Opinion
F074011
03-28-2017
In re KAITLYN O., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. SEAN O., Defendant and Appellant.
Mara Lee Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CEJ300051-1)
OPINION
APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Mara Lee Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Sean O. (father) appeals from dispositional orders and challenges the juvenile court's order denying him reunification services with his three-year-old daughter, Kaitlyn, pursuant to Welfare and Institutions Code section 361.5, subdivision (e)(1). Father contends the order must be reversed because: (1) he was denied his statutory and due process right to notice of the recommendation by the Fresno County Department of Social Services (Department) that he be denied reunification services; (2) the juvenile court failed to make an oral or written finding of detriment; and (3) the order is not supported by substantial evidence. Father further contends the Department failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). While we reject father's contention that the juvenile court erred in denying him reunification services, we agree the Department failed to comply with ICWA's notice requirements. Accordingly, we will affirm the dispositional order, but remand for the limited purpose of ensuring compliance with ICWA's inquiry and notice requirements.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, the Department received a referral that Kaitlyn, her parents, and other children, were living in an automotive warehouse that was both a working garage and a "chop shop." The social worker could not find the family at either the warehouse or a second address the Department had for the family. Several days later, father called the social worker. He said he was separated from mother and planned on divorcing her, and mother was dating a known drug dealer and parolee. Father refused to be interviewed about the referral or to allow the social worker to check on the children.
Subsequent references to dates are to dates in the year 2016, unless otherwise stated.
Almost two weeks later, police served a search warrant on the warehouse, as there had been several calls for service and tips regarding an illegal "chop shop." The social worker was called to the scene once it was secure. The family was living in a metal garage/shop structure with a loft that was located behind another building. A car was parked inside the structure and there was a strong smell of marijuana. The stairs that led to the loft did not have a rail. A room at the top of the stairs contained two small beds and a pack-n-play; the room was cluttered with children's clothing and toys. On the other side of a thin partition was the parents' bed and their clothing. The only food was syrup and jelly. A sawed-off pistol grip shotgun and shells were next to the bed, accessible to the children. A door at the bottom of the stairs led to a room where immature and mature marijuana was being grown; the door had a large hole at the bottom, and no handle or lock. There was a bathroom directly next to this door that did not have electricity.
The social worker interviewed Kaitlyn's mother, Margaret A. Father had two older children, Kaitlyn's half-siblings, one of whom was with mother that day because he had been suspended from school. Father's other child was waiting for father to pick her up at school. Mother had been in a relationship with father for three or four years, and they were legally married. Mother said she raised father's older children like they were her own. The family had been living in the back loft for about two months; they lived there rent free in exchange for father repairing cars. Two men lived in the front building, which the children were not allowed to enter. Marijuana plants and a machete had been found in that building, of which mother denied any knowledge. Mother, however, did know about the marijuana being grown next to the bathroom. She did not agree with father growing marijuana, but he did it anyway even though she told father it was not good for the children. Mother claimed the children would not enter the room if they were told not to. Mother also was aware of the shotgun and shells by the bed.
Mother said father was very controlling; she was not allowed to leave the home without permission and was rarely allowed to take Kaitlyn with her. She had called the police three times because father had been physically aggressive towards her. Mother stated her drug of choice was methamphetamine. She had completed a substance abuse program, but started using again three months earlier. Mother eventually admitted she had last used methamphetamine that morning, when the children were not in her care. Mother claimed there had been food in the refrigerator, but it was moved to a relative's home because the electricity had been shut off. Kaitlyn had dirt all over her face, arms, legs and feet, and was wearing a soiled diaper.
The social worker attempted to interview father, but he refused to speak to her without an attorney. Mother was arrested for felony child endangerment, and father also was arrested. Kaitlyn and her half-siblings were taken into protective custody.
