Filed 3/21/18 In re A.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.H., a Person Coming Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,

Plaintiff and Respondent,

v.

S.H.,

Defendant and Appellant.

F076062

(Super. Ct. No. 517811)


OPINION

APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On December 13, 2016, the Stanislaus County Community Services Agency (agency) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300 alleging S.H. (mother) suffered from a developmental delay, mental health issues, domestic violence, and had a prior child welfare history. Her infant son, A.H., was ordered detained. Christopher G., the father, was also named in the petition. He was not actively involved in the proceedings and is not a party to this appeal. Mother was appointed a guardian ad litem at the detention hearing on December 14, 2016. At the joint jurisdiction/disposition hearing on March 2, 2017, the juvenile court found the allegations in the petition true. Because of her prior history with juvenile dependency in which she refused services to reunify with two children a year older than A.H., mother was denied reunification services pursuant to section 361.5, subdivision (b)(11). Mother filed an extraordinary writ petition of the juvenile court orders denying her reunification services (S.H. v. Superior Court (F075264)). This court denied mother’s petition on May 25, 2017.
In this appeal, mother contends the juvenile court erred in appointing her a guardian ad litem because there was insufficient evidence she suffered from a significant disability requiring such an appointment. Mother contends, and the agency concedes, notice given pursuant to the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) was inadequate and the case must be remanded to comply with the ICWA. Mother further argues that a combination of the application of sections 309, 319, and a letter from the California Department of Social Services (department) mandate an extended investigation by the agency to comply with the ICWA. We find compliance with the ICWA was deficient, necessitating conditional reversal and remand for the limited purpose of complying with the ICWA. We disagree, however, with mother’s interpretation of sections 309, 319, and a letter from the department.
FACTS AND PROCEEDINGS
Early Proceedings
A section 300 petition had been filed to protect A.H.’s twin siblings, who were newborns in January 2016. Mother was initially offered services for these children, but she failed to follow through with or engage in services. Mother’s reunification services for the twins were terminated in April 2016 and parental rights for both parents were terminated in August 2016.
Immediately after mother gave birth to A.H. in December 2016, the hospital staff were very worried because although mother was bonding with A.H., she showed minimal knowledge about his most basic needs due to her cognitive delays and mental health issues. Mother required assistance from staff about half the time to feed and change A.H. Father was not involved in A.H.’s delivery and mother had to be transported to the hospital by ambulance from the hotel where she was staying. Although mother was a client with the Valley Mountain Regional Center (regional center), she denied to social workers that she suffered any developmental delays despite a diagnosis as a minor with fetal alcohol syndrome.
Guardian Ad Litem
Mother was assessed when she was nearly 12 years old by Dr. Roseann Hannon because her own mother was concerned about developmental delays. Mother had tested in the average range for abstract and quantitative reasoning and in the low average range for short-term memory and vocabulary. A second vocabulary test and a visual motor acuity test showed mother in the borderline range. Mother showed behavioral problems in kindergarten and was later assessed with severe depressive and attention deficit hyperactivity disorder (ADHD). Mother’s IQ tested at 80 when she was about six years old. Mother’s overall intelligence as a child was considered below average.
Mother began receiving services from the regional center in 2001 and was then taking several psychotropic medications. Mother’s mother thought her daughter was delayed academically two years. Just before mother turned 11 years old, her IQ tested in the mildly mentally retarded range in abstract/visual reasoning and mentally retarded in mathematics. By the time mother was 11, she was still functioning academically at a first grade level. When tested by Dr. Hannon, mother had poor hygiene self-care skills.
Mother’s IQ testing with Dr. Hannon dropped to much lower levels than when she first entered school. She tested in the extremely low range. Verbal tests were all within the mentally retarded range. The only test in the low average range was for the picture completion test. Mother tested poorly for attention, concentration, and vocabulary. Mother tested in the low normal range for visual perception ability, and on the mentally retarded level for memory, new learning, social understanding, and academic ability. Dr. Hannon concluded mother had very severe emotional disturbances in addition to her cognitive limitations and needed further evaluation by a pediatric neurologist.
