Opinion
D047847
7-12-2006
In re A.U., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SONIA U., Defendant and Appellant.
Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant. John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent. Carl Fabian, under appointment by the Court of Appeal, for Minor.
Sonia U. appeals from a judgment terminating parental rights to her daughter, A.U., under Welfare and Institutions Code section 366.26. She contends the court violated her constitutional right to due process of law when it appointed a guardian ad litem on her behalf without first providing her with notice and an opportunity to be heard. Sonia also maintains that neither the court nor the social services agency met its duty to inquire into A.U.s American Indian heritage, and that they did not provide notice to the childs prospective tribes and the Bureau of Indian Affairs (BIA) in accordance with the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.; § 294; Cal. Rules of Court, rule 1439(f)).
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Rule references are to the California Rules of Court.
We hold that the court erred when it appointed a guardian ad litem to act on Sonias behalf without first providing her with notice and an opportunity to be heard regarding the appointment. We reject respondents argument that evidence of mental illness supports a finding that Sonia was incompetent. However, because there is no suggestion in the record that the error affected the dependency proceedings or that Sonias counsel and guardian ad litem did not protect her rights, we conclude that the error was harmless beyond reasonable doubt. We also conclude that the ICWA notice was deficient. Accordingly, we reverse and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
On January 20, 2005, the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b), alleging that newborn A.U. was at risk of serious physical harm or illness due to her mothers inability to provide regular care. A.U.s mother, Sonia, had a history of mental illness and drug abuse and was living in a residential care facility for mentally disabled adults. Over the previous 12 years, the Agency had removed five other children from her custody. Sonia was not aware of her pregnancy until she gave birth to A.U. at the care facility. The baby was detained in foster care after her release from the hospital. In March, A.U. was placed in the home of a maternal aunt (Aunt) who had been caring for three of A.U.s siblings for more than 10 years.
In 1993, the Agency removed Sonias two children from her care and initiated dependency proceedings. At that time, possibly due to methamphetamine use, Sonia was experiencing auditory hallucinations that told her to abuse her children. Another infant was detained at birth in 1994. After reunification services proved ineffective, the juvenile court placed all three of these children in long-term foster care with Aunt in 1995. Two other children, born in 1996 and 1998, were also the subjects of dependency proceedings. They were later adopted together by a nonrelative family.
The Agency was unable to identify A.U.s father from the limited information Sonia provided.
At the detention hearing, the court appointed an attorney from the alternate public defenders office to represent Sonia, who was not present. The court advised Sonias attorney to request a special hearing if, after meeting with Sonia, her attorney believed that the appointment of a guardian ad litem on Sonias behalf would be appropriate. The court deferred findings on the applicability of the ICWA, detained A.U. in foster care, and ordered the Agency to provide Sonia with supervised visitation and appropriate reunification services.
Sonia was not present at the February 10, 2005 jurisdiction/disposition hearing. The court continued the hearing at the request of Sonias attorney, who had not yet met with her. On March 1, Sonias attorney asked the court to appoint a guardian ad litem for Sonia. She reported that Sonia had made inconsistent statements about how she wished to proceed, and that she was unable to provide the name of her treating physician. Sonias attorney did not believe that Sonia could assist her in determining how to proceed with the case. Pursuant to her attorneys request, the court appointed a guardian ad litem for Sonia and continued the hearing to April 4. Sonia was not served with the appointment order.
Sonia did not appear at the continued jurisdiction/disposition hearing. Her attorney requested a continuance because neither the attorney nor Sonias guardian ad litem had been able to meet with Sonia before the hearing. The court denied the motion. Based on the evidence submitted in the detention and jurisdiction reports, the court found by clear and convincing evidence that the allegations of the section 300 petition were true. The court continued the disposition hearing to May 9.
At the disposition hearing, the Agency requested that the court bypass reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11). The court took judicial notice of the findings of facts and conclusions of law made in the dependency cases of A.U.s siblings and found that Sonia had not made a reasonable effort to treat the problems that led to the removal of A.U.s siblings from her care. The court denied Sonia reunification services and set a permanency plan hearing under section 326.66.
If specific circumstances apply, reunification services need not be provided to a parent or guardian. Section 361.5, subdivision (b)(10), provides: "[T]he court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian." Section 361.5, subdivision (b)(11), provides: "[T]he parental rights of a parent over any sibling or half-sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from the parent."
