Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. JUV095912. Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A.E. is the mother of the two girls who are the subjects of this appeal, A.J. and J.I. Mother appeals from the juvenile court’s order terminating her parental rights and selecting adoption as the children’s permanent plan. Specifically, mother argues the juvenile court erred when it found that Riverside County Department of Public Social Services (DPSS) had complied with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. §1900 et seq.). As discussed below, we conclude that DPSS failed to further inquire of the maternal grandmother as to whether she could provide a tribal enrollment number after she identified herself as a registered member of a Cherokee tribe and the telephone conversation between the maternal grandmother and the social worker was inadvertently terminated. For this reason, we conditionally vacate the judgment and remand the matter to the juvenile court with directions to order compliance with the ICWA inquiry and notice provisions.
The following facts and procedure are taken from this Court’s opinion in the earlier writ proceeding filed by the father of J.I., in Case No. E046908, except where otherwise indicated.
In 2004, four children, all half-siblings ranging in ages from 12 years of age to two years, were removed from the custody of their mother, A.E., due to the deplorable condition of the home, neglect by mother, mother’s history of mental health issues and seizure disorder, a history of domestic violence between mother and J.I’s father, who was not a member of the household, and the failure of the different fathers of the children to protect them. (Welf. & Inst. Code, § 300, subd. (b).) Mother has a seizure disorder which impaired her parenting ability (although she still drove a car with the children in it), as well as bipolar disorder; she had a prescription for medical marijuana, but also used methamphetamine.
The two older boys were placed with their respective nonoffending, noncustodial fathers, and the dependency cases relating to them were dismissed. The jurisdiction and disposition hearing took place in April 2005, after obtaining psychological evaluations of mother’s amenability to reunification services. The two girls, A.J. and J.I, were found to be a sibling set and were initially placed in a foster home; reunification services were ordered for mother and J.I.’s father, not to exceed six months. In November 2005, the court terminated services for both parents, found that termination of parental rights would be detrimental due to regular visitation by the parents, and placed the two girls in the custody of the maternal grandmother under a legal guardianship.
The children had to be removed from their maternal grandmother/guardian in 2006, after the guardian physically abused A.J. while intoxicated. At the time of A.J.’s abuse, J.I. had been staying for a few weeks with her paternal grandmother, where her father was also living; he was quite attached to J.I., who was doing well in the home. Both children were then detained in the same foster home in which they had been detained on the original dependency.
The paternal grandmother requested placement of J.I., and DPSS was ordered to do an assessment for guardianship. In an addendum report, the social worker recommended that the foster parents be appointed as guardians. The report indicated J.I.’s father had failed to submit a hair follicle test, although we have found no order in the record. The report also noted that J.I.’s father continued his relationship with mother. A.J. wanted to stay with the foster parents if she could not return to her mother, and was concerned about losing contact with J.I. if J.I. went to live with her paternal grandparents. J.I. was not interested in living with her grandparents.
On October, 25, 2006, at the disposition hearing on the new petition, the guardianship of the maternal grandmother was terminated, and the foster parents were appointed as legal guardians of the two girls upon the court’s finding that termination of parental rights would be detrimental.
On February 26, 2008, J.I.’s father filed a petition to modify a prior court order (Welf. & Inst. Code, § 388), seeking to have J.I. placed with her paternal grandmother under a guardianship, and reinstatement of reunification services. The petition alleged there were changed circumstances, in that he had completed a 52-week anger management program, had been drug free, and his mother’s home had been previously evaluated. On April 2, 2008, the foster parents/guardians petitioned for a modification, also. Their petition sought to modify the permanent plan from one of guardianship to one of adoption. The guardians’ petition alleged that the children wanted to be adopted, and that adoption would provide added security. On April 11, 2008, J.I.’s paternal grandmother filed her own petition for modification, seeking placement of J.I. under a plan of guardianship.
DPSS investigated and reported that the legal guardians had been sabotaging visitation between the children and both parents as well as J.I.’s paternal grandparents. The report and its addenda also indicated that in addition to completing the anger management program, J.I.’s father had completed parenting classes, was engaged in counseling, and was employed full time.
