Opinion
H047682
05-28-2020
In re S.W., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. C.G. et al., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 19JU00094)
On April 8, 2019, the Santa Cruz County Human Services Department (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (b)(1) and (c) relative to an infant boy, S.W. (the minor). The minor was seven months old at the time. C.G. (mother) and J.W. (father) are the minor's parents. (Mother and father are hereafter collectively referred to as parents.) The Department alleged that mother, with whom the minor resided, abused controlled substances and suffered from mental health issues. At the jurisdiction/disposition hearing in May 2019, the juvenile court declared the minor a dependent child with placement vested in the Department, and ordered that family reunification services be provided to mother and father. After a December 2019 six-month review hearing in which mother contested the Department's recommendations, the court ordered that the minor remain a dependent child, that services be continued for father, and that mother's services be terminated.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
On appeal, mother contends that the order after the six-month review hearing must be conditionally reversed because the Department and the juvenile court failed to comply with the notice and inquiry provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; hereafter the ICWA). The Department concedes that the matter must be conditionally reversed so that the Department can conduct appropriate and adequate inquiry and provide proper notice under the ICWA. Accordingly, we will reverse the order with directions to the juvenile court.
I. FACTS AND PROCEDURAL HISTORY
A. Petition
On April 8, 2019, the Department filed a petition on behalf of the minor under subdivisions (b)(1) and (c) of section 300. The Department alleged that mother abused controlled substances, including methamphetamine, cocaine, and alcohol, which negatively impacted her ability to safely care for the minor. It was reported that mother and the minor were homeless. On March 26, 2019, a quantity of methamphetamine was found hidden in a compartment of the minor's car seat base. In the previous month and one-half, mother had missed appointments with her service providers, including her substance abuse counseling provider. Mother had received a drug test on March 28 that was inconclusive for methamphetamine, opiates, and barbiturates, and mother had failed to be tested on March 29 and April 1.
The Department alleged further that mother suffered from mental health issues, including Bipolar Disorder, anxiety, depression, and Attention Deficit Hyperactivity Disorder (ADHD). Mother was unable to regulate her emotions and made poor decisions, such as using pepper spray on father and swallowing a bag of methamphetamine in March 2018 while she was pregnant with the minor, resulting in her being incarcerated for five days. Her mental health issues negatively impacted her ability to safely care for the minor, placing the minor at substantial risk of serious harm.
In support of the allegation under subdivision (c) of section 300 that the minor was suffering, or was at a substantial risk of suffering, serious emotional damage, the Department described an incident of domestic violence on November 20, 2018, approximately two months after the minor's birth. Father choked mother, threw her to the ground, and kicked her. And, in a separate incident the next day, father head-butted mother, punched her on the top of the head, and punched her three times in the chest in the minor's presence.
The record reflects that father was incarcerated in February 2019 in connection with domestic violence involving mother, and he was still incarcerated in April 2019 at the time the petition was filed.
It was stated further in the petition that the Department had made inquiry concerning whether the minor might be an Indian child. The maternal grandfather advised that the maternal grandmother might have Native American heritage.
The Department filed an amended petition on April 26, 2019, in which it eliminated allegations that mother had been incarcerated for five days in March 2018 and that mother in the one and one-half months before the petition's filing had missed appointments with service providers. The Department filed a second amended petition on May 21, 2019, wherein it modified the controlled substances that mother abused as being methamphetamine and benzodiazepenes.
On April 10, 2019, the court ordered that the minor be detained, finding that the Department had made a prima facie showing as to detention only in the petition. Based upon the disclosure that mother might have Native American heritage, the court ordered that the Department provide appropriate notices under the ICWA. On the same day, mother completed a parental notification of Indian status ICWA-020 form in which she stated that she might have Indian ancestry, identifying the maternal grandmother, J.C.; mother listed the Sioux/Cherokee tribes of South Dakota. Father completed an ICWA-020 form in which he denied Indian ancestry.
