Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J04636
DAVIS, Acting P. J.
S.S. (appellant), mother of the minor M.C., appeals the order of the San Joaquin County Superior Court accepting transfer of the dependency action from the Alameda County Superior Court. (Welf. & Inst. Code, § 395; In re Jon N. (1986) 179 Cal.App.3d 156, 159-160.)
Hereafter, undesignated section references are to the Welfare and Institutions Code.
On appeal, appellant contends there were several failures to comply with the notice provisions of the Indian Child Welfare Act. (25 U.S.C. § 1901 et seq.; hereafter ICWA.) We shall affirm the order and remand with instructions to comply with the notice provisions of ICWA.
Background
The minor, born in May 2007, was premature and weighed only three pounds 12 ounces at birth. Appellant and the minor tested negative for drugs, but appellant admitted a history of drug use, prostitution, and homelessness; she also admitted she had used drugs during her pregnancy. The reporting party indicated appellant was “‘not engaged and not bonding’” with the minor, had not changed any of her diapers, and appeared “‘very distracted.’” At the time, appellant was living with Beatrice, the minor’s maternal grandmother or great-grandmother.
We use her first name only to ensure the privacy of the minor.
The record is unclear as to the minor’s precise relation to this woman. Beatrice is first mentioned in the detention report as appellant’s “grandmother” and later in the report as appellant’s “grandmother (paternal grandmother).” However, Beatrice is subsequently identified as the minor’s grandmother.
On June 6, 2007, the San Joaquin County Human Services Agency (HSA) filed a dependency petition, alleging jurisdiction under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), based upon the minor’s premature birth, appellant’s history of drug use, prostitution, and mental illness, her failure to bond with the minor, and her refusal to name the father. The minor was detained the following day and placed in a foster home in San Joaquin County. The father’s identity was unknown at the time of the June 7 detention report.
On June 4, 2007, a social worker went to interview appellant at Beatrice’s home. Appellant was not there; however, the social worker managed to speak to Beatrice. That same day, appellant called the social worker. Appellant was upset and combative after being told of the referral.
The disposition report, filed July 31, noted that appellant had identified the minor’s father at the detention hearing. HSA determined that he was living in Oakland. The report also stated that HSA had lost contact with appellant since she left a residential treatment program on June 15, and outlined appellant’s extensive criminal history, including numerous convictions for prostitution. Appellant did name two relatives for placement of the minor with family.
On June 11, 2007, appellant informed the HSA she may be a member of the Blackfeet tribe. She completed and signed the JV-130 form indicating membership in the tribe, but provided no information other than the tribe’s name. On August 15, 2007, HSA notified the Blackfeet tribe and the Bureau of Indian Affairs (BIA), but only listed appellant, the minor, and the father on the relevant form. The entry for the father contained no tribal affiliation or claimed Indian heritage, displaying only an address for him.
On September 13, 2007, HSA received a letter from the Blackfeet tribe stating the minor was not an Indian child under ICWA and a letter from the BIA stating tribal responses are final for the purposes of ICWA determination when the tribe has been notified. The HSA subsequently concluded that ICWA did not apply to the minor.
The juvenile court sustained the petition at the August 14, 2007, jurisdiction hearing. It continued the minor’s removal from appellant’s custody at the October 4, 2007, disposition hearing.
A report for the January 30, 2008, six-month review hearing stated that D.C., the minor’s father, has a history of drug sales and use and domestic violence. The father claimed that he had completed a drug program and domestic abuse counseling. He also said he was attending parenting classes at the Native American Health Center in Oakland. Appellant was living at a residential drug treatment program facility in Oakland and did not have a residence of her own. Both parents were traveling to Stockton to visit the minor and wanted the case transferred to Alameda County because the price of gasoline was making it hard for them to travel to visit the minor.
At the status review hearing, the juvenile court continued jurisdiction and placement and transferred the case to Alameda County. The juvenile court in Alameda County accepted the case, but then transferred it back to San Joaquin County on March 6, 2008. The juvenile court accepted the transfer over appellant’s objection.
Discussion
I
We first address whether we should hear this appeal.
Although she appealed the acceptance of the transfer order from Alameda County, appellant no longer contests that decision for reasons she feels are inappropriate to disclose in her brief. Rather, she contends that the HSA did not comply with the notice requirements of ICWA because the notice did not include any reference to the maternal grandparents and great-grandparents, and the HSA failed to ask the father whether he had any Indian heritage.
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) If Indian heritage is claimed, notice of the pending proceeding and the right to intervene must be sent to the tribe so that the tribe may determine whether the child is a member or eligible for membership and whether to intervene and invoke the substantive provisions of ICWA. (25 U.S.C. § 1912; Cal. Rules of Court, rule 5.481(b).)