DPSS also reported that J.I. wanted to spend more time with her parents and grandparents, and that the parents were united in their desire to have J.I.’s paternal grandparents appointed as her legal guardians. Further, J.I.’s father and paternal grandparents had maintained regular visits with J.I., and the father demonstrated love for his child. DPSS recommended that father’s petition be granted, and that as to J.I. only, the guardians’ petition should be denied. The court ordered a bonding study to assess the sibling relationship.
The bonding study was completed on July 21, 2008. The report concluded that the children had a close relationship with each other, but that children are resilient and counseling or therapy would help. After a lengthy contested hearing on the cross-petitions, the trial court denied J.I.’s father’s petition, granted the legal guardians’ petition, and set a selection and implementation hearing at which parental rights may be terminated and a new permanent plan of adoption may be ordered. (Welf. & Inst. Code, § 366.26.) J.I.’s father filed a petition for extraordinary relief following those orders. This Court denied that petition on December 24, 2008.
DPSS filed a selection and implementation report on January 26, 2009, recommending the court terminate parental rights to A.J. and J.I. and find the girls adoptable. DPSS reported that ICWA did not apply.
At a hearing held on February 9, 2009, county counsel told the juvenile court that the ICWA issues needed further resolution and requested a continuance. The court granted the continuance and ordered DPSS to comply with ICWA.
On February 13, 2009, mother left a telephone message for the social worker stating that her children have Cherokee Indian ancestry.
On March 2, 2009, A.J.’s father told the social worker that his grandmother (paternal great grandmother) Peggy L. was one-quarter Cherokee Indian and that she lived on a reservation in Maine. He gave her married name and maiden name.
On March 6, 2009, the social worker had a telephone conversation with Vicky P., the maternal grandmother, to ask about her Native American ancestry. Vicky P. “rambl[ed] about other subjects” but eventually gave the social worker the following information, as quoted directly from the delivered services log.
“Ms. [P] states in the past she did deny Native American heritage to the social worker on purpose. She states she has 7 generations of Cherokee and she used to live in a black community, not on a reservation. She states her mother’s [great grandmother] name is Eve [H.], married last name is [B.]. She states that her maiden name is [C.], and her grandmother [maternal great great grandmother] was adopted and her name was Ole or Ola. She states her father was Irish. Ms. [P] states she is Cherokee by blood, and is registered with the tribe. The conversation got disconnected.”
On May 6, 2009, DPSS sent notice of the proceedings to the identified Indian tribes. The notices included mother’s and father’s addresses, birth dates, and claimed tribal affiliations, if any. They included the married name and maiden name of maternal grandmother Victoria P., along with her address, birth date, and that she may be affiliated with a Cherokee Indian tribe. The notice regarding A.J. included listed her paternal great-grandmother Peggy L., including her married name and maiden name, that she may have been affiliated with a Cherokee Indian tribe, and that she had lived on a reservation in Maine. The noticed tribes responded that neither girl was in Indian child.
On July 15, 2009, the juvenile court found that DPSS had satisfied the notice requirements of ICWA. The court found the girls adoptable and terminated parental rights. This appeal followed.
DISCUSSION
Mother argues the juvenile court’s order terminating her parental rights should be reversed because DPSS failed in its duties to: 1) adequately inquire whether the girls had Native American ancestry, in that it failed to have mother complete a Parental Notification of Indian Status (form ICWA-020) and did not follow up with the maternal grandmother to determine whether she could provide a tribal membership number; and 2) give proper notice to the affected tribes containing all of the information that the family provided.
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) ICWA defines an Indian child as any unmarried person who is under age 18 and 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.A. § 1903(4).) When a court “knows or has reason to know that an Indian child is involved” in a juvenile dependency proceeding, the court must give the Indian child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C.A. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157.)
ICWA itself does not expressly impose any duty to inquire as to Indian ancestry. Neither do the controlling federal regulations. (See 25 C.F.R. § 23.11(a) (1994).) However, ICWA also provides that states may provide “a higher standard of protection to the rights of the parent... of an Indian child than the rights provided under [ICWA].” (25 U.S.C.A. § 1921.) Consistent with this provision, California law imposes on county welfare departments and the juvenile court “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.” (Welf. & Inst. Code, § 224.3, subd. (a).)