On May 11, Sonias guardian ad litem filed a notice of intent to file a writ petition under rule 38.1. The alternate public defenders office contracted with outside associate counsel to assist with the writ. On June 13, associate counsel filed a letter with this court stating that, based on his review of the record, there were no viable issues for an extraordinary writ and that no writ petition would be filed.
On September 6, the Agency requested a 60-day continuance of the section 366.26 hearing to investigate A.U.s Indian heritage and to provide proper notice of the permanency plan hearing to the Bureau of Indian Affairs (BIA) and to any tribes. The court continued the hearing to November 8. The Agency reported that A.U.s great-great-great grandfather was a member of the "Huiechol" tribe of Mexico. A form attached to the report, Judicial Council form JV-135, stated that the great-great-great grandmothers tribe was located in "Rio Colorado — Fort Yuma, Santa Ysabel" and that she had attended an Indian school in Banning, California, in 1917. The Agency mailed notice of the November 8, 2005 permanency plan hearing to the BIA on November 4.
On November 8, on behalf of the Agency, county counsel requested a second 60-day continuance in order to provide notice to the tribes located in the areas mentioned in the Judicial Council form. The court denied the motion and went on to find that the ICWA did not apply because the only tribe that was specifically identified was located in Mexico. On Sonias behalf, her attorney requested a trial on the Agencys recommendation to terminate her parental rights.
In its report prepared for the permanency plan hearing pursuant to section 366.26, the Agency reported that A.U. was in good health, and that she was meeting developmental milestones. She showed signs of bonding with Aunt. A.U. was attached to her three siblings who also lived with Aunt. Aunt loved A.U. She wanted to adopt her in the event parental rights were terminated. Aunt planned to allow Sonia to continue to have supervised visits with A.U. and her other children. In addition to being specifically adoptable, the social worker opined that A.U. was generally adoptable due to her age, good health and appropriate development.
The social worker believed that Sonia was seriously mentally ill and unable to care for A.U. Sonia had been hospitalized periodically due to her mental health condition. She suffered from extreme mood swings and resisted psychiatric treatment. Sonia did not take her medication consistently. She was unable to manage her own affairs and was dependent upon a representative payee to ensure that she had appropriate food, shelter and clothing.
Based on Sonias past history of services, the social worker concluded that Sonia was unable or unwilling to improve her circumstances. Sonia loved her children but lacked basic parenting skills. For example, she had to be shown how to give A.U. a bottle. On another visit, Sonia laid A.U. on a couch and then became distracted. The social worker intervened to show Sonia how to keep the baby from falling.
Sonia did not attend the permanency plan hearing. The parties submitted on the report. Counsel did not present any affirmative evidence on Sonias behalf. The court made the findings required under section 366.26 and terminated parental rights. On Sonias behalf, the guardian ad litem filed notice of this appeal.
MOTIONS ON APPEAL
On April 11, 2006, Sonia filed a motion requesting that this court take judicial notice of the United States Department of the Interiors lists of federally recognized Indian tribes and designated tribal agents for service of notice, and an article about the history of federally funded Indian schools. On April 28 and May 24, the Agency filed motions to augment the record with a social workers report dated May 24, 2005, and a declaration of a superior court clerk.
Respondents motions were untimely filed under rule 37.4(d)(2).
The declaration of the superior court clerk was not filed or lodged in the trial court and is not a certified transcript or agreed or settled statement of oral proceedings not designated under rule 4. (See rules 12(a) and 37.1.)
"`. . . "Making the appellate court the trier of fact is not the solution.". . ." (In re I.G. (2005) 133 Cal.App.4th 1246, 1253; see In re Zeth S. (2003) 31 Cal.4th 396.) Because we remand for compliance with ICWA, the Agencys motions to augment the record and Sonias request for judicial notice are denied as moot. (See Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1225, fn. 1.)
DISCUSSION
I
The Challenge To The Appointment Of A Guardian Ad Litem Is Timely
The Agency argues that Sonias request for appellate review of the appointment of the guardian ad litem is untimely and that the issue should have been raised in a rule 38.1 writ petition. The guardian ad litem filed a notice of intent to file a writ petition on May 11, 2005. (See rule 38.) However, after reviewing the record, associate counsel did not file a writ petition. The Agency contends that the issue is waived on appeal.