B. Jurisdiction/Disposition Hearing
In its report submitted in connection with the jurisdiction/disposition hearing, the Department apprised the court that it had spoken with mother, who advised that the maternal great-grandmother had Sioux and Cherokee Native American ancestry from South Dakota. The Department stated that it had also spoken on April 4, 2019, with the maternal grandfather, G.G., who stated that he believed the maternal grandmother had Native American ancestry. The Department social worker contacted the maternal great-grandmother, J.C. J.C. stated that she was born in 1936 in Newark, New Jersey, and had been raised in an orphanage and thus had limited information about her parents. J.C. reported that the maternal great-great-grandmother, F.M., was born in approximately 1919 in North Dakota and was 50 percent Sioux. J.C. did not know if the maternal great-great-grandmother had been registered to a tribe or whether she had any Cherokee heritage.
The Department recommended that parents receive family reunification services.
In a supplemental report of May 8, 2019, submitted by the Department concerning compliance with the ICWA, the Department advised that, based upon information received from the maternal great-grandmother, the Department sent notice of the dependency proceedings to the Bureau of Indian Affairs (BIA) and the Sioux and Cherokee tribes. After that notice was sent, the Department "learned from paternal family members that there is also Native American ancestry on the paternal side of the family with the Ely Shoshone tribe in Nevada." The Department advised that the paternal great-great-grandfather, J.S., had resided in Ely, Nevada, on a reservation, where he attended the Indian school. The Department stated that notice to that tribe would need to be given.
On May 21, 2019, the court conducted a jurisdiction and disposition hearing. After mother and father submitted the matter, the court found the allegations of the petition, as amended, true, declared the minor a dependent child, found the case plan to be necessary and appropriate, and ordered reunification services for parents. As part of its order, the court advised parents that if there was not substantial compliance with the case plan, or if they failed to comply with any court-ordered treatment program within the six-month period to reunify, services could be terminated.
On June 5, 2019, the Department filed a supplemental report concerning compliance with the ICWA. The Department reported that mail cards had been received from all Sioux and Cherokee tribes to whom notice had been given. The Department advised that notice had been given to the Ely Shoshone tribe; it responded that the minor was not a member or eligible for membership in the tribe. After a hearing on June 6, 2019, the court found that the Department had given timely notice under the ICWA to the Ely Shoshone tribe.
In a supplemental report concerning ICWA compliance filed July 31, 2019, the Department advised that several additional tribes to whom notice was given had responded indicating that the minor was neither a member nor eligible for membership in the tribe. (The Ely Shoshone tribe was not among the tribes that so responded.) It stated further that more than 60 days had elapsed since the giving of notice to all tribes, and, as to the remaining tribes who had not specifically responded to the notice, there had been no definitive response; therefore, the Department asserted that the ICWA did not apply.
At an interim review hearing on August 1, 2019, the court received reports that mother had a positive drug test (disputed by mother) and had left the Evolving Door program. Mother reported that she was at Janus; she intended to reenter the Janus Main program; she was receiving drug tests at Janus and at Doctors on Duty. The court noted that it had reviewed the Department's supplemental ICWA report. The court found that several tribes had responded that the minor was not a member and that, as to the remaining tribes to whom notice had been given, there had been no definitive response and 60 days had elapsed since notice had been given. The court concluded under rule 5.482(c) of the California Rules of Court that the ICWA did not apply.
Further rule references are to the California Rules of Court.
C. Six-Month Review Hearing
1. Department's Report
The Department submitted a report on October 25, 2019, in connection with a scheduled six-month review hearing. Mother, as of October 1, 2019, was in inpatient treatment; mother reported to be happy to be back in residential treatment. The Department reported that she would often leave two- to four-minute voicemails for the social worker and sent "lengthy emails in the middle of the night. Her voicemails and emails [were] often confusing and contain[ed] words or sentences that [did] not make sense or follow a train of thought." The Department reported further that mother had had little stability during the reporting period, had not stayed in treatment, and had had a relapse (which she denied).
It was reported that mother was in an intensive outpatient program at Janus beginning in June 2019. She also moved into Evolving Door, a sober living environment, in June 2019, where she remained for one month. Her attendance at Janus was inconsistent, and the staff had concerns about mother's sobriety. Janus reported that mother had tested positive for methamphetamines on July 17 and for methamphetamine and cocaine on July 22. Mother denied she had relapsed and stated that her clean date was June 12, 2019. Mother continued to attend Janus on an outpatient basis until her discharge on August 19. Beginning October 1, 2019, mother started inpatient treatment at Janus Residential, where she participated in group and individual treatment. The Department was informed that on October 22, mother had returned to the facility with drugs in her possession.
