Opinion
NOT TO BE PUBLISHED
Super. Ct. No. FL353791
SIMS, J.A.T. (appellant), the mother of Aa.P. and An.P. (the minors), appeals from an order declaring the minors free from appellant’s custody and control and granting a petition for adoption of the minors filed by the minors’ former guardian, L.W. (respondent). (Fam. Code, §§ 7820, 7822; undesignated section references are to the Family Code.)
Appellant makes multiple contentions of alleged prejudicial error. Agreeing with appellant that the trial court committed numerous errors in this proceeding, we shall reverse and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Aa.P. was born in July 1998, and An.P. was born in July 1999. Respondent had been the guardian of the minors since July 2004. She had taken care of the minors since they were infants. The last time appellant had contact with the minors was in 2003.
On December 19, 2007, respondent filed petitions to adopt the minors. Thereafter, respondent filed a petition to declare the minors free from appellant’s custody and control. That petition alleged appellant had left the minors in the custody and control of the father of the minors. The petition also alleged appellant had not seen or communicated with the minors, nor had she made any provision for their support, since 2000.
In a report prepared by Human Services Agency (HSA), the social worker recommended against proceeding with the proposed adoption. According to the social worker, both minors reported that their father, who visited them, was physically abusive, prompting a child abuse referral; an investigation was under way. Moreover, allegedly respondent struck one of the minors “hard enough to leave marks or bruises.” The minors also indicated they had told respondent about their father’s abuse, but that she failed to stop it.
The report noted additional concerns. First, allegedly respondent refused to permit the social worker to see three of the five bedrooms and one of the three bathrooms in respondent’s home. Moreover, the social worker learned that respondent was allowing two unrelated adult men to live in respondent’s residence, but would not show the social worker their rooms.
At the March 2009 hearing on the petition to declare the minors free from parental control, respondent appeared in pro per. Appellant was not present, but was represented by counsel. Respondent testified that, except at an October 2008 court proceeding, appellant had not communicated with the minors since 2003. Respondent also told the trial court that appellant had failed to provide any support for the minors.
At the conclusion of the hearing, the trial court found by clear and convincing evidence that appellant left the minors in the custody of another person for longer than one year without communication or support, with the intent to abandon the minors. The court then terminated appellant’s parental rights.
DISCUSSION
I
Appellant contends that inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (the Act) by the trial court and HSA was insufficient, the court failed to determine whether notice under the Act was required, and therefore reversal is required.
The Act was enacted “to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture....’” (In re Levi U. (2000) 78 Cal.App.4th 191, 195; 25 U.S.C. § 1902; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30 [104 L.Ed.2d 29].)
“When a court ‘knows or has reason to know that an Indian child is involved’ in a [child custody] proceeding, a duty arises under [the Act] to give the Indian child’s tribe notice of the pending proceedings and its right to intervene. [Citations.] Alternatively, if there is insufficient reason to believe a child is an Indian child, notice need not be given. [Citations.]” (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.)
The Act defines an “Indian child” as a child who is either (1) “a member of an Indian tribe” or (2) “eligible for membership in an Indian tribe and... the biological child of a member of an Indian tribe....” (25 U.S.C. § 1903(4).) The Act applies to freedom from parental custody and control proceedings. (25 U.S.C. § 1903(1); In re Crystal K. (1990) 226 Cal.App.3d 655, 663-664.)
“‘The circumstances that may provide probable cause for the court to believe the child is an Indian child include, but are not limited to, the following: [¶] (A) A person having an interest in the child... informs the court or the county welfare agency... or provides information suggesting that the child is an Indian child; [¶] (B) The residence of the child, the child’s parents, or an Indian custodian is in a predominantly Indian community; or [¶] (C) The child or the child’s family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service.’ [Citations.] If these or other circumstances indicate a child may be an Indian child, the social worker must further inquire regarding the child’s possible Indian status. Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. [Citation.] If the inquiry leads the social worker or the court to know or have reason to know an Indian child is involved, the social worker must provide notice. [Citations.]” (In re Shane G., supra, 166 Cal.App.4th at pp. 1538-1539.)
Here, the record contains information suggesting the minors had Indian heritage. At a January 12, 2009, hearing, respondent made two references to the possibility the minors were Indian children. Thereafter, at the March 16, 2009, hearing, respondent told the trial court that she and a social services employee “were waiting for the Indian reservation something, something and that is done.”
The record is ambiguous on the issue whether the minors are Indian children under the Act. Moreover, the adoption petitions both alleged the minors had no Indian ancestry. However, faced with information suggesting the minors may have lived on an Indian reservation, the trial court and HSA were obliged to at least make some inquiry. The HSA report says nothing about the matter, and the court made no response to the comments noted above. No findings were made, and the record contains no further information pertaining to the Act.
On remand, the trial court and HSA must conduct a proper inquiry under the Act.
II
Appellant claims the trial court failed to consider whether to appoint counsel for the minors. Noting the minors’ reports of physical abuse in their home and the conclusion of HSA that the adoption should not proceed, appellant asserts that counsel for the minors would have protected their interests and opposed termination of parental rights. Accordingly, appellant asserts that the court’s failure to appoint counsel for the minors was prejudicial error.
“The court shall consider whether the interests of the child require the appointment of counsel. If the court finds that the interests of the child require representation by counsel, the court shall appoint counsel to represent the child....” (§ 7861.)
At the October 6, 2008, hearing, the trial court asked whether the minors had been represented previously. The court then appointed counsel to represent appellant. However, the court did not appoint counsel for the minors.