Dr. Michael Shore, a psychologist, evaluated mother in 2004 after mother’s 13th birthday. Dr. Shore noted mother had all the signs of fetal alcohol syndrome and was very cognitively delayed. Mother had difficulty clothing herself and serious difficulty with hygiene. Mother was still wearing a diaper and was not yet toilet trained. She struggled to use eating utensils and threatened to stab herself with a kitchen or dining knife. Dr. Shore noted four doctors who had evaluated mother found serious cognitive delays. The one exception was Dr. Herrera, who had concluded mother was functioning below her actual abilities. Dr. Shore noted, however, that even Dr. Herrera observed mother was merely being cooperative with the testing process; mother did not exhibit bipolar symptoms during his meeting with her. Dr. Shore found the diagnosis of fetal alcohol syndrome consistent with all of the prior testing performed on mother as well as his own testing of her.
Dr. Shore noted Dr. Herrera had conceded mother showed signs of fetal alcohol syndrome with resulting cognitive deficiencies. After considering alternatives, Dr. Shore concluded mother was mentally retarded with substantial compromise in multiple domains. Dr. Shore further concluded mother suffered from ADHD and bipolar disorder.
Dr. Nancy Brown had been treating mother for many years. In 2009, Dr. Brown reported mother suffered from fetal alcohol syndrome, with all of its psychiatric issues including poor judgment, impulsivity, and mental retardation. At that time, Dr. Brown was seeking help from the regional center to get psychiatric help for mother.
At the detention hearing on December 14, 2016, the juvenile court stated without objection from mother or her counsel that mother was seeking a guardian ad litem. When the court asked mother if someone told her the purpose of a guardian ad litem and whether she understood, mother replied affirmatively. Mother had no questions about the purpose of a guardian ad litem. The court explained the guardian “would have the power to make decisions on your behalf.” Mother said she understood this. The court appointed Joan Clendenin from the public guardian’s office as mother’s guardian ad litem without objection.
On January 30, 2017, Clendenin filed a report on mother’s status. Clendenin reported she spoke to mother twice: the day of her appointment as mother’s guardian ad litem and on January 17, 2017. Clendenin explained to mother she was not an attorney and could not give mother legal advice. Clendenin introduced mother to mother’s counsel and advised mother to seek all legal advice from her counsel. During both meetings, Clendenin described to mother the process in juvenile court and mother’s rights as a parent in that process. Clendenin explained the previous juvenile court proceedings and the orders issued at that time. Clendenin reviewed the current petition, detention report, and the recommendations from the social worker, as well as actions the juvenile court could take if it found the allegations to be true.
Clendenin also explained to mother the purpose and content of the reunification case plan and discussed with mother the social worker’s recommendations. Clendenin explained that mother’s failure to reunify with her son would cause the juvenile court to place the child into long-term foster care, guardianship, or adoption, with the latter being the preferred alternative in the event of a failed reunification.
Based on her conversations with mother, Clendenin stated mother had “an impaired ability to understand the Juvenile Court process and parental her rights within that process. It appears, from her current mental health status, that she [has] a limited capacity to understand the consequences of her actions or inactions or the consequences of subsequent Juvenile Court orders.” Clendenin concluded it was her opinion that all reasonable steps were being taken by the court, mother’s attorney, and the public guardian to assure mother’s rights were protected and that she had the opportunity for understanding those rights and the juvenile court process to the best of her ability.
Mother maintained regular visitation with A.H. On January 3, 2017, mother changed A.H.’s diaper but with a diaper appearing to have been used before. On January 31, 2017, mother still had difficulty feeding and burping A.H. In early 2017, mother told the social worker she no longer wanted services from the regional center. Mother claimed they were liars, and she asserted she had no disabilities. The social worker told mother it could benefit her to start up services again with the regional center. As of May 1, 2017, mother had difficulty during a visit with A.H. in feeding and comforting him despite coaching and suggestions from the social worker.
At the section 366.26 hearing, mother testified she fed and played with A.H. during her visits. Mother explained A.H. rarely cried around her. Mother disagreed with the agency’s recommendation that A.H. be placed for adoption because she loved him. Mother believed she had created a bond with A.H. Mother’s attorney argued against the agency’s recommendation and pointed out that mother was improving her parenting skills. Mother’s attorney did not raise any issue concerning the appointment of the guardian ad litem.
The ICWA Proceedings
Mother informed the agency about A.H.’s possible Indian ancestry on December 11, 2016. Mother’s formal notice of possible Indian ancestry on both mother’s and father’s side of the family was filed three days later. Mother advised the agency that A.H. might have Choctaw ancestry through her and Cherokee ancestry through his father. Mother concedes the requisite forms were sent to the federally recognized branches of both tribes. Mother argues the genealogical information provided, however, is extremely sparse to the point of being virtually useless. There is also an inconsistent entry from a social worker’s notes indicating mother told the social worker she herself was of Cherokee and Choctaw ancestry.