The appellate courts have recognized the inherent conflict of interest between a parent who did not consent to the appointment of a guardian ad litem and his or her attorney who recommended the appointment, and have held that a failure to timely file a writ petition challenging the appointment does not preclude later review. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1188 (Jessica G.); In re Joann E. (2002) 104 Cal.App.4th 347, 353 (Joann E.).) This court recently recognized this principle in In re Enrique G. (June 19, 2006, D047692) ___ Cal.App.4th ___ (Enrique G.).
In Enrique G., as here, the parents guardian ad litem filed a notice of intent to file a writ petition challenging the referral order to a section 366.26 hearing. After review, counsel decided not to proceed with the petition for writ. (Enrique G., supra, ___
Cal.App.4th at p. ___ [2006 Cal.App. Lexis 901, 6].) Relying on Jessica G., supra, 93 Cal.App.4th 1180 and In re Joann G., supra, 104 Cal.App.4th 347, the Enrique G. court concluded that one could not expect the guardian ad litem to seek review of the order appointing him and, similarly, could not expect counsel to seek review of the very order he requested. (Enrique G., supra, ___ Cal.App.4th at p. ___ [2006 Cal.App. Lexis 901, 10-11].) In view of these inherent conflicts of interest, to insist that a parent seek writ review when a guardian ad litem is appointed or "lose her right to later complain about a violation of constitutional rights would itself pose constitutional issues." (Jessica G., supra, 93 Cal.App.4th at p. 1190.)
The Agencys contention that Sonia has waived further review of the appointment of the guardian ad litem is untenable in view of the fact that Sonia did not receive notice of a hearing to appoint a guardian ad litem nor of the appointment order itself. In addition, the record shows that Sonia did not have adequate notice of the procedures required to challenge the appointment of the guardian ad litem. Associate counsel did not represent that he spoke with Sonia (or with the guardian ad litem) before deciding not to pursue the writ. There is no evidence that Sonia was informed of her right to object or to seek review of the appointment. (See Jessica G., supra, 93 Cal.App.4th at p. 1190, fn. 1 [even if the parent was adequately advised of the necessity of writ review, the due process exemption applies].) This issue is timely raised and Sonia has not waived appellate review.
II
The Court Erred By Appointing A Guardian Ad Litem Without First Providing Sonia With Notice and Opportunity to be Heard
Sonia contends that the appointment of a guardian ad litem without affording her prior notice and an opportunity to be heard violated her constitutional right to due process of law. (In re Sara D. (2001) 87 Cal.App.4th 661, 667 (Sara D.); In re Joann E., supra, 104 Cal.App.4th at pp. 356-357; Jessica G., supra, 93 Cal.App.4th at pp. 1186-1887.) The Agency concedes that the record does not contain any evidence showing either that Sonia consented to the appointment of the guardian ad litem or that she was provided notice and an opportunity to be heard.
We review constitutional issues de novo. (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433,)
In any proceeding in which an incompetent person is a party, that person shall appear by a guardian ad litem appointed by the court in which the action is pending. (Code Civ. Proc., § 372.) In the context of dependency proceedings, the test for incompetence is whether the party has the capacity to understand the nature or consequences of the proceeding and is able to assist counsel in the preparation of the case. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1450-1451 (Christina B.); Jessica G., supra, 93 Cal.App.4th at p. 1186; see Pen. Code, § 1367.)
The effect of the appointment of a guardian ad litem for a parent in a dependency proceeding is significant because it removes control over litigation from the parent and vests it with the guardian ad litem. (Christina B., supra, 19 Cal.App.4th at pp. 14531-454; Jessica G., supra, 93 Cal.App.4th at pp. 1186-1187; In re Daniel S. (2004) 115 Cal.App.4th 903, 912 (Daniel S.).) A guardian ad litem is given broad powers to control trial tactics and the "procedural steps necessary to the conduct of the litigation." (Sara D., supra, 87 Cal.App.4th at p. 668.)
Courts have recognized that the appointment of a guardian ad litem in a dependency case deprives a parent of the right to control and participate in litigation affecting the fundamental parental interest in the companionship, care, custody and management of ones children. (Sara D., supra, 87 Cal.App.4th at p. 668; see In re Dakota H. (2005) 132 Cal.App.4th 212, 223.) Consequently, unless the parent consents to the appointment, the parent must be afforded due process before the court may appoint a guardian ad litem. (Jessica G., supra, 93 Cal.App.4th at p. 1187; Daniel S., supra, 115 Cal.App.4th at p. 912.) It is axiomatic that the court may not divest a parent of a fundamental interest without first providing the parent with notice and an opportunity to be heard. (C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 915; see, generally, Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314; Stanley v. Illinois (1972) 405 U.S. 645, 658; Santosky v. Kramer (1982) 455 U.S. 745, 753-754.)