The Department filed a section 300 petition on behalf of two-year-old Kaitlyn, alleging that mother had a substance abuse problem that negatively affected her ability to care for Kaitlyn; father failed to protect Kaitlyn from mother's substance abuse; and the family's living conditions placed Kaitlyn at substantial risk of harm or illness. This was not the first time the Department had been involved with the family. The parents had previously received voluntary family maintenance services from August 2014 to February 2015, after they were suspected of using and selling methamphetamine. The parents completed services including an addiction severity index assessment and recommended treatment, random drug testing, and parenting classes. The case was closed because the family had stabilized and agreed to continue with their sobriety.
Kaitlyn's half-siblings are subjects of a separate dependency proceeding.
The petition also alleged Kaitlyn had been left without any provision for support due to her parents' incarcerations. In March 2016, the Department filed an amended petition that deleted that allegation against mother, and the allegation against father was withdrawn at the jurisdiction hearing.
Father, who was in local custody, did not attend the February 29 detention hearing, as he refused to be transported. The juvenile court ordered Kaitlyn detained, gave father and mother reasonable supervised visitation, and ordered services for father and mother that included a parenting class, substance abuse assessment and any recommended treatment, random drug tests, a domestic violence assessment and any recommended treatment, and a mental health evaluation.
Mother and father were both present at the March 21 jurisdiction hearing. Each parent submitted on the first amended petition after it was further amended on agreement of the parties to delete some of the factual allegations under the section 300, subdivision (b) allegations. The juvenile court found the amended counts true and that Kaitlyn was described by section 300, subdivision (b). Father was still in custody and did not know his anticipated release date. His attorney asked for visits with Kaitlyn, noting father had been living with her prior to removal. The juvenile court agreed to order one visit, with further visits to occur on an unforced basis, depending on how Kaitlyn reacted. Father's attorney told the juvenile court father did not want to force visits or harm Kaitlyn if visits were "very hard" on her, but he wanted to try it to see how they went. The juvenile court, noting that father had been "very calm and attentive" in court, ordered reasonable supervised visitation for father, subject to jail custodial restraint, to consist of at least one visit, with subsequent visits to be unforced and subject to therapeutic input, under the Department's discretion. Disposition was set for June 1.
On May 6, father was convicted of possession of a firearm, receiving stolen property, and cultivating marijuana. He was sentenced to one year and four months in state prison, with 145 days of actual time credits. He was transferred to Wasco State Prison (Wasco) on May 17.
At the June 1 hearing, father's attorney asked for a continuance so father could be transported from state custody for the disposition hearing. The juvenile court continued the hearing to June 22.
In a report prepared for the disposition hearing, the Department recommended that Kaitlyn be adjudged a dependent and remain in foster care, that mother receive family reunification services, and that father be denied services pursuant to section 361.5, subdivision (e)(1). The social worker reported that father had stated he wanted to reunify with Kaitlyn, and he intended to work on his sobriety, and secure stable housing and employment, once he was released from custody. He understood the importance of providing Kaitlyn with a secure and nurturing home. He had insight into his substance abuse issues and was accepting of intervention services. Father said he now realized how important it was to maintain his sobriety, and he planned to start services once he was released from prison and to reunify with his family.
It was noted in the report that a social worker was not able to provide father with a service plan letter because father did not meet with her following the February 29 detention hearing because he was in custody. Moreover, due to his incarceration at the county jail, father was unable to participate in services. Father had not had any visits with Kaitlyn due to conflicts in the care provider's schedule and father's unavailability.
A family reunification services initial review panel determined that father met the criteria for denial of services pursuant to section 361.5, subdivision (e)(1). The report discussed the factors the court was required to consider in determining whether providing services would be detrimental to Kaitlyn as follows: (1) the child's age: Kaitlyn was two years old and adoptable; (2) the degree of parent/child bonding: the bond between father and Kaitlyn was unknown, since there had not been any visits; (3) the length of the sentence: while the Department had not yet received a response from Wasco regarding father's expected release date, he was not expected to be released within the next six months; (4) the nature of treatment: if the court were to order services for father, the Department would recommend a parenting class, a mental health assessment, a substance abuse evaluation, a domestic violence assessment, and random drug testing, based on father's history of substance abuse, domestic violence and homelessness, and would notify father of any services offered at Wasco which would be equivalent to those services; (5) the nature of the crime: father's crimes were what led to Kaitlyn's removal; and (6) the degree of detriment to the child if services are not offered: Kaitlyn would not suffer detriment since she was young and needed a stable parent, father's character was questionable as he had prior opportunities to benefit from services, and Kaitlyn desperately needed the security of a stable home and parent.