The Department reported that mother had been scheduled for random drug testing at Doctors on Duty throughout the reporting period. She had advised the Department that it was difficult for her to remember to call to see if she was on the list for testing. She had tested on 23 occasions, and had no-showed on 29 occasions. In addition to the two July 2019 positive tests conducted through Janus, mother had three positive tests, on March 28, June 24, and July 1.
Despite the existence of a court order for a psychological evaluation of mother dated May 9, 2019, no evaluation had transpired. The Department reported difficulty scheduling an evaluation, along with mother's refusal to attend a scheduled evaluation on August 30, 2019. The Department made advance arrangements to transport mother to that August 30 appointment; in the early morning hours, mother sent three emails to the social worker that "were confusing in nature and . . . [indicated that mother] did not want transportation or to attend the evaluation." After two social workers made telephone calls to mother on the morning of August 30 that were not answered or returned, a third social worker arrived at mother's residence, knocked on doors, but received no response. After missing the appointment, the Department received a telephone call in the afternoon in which mother stated "she had slept through her alarms and had been 'up all night studying for her exam.' "
The Department referred mother in June 2019 to the Parents Center for mental health counseling. Mother signed up to attend her first session on July 11; she missed that appointment and another three succeeding appointments. Thereafter, she attended two sessions and missed two thereafter.
At the time of the report, mother was participating in a Triple P course at the Parents Center. She had missed two sessions, and had arrived late to three others.
Mother had been engaged in supervised visitation of the minor at the Parents Center since April 2019. Of the 85 scheduled visits, two had to be cancelled, mother no-showed for five visits, and mother canceled six others. Mother arrived late for 35 of the visits, often being more than 20 minutes late. Mother consistently brought food, diapers and other items to the visits. During the August and September visits, mother "continued having difficulty regulating herself emotionally and was noted to cry in visits and speak rapidly and loudly, as well as switch from topic to topic." After she entered Janus Residential in October, she was transported by staff or Uber/Lyft for visitation. Mother reportedly would be dropped off on time but would smoke or walk down the street, and would thus arrive late for visitation.
Father, while in custody, completed 13 domestic violence classes through ALTO, and 12 substance abuse classes. He was released from incarceration on probation on July 22, 2019, at which time he entered a residential treatment facility, New Life, under a six-month program. He was tested randomly while in treatment, and all tests were negative. Father enrolled in a continuing domestic violence counseling with ALTO after his release. ALTO reported that father was on time, attentive, and engaged in the sessions. Father also began counseling at the Parents Center in September 2019, and was participating in weekly sessions. In addition to counseling, father was voluntarily engaged in parenting services; he participated in PAPAS in weekly meetings. A member of PAPAS reported that father was "extremely motivated" and was "really 'doing the work.' " Father also reported that he attended Narcotics Anonymous/Alcoholics Anonymous meetings in the community; he advised that his clean date was February 25, 2019.
After his release from custody, father's supervised visitation increased from one to three times per week. Out of 43 visits, father had cancelled one, and had arrived late for a second visit. The visits with the minor reportedly went well. Based upon progress with his case plan, including his successful visitation, he transitioned to loosely supervised visits in October 2019.
The Department advised the court that the minor was placed in a licensed foster home in Santa Cruz County (his third placement), and that he was doing well in his placement. He had no medical issues and was reportedly easygoing.
The Department concluded that mother "appear[ed] to be in early recovery and addressing her foundational sobriety." It expressed its continued "concern[] about [mother's] substance abuse and unaddressed mental health needs, as well as the risk to [the minor] were he to be returned to his mother's care. [Mother] has not made substantial progress towards reunification with her son."
The Department concluded that father had "engaged in his case plan both in custody and upon his release." It expressed its concern about father's ongoing relationship with mother. The Department stated that it needed additional time to assess the likelihood of reunification, particularly since father had only been released from custody in July.
The Department recommended that the minor remain a dependent of the court, that father continue to receive services, and that mother's reunification services be terminated.