In order to "`. . . provide the court with the most accurate picture of the circumstances so it can make an informed decision," the parent must be afforded an opportunity to respond. (Jessica G., supra, 93 Cal.App.4th at p. 1187-1188, quoting Sara D., supra, 87 Cal.App.4th at p. 672 .) A hearing to determine a parents competence need not be formal. (Daniel S., supra, 115 Cal.App.4th at p. 912.) However, at the hearing, which may be closed to other parties, the court or counsel must explain to the parent the purpose of appointing a guardian ad litem, the parents loss of authority over the litigation, the guardian ad litems role, and why counsel believes the appointment is necessary. (Jessica G., supra, 93 Cal.App.4th at p. 1187-1188.) At minimum, the court should make an inquiry sufficient to determine whether the parent understands the nature of the proceedings and can assist the attorney in protecting his or her rights. (Ibid., citing Sara D., supra, 87 Cal.App.4th at p. 672, italics added.)
In this case, the court did not provide Sonia with any of the procedural safeguards necessary to protect her due process rights. On March 1, 2005, in Sonias absence and without prior notice to her, the court appointed a guardian ad litem on her behalf after the following exchange with her attorney:
"THE COURT: [¶] . . . [¶] [Sonias attorney], anything you want to pass on at this point? One of the things you were going to be alert to is whether we needed a guardian ad litem and so forth.
"[SONIAS ATTORNEY]: Yes, Your Honor. I spoke with my client on the 10th of February. She made inconsistent statements about how she would like to proceed in this case. She was unable to provide me with the name of her — the doctor that was treating her at the shelter where she resides. I do not feel that I can plan her case with the assistance of my client. I would be requesting the court appoint a [guardian ad litem] for my client.
"THE COURT [(to the independent contract office (ICO) attorney)]: [I]s this something you would be willing
"[ICO ATTORNEY]: You know, Your Honor, I am kind of curious. CPO is not on the case.
"THE COURT: They could — off the record for a moment. [¶] . . . [¶] Back on the record. In response to [counsels] comments I am appointing the ICO office . . . , to serve as guardian ad litem for the mother."
In appointing a guardian ad litem for Sonia, the court relied on the conclusory statements of her attorney, without determining the factual bases or foundation underlying the statements. The court did not know why or how Sonia was unable to assist her attorney in protecting her interests. (Sara D., supra, 87 Cal.App.4th at p. 674.) The court was informed that Sonia was conflicted regarding the desired outcome of the dependency proceedings, that she disliked court proceedings, and that she was unable to remember a doctors name; however, those facts do not go to whether she understood the nature of the proceedings and could assist her attorney in protecting her rights.
There is no evidence that Sonia consented to the courts appointment of a guardian ad litem. She was not provided with notice of the proceeding, nor was she given an opportunity to respond. Her attorney did not represent to the court that she had advised Sonia of the purpose for the appointment of a guardian ad litem, the guardians role in controlling litigation or that the appointment would result in the loss of Sonias authority to make important decisions affecting her fundamental interest in parenting her child. The court thus had an obligation to ensure that Sonia was advised of the consequences of the appointment of a guardian ad litem before making the appointment. The record shows that the court did not make the requisite advisements, and did not inquire as to whether Sonia understood the nature of the proceedings and could assist counsel in protecting her rights. (Jessica G., supra, 93 Cal.App.4th at p. 1188 citing Sara D., supra, 87 Cal.App.4th at p. 672.).
B
The Erroneous Appointment of the Guardian Ad Litem Was Harmless Beyond Reasonable Doubt
Sonia argues that the erroneous appointment of a guardian ad litem constitutes "structural error" requiring automatic reversal of the order appointing the guardian ad litem and all subsequent orders in the dependency case. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309-311; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 556-557.) She concedes that there is a split of authority in the appellate courts as to whether the erroneous appointment of a guardian ad litem for a parent in dependency proceedings constitutes a structural error requiring automatic reversal or whether it is a trial error subject to a harmless error analysis. (See Chapman v. California (1967) 386 U.S. 18 (Chapman); In re Angela C. (2002) 99 Cal.App.4th 389, 395.)