There is nothing in the record to indicate that father was served with a copy of the disposition report. While the Department was aware by the end of May that father had been transferred to Wasco, the only address for father in the disposition report is an address at Fresno County jail. The report was signed and originally submitted to the juvenile court on May 31, about two weeks after father was transferred to Wasco. There is no proof of service for the report in the record.
Although the juvenile court signed an order to have father transported to court for the June 22 disposition hearing, father waived his right to appear and was not present. The Department submitted on the disposition report. Kaitlyn's attorney also submitted. Father's attorney had not received any communication from father that he wanted to have the matter set for contest or an evidentiary hearing, so she did not have any evidence to offer. Accordingly, the attorney entered an objection to the denial of services. Mother's attorney submitted to the recommended services.
The juvenile court found that father had not made any progress in services, made Kaitlyn a dependent, removed her from parental custody, denied reunification services to father, and granted mother services. In denying father's services, the juvenile court found that the section 361.5, subdivision (e)(1) bypass had been proven by clear and convincing evidence, and there was not clear and convincing evidence it would be in Kaitlyn's best interest to provide services. The juvenile court adopted the report in its entirety for the factual and legal basis of its decision. The juvenile court ordered no visits between father and Kaitlyn based on detriment to Kaitlyn. The six month review hearing was set for November 29.
DISCUSSION
I. Denial of Reunification Services
Father raises three contentions of error concerning the juvenile court's denial of reunification services under section 361.5, subdivision (e)(1), which we summarized above. We address each argument in turn.
A. Failure to Provide Notice of the Recommendation to Deny Services
Section 361.5, subdivision (e)(1) provides, in relevant part: "If the parent . . . is incarcerated . . . , the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, the likelihood of the parent's discharge from incarceration . . . within the reunification time limitations described in subdivision (a), and any other appropriate factors. . . ."
When denial of reunification services under section 361.5 is an issue, subdivision (c)(1) of that statute requires the juvenile court to hold a dispositional hearing on the issue and requires the Department to prepare a report as to whether reunification services should be provided: "In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing. The social worker shall prepare a report that discusses whether reunification services shall be provided." (§ 361.5, subd. (c)(1).)
When the Department alleges that denial of reunification services under section 361.5 is appropriate, section 358, subdivision (a)(3) requires the Department to notify each parent of the content of section 361.5, subdivision (b), and inform the parents that if the juvenile court does not order reunification, a permanency planning hearing will be held at which parental rights may be terminated. Section 358, subdivision (a)(3) also requires the juvenile court to continue the matter for a period not to exceed 30 days. In addition, the Department is required to submit the report to the court clerk at least 48 hours before the hearing; the clerk is then required to make copies available to the parties and attorneys. (Cal. Rules of Court, rule 5.690(a)(2).) The juvenile court must grant a continuance within the statutory time limits on the request of a party who has not been furnished a copy of the social study in accordance with the rule. (Id.)
Subsequent references to rules are to the California Rules of Court.
The statutory framework requires both notice and an opportunity to be heard before reunification services may be denied. (In re Jessica F. (1991) 229 Cal.App.3d 769, 782 (Jessica F.).) Such notice is constitutionally mandated as well. "Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend." (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.)
Father contends he was denied his statutory and due process right to notice of the Department's recommendation that he be denied reunification services. We agree that father had a statutory right under section 358, subdivision (a)(3) to notice of the recommendation to deny him reunification services, which on this record it appears he did not receive. We conclude, however, that under the applicable harmless error standard, father suffered no prejudice.
