Filed 11/29/18 In re D.M. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MEMORANDUM OPINION[1]

In this dependency appeal, Diamond W. (mother) seeks relief from the juvenile court order terminating her parental rights with respect to her son D.M. (born April 2014) at a permanency planning hearing held pursuant to section 366.26 of the Welfare and Institutions Code.[2] Mother’s sole contention on appeal is that termination of her parental rights was improper absent adequate compliance with the notice requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. Respondent effectively concedes error, and our own review of the ICWA noticing in this matter is in accord. We therefore conditionally reverse and remand for the limited purpose of ensuring ICWA compliance.

On October 24, 2016, the San Francisco Human Services Agency (Agency) detained two-year-old D.M. after receiving information from a number of sources indicating that mother had relapsed on methamphetamine. Mother has a history of methamphetamine use, and a prior dependency action involving D.M. had been initiated in April 2014 when the minor tested positive for methamphetamine and marijuana at birth. After D.M. was removed in these prior proceedings, mother successfully engaged in residential drug treatment and ultimately reunified with the minor. The case was closed in March 2016.

At the October 2016 detention hearing in the present proceedings, the juvenile court indicated that Willie M. (father) had been declared D.M.’s presumed father in the prior dependency and reiterated his presumed father status. It further found that mother had no Native American ancestry and preliminarily concluded that “ICWA doesn’t apply in this case.” At the continued detention hearing the next day, however, the court acknowledged that ICWA might apply and that a search would need to be done based on disclosures made by father on his ICWA form. In particular, father reported that he might have Indian ancestry “through Pat. GM Caroline [C.] DOB November 24 year unknown.” He identified the tribe as “Chinook (Oregon or Washington).”

On November 22, 2016, the Agency filed a copy of its ICWA notice with the court. Its dispositional report stated that ICWA noticing had been sent out and that the minor’s eligibility status was pending. The dispositional report also revealed that father had been born and raised in San Francisco; had grown up in foster care after his mother was incarcerated when he was seven; and had moved in with his elderly grandmother when he was 18, helping to care for her until her death in 1993.

On January 27, 2017, the juvenile court sustained amended allegations under section 300, subdivision (b), that mother required substance abuse treatment given her history of substance abuse and that neither parent was currently able to provide for D.M. That same day, D.M. was declared a juvenile court dependent and removed from the custody of both parents. Reunification services were ordered for mother and father. No ICWA finding was made at the dispositional hearing, but the matter was continued for purposes of ICWA compliance. Thereafter, at the continued hearing on March 3, 2017, the juvenile court found that notice had been “satisfied as required by law regarding Indian ancestry” and that the ICWA did not apply. Reunification services were subsequently terminated on September 18, 2017, due to the parents’ lack of compliance, and D.M. was referred for permanency planning.

The report prepared for the permanency planning hearing recommended adoption as the minor’s permanent plan. It further disclosed that D.M.’s caregiver had contact information for the paternal grandmother in North Carolina, as the caregiver reported sending the paternal grandmother pictures of the minor via text message. On February 14, 2018, the juvenile court terminated both parents’ parental rights and ordered adoption as D.M.’s permanent plan. Mother timely appealed.

Although she does not challenge the termination of her parental rights in any other respect, mother asserts on appeal that the ICWA noticing that was completed in this case was prejudicially deficient. “Congress enacted ICWA in 1978 ‘to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .’ ” (In re Damian C. (2009) 178 Cal.App.4th 192, 196, citing 25 U.S.C. § 1902.) “ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) For these reasons, the ICWA requires that a child’s Indian tribe be notified of a dependency proceeding and its right to intervene whenever there is a reason to know a child is an Indian child. (In re A.G. (2012) 204 Cal.App.4th 1390, 1396 (A.G.); 25 U.S.C. § 1912(a).) Section 224.2, subdivision (a), similarly requires notice to the tribe whenever a court, social worker, or probation officer knows or has reason to know an Indian child is involved in a dependency proceeding.[3] “ ‘Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies. Specifically, the tribe has the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings. Without notice, these important rights granted by the [ICWA] would become meaningless.’ ” (A.G., supra, at p. 1396; see also In re Isaiah W. (2016) 1 Cal.5th 1, 7-9 (Isaiah W.).) The giving of notice is thus a cornerstone of the entire ICWA scheme.

Equally important, however, is that any ICWA notice provided contains sufficient information to afford the tribe “a meaningful opportunity to evaluate whether the dependent minor is an Indian child within the meaning of the ICWA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 629 (Louis S.).) “Notice is meaningless if no information or insufficient information is presented to the tribe to make that determination. . . . The burden is on the Agency to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (Id. at p. 630.) In particular, ICWA notices are required to include all of the following information, if known: the child’s name, birthplace, and birthdate; the name of the tribe in which the child is enrolled or may be eligible for membership; names, birthplaces, birthdates, and addresses (including former addresses) of the child’s parents, grandparents, and great-grandparents, and other identifying information; and a copy of the dependency petition. (25 C.F.R. § 23.111(d)(1)-(5) (2016); § 224.2, subd. (a)(5)(A)-(D); In re D.W. (2011) 193 Cal.App.4th 413, 417.) Moreover, so that sufficient familial information can be gathered for inclusion in ICWA noticing, both the juvenile court and social worker have an affirmative and continuing duty to inquire into a child’s Indian status by, among other things, interviewing the parents and extended family members where they have reason to believe a minor may be an Indian child. (§ 224.3, subds. (a) & (c); Isaiah W., supra, 1 Cal.5th at p. 14.)

We agree with mother that the ICWA notice issued by the Agency in this case was fatally deficient. Focusing solely on the information related to D.M.’s potential Indian heritage through his father, we note that father’s place of birth is not listed, although the dispositional report indicates that he was born and raised in San Francisco. In addition, although the notice states the name of the paternal grandmother, it contains no address information and no birthdate or place of birth, despite the fact that father included a partial birthdate on his original ICWA form (“November 24 year unknown”). And, even more importantly, contact information for the paternal grandmother was clearly available to the social worker through the minor’s caregiver. Finally, there is absolutely no information for any paternal great-grandparents listed on the ICWA notice, despite the fact that father lived with a paternal great-grandmother and thus presumably knew her name; the dispositional report disclosed her death in 1993; and, the paternal grandmother, whose whereabouts were known, would likely have been able to provide additional information.[4]

A reasonable reading of the record shows that the Agency did not include all required information that was in its possession, or that it could have obtained by asking father or contacting the paternal grandmother. Moreover, some of the omitted information pertained directly to the paternal grandmother, the ancestor who father had affirmatively identified as the individual with possible Indian heritage. (See Louis S., supra, 117 Cal.App.4th at p. 631 [“The Agency must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage.”].) We cannot say with any degree of confidence that additional information from or concerning the paternal grandmother would not have altered the tribes’ evaluation of D.M.’s status. (In re D.N. (2013) 218 Cal.App.4th 1246, 1251 [“Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child.”].) Under such circumstances, the appropriate remedy, as both parties agree, is a limited remand for purposes of ICWA compliance.[5] (See In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)

DISPOSITION

The judgment terminating parental rights is conditionally reversed and the case is remanded to the juvenile court with directions to order the Agency to comply with the notice provisions of the ICWA. If, after proper notice, the court finds that D.M. is an Indian child, the juvenile court shall proceed in conformity with all provisions of the ICWA. If, on the other hand, the court finds that D.M. is not an Indian child, the judgment terminating parental rights shall be reinstated.

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Reardon, J.*

We concur:

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Streeter, Acting P.J.

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Lee, J.**