2. Psychological Evaluation
Prior to the contested six-month review hearing, Gregory L. Katz, Ph.D., submitted a report of his psychological evaluation of mother. He conducted two days of interviews and testing. Dr. Katz observed that mother "presented as pressured [in] speech, scattered in thinking, highly tangential, with thoughts rambling and her description of her history being disorganized. She was frequently tearful during the interview, with mood labile and rapidly changing. Reasoning and judgment were significantly impaired." Dr. Katz's evaluation consisted of (1) review of extensive records submitted by the Department; (2) interviewing mother, including taking a history of her childhood and family background, family history of mental health issues, work history, extensive substance abuse history, recent experiences and challenges with treatment programs, history of suicide attempts and ideation, and her relationship with the minor's father; (3) administering psychological testing; (4) interviewing a psychiatric nurse practitioner who last treated mother in June 2019; (5) interviewing the mother of C.G.; (6) interviewing the father of C.G.; and (7) interviewing a supervisor at the Parents Center concerning mother's supervised visits with the minor.
Dr. Katz observed in his summary and conclusions that mother grew up in an unstable family environment, and she had "a long history of instability and chronic substance abuse issues." A childhood ADHD diagnosis could be traced to adulthood where, in January 2019, a learning assessment performed identified ongoing symptoms of Attention Deficit Disorder (ADD). Dr. Katz concluded that "[i]n addition to the diagnosis of Attention Deficit Disorder, Combined Subtype, [mother] evidence[d] symptoms consistent with a diagnosis of Borderline Personality Disorder." He also found that mother's presentation met "the criteria for diagnosis of Major Depressive Disorder, Recurrent and Generalized Anxiety Disorder." Dr. Katz concluded mother met the criteria of Posttraumatic Stress Disorder (PTSD). With respect to mother's substance abuse, Dr. Katz found that she met the criteria for Alcohol Use Disorder, Benzodiazepine Use Disorder, Methamphetamine Use Disorder, Cocaine Use Disorder, and Opioid Use Disorder.
Dr. Katz noted in his report that he had spoken with Mary-Ann Malloy, a psychiatric nurse practitioner, who had treated mother. Malloy informed Dr. Katz that mother "had an episode of drug-induced psychosis in August and again in November 2019[,] at which time she was hospitalized psychiatrically at Good Samaritan."
Dr. Katz concluded that mother faced a number of challenges in terms of her treatment and prognosis. He started: "[Mother] has had difficulty with maintaining her sobriety, with multiple relapses even during periods of being in residential treatment. She has an ambivalent attitude toward treatment, and is distrustful and resentful of authority figures in treatment programs. She has difficulty accepting her need for sobriety, and continues to be seeking/using non-prescribed medications/drugs. She has difficulty establishing and maintaining a support system and participating in programs which would assist her in establishing stability in housing and practical aspects of life. She also continues to have contact with her 'fiancé' though describing him as abusive." Dr. Katz concluded that "[mother] would need a lengthy period of residential treatment in a dual diagnosis program, which focused on both her Substance/Alcohol Use Disorders and the Borderline Personality Disorder symptoms noted above. Unfortunately, it is unlikely [mother] would cooperate with a program for a sufficient length of time to gain stability to adequately/safely parent her son."
3. Supplemental Report
In a December 2019 supplemental report, the Department advised the court that mother was discharged from Janus Residential on or about November 6 because she attempted to leave campus without permission. Mother advised the Department on November 8 that she had an intake appointment with Sobriety Works scheduled for November 18. As of December 4, based upon information available to the Department, mother had not completed the intake procedure at Sobriety Works.
Mother had tested seven times (with one no-show) in the month prior to the supplemental report, and her test results had been negative for all substances on each occasion.
Mother had completed the assessment group for counseling at the Parents Center on November 14. Mother had declined multiple dates for counseling, stating "that she was overwhelmed and not able to commit to an appointment time." As of the date of the supplemental report, mother had not contacted the Parents Center to begin counseling.
Mother had attended seven of 10 parenting classes at the Parents Center. She did not appear to be focused in class and had completed only one of seven homework assignments. Her instructor indicated that she would benefit from retaking all classes.
Mother continued to attend supervised visitation three times per week, often arriving late. The visit supervisors reported that mother was " 'dysregulated' and 'not present' " and often spent much of the visitation time discussing her case and her frustrations with the supervisor.
4. Hearing
At the initial six-month review hearing on November 14, 2019, father submitted on the recommendations of the Department in its report. Mother contested the recommendations, and the court scheduled a settlement conference and a contested review hearing.