Since we conclude that any error in notice was harmless, we do not decide the Department's contention that father forfeited this claim by failing to object to the lack of notice below.
Our Supreme Court has stated that orders in juvenile dependency proceedings are subject to harmless error review: "The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a 'miscarriage of justice.' (Cal. Const., art. VI, § 13.) We have interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable that the result would have been more favorable to the appealing party but for the error. (People v. Watson (1957) 46 Cal.2d 818, 836.) We believe it appropriate to apply the same test in dependency matters." (In re Celine R. (2003) 31 Cal.4th 45, 59-60 (Celine R.); see also In re James F. (2008) 42 Cal.4th 901, 918 [juvenile court error in appointing a guardian ad litem for a parent without first explaining the guardian's capacity and powers or allowing father a meaningful opportunity to oppose the appointment were not grounds for reversing an order terminating parental rights; "[i]f the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required"].)
In the instant case, father has advanced no argument as to how he was prejudiced by the lack of notice of the Department's recommendation to deny him reunification services. Father does not dispute that he had actual notice of the disposition hearing, and while transportation was arranged for him, he declined to attend. At that hearing, father's attorney admitted she had no evidence to present on father's behalf. Father has not identified, either in the proceedings below or on appeal, any evidence he would have offered had he been given notice of the Department's recommendation and attended the hearing. Given these circumstances, the lack of notice was harmless error. (Celine R., supra, 31 Cal.4th at pp. 59-60.)
B. Finding of Detriment
Father next contends, relying on a general statement in the reporter's transcript, that the juvenile court failed to find by clear and convincing evidence that providing reunification services to Kaitlyn would be detrimental to her. We disagree.
As we have explained, section 361.5, subdivision (e) requires the juvenile court to order services unless doing so would be detrimental to the child and lists factors the court may consider in determining detriment. (Ibid.) The subdivision, however, does not require the juvenile court to make specific findings on the record, although the juvenile court did so here. As evident from the reporter's transcript, the juvenile court stated it found the bypass was proven by clear and convincing evidence, which necessarily means it found that services would be detrimental to Kaitlyn. Moreover, the juvenile court stated it was adopting the social worker's report in its entirety as the basis for its decision, both legally and factually. That report included specific facts relating to the factors listed in the statute. If father desired further specificity, he should have said so at the time. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.)
C. Substantial Evidence
Finally, father contends the juvenile court's substantial evidence does not support the finding that offering services to him would be detrimental to Kaitlyn.
A juvenile court's order denying reunification services is reviewed for substantial evidence. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 196; R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914.) As stated above, pursuant to section 361.5, subdivision (e)(1), reunification services must be provided to an incarcerated parent unless the court determines, by clear and convincing evidence, that services would be detrimental to the child, and lists factors for the juvenile court to consider when determining detriment. The statute "does not require that each listed factor exist in any particular case, nor does it specify how much weight is to be given to a factor bearing on detriment, listed or not." (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18.)
The Department asserts that father forfeited his challenge to the sufficiency of the evidence to support the detriment finding by failing to raise the issue below. The forfeiture rule, however, does not apply to substantial evidence challenges. (In re P.C. (2006) 137 Cal.App.4th 279, 287-288; In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.)
The evidence supports the denial of reunification services based on application of the factors listed in the statute for determining detriment to the child. Here, father had a pattern of criminality that began in 2009, before Kaitlyn's birth, when father was convicted of possession of a controlled substance for sale and placed on five years' probation. When Kaitlyn was 14 months old, both father and mother were arrested during a drug bust; they were under the influence of drugs and suspected of selling methamphetamine. They received voluntary maintenance services from August 2014 to February 2015. Father completed an addiction severity index assessment and received recommended treatment, participated in random drug testing, and completed a parenting class. The case was closed when the family stabilized and agreed to continue with their sobriety.