Of the pertinent ancestors, only mother, maternal grandmother, father, and paternal grandmother are listed as A.H.’s ancestors on the notices sent to the two tribes and the Bureau of Indian Affairs. All other potential Indian parents, grandparents, and great-grandparents are not identified. The record clearly demonstrates the agency had access to information regarding mother’s ancestors. The detention report noted mother was living with her father and stepmother, Mr. and Mrs. P., but Mr. P.’s name does not appear on the form. The record shows the agency talked to Mrs. P. but there is no indication why it failed to talk to Mr. P. or why it could not do so. There is no reason given as to why the agency could not have talked to Mr. P. to get relevant information about his parents and grandparents, including their names, dates of birth and death, as well as Mr. P.’s relevant personal information.
The record demonstrates the agency had information, including at least a name, about mother’s two maternal great-grandmothers, great-grandfather, and grandmother. The agency also had information about the paternal grandfather and grandmother. This information was not included in the notice forms sent to the tribes. The record also reflects the agency had information about the maternal aunt and other maternal relatives, but there is no reason given as to why they were not contacted and asked about relevant genealogical relatives. The record indicates mother was living with her mother, the maternal grandmother, at the time reunification services were denied. The agency failed to ask the maternal grandmother about her ancestry.
Although the record suggests the agency had less information about Christopher G.’s ancestry, it still had sent connection letters to his relatives that were not reported on the form, and the names of these relatives were also not included on the notice forms.
DISCUSSION
I. Appointment of Guardian ad Litem
Mother contends the juvenile court erred in appointing a guardian ad litem because although mother requested such an appointment, there was no apparent need for one. Mother further contends there was insufficient evidence supporting the appointment of a guardian ad litem, and mother’s testimony during the section 366.26 hearing demonstrated the appointment was unnecessary. Mother argues the appointment of a guardian ad litem impaired her substantial rights in the proceedings. We disagree.
Our Supreme Court has held that, in dependency cases, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court. (In re James F. (2008) 42 Cal.4th 901, 910; see In re D.D. (2006) 144 Cal.App.4th 646, 653; see also In re Sara D. (2001) 87 Cal.App.4th 661, 667.) A juvenile court has the authority to appoint a guardian ad litem on its own motion if the court obtains sufficient information the parent does not understand the proceedings or cannot assist his or her attorney in protecting the parent’s interests. (In re Sara D., supra, at p. 672.) Before appointing a guardian ad litem, the juvenile court must find by a preponderance of evidence that the parent is incompetent. (Id. at p. 667.)
The appointment of a guardian ad litem changes the parent’s role in a dependency proceeding. (In re Sara D., supra, 87 Cal.App.4th at p. 668.) The appointment removes control over the litigation from the parent, whose vital rights are at issue, and transfers it to the guardian. (In re James F., supra, 42 Cal.4th at pp. 910–911; In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186–1187.) Thereafter, the guardian ad litem has broad powers, including the authority to make certain tactical as well as fundamental decisions affecting the litigation. (Jessica G., supra, at p. 1187; In re Christina B. (1993) 19 Cal.App.4th 1441, 1453.) Consequently, the appointment must be approached with care and appreciation of its very significant legal effect. (Jessica G., at p. 1187.)
Before appointing a guardian ad litem for a parent in a dependency proceeding, the juvenile court must hold an informal hearing at which the parent is given an opportunity to be heard. The court, or counsel, should explain to the parent the purpose of the guardian ad litem and the grounds for believing the parent is mentally incompetent. If the parent consents to the appointment, the parent’s due process rights are satisfied. A parent who does not consent must be given the further opportunity to persuade the court that appointment of a guardian ad litem is not necessary. The juvenile court should make an inquiry sufficient to satisfy itself the parent is, or is not, competent. If the court appoints a guardian ad litem without the parent’s consent, the record must contain substantial evidence of the parent’s incompetence. (In re James F., supra, 42 Cal.4th at pp. 910–911.)
In reviewing the juvenile court’s actions, the appropriate inquiry by the reviewing court is whether the circumstances as a whole should have alerted the juvenile court that the parent was incapable of understanding the nature or consequences of the proceeding and unable to assist counsel in representing the parent’s interests. (See In re Sara D., supra, 87 Cal.App.4th at p. 667; In re R.S. (1985) 167 Cal.App.3d 946, 979–980.)
