded that the parents and children were not listed on the tribal rolls, and therefore the children were not Indian children as defined by ICWA. The Cherokee tribes also responded that the children did not meet the definition of an Indian child.

On September 12, 2014, the juvenile court found the ICWA notice was proper. At the hearing, the father stated again that the GGM was one-fourth Cherokee. The court found that ICWA did not apply to three tribes—Blackfeet, Cherokee Nation of Oklahoma, and United Keetowah Band of Cherokee—but not the Eastern Band of Cherokee Nations. The same day, father filed a Parental Notification of Indian Status claiming possible tribal membership as a “Blackfoot Cherokee Oklahoma.”

In October 2014, the court sustained the first amended petition and found that the children came within section 300, subdivisions (b) and (g). The children were adjudged dependents of the court and the parents were provided with reunification services.

On April 20, 2015, the court found that ICWA did not apply. The court terminated reunification services in February 2016. Two children were placed with prospective adoptive parents. Two other children continued to be placed with their maternal cousin who was committed to adopting them. In March and April 2017, the court terminated parental rights as to the three children who are the subject of the appeal.

III

DISCUSSION

Father asserts the ICWA notice omitted any information regarding his relatives even though he claimed he had Native American ancestry through the maternal side of the family. Specifically, two weeks after the first ICWA notice was mailed, he stated that the GGM was a registered tribal member. DPSS did not mail updated notices to the respective tribes after it obtained the GGM’s name. Consequently, the ICWA findings, as well as the order terminating his parental rights, must be reversed until ICWA compliance is achieved.

DPSS and the juvenile court have an “an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care.” (§ 224.3, subd. (a).) “Section 224.3 outlines the scope of a trial court’s and a county welfare department’s duty of inquiry under ICWA.” (In re J.L. (2017) 10 Cal.App.5th 913, 919, fn. omitted.) According to section 224.3:

“(b) The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following:

“(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child’s extended family 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, subdivision (b).)

If there is reason to know that an Indian child is involved, then further inquiry by the social worker regarding the possible Indian status of the child must be done as soon as practicable. (§ 224.3, subd. (c).) Notice of the proceedings—with all available information about the child’s ancestors, especially ones with alleged Indian heritage—shall be sent “whenever it is known or there is reason to know that an Indian child is involved, . . .” (§ 224.2, subd. (b).) (In re Francisco W., supra, 139 Cal.App.4th at p. 702; In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576; In re K.M. (2009) 172 Cal.App.4th 115, 119.)

Notwithstanding a determination that ICWA does not apply to the proceedings, if the court or social worker subsequently receives information required under section 224.2, subdivision (a)(5), that was not previously available or included in the ICWA notice, the information shall be provided to the BIA and any tribe entitled to notice. (§ 224.3, subd. (f).) In this case, the original ICWA notice only contained information about the mother and father, and it did not contain information about other relatives. Later, the father disclosed that he had Blackfeet or Cherokee ancestry through the GGM. The GGM’s name was not subsequently provided to any tribe entitled to notice and the BIA, pursuant to section 224.3, subdivision (f).

In In re I.B. (2015) 239 Cal.App.4th 367, 370, the appellate court concluded there was a duty under ICWA to send updated notices to the relevant tribes when additional information regarding the child’s ancestors was obtained after the original ICWA notices were sent out. Once the social worker received additional information about maternal relatives, the social worker was required under section 224.3, subdivision (f), to provide that information to all of the tribes that were sent the initial notice. (Id. at p. 377.) The social worker’s failure to do so was not harmless error. (Ibid.)

Here DPSS concedes that ICWA notice is insufficient because the GGM’s name was not provided to any tribe entitled to notice and to the BIA. Because ICWA notice was insufficient, the order terminating parental rights should be reversed on a limited basis. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 343; In re Francisco W., supra, 139 Cal.App.4th at p. 711.)

IV

DISPOSITION

Because the ICWA notice did not include the GGM’s name, even though father claimed the GGM was a tribal member, we reverse and remand, directing the juvenile court to direct the DPSS to give notice in compliance with ICWA. After the juvenile court finds that there has been substantial compliance with the notice requirements, it shall make a finding as to whether the children are Indian children. If the court finds that they are not Indian children, it should be directed to reinstate the original order terminating parental rights. If they are Indian children, the court should be directed to set a new section 366.26 hearing and shall conduct all further proceedings in compliance with the ICWA.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.