Filed 12/12/17 In re S.M. CA3
NOT TO BE PUBLISHED



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Colusa)
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In re S.M., a Person Coming Under the Juvenile Court Law. C085342


COLUSA COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

C.M.,

Defendant and Appellant.

(Super. Ct. No. JU3879)



C.M. (mother) appeals following the juvenile court’s order terminating her parental rights as to minor S.M. (Welf. & Inst. Code, § 366.26.) Mother contends the juvenile court and the Colusa County Department of Health and Human Services (the Department) failed to comply with the notice and inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and its California implementing statutes. We will remand for the limited purpose of conducting further inquiry under the ICWA.
BACKGROUND
On May 18, 2016, the Department filed a petition as to the newborn minor under section 300, subdivisions (b)(1) and (g), alleging (1) mother had been declared incompetent to stand trial in a pending criminal case and, as a result, her mental illness, developmental disability, or substance abuse rendered her incapable of caring for the minor, and (2) the minor had been left without any provision for support as mother was incarcerated.
The petition was served on mother in the Colusa County Jail on May 18, 2016. Attachments included an ICWA-010 form (“Indian Child Inquiry Attachment”) and an ICWA-020 form (“Parental Notification of Indian Status”). However, a box checked on the ICWA-010 form indicated the Indian child inquiry was not made, and the ICWA-020 form was not filled out.
The detention report, also dated May 18, 2016, said the ICWA “does or may apply” but did not cite supporting evidence. Because mother was on a “blackout” for phone calls and visitors at the UC Davis Medical Center, the social worker asked the hospital social worker to ask mother about Indian ancestry. But the report did not say whether the hospital social worker had done so. The report indicated that during her incarceration, mother had been “angry, assaultive, hostile, and unpredictable in her behaviors.” She was slated for transfer to Napa State Hospital.
The detention report’s recommended findings and orders for the detention hearing on May 18, 2016, included the following statement: “The parents who are present have been provided with [an ICWA-020 form]. They are ordered to complete the form and to submit it to the court before leaving the courthouse today.” But the parents did not appear at the hearing. In mother’s absence, the juvenile court appointed her criminal attorney as her dependency counsel. Asked whether mother could give information about paternity, counsel replied, “Her current mental state is such, Your Honor, that I cannot be sure of any productive results from that communication.” The juvenile court adopted the recommended findings and orders and set a jurisdictional hearing for June 6, 2016.
The jurisdiction report, filed June 2, 2016, stated without explanation, “[the ICWA] does not apply.” The report noted that mother provided the Department with names of potential fathers, but the report did not say whether the social worker spoke to mother or any known relatives about the ICWA.
At the jurisdictional hearing, the juvenile court appointed a guardian ad litem for mother. Mother was committed to Napa State Hospital that same day. Alleged father Mario M. appeared and requested paternity testing. After he was found to be the biological father, the juvenile court declared him the presumed father at the dispositional hearing and ordered reunification services for him. So far as the record shows, he never claimed Indian ancestry. His services were terminated after six months and his paternal rights were thereafter terminated along with those of mother. He is not a party to this appeal.
On June 20, 2016, the juvenile court exercised jurisdiction over the minor, adopted the recommended findings and orders, and set the dispositional hearing for July 18, 2016. The juvenile court’s findings and orders did not mention the ICWA, but stated that all prior orders of the court would remain in effect.
The disposition report, like the jurisdiction report, stated that the ICWA did not apply. The report showed that mother had named her sole surviving parent and one sister (out of six siblings), but the report did not mention whether mother or any relative had been asked about Indian ancestry. The report recommended bypassing services to mother because of her mental disability and the possibility that she would be incarcerated beyond the maximum time allowable for reunification.
At disposition, the juvenile court denied services to mother while offering them to father. The juvenile court again found that the ICWA did not apply.
The six-month review report, filed January 26, 2017, also stated that the ICWA did not apply. It recommended terminating father’s services and setting a section 366.26 hearing. Mother had been released from Napa State Hospital after a month and returned to the Colusa County Jail, where she would remain incarcerated until September 2017. The social worker had spoken to her on December 13, 2016, and January 24, 2017. Mother understood the Department’s recommendation and was grateful the minor was well cared for by the prospective adoptive parents. The report was silent on whether the social worker asked mother about Indian ancestry.