There are several flaws with the arguments tendered on mother’s behalf. It was mother’s struggle to understand and consistently implement the basic instructions of hospital staff on feeding and changing A.H. that led to this dependency action. Mother herself requested the appointment of a guardian ad litem and then the juvenile court explained to her the purpose of such an appointment. The agency correctly notes that although the proceeding appointing a guardian ad litem was brief, the juvenile court made sure mother understood the most basic and important aspect of the appointment—the ability to make decisions for mother concerning the legal course of the case. The juvenile court made certain mother understood the proper role for the guardian ad litem. Importantly, no one involved in the case ever challenged the appointment, including the court, mother’s counsel, the guardian ad litem and, most importantly, mother herself.
Viewing the circumstances here as a whole, there is little doubt from this record mother has suffered her entire life from fetal alcohol syndrome with its attendant and very serious cognitive impairments and mental health issues. During her childhood and early adolescence, five physicians and psychologists evaluated mother and found her intellectual and social skills far below children her own age. A sixth physician who disagreed with these assessments provided the only conclusion that differed. The cryptic note purportedly from a Dr. Dosanjh stating mother had no disabilities was confirmed by the social worker not to have been written by the doctor or his office. Into adulthood, mother remained a client of the regional center, though more recently she resisted receiving further services from it.
Mother argues her impairments were not particularly profound because she could speak coherently and was literate. Assuming arguendo these assertions are true, the guardian ad litem’s report soon after appointment to represent mother indicated mother had great difficulty understanding the nature of dependency proceedings and her role in this case. From mother’s childhood through her adolescence, she tested very low cognitively for nearly every test she was given by physicians and psychologists. It bears reiteration that it was mother’s inability to follow simple feeding and changing instructions from hospital staff immediately after A.H.’s birth that initiated this dependency action. As of May 1, 2017, mother had difficulty comforting A.H. during a visit despite coaching and suggestions from the social worker. The guardian ad litem noted mother had trouble understanding everything the guardian tried to explain to her about the juvenile court dependency process and mother’s legal rights.
There is no convincing contrary evidence in the record to indicate the juvenile court erred in appointing mother a guardian ad litem. Mother’s disabilities were debilitating and lifelong; they were not the result of an intermittent or temporary disability or illness. There was no evidence in the record indicating to the court or the parties that mother’s cognitive disabilities had abated or she no longer required a guardian ad litem. Furthermore, mother did not raise this issue in her earlier writ petition to this court.
Other than to raise a hypothetical legal challenge, mother has failed to demonstrate the appointment of a guardian ad litem adversely affected her rights in this case. Given the record before the juvenile court and this court, the juvenile court would have committed serious error had it not appointed mother a guardian ad litem. We find no merit to this contention.
II. Compliance with the ICWA
The California Supreme Court has issued its decision in In re Isaiah W. (2016) 1 Cal.5th 1, 14, overruling In re Pedro N. (1995) 35 Cal.App.4th 183 and holding a parent can raise the issue of the ICWA compliance at any stage of the proceedings, including in an appeal after termination of parental rights. Consequently, mother has not forfeited her right to challenge the ICWA compliance.
Congress enacted the 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 the 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.) The 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. § 479]; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166–168 [Canadian tribe is not federally recognized tribe under the 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).) But 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); see 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.) 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); see Cal. Rules of Court, rule 5.481(a)(4); In re Gabriel G., supra, at p. 1165.)
Because the 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 and the department had an affirmative and continuing duty at the outset of the proceedings to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (In re A.B. (2008) 164 Cal.App.4th 832, 838–839; see § 224.3, subd. (a); see also Cal. Rules of Court, rule 5.481(a).) The department or agency must include in the notice all known names 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.” (§ 224.2, subd. (a)(5)(C); see Cal. Rules of Court, rule 5.481(a)(4)(A) and Judicial Council form ICWA-030.)
A social worker who “knows or has reason to know that an Indian child is involved … 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.” (§ 224.3, subd. (c); see Cal. Rules of Court, rule 5.481(a)(4); In re Gabriel G., supra, 206 Cal.App.4th at p. 1165.) “[I]f the court [or] social worker … subsequently receive[] any information required under paragraph (5) of subdivision (a) of Section 224.2 that was not previously available or included in the notice issued under Section 224.2, the social worker … shall provide the additional information to any tribes entitled to notice under paragraph (3) of subdivision (a) of Section 224.2 and the Bureau of Indian Affairs.” (§ 224.3, subd. (f).)