A contested six-month review hearing took place on December 11, 2019. The court received into evidence the Department's six-month review report and certain attachments, the December supplemental report, and Dr. Katz's psychological evaluation report. The court also heard the testimony of mother, and received into evidence certain exhibits submitted on her behalf, including letters of support offered by relatives and friends of mother, a learning assessment summary, records of attendance at meetings, certificates, mother's resume, and supervised visitation logs.
The matter proceeded to a contested hearing after mother failed to appear at the settlement conference scheduled for November 19.
Mother testified concerning compliance with requirements of her case plan. She completed seven parenting classes and needed to make up three classes. Mother participated in domestic violence survivor group services by attending weekly meetings. She also received weekly individual domestic violence counseling at the women's crisis center. Mother testified that she had received six months of individual counseling and substance abuse counseling at Janus. She had recently resumed individual counseling at the Parents Center. She testified that she had an upcoming first appointment with a psychiatrist. Mother testified that she took prescribed medications consisting of an antidepressant, a prescription for anxiety, and a mood stabilizer. Mother also participated in a psychological evaluation with Dr. Katz. She testified that she was willing to follow Dr. Katz's recommendation that she participate for a lengthy period in a residential treatment facility offering a dual diagnosis program. For approximately one month prior to the hearing, mother had been working, mostly as a volunteer, as an outreach advocate, assisting the homeless in obtaining social services.
Mother testified that she was attending NA meetings usually twice a day, and that she had a sponsor. She testified that she was on step 1 and was not yet doing her workbook. She also was attending AA meetings. Mother stated that October 23 was her sobriety date. On December 6, 2019 (five days before the hearing), mother moved into a sober living environment home where she would be permitted to remain for six months. Mother also was participating in Family Preservation Court.
Mother testified that, pursuant to the court's prior order for supervised visitation three times per week, she regularly visited the minor except on occasions when Janus could not provide a ride for her. She changed his diapers during visitation, asked whether he had been fed, brought food, taught him to play basketball, and "engage[d] with him completely all the time." Mother testified that she had also, through Families Together in Aptos, been working with a child therapist specialist.
Mother testified that she was seeking an additional six months of services. She stated that she was fully committed to participating in her entire case plan.
The court adopted the findings of the Department. It concluded that the minor could not be returned to mother's care and that he would remain a dependent child of the court. The court found that mother's progress toward alleviating or mitigating the causes of the minor's placement in foster care had been minimal, and it accordingly ordered that mother's reunification services be terminated. It found that father had made adequate progress toward alleviating or mitigating the causes of the minor's placement in foster care and continued services for father. The court ordered further that mother receive supervised visitation of a minimum of one time per week and that father receive supervised visitation of a minimum of three times per week.
Mother filed a timely notice of appeal from the order after the six-month review hearing.
II. DISCUSSION
A. The ICWA
The ICWA, enacted in 1978, is a federal law, which is recognized and applied in California. (See, e.g., In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.) Its purpose is to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; see, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.)
"Among the procedural safeguards imposed by the Act is the provision of notice to various parties." (In re Levi U. (2000) 78 Cal.App.4th 191, 196; accord, In re O.K. (2003) 106 Cal.App.4th 152, 156.) "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 Act irrespective of the position of the parents, Indian custodian or state agencies." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421, fn. omitted.) California implements the ICWA's notice requirements through statutes and court rules. (See §§ 224-224.6, 290.1-297; rules 5.480-5.487.)
The ICWA generally requires that notice be given "where the court knows or has reason to know that an Indian child is involved" in a dependency proceeding. (25 U.S.C. § 1912 (a).) State law similarly provides that "[i]f the court, a social worker, or probation officer knows or has reason to know . . . that an Indian child is involved" in the dependency proceeding, notice is required. (§ 224.3, subd. (a); In re Alice M., supra, 161 Cal.App.4th at p. 1197.) The federal act defines " 'Indian child' " as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C., § 1903(4); see also § 224, subd. (c).) It need not be a certainty that the child is an "Indian child" to require the giving of an ICWA notice. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) "The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; but see In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 ["both the federal regulations and the California Welfare and Institutions Code require more than a bare suggestion that a child might be an Indian child"].)