On the record before it, the trial court should have ordered counsel appointed to represent the minors. The social worker’s report reflected conflicting feelings on the part of the minors, not surprising under the circumstances. As the report makes clear, the minors had been in respondent’s custody for a long time. Although neither minor objected to their proposed adoption, allegedly both revealed they had been victims of physical abuse in the home. Counsel for the minors could have assisted them in addressing their concerns and protecting their interests.
On remand, the trial court must consider appointing counsel for the minors, in light of all information available to it, including any evidence of recent developments in the matter. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 171.)
In light of our disposition, it is unnecessary to decide whether section 7861 requires the trial court to make a finding on the record.
III
Section 7891 states: “(a) Except as otherwise provided in this section, if the child who is the subject of the petition is 10 years of age or older, the child shall be heard by the court in chambers on at least the following matters: [¶] (1) The feelings and thoughts of the child concerning the custody proceeding about to take place. [¶] (2) The feelings and thoughts of the child about the child's parent or parents. [¶] (3) The child's preference as to custody, according to Section 3042. [¶] (b) The court shall inform the child of the child's right to attend the hearing. However, counsel for the child may waive the hearing in chambers by the court. [¶] (c) This section does not apply if the child is confined because of illness or other incapacity to an institution or residence and is therefore unable to attend.”
Appellant argues the trial court erred prejudicially in failing to interview and determine the wishes of the minors, requiring reversal. We agree.
In proceedings such as this one, the trial court is required to consider the wishes of the minor, and must act in the best interests of the minor. (§ 7890.) Among its duties are to conduct a portion of the hearing in chambers, taking the testimony of the minor outside the presence of the minor’s parent. (§§ 7891, 7892.) The court’s duty under section 7891 is sua sponte. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 170.)
In this case, Aa.P. was 10 years old at the time of the March 16, 2009, hearing. Absent any showing of an incapacity to attend the hearing, the trial court was obliged by statute to interview Aa.P. Its failure to do so constitutes prejudicial error. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 170.)
Here, as we have seen, the social worker’s report contains ample cause for concern about this proceeding. With an allegedly abusive father and an arguably negligent guardian in their home, the minors appeared to be at risk of suffering continuing harm. Without the trial court obtaining evidence of the wishes of the minors, it is difficult to discern how the court could ascertain their best interests. On remand, both minors will be 10 years old. The court must proceed pursuant to section 7891.
IV
Appellant contends the trial court failed to consider the social worker’s report, an error appellant asserts was prejudicial and requires reversal. We agree.
Preparation of a social study report is required by statute. (§§ 7850, 7851.) Moreover, the trial court is required to “receive the report in evidence and... read and consider its contents in rendering the court’s judgment.” (§ 7851, subd. (d).) Failure to do so may be prejudicial error. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 169.)
Here, the record does not reflect that the trial court read and considered the social worker’s report. The minute order for the March 16, 2009, hearing contains a form for the court to indicate it had done so. However, the form is blank. Moreover, at the hearing, the court failed to state whether it had seen the report. Finally, the report itself is bereft of any indication that the court considered it.
As we have suggested, the report’s contents were critical to the proceeding. Accordingly, failure to consider the report was prejudicial error. On remand, the trial court must conduct a new evidentiary hearing on the petition to declare the minors free from parental custody and control, one which includes consideration of the social worker’s report already in the record, together with any updated information pertaining to the matter.
V
Appellant’s penultimate claim is that the social worker’s report itself was deficient, in two respects. First, appellant argues, the report does not reflect that the minors were told the nature of the proceeding. Moreover, according to appellant, the report omits any statement of the minors’ thoughts pertaining to the proceedings.
Subdivision (b) of section 7851 requires the report to include: “(1) A statement that the person making the report explained to the child the nature of the proceeding to end parental custody and control. [¶] (2) A statement of the child’s feelings and thoughts concerning the pending proceeding. [¶] (3) A statement of the child’s attitude towards the child’s parent or parents and particularly whether or not the child would prefer living with his or her parent or parents. [¶] (4) A statement that the child was informed of the child’s right to attend the hearing on the petition and the child’s feelings concerning attending the hearing.”
The record does not support appellant’s claim. It is true that, as the report indicates, much of the interview between the social worker and the minors concerned their reports of abuse. However, the report also states the social worker spoke with each minor separately about adoption. Moreover, the report contains this statement: “Neither of the minors objected to the concept of being adopted and growing up in the home in which they have been raised for so long.”
We conclude that the contents of the social worker’s report satisfied the requirements of the statute. There was no error.
VI
Appellant’s final contention is that the evidence is insufficient to support a finding that termination of parental rights is in the best interests of the minors.
Although the record is silent, we presume the minors’ father has relinquished his parental rights or that they have been terminated in another proceeding.
In light of our disposition of this appeal, in which we have found errors committed by the trial court requiring a new evidentiary hearing, it is unnecessary to consider appellant’s sufficiency of the evidence claim.
DISPOSITION
The order terminating parental rights is reversed, and the matter is remanded to the trial court with directions to conduct a new evidentiary hearing consistent with this opinion. The court also is directed to order HSA to make proper inquiry and to comply with the notice provisions of the Indian Child Welfare Act, if necessary. If after proper inquiry and notice, a tribe determines the minors are Indian children as defined by the Indian Child Welfare Act, the trial court is ordered to conduct a hearing in conformity with all provisions of the Act. If, on the other hand, no response is received or the tribe determines the minors are not Indian children, the court shall make a proper finding and order.
We concur: BLEASE, Acting P. J., HULL, J.