The 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 to be defined. (In re Jack C. (2011) 192 Cal.App.4th 967, 978; see Nelson v. Hunter (1995) 132 Or.App. 361, 364, fn. 4 [888 P.2d 124, 126, fn. 4] [observing Congress rejected proposed language limiting the ICWA protection to enrolled members of Indian tribes].) 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).)
Where, as here, the trial court has made a finding the ICWA is inapplicable, the 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 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.)
The juvenile court and the agency failed to indicate known identifying information concerning A.H.’s grandparents and great-grandparents in both his mother’s and father’s families. In failing to do so, the potentially affected tribes were not given adequate notice to determine whether A.H. had Indian ancestry. The record shows the agency did not include information available to it in the ICWA notice forms to the tribes. The agency also had information that was reasonably available but failed to talk to mother’s or father’s relatives. This was especially imperative where, as here, mother suffered from cognitive delays extensive enough that the court had to appoint her a guardian ad litem.
Under these facts, we remand the matter to the juvenile court with directions to inquire of A.H.’s living grandparents and great-grandparents of the pertinent information required by section 224.2, subdivision (a)(5)(C). (In re J.N. (2006) 138 Cal.App.4th 450, 461–462.) This does not mean the juvenile court must restart its original proceedings, but that the juvenile court ensures the ICWA inquiry and notice requirements are met. (In re Suzanna L. (2002) 104 Cal.App.4th 223, 237.)
Relatives of the Fifth Degree
Mother further contends the agency failed to perform an adequate ICWA inquiry because it did not interview relatives of the fifth degree concerning potential Indian heritage. Mother’s appellate counsel points out section 309 creates a duty for social workers to attempt to maintain a dependent child with that child’s family. Subdivision (d)(1) of section 309 creates a preference for placement with relatives and refers to section 319, subdivision (f). Subdivision (f) of section 319 directs social workers assessing relatives for placement of a minor to locate and contact all adult relatives, including adult relatives suggested by the parents. Subdivision (f)(2) of section 319 includes a broad definition of relatives up to the fifth degree as well as stepparents and stepsiblings. As explained in All County Letter No. 09-86 (ACL) issued by the department on December 29, 2009, section 319, subdivision (f)(2) created preferential consideration for placement of dependent children to a grandparent, aunt, uncle, or sibling of the child. The notice provisions of the ACL included an advisement that social workers were “required to ask all relatives about the child’s connections with American Indian tribes so the child can benefit from any services available to American Indian children.”
Mother’s appellate counsel bootstraps sections 309 and 319 along with the department’s ACL and notice advisements into a general legal requirement for the agency to inquire about a dependent child’s Indian ancestry of all relatives to the fifth degree. We do not adopt this very expansive interpretation of the Welfare and Institutions Code or find the department’s letter and notice advisements to legally mandate exhaustive ICWA inquiries of all relatives to the fifth degree. These statutes and the department’s ACL focus on the issue of placing a dependent child, if possible, with relatives. Only an attachment to the department’s ACL makes passing reference to the ICWA inquiries.
The ICWA requirements and notices are governed by section 224 et seq. Specifically, section 224.2, subdivision (a)(5)(C) requires the ICWA notice provisions to tribes to include “[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, … as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” Subdivision (a)(5)(C) of section 224.2 focuses on the issue of proper ICWA inquiries and notifications; it is therefore the controlling statute on the ICWA notice requirements, not sections 309 and 319, which focus on the very different issue of placing a dependent child with a relative.
Our analysis is not meant to diminish a social service agency’s duty to comply with the ICWA and related provisions of the Welfare and Institutions Code. It is foreseeable, for instance, that a dependent child’s grandparents and great-grandparents have died or are unavailable, necessitating the ICWA inquiries of other living, extended family members. Here, there were known living grandparents and possibly one or more living great-grandparents who were not questioned by the agency. To the extent these immediate ancestors could not provide information relevant to Indian ancestry, the agency should question other known relatives to comply with proper ICWA notice.
DISPOSITION
The order terminating mother’s parental rights is conditionally reversed and the matter remanded to the juvenile court for the sole purpose of complying with its duty of inquiry and notice provisions of the ICWA and for the court to determine whether the ICWA applies in this case. If the court determines the ICWA does not apply, the orders shall be reinstated. If information is presented to the juvenile court affirmatively indicating A.H. is an Indian child as defined by the ICWA, and the juvenile court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new review hearing in conformance with all provisions of the ICWA.


PEÑA, J.
WE CONCUR:



DETJEN, Acting P.J.



SMITH, J.