The notice to potentially affected tribes must include "[t]he name, birth date, and birthplace of the Indian child, if known" (§ 224.3, subd. (a)(5)(A)); "[t]he name of the Indian tribe in which the child is a member, or may be eligible for membership, if known" (id. at subd. (a)(5)(B)); and "[a]ll 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" (id. at subd. (a)(5)(C)). (See In re Charlotte V. (2016) 6 Cal.App.5th 51, 56.) "It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the one with the alleged Indian heritage. [Citations.]" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) The ICWA notice must "include known identifying information concerning the child's great-great-grandparents and even older lineal ancestors. (25 C.F.R. § 23.111(d) (2018).) There is 'no general blood quantum requirement or "remoteness" exception to [the] ICWA notice requirements,' particularly when there is no indication that the child's tribe or potential tribe has a blood quantum requirement for membership. [Citations.]" (In re N.G. (2018) 27 Cal.App.5th 474, 480-481.)
"The purpose of the ICWA notice provisions is to enable the tribe or the [Bureau of Indian Affairs] to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership. [Citations.]" (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) The notice requirements under the ICWA "open the door to the identification of a dependent child as an Indian child and to the tribe's right to intervene in the proceedings." (In re Nikki R., supra, 106 Cal.App.4th at pp. 852-853.) The ICWA's "notice requirements are strictly construed." (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1216.) While the agency has the duty of giving notice under the ICWA, the juvenile court must determine whether the notice given is adequate. (Nikki R., supra, at p. 852.)
The law under the ICWA also imposes a duty of inquiry. Pursuant to California law, both the court and the agency "have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child" for ICWA purposes. (§ 224.2, subd. (a); see also rule 5.481(a); In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) According to the federal guidelines, the court is required to " 'make inquiries to determine if the child involved 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.' [Citation.]" (In re S.B. (2005) 130 Cal.App.4th 1148, 1158, italics omitted.) This burden of inquiry requires that where the agency or social worker has actual or constructive knowledge that the child may be an Indian child, "[a]t that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. [Citations.]" (In re Michael V. (2016) 3 Cal.App.5th 225, 233; see, e.g., In re K.R. (2018) 20 Cal.App.5th 701, 707-708 [agency failed to comply with inquiry obligation by not contacting paternal grandfather or paternal great-grandmother where it was likely one or both would have had information about father's Indian heritage].)
"The juvenile court must determine whether proper notice was given under [the] ICWA and whether [the] ICWA applies to the proceedings." (In re E.W. (2009) 170 Cal.App.4th 396, 403.) "The juvenile court is not authorized to determine [the] ICWA does not apply until (1) 'proper and adequate' ICWA notice has been given, and (2) neither a tribe nor the [Bureau of Indian Affairs] has provided a determinative response to the notice within 60 days of receiving the notice. [Citations.]" (In re N.G. (2018) 27 Cal.App.5th 474, 480.)
An appellate court reviews "whether proper notice was given under [the] ICWA and whether [the] ICWA applies to the proceedings for substantial evidence. [Citation.]" (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) "Where there is reason to believe a dependent child may be an Indian child, defective ICWA notice is 'usually prejudicial' [citation], resulting in reversal and remand to the juvenile court so proper notice can be given." (In re Nikki R., supra, 106 Cal.App.4th at p. 850.) In such instances, a court may order reversal with a limited remand to facilitate the giving of a proper ICWA notice. (In re Veronica G. (2007) 157 Cal.App.4th 179, 187.)
B. The Order Must Be Conditionally Reversed
Mother contends that compliance by the Department and the juvenile court with the ICWA's notice and inquiry requirements was absent in a number of respects, and that this error requires conditional reversal of the order after the six-month review hearing. She argues that the ICWA notices provided by the Department to Indian tribes omitted material information that was known or readily available to the Department, including the failure to (1) list the former address or date or place of birth of the maternal grandmother; (2) list the full address or provide any other information about the maternal grandfather, GG; (3) provide any information about father's family, including information concerning the paternal grandmother or paternal grandfather, notwithstanding the fact that father was a party to the proceedings; and (4) note that father had possible Native American heritage, notwithstanding the disclosure of his potential Ely Shoshone tribe heritage.
Mother does not raise any challenges to the order after six-month review hearing aside from noncompliance with the ICWA.