A year later, father was arrested and convicted of possession of a firearm, receiving stolen property, and cultivating marijuana. For at least two months before his arrest, the family had been living in a loft at the back of a chop shop, where father was working on cars and growing marijuana. The loft was unsafe, as there was no railing on the stairs that led to it and father kept a sawed-off pistol grip shotgun and shells next to his bed. Both the marijuana and shotgun were accessible to Kaitlyn. In addition, father allowed mother to care for Kaitlyn, despite knowing that she had resumed using methamphetamine.
It is apparent from his continued criminality that father had not learned anything from the services he had been provided. While father's crimes were not egregious or extraordinary in and of themselves, they directly led to the juvenile court's assumption of jurisdiction over Kaitlyn. Moreover, they exposed Kaitlyn to a real risk of harm, as she was living in an unsafe environment where criminal activity was occurring and a shotgun was needed presumably for protection.
In addition, father's sentence of one year, four months in prison made it likely he would be incarcerated during most of the reunification period, which for Kaitlyn, who was younger than three when she was removed, was six months. (§ 361.5, subd. (a)(1)(B); In re James C. (2002) 104 Cal.App.4th 470, 485.) Father points out that his period of incarceration was already reduced by the 145 days of time credits he was given when he was sentenced in May, and asserts that with additional time credits his incarceration could be much shorter than the year that remained, such that his expected release date could fall within the reunification period. Even so, time credits are not guaranteed and he could have remained in prison for the majority of the reunification period, which is an appropriate consideration in determining whether to order reunification services. (See In re Ronell A. (1995) 44 Cal.App.4th 1352, 1365-1366 [order denying reunification services is proper when incarcerated parent cannot assume custody of the child within the reunification period].)
Based on this evidence, the juvenile court reasonably could find that offering services to father would be detrimental to Kaitlyn. We recognize that Kaitlyn, who was two years and eight months old when she was taken into protective custody, had apparently lived with father most of her life and presumably had a bond with him. However, Kaitlyn was in need of the stability that had been lacking during the majority of her life which outweighed her need for continued contact with father, who had been unable to maintain a safe home for Kaitlyn and was likely to be incarcerated throughout the reunification period. In sum, substantial evidence supports the juvenile court's detriment finding.
II. ICWA Compliance
When Kaitlyn was taken into protective custody, the social worker attempted to ask her parents about whether they had any Native American heritage - mother responded that she did not, while father refused to talk to the social worker. In the social worker's report prepared for the jurisdiction hearing, the social worker stated father's Native American status was unknown, since father refused to participate in an interview with the Department.
On March 21, the date of the jurisdiction hearing, father completed a Judicial Council form ICWA-020, Parental Notification of Indian Status, on which he indicated that one or more of his parents or grandparents is or was a member of a federally recognized tribe, which he identified as "Chippewa, OK." Father listed the names of his ancestors as his paternal grandmother Francis O. F., and Carlyn L. The juvenile court reviewed the form at the jurisdiction hearing, noting that father claimed he may have Indian ancestry, and directed the Department to complete the necessary ICWA notices. The juvenile court spelled the paternal grandmother's and mother's names aloud, and noted father named the "Chippewa out of Oklahoma." Father's attorney told the court that father believed he was 1/8th Indian and his children were 1/16th.
Mother's form ICWA-020, which she completed and signed in open court at the February 29 detention hearing, stated she had no Indian ancestry as far as she knew.
The Department prepared and served form ICWA-030, "Notice of Child Custody Proceeding for Indian Child," (ICWA-030) on 24 Chippewa tribes. The notice included mother's and father's names, addresses, and dates and places of birth; Kaitlyn's maternal and paternal grandmother's names, Irene A. and Carlyn L., and their dates and places of birth; Kaitlyn's maternal grandfather's name, Gary A., and month and year of his birth; and Kaitlyn's paternal grandfather's name, Thomas O., who was deceased. The Department explained that it had diligently investigated and explored all options to find Thomas O.'s birthplace and date, and his place and date of death, but was unable to locate that information. The Department also stated it could not find the day of Gary A.'s birth, although it listed his birth month and year. While father had supplied Kaitlyn's great-grandmother's name on the ICWA-020, which the juvenile court noted at the jurisdiction hearing, the notice did not include her name or other identifying information, and instead stated that no information was available.