Here, mother contends DPSS and the juvenile court failed in their duty of inquiry because they did not have mother complete a Parental Notification of Indian Status (form ICWA-020) as the court was required to order at the July 15, 2009, hearing at which Mother first appeared, as required by California Rules of Court, rule 5.481, subdivision (a)(2). Mother argues, without specificity, that this form could have provided the social worker “with some of the information required for effectively noticing the pertinent Indian tribes identified in Mother’s family.” However, nowhere in her appellate brief does mother make an offer of proof as to what information she could have provided on the ICWA-020 that the social worker did not obtain from Vicky P. In other words, mother has not established that any error in failing to have her complete the ICWA-020 was at all prejudicial, because she does not indicate anywhere in this appeal that she would have provided on that form information more relevant than that obtained from her own mother. (See In re H.B. (2008) 161 Cal.App.4th 115, 121-122 [failure to have mother file a form Judicial Council Form JV-30 is mere harmless error “‘without any showing whatsoever that the interests protected by the ICWA are implicated in any way.’ [Citation.]”].)
“At the first appearance by a parent... in any dependency case... the court must order the parent... to complete Parental Notification of Indian Status (form ICWA-020).”
In addition, mother maintains that the social worker had a duty of further inquiry to determine whether Vicky P. could provide a tribal enrollment number after Vicky P. identified herself as a registered member of a Cherokee tribe before their telephone conversation of March 6, 2009, was disconnected. It is the agency’s responsibility to obtain as much information as possible about the child’s potential Indian background and to provide that information to the relevant tribe or, if the name of the tribe is not known, to the Bureau of Indian Affairs. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Further, to delve at the same time into mother’s contentions regarding notice, failure to provide notice in a manner consistent with ICWA mandates reversal. (Adoption of Lindsay C. (1991) 229 Cal.App.3d. 404, 416; In re Junious M. (1983) 144 Cal.App.3d 786, 796.)
We agree with mother that the telephone conversation in which the maternal grandmother identified herself as a registered member of a Cherokee tribe required further inquiry on the part of DPSS to determine whether she could provide a tribal enrollment number. In In re Damian C. (2009) 178 Cal.App.4th 192, 199, the appellate court ruled that the requirement to make further inquiry is triggered when information known to child welfare authorities constitutes “reason to know that an Indian child is or may be involved.” Here, the social worker heard the maternal grandmother claim to be a registered member of a Cherokee tribe, and then the telephone connection ended. Armed with this knowledge, and with the knowledge that DPSS is responsible for providing to the Indian tribes any tribal enrollment numbers that are known, the social worker clearly was required to re-establish contact with the maternal grandmother to determine if she could provide a tribal enrollment number. For this reason, we order a limited reversal per In re Francisco W., supra, 139 Cal.App.4th at pages 695, 708 and In re Jonathon S. (2005) 129 Cal.App.4th 334, 343.)
In providing the notice required by the ICWA, “It is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice to the tribe must 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. [Citation.]” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) “The social worker has ‘a duty to inquire about and obtain, if possible, all of the information about a child’s family history’ required by 25 Code of Federal Regulations part 23.11(d)(3). [Citation.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116; see also In re Louis S., supra, 117 Cal.App.4th at pp. 622, 630; Welf. & Inst. Code, § 224.3, subd. (a); and Cal. Rules of Court, rule 5.481.)
DISPOSITION
The order terminating parental rights is conditionally reversed, and we order a limited remand, as follows: The juvenile court is directed to order DPSS to inquire of the maternal grandmother (or in her absence other maternal family members) as to whether she can provide a tribal enrollment number, and subsequently give notice in compliance with the ICWA and related federal and state law.
Once the juvenile court finds that there has been substantial compliance with the notice requirements of the ICWA, it shall make a finding with respect to whether the children are Indian children. (See former Cal. Rules of Court, rule 5.664(g).) If at any time within 60 days after notice has been given there is a determinative response that the children are or are not Indian children, the juvenile court shall find in accordance with the response.
If there is no such response, the juvenile court shall find that the children are not Indian children. If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights.
If the juvenile court finds that the children are Indian children, it shall set a new Welfare & Institutions Code, section 366.26 hearing and it shall conduct all further proceedings in compliance with the ICWA and all related federal and state law.
We concur: RICHLI J.KING J.