At a hearing on February 6, 2017, mother’s counsel stated that her competency would be restored by order of the superior court and a guardian ad litem was no longer needed. Mother, who was present, engaged in a lucid dialogue with the juvenile court. The ICWA was not discussed.
At the six-month hearing on March 20, 2017, the juvenile court adopted the Department’s recommendations. The section 366.26 report recommended termination of parental rights. It repeated the finding that the ICWA did not apply. The state adoption agency’s section 366.26 assessment referred to the minor as a female Mexican child and stated that the ICWA did not apply. At the section 366.26 hearing on June 19, 2017, the juvenile court terminated parental rights and chose adoption as the permanent plan.
DISCUSSION
Mother contends there was a complete failure of the ICWA inquiry in this case. The Department replies that no duty of inquiry or notice under the ICWA ever arose because the juvenile court never received any information suggesting that the minor was or might be an Indian child; hence, even if there was insufficient diligence as to the ICWA, it is necessarily harmless. (See In re H.B. (2008) 161 Cal.App.4th 115, 122 (H.B.).)
When a juvenile court knows or has reason to know that an Indian child is involved in a juvenile dependency proceeding, the juvenile court must give the child’s tribe notice of the pending proceeding and its right to intervene. (H.B., supra, 161 Cal.App.4th at pp. 120-121.) Although the ICWA and federal regulations do not expressly impose a duty to inquire, federal guidelines provide that the juvenile court shall make inquiry to determine if the child is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe. (Ibid.)
In addition, the ICWA allows states to provide a higher level of protection than the rights provided under the ICWA. (H.B., supra, 161 Cal.App.4th at pp. 120-121.) Under the California Rules of Court, the juvenile court and the 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).) The agency must ask the parents whether the child is or may be an Indian child and must complete form ICWA-010(A) unless the party is filing a subsequent petition and there is no new information. (Rule 5.481(a)(1).) At the parent’s first appearance in any dependency case, the juvenile court must order the parent to complete form ICWA-020. (Rule 5.481(a)(2).) If the parent does not appear at the first hearing, the juvenile court must order the agency to use reasonable diligence to inform the parent of the juvenile court’s order to complete form ICWA-020. (Rule 5.481(a)(3).)
Here, although the initial ICWA forms were attached to the section 300 petition, the ICWA-010 form said the ICWA inquiry was not made, and the ICWA-020 form was not filled out. Neither form was subsequently completed, and there is no evidence the Department informed mother of the juvenile court’s order to complete the ICWA-020 form.
Due to the bar on contact at the hospital immediately after the minor’s birth, and possibly also due to mother’s mental condition when the proceedings began, the Department did not directly question mother at the time about possible Indian ancestry, instead delegating its duty of inquiry to the hospital social worker. Yet the record shows no follow-up on that point: there is no statement in any report as to whether the hospital social worker asked mother about Indian ancestry or otherwise obtained information relevant to the ICWA. Nor does the record show that the Department ever did any later ICWA investigation, either with known relatives of mother or with mother herself after she became able to communicate. The apparent inconsistency between the detention report statement that the ICWA “does or might apply” and the statements in subsequent reports that the ICWA does not apply is unexplained. In any event, there is no evidence that any ICWA inquiry was ever made.
The Department relies on H.B., in which the appellate court found any failure of the ICWA inquiry harmless because there was no evidence made known to the juvenile court that the minor was or could have been an Indian child. (H.B., supra, 161 Cal.App.4th at p. 122.) But in H.B., unlike in the present case, the agency obtained a statement from the mother that she did not have Indian ancestry. (Id. at p. 119.)
By contrast, in In re J.N. (2006) 138 Cal.App.4th 450, 461 and footnote 6 (J.N.), distinguished in H.B., supra, 161 Cal.App.4th at page 122, the appellate court found that the failure to inquire about the ICWA could not be harmless because the agency did not indicate the mother was asked about Indian ancestry. The facts of this case more closely resemble those of J.N. than of H.B. As in J.N., the Department’s complete failure to conduct an ICWA inquiry cannot be deemed harmless.
DISPOSITION
The order terminating parental rights is vacated and the matter is remanded to the juvenile court to conduct an ICWA inquiry. If there is no claim of Indian ancestry, the juvenile court shall reinstate the order terminating parental rights. If there is a claim of Indian ancestry, the juvenile court shall proceed in accordance with the ICWA.



MAURO , J.



We concur:



BLEASE , Acting P. J.




MURRAY , J.