The Department received responses from some of the tribes. None indicated that Kaitlyn was a member or eligible for membership based on the information provided. The Department filed a motion asking the juvenile court to declare ICWA inapplicable to the case. It asserted that 60 days had passed since it sent the notices to the 24 federally recognized Chippewa Bands, it had received responses from 14 of the tribes, and the failure of any tribe to claim Kaitlyn as a member or eligible for membership established that Kaitlyn could not be an Indian child as defined by ICWA. At the June 1 hearing, the juvenile court found ICWA was not applicable.
Father contends proper ICWA notice was not provided because: (1) the notice sent to the Chippewa tribes listed the name of Kaitlyn's paternal great-grandmother as "No information available" when the Department knew her name was Francis O. F.; and (2) the Department failed to interview father to obtain additional details regarding his relatives or attempt to interview the paternal grandmother and great-grandmother. The Department concedes the notice did not contain the paternal great-grandmother's name, but argues the notice contained enough information to enable to the tribes to conduct a meaningful review of their records.
We agree the Department failed to give proper notice to the tribes. ICWA provides that when a child subject to a dependency proceeding is or may be of Native American heritage (referred to in ICWA as an "Indian child"), each tribe of which the child may be a member or eligible for membership must be notified of the dependency proceeding and the tribe's right to intervene in the proceeding. (25 U.S.C. § 1912(a).) An "Indian child" for purposes of ICWA is "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).) If proper notice is not given, the child, the parent, or the tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.)
According to federal ICWA provisions incorporated into California law (§§ 224-224.3), notice must be given when the court "knows or has reason to know that an Indian child is involved, . . ." (25 U.S.C. § 1912(a).) "ICWA itself does not define 'reason to know,' nor did the implementing federal regulations in effect while this case was pending in the dependency court. (See 25 C.F.R. former § 23.11 (2014); In re H.B. (2008) 161 Cal.App.4th 115, 121, fn. 3; In re S.B. (2005) 130 Cal.App.4th 1148, 1158.) However, California statutory law . . . provides the circumstances that may provide reason to know the child is an Indian child include, without limitation, when a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's parents, grandparents or great-grandparents are or were a member of a tribe. (§ 224.3, subd. (b)(1); see In re Isaiah W. [(2016)] 1 Cal.5th [1] at p. 15 [(Isaiah W.)] ['section 224.3, subdivision (b) sets forth a nonexhaustive list of "circumstances that may provide reason to know the child is an Indian child" ']; see also In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386-1387 & fn. 9 [because only the tribe may make the determination whether the child is a member or eligible for membership, there is no general blood quantum requirement or 'remoteness' exception to ICWA notice requirements]; In re B.H. (2015) 241 Cal.App.4th 603, 606-607 ['a person need not be a registered member of a tribe to be a member of a tribe—parents may be unsure or unknowledgeable of their own status as a member of a tribe'].)" (In re Breanna S. (2017) 8 Cal.App.5th 636, 650, fn. omitted (Breanna S.).) Here, there is no question that the information father supplied in this case was sufficient to trigger ICWA's notice requirements.
As the court explained in Breanna S., new regulations to implement ICWA were adopted as of December 12, 2016, which identify circumstances in which a court has "reason to know" the child is an Indian child. The new regulations apply to any child custody proceedings initiated on or after that date, even if the child was involved in dependency proceedings prior to that date. (Breanna S., supra, 8 Cal.App.5th at p. 650, fn. 7.) "A 'child custody proceeding' includes, as a separate proceeding, a termination of parental rights, a preadoptive placement or an adoptive placement. . . . If any one of these types of proceedings is initiated on or after December 12, 2016, the new regulations apply to that proceeding." (Ibid.)