Neither mother nor father raised below the question of noncompliance with the ICWA. Because it is the Indian tribes' interests, not those of the parents, that are implicated by adherence to the requirements of the ICWA, a parent's failure to raise noncompliance with the ICWA before the juvenile court does not result in the forfeiture of the claim on appeal. (In re A.G. (2012) 204 Cal.App.4th 1390, 1400; see also Adoption of A.B. (2016) 2 Cal.App.5th 912, 927, fn. 12 ["ICWA compliance can be raised at any time"].)
The Department submitted a letter in response to mother's opening brief. In it, the Department "acknowledge[d] that there were inadvertent omissions in the [ICWA] notices, which County staff intend[ed] to remedy." The Department stated that it would not "oppose remand for the limited purpose of ensuring that proper ICWA notice has been given, and complying thereafter with the Act's requirements as may be indicated."
We agree with mother's claim that the ICWA notices provided by the Department to the BIA and the Indian tribes were defective in material respects. Specifically, the ICWA notice dated April 22, 2019, given by the Department to the BIA and the Indian tribes failed to (1) provide the date and place of birth of the maternal grandmother, M.V., or list her former address; (2) list the full current address of the maternal grandfather, G.G. (listing only "Colorado"); (3) list G.G.'s date or place of birth; (4) list G.G.'s former address; (5) list any information about the maternal great-grandfather; (6) list the place of birth or former address (prior to his incarceration) of father; (7) list any information about the paternal grandmother; (8) list any information about the paternal grandfather; (9) list any information about the paternal great-grandmother; or (10) list any information about the paternal great-grandfather. Especially in light of the fact that mother, father, maternal grandmother, and maternal grandfather were all actively involved in the proceedings, these material omissions were inexplicable.
The April 22, 2019 ICWA notice that is part of the record is not executed by the representative of the Department attesting under penalty of perjury that the information and attachments in the notice are true and correct.
The Department's ICWA notice, mailed "5/ /2019," in which the Department stated that the minor was or might be eligible for membership in the Ely Shoshone Indian tribe, is similarly defective. The same omissions concerning father and mother's and father's relatives that existed with the April 22, 2019 notice (discussed immediately above) exist for the May 2019 notice. Additionally, the May notice, in the section concerning father, provided erroneously "None reported" in response to the question of his potential affiliation to "Tribe or band and location." Further, the May notice provided no information concerning the paternal great-great-grandfather, J.S., whose reported Ely Shoshone affiliation was the catalyst for giving the May ICWA notice. (See In re N.G., supra, 27 Cal.App.5th at pp. 480-481 [federal regulations require that, if known, identifying information concerning great-great-grandparents be provided in notices under the ICWA].) In light of the fact that the Department had been informed, as indicated in its May 8, 2019 supplemental report, that the paternal great-great-grandfather, J.S., had resided in Ely, Nevada, on a reservation, where he attended the Indian school—and that this information would necessitate a further ICWA notice—there were obvious material omissions in the May 2019 notice.
Although the precise date of mailing of this second ICWA notice is not disclosed, the record shows a date of delivery to the Ely Shoshone tribe on May 20, 2019. The May 2019 ICWA notice that is part of the record is also not executed by the representative of the Department attesting under penalty of perjury that the information and attachments in the notice are true and correct.
Based upon the record before us, we conclude that there was noncompliance with the inquiry and notice requirements of the ICWA. Because of, inter alia, the inadequate notices under the ICWA provided in April and May 2019 by the Department, there was no substantial evidence supporting the juvenile court's order of August 1, 2019, that the ICWA did not apply. (See In re D.N., supra, 218 Cal.App.4th at p. 1251.) We therefore accept the Department's concession of error. We conclude further that the noncompliance with the ICWA was not harmless error. (See In re N.G., supra, 27 Cal.App.5th at p. 484 ["in the absence of an appellate record affirmatively showing the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements, . . . we will find the appellant's claims of ICWA error prejudicial and reversible"].)
III. DISPOSITION
The order after the six-month review hearing of December 11, 2019, is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of the Indian Child Welfare Act and of Welfare and Institutions Code sections 224.2 and 224.3, consistent with this opinion. If, after receiving notice as required by those statutes, the relevant tribes do not respond or respond that the minor is not an Indian child within the meaning of the Indian Child Welfare Act, the order terminating parental rights shall immediately be reinstated and further proceedings shall be conducted, as appropriate. If any tribe determines that the minor is an Indian child, the juvenile court shall proceed in accordance with the relevant provisions of the ICWA.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
ELIA, J.