This court has determined that it will review the improper appointment of a guardian ad litem to determine whether the error is harmless beyond a reasonable doubt. (Enrique G., supra, ___ Cal.App.4th at p ___ [2006 Cal.App. Lexis 901, 16-17]; Daniel S., supra, 115 Cal.App.4th at pp. 912-916; see also Sara D., supra, 87 Cal.App.4th at p. 673 ["Reversal is not required if the violation of the appellants due process rights was harmless beyond a reasonable doubt."].)
Citing Jessica G., Sonia argues that the erroneous appointment of a guardian ad litem was not harmless beyond a reasonable doubt because the court cannot know what the parent might have done or suggested to her attorney if the guardian ad litem had been appointed. (Jessica G., supra, 93 Cal.App.4th at p. 1189.) However, Sonia does not support her claim with specific references to the record. Without any basis in the record to support a conclusion that the parent might have taken a course of action different from that taken by the guardian ad litem, we would have to conclude that the error was structural in order to reverse.
The Jessica G. court in In re C.G. (2005) 129 Cal.App.4th 27, 34, concluded that that the erroneous appointment of a guardian ad litem for a parent in a dependency case constituted structural error.
An example of the application of the Chapman harmless error analysis to the erroneous appointment of a guardian ad litem is found in Sara D., in which the appellate court concluded that the appointment was not harmless beyond a reasonable doubt. In Sara D., prior to the appointment of the guardian ad litem, the parent contested jurisdiction and informed the court that three additional witnesses, including the parent, would testify at the jurisdictional hearing. The court appointed a guardian ad litem before the hearing concluded. After the guardian ad litem was appointed, the parents attorney and the guardian ad litem agreed to submit to the courts jurisdiction in exchange for what was essentially nothing more than an agreement to conform the petition to the proof presented at the earlier hearings. (Sara D., supra, 87 Cal.App.4th at p. 673.) Without speculating on the substance or effect of the omitted testimony, the Sara D. court determined that the testimony might have had an impact on the courts decision, and concluded that the error therefore was not harmless beyond a reasonable doubt. (Ibid.) A similar situation occurred in In re Joann E., supra, 104 Cal.App.4th at page 360, in which the parent intended to call a witness who was not called to testify after a guardian ad litem was appointed.
In contrast to Sara D. and Joann E., Sonia does not specify how or when the proceedings in this case might have been impacted by the appointment of a guardian ad litem. Sonia did not appear at any of the hearings in A.U.s dependency case. She told the social worker, "I dont want to go to court. I dont like court." Our review of the record does not reveal any information that would allow us to conclude that anything Sonia might have done or suggested to her attorney would have been different if the guardian ad litem had not been appointed. (See Sara D., supra, 87 Cal.App.4th at p. 673.)
Further, neither Sonias counsel nor her guardian ad litem compromised her fundamental rights. (Daniel S., supra, 115 Cal.App.4th at p. 914; see Christina B., supra, 19 Cal.App.4th at p. 1454.) On the contrary, the record shows that they protected Sonias rights at each juncture throughout the proceedings. Sonias attorney repeatedly requested continuances because Sonia was not present and enlisted Aunts help to try to secure Sonias appearance at the jurisdiction hearing. Sonias attorney vigorously advocated that the court provide Sonia the opportunity to undergo a psychological evaluation before the disposition hearing to determine whether she would benefit from services. Despite Sonias statements suggesting that she was resigned to, and comfortable with, A.U.s placement in Aunts permanent custody, her attorney requested contested hearings at the jurisdiction, disposition and permanency planning stages of the proceedings. In addition, Sonias appellate rights were preserved.
There is nothing in the record to show how the erroneous appointment of a guardian ad litem might have affected Sonias rights to participate in the proceedings, contest the states position, consult with her attorney, or receive the effective assistance of counsel. We conclude that under the circumstances in this case, the erroneous appointment of the guardian ad litem was harmless beyond a reasonable doubt. (See Enrique G., supra, ___ Cal.App.4th at p. ___ [2006 Cal.App. Lexis 901, 16-17, 19-20].)
C
This Court Will Not Infer a Finding That Sonia Was Incompetent From Evidence of Mental Illness
The Agency contends that Sonias mental illness constitutes substantial evidence that she was incompetent. In support of its position, the Agency details Sonias mental health history as well as anecdotal evidence of her current condition.