In order to comply with ICWA notice requirements, the social services agency must notify the child's tribe, by registered mail with return receipt requested, of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a).) If there is more than one possible tribal affiliation, the agency must provide notice to each tribe through the tribe's chairperson or its designated agent for service of process, as published in the Federal Register. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213 (H.A.); 25 U.S.C. § 1912(a); § 224.2, subd. (a); rule 5.481(b)(4).)
"Under the then-effective implementing federal regulations, ICWA notices, when required, had to include '[a]ll names known, and current and former addresses of the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information.' (25 C.F.R. former § 23.11(a), (d)(3) (2014).) In nearly identical language California law requires that ICWA notices include '[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.' (§ 224.2, subd. (a)(5)(C).) The Judicial Council's mandatory form, Notice of Child Custody Proceeding for Indian Child (Indian Child Welfare Act), ICWA-030, adopted effective January 1, 2008 and used by the Department in this case, includes boxes for the required information, including birth date and place, for each parent, each parent's biological mother and father (the child's maternal and paternal grandparents) and each parent's four biological grandparents (the child's maternal and paternal great-grandparents)." (Breanna S., supra, 8 Cal.App.5th 636, 651.)
The new ICWA regulations require that notice include, in addition to information about the child and his or her parents, "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. §§ 23.11(a) (2017); see id., § 23.111(d)(1)-(3) (2017).)
When the notice contains insufficient information, it is effectively meaningless. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) Because the failure to give proper notice forecloses participation by interested Indian tribes, ICWA notice requirements are strictly construed, and strict compliance is required. (In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475.)
Here, the record shows the Department failed to comply with the ICWA notice requirements since the notices omitted information the Department had about Kaitlyn's relative, specifically Kaitlyn's paternal great-grandmother, that could have helped identify tribal membership. Due to this omission, the juvenile court erred in finding that ICWA did not pertain to Kaitlyn. (H.A., supra, 103 Cal.App.4th at p. 1211 [it is the juvenile court's sua sponte duty to assure ICWA notice compliance].) Had the juvenile court reviewed the notices served on the tribes, it would have discovered the Department did not provide the tribes with all of the available Indian heritage information it possessed regarding Kaitlyn. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 996 (Gerardo A.).)
Moreover, the Department had an "affirmative and continuing duty" to make the inquiries necessary to determine whether Kaitlyn was or is an Indian child. (Isaiah W., supra, 1 Cal.5th at p. 9; Breanna S., supra, 8 Cal.App.5th at p. 652; § 224.3; rule 5.481.) This duty is triggered whenever the Department or its social worker "knows or has reason to know" an Indian child may be involved (rule 5.481(a)(4)), and obligates the social worker to interview, as soon as practicable, the child's parents, extended family members and any other person who reasonably can be expected to have information concerning the child's membership status or eligibility. (Breanna S., supra, 8 Cal.App.5th at p. 652; § 224.3, subd. (c); rule 5.481(a)(4)(A).)
Rule 5.481(a)(4)(A) directs the social worker to conduct interviews to gather the information listed in section 224.2(a)(5), which is required to complete form ICWA-030. --------
Here, although father initially refused to be interviewed, nothing in the record indicates that anyone from the Department attempted to interview father after he completed the ICWA-020 about his family's Indian ancestry to obtain further information concerning the paternal great-grandmother, or made any effort to locate either Francis or Kaitlyn's paternal grandmother, Carlyn, so they could be interviewed. The social worker had a duty to seek out this information; it was not father's obligation to volunteer it. (Breanna S., supra, 8 Cal.App.5th at p. 652.)
Despite the failure to include the paternal great-grandmother's name or comply with its duty of inquiry, the Department argues any error was harmless because the notice substantially complied with the applicable provisions of ICWA, and the tribes were given sufficient information to permit them to conduct a meaningful review of their records to determine Kaitlyn's eligibility for membership. (See, e.g. In re I.W. (2009) 180 Cal.App.4th 1517, 1531-1532 ["not all deficiencies in notice are prejudicial error"; notices substantially complied with ICWA, and any deficiencies were de minimus and not prejudicial]; In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576 ["where notice has been received by the tribe . . . errors or omissions in the notice are reviewed under the harmless error standard"; omission of information concerning non-Indian relatives was harmless]; In re Christopher I. (2003) 106 Cal.App.4th 533, 566 ["[s]ubstantial compliance with the notice requirements of ICWA is sufficient"; social service agency complied with ICWA when it sent notice to the Bureau of Indian Affairs because it could not identify a specific tribe].)