The substantive provisions of ICWA apply to the minor’s placements both for adoption and in foster care and to other hearings affecting the minor’s status. This includes: “[p]roceedings under Welfare and Institutions Code section 300 et seq., and sections 601 and 602 et seq. in which the child is at risk of entering foster care or is in foster care, including detention hearings, jurisdiction hearings, disposition hearings, review hearings, hearings under section 366.26, and subsequent hearings affecting the status of the Indian child.” (Cal. Rules of Court, rule 5.480(1).) ICWA does not apply to related issues affecting the minor such as paternity, child support, or in this case, the juvenile court accepting the transfer of the dependency case from Alameda County. (See, e.g., State ex rel. Dept. of Human Services v. Jojola (1983) 99 N.M. 500 [660 P.2d 590, 592].)
ICWA is not implicated in the transfer order appealed from and, unlike orders placing a child in foster care or terminating parental rights, failure to comply with the ICWA notice provisions has no impact upon the order. Additionally, questions of the adequacy of ICWA notice were not raised at the hearing at which the transfer from Alameda County was accepted, and appellant does not challenge the validity of the transfer order on appeal. Accordingly, the failure to comply with the notice provisions of ICWA would normally not be cognizable in this appeal.
However, we also recognize that appellant’s failure to raise the ICWA notice issue in the juvenile court at an appropriate juncture does not waive the issue because of the impact that lack of notice has on the right of the tribe to intervene. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) Under the peculiar circumstances of this case and in the interest of judicial economy, we shall address the merits of the claim.
II
After appellant indicated heritage with the Blackfeet tribe, she was given a JV-130 form, in which she reiterated her claim of Blackfeet heritage; however, she provided no other information regarding Indian ancestry in her family to the social worker. The notice sent by the HSA only referred to appellant and her claimed affiliation with the Blackfeet tribe, and to the minor’s father, with no claimed tribal affiliation or Indian heritage for him.
Section 224.3, subdivision (c), provides in relevant part: “If the . . . social worker . . . 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, 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 . . . .”
Section 224.2, subdivision (a)(5), provides in relevant part: “In addition to the information specified in other sections of this article, notice shall include all of the following information: [¶] (A) The name, birth date, and birthplace of the Indian child, if known. [¶] (B) The name of the Indian tribe in which the child is a member or may be eligible for membership, if known. [¶] (C) All names known 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.”
At the time the notice was sent on August 15, 2007, the HSA had already contacted Beatrice, who is either the minor’s maternal grandmother or great-grandmother, at her home. However, it failed to include any mention of her in the ICWA notice sent to the tribe and the BIA. Although ICWA does not require an agency to make a comprehensive investigation of a parent’s claim of Indian heritage (In re S.B. (2005) 130 Cal.App.4th 1148, 1161; In re Levi U. (2000) 78 Cal.App.4th 191, 199 (Levi U.) [no duty to “cast about” for information]), the agency has a duty to include the name of a known grandparent or great-grandparent when notifying the relevant tribe.
The HSA also has not complied with its duty to inquire into the father’s Indian heritage. The Indian status of a child need not be certain to trigger ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) This requires an inquiry about the possible Indian heritage of the father. (§ 224.3, subd. (c).) Nothing in the record shows that the HSA has made any investigation into the father’s Indian status, a violation of its duty of inquiry.
We also note that there is no record of the juvenile court making any findings regarding ICWA. Although the HSA has concluded, based on faulty notice and inadequate investigation, that the minor is not an Indian child, it is for the juvenile court, not the agency, to determine whether ICWA applies. (In re Nikki R. (2003) 106 Cal.App.4th 844, 852.) Such a finding may be implied (Levi U., supra, 78 Cal.App.4th at p. 199), but there is nothing in the record to support even an implicit finding by the juvenile court regarding whether the minor is an Indian child.
It is not necessary to reverse the transfer order for ICWA error. Neither party advocates reversal, and the transfer order is not implicated by ICWA. However, as appellant points out, we can affirm the order with instructions to comply with the notice requirements of ICWA. (See In re Veronica G. (2007) 157 Cal.App.4th 179, 187-188; In re J.N. (2006) 138 Cal.App.4th 450, 461-462.) Therefore, the appropriate remedy here is to remand for ICWA compliance.
Disposition
The transfer order is affirmed, and the matter is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of ICWA, if it has not already done so. After proper notice under ICWA, if it is determined that the minor is an Indian child and ICWA applies to these proceedings, appellant is entitled to petition the juvenile court to invalidate orders that violated ICWA. (See 25 U.S.C. § 1914; Cal. Rules of Court, rule 5.486(a).)
We concur: NICHOLSON, J. HULL, J.