We reject the Department's contention that remand is not required. As this court has held, the failure to provide a tribe with Indian heritage information constitutes prejudicial error. (Gerardo A., supra, 119 Cal.App.4th at p. 996.) Here, the tribes responses were based on information the Department provided on the ICWA-030. The ICWA-030, however, failed to identify the very relative father claimed was a tribal member, namely the paternal great-grandmother. This was not a de minimus omission or one that involved non-Indian relatives. Moreover, we fail to see how a tribe can conduct a meaningful review of its records to determine Kaitlyn's eligibility for membership if the tribe is not provided with information concerning the relative who is claimed to be a tribal member. Accordingly, remand is required to allow compliance with the ICWA notice and inquiry requirements.
However, we reject father's assertion that we must reverse the juvenile court's dispositional orders due to the noncompliance with ICWA. In In re Brooke C. (2005) 127 Cal.App.4th 377 (Brooke C.), the court discussed insufficient ICWA notice in the context of a dispositional order. (Id. at pp. 385-386.) The court, following In re Antoinette S. (2002) 104 Cal.App.4th 1401, concluded that a violation of the ICWA notice requirements is not jurisdictional error and the only order which would be subject to reversal for failure to give notice would be an order terminating parental rights. (Brooke C., supra, 127 Cal.App.4th at pp. 385-386; see In re Christian P. (2012) 208 Cal.App.4th 437, 452 (Christian P.) [" 'A notice violation under ICWA is not jurisdictional in the fundamental sense.' ".]) Therefore the court ordered a limited remand to the juvenile court for the social services agency to comply with ICWA notice requirements, with directions to the juvenile court depending on the outcome of such notice. (Id. at pp. 385-386.)
We are aware there has been some disagreement among our sister courts regarding whether the appropriate remedy includes reversal of a dispositional order or merely a limited remand. (See, e.g., Christian P., supra, 208 Cal.App.4th at p. 452 [limited remand]; In re Veronica G. (2007) 157 Cal.App.4th 179, 188 (Veronica G.) [same]; but see In re S.E. (2013) 217 Cal.App.4th 610, 616 [reversal and remand]; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 785 ["[e]ven assuming ICWA errors are not jurisdictional, we conclude the failure to give ICWA notice means that the orders in this case cannot stand"]; In re Louis S. (2004) 117 Cal.App.4th 622, 634 [reversal and remand].)
We are persuaded, however, that the better practice is to apply a rule that where, as here, there is a failure to comply with ICWA notice procedures before disposition, all jurisdictional and dispositional orders remain in effect while there is a limited remand to the juvenile court for the Department to give ICWA notice. (See In re Damian C. (2009) 178 Cal.App.4th 192, 199-200; Veronica G., supra, 157 Cal.App.4th at pp. 187-188; Brooke C., supra, 127 Cal.App.4th at p. 385.) As such, father's reliance on In re A.B. (2008) 164 Cal.App.4th 832 and In re B.R. (2009) 176 Cal.App.4th 773 is misplaced, as both involved appeals from the termination of parental rights. In contrast here, father's parental rights were not terminated. Consequently the appropriate remedy is a remand for ICWA compliance.
DISPOSITION
The disposition orders are affirmed, and the matter is remanded to the juvenile court with directions to order the Department to comply with inquiry and notice provisions of ICWA, if it has not already done so. If after proper notice under ICWA it is determined that Kaitlyn is an Indian child and ICWA applies to these proceedings, any interested party 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 [petition to invalidate orders].) If there is no confirmation that Kaitlyn is or may be an Indian child, the court may proceed accordingly.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.