We reject the argument that this court can infer from evidence in the record of mental illness that Sonia was incompetent at the time the court appointed a guardian ad litem for her. The mere presence of mental illness does not mean that a party is unable to understand the proceedings and to assist counsel in the preparation of the case. (See, e.g., In re Christopher I. (2003) 106 Cal.App.4th 533, 568-569; People v. Ramos (2004) 34 Cal.4th 494, 508 ["A defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel."]; see generally People v. Smith (2003) 110 Cal.App.4th 492, 502.)
The record contains little, if any, evidence of Sonias mental illness or its effect on her ability to understand the proceedings and to assist counsel. Other than Sonias statement that in the past her condition had been diagnosed as schizophrenia, bipolar disorder and personality disorder, and third parties anecdotal observations of her "odd behaviors" and mood swings immediately after A.U.s birth, the record does not contain any current information from qualified mental health professionals about Sonias psychological or psychiatric condition, nor does it contain any evidence to support a conclusion that her mental health rendered her incompetent. Under these circumstances, we will not infer from evidence of mental illness in the record that Sonias mental health condition prevented her from being able to understand the proceedings and to assist counsel in the preparation of the case. (See, e.g., In re Christopher I., supra, 106 Cal.App.4th at pp. 568-569; People v. Ramos, supra, 34 Cal.4th at p. 508.)
The trial courts findings that Sonia suffered atypical psychosis and borderline personality disorder were made in 1993 and 1994; findings made in 1996 and 1998 refer only to Sonias "history of mental illness." Further, despite significant concerns about Sonias mental health in the earlier dependency cases, the minute orders from those cases indicate that the court did not appoint a guardian ad litem for Sonia in those proceedings.
III
ICWA Errors Require Reversal
In 1978, Congress enacted the ICWA in order to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) To meet Congresss goals, "[p]roceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to those preferences." (Guidelines for State Courts, Indian Child Custody Proceedings (Guidelines) 44 Fed. Reg. 67584, 67586, § A(1) (Nov. 26, 1979).) These requirements include the duty to inquire into a dependent childs Indian heritage and to provide notice to any tribe or potential tribes, the parent, any Indian custodian of the child and, under some circumstances, to the BIA. (25 U.S.C. § 1912(a); rule 1439(d), (f); Guidelines, supra, 44 Fed.Reg. at p. 67588, § B.5.)
A
The Agency Performed Its Duty to Inquire Into the Childs Indian Heritage
Under federal guidelines and California law, the court and the social services agency have an "affirmative duty" to inquire whether a child who is the subject of dependency proceedings "is or may be an Indian child." (Rule 1439(d); Guidelines, supra, 44 Fed.Reg. at p. 67588, § B.5.) The Agency is charged with obtaining "all possible information" about the childs Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 630 (Louis S.).)
Sonia contends that the Agency did not meet its duty to inquire into A.U.s Indian heritage. She concedes that the Agency interviewed maternal relatives and obtained sufficient information to complete the required form. However, Sonia maintains that the Agencys inquiry was deficient because the social worker summarized only A.U.s Mexican Indian heritage in an addendum report to the court, while information concerning A.U.s American Indian heritage was contained in the attached form JV-135 but not included in the reports narrative summary.
The record shows that the Agency interviewed several family members about A.U.s Indian heritage, completed the required form and presented it to the court for review, albeit belatedly. We presume that the court reviewed the form JV-135 as well as the narrative in the addendum report. Therefore the Agency fulfilled its duty of inquiry when it obtained "all possible information" about A.U.s Indian heritage and presented the results of its inquiry to the court. (Louis S., supra, 117 Cal.App.4th at p. 630.)
B
Notice to the Tribes Was Deficient
Sonia contends that notice to Indian tribes was deficient. We agree. The Agency must strictly comply with ICWA notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) Title 25 of the United States Code section 1912(a) provides:
"In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding."
Under California law, notice must be sent when there is "reason to believe the child may be an Indian child." (Rule 1439(f)(5).) "[T]he 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.) If the tribes location or identity cannot be determined, notice must be given to the BIA. (25 U.S.C. § 1912(a); rule 1439(f)(4); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.)
On November 8, 2005, at the scheduled permanency plan hearing, the Agency realized that it had not provided notice to the childs prospective tribes and requested a 60-day continuance in order to provide proper notice. On appeal, the Agency contends that it was not required to provide notice to the tribes because it properly notified the BIA. The Agency argues that the responsibility to research and investigate the identity of any tribe rests with the BIA, not with the Agency.
This position is untenable for two reasons. First, as discussed, ante, the Agency is charged with obtaining "all possible information" about a childs Indian heritage (see Louis S., supra, 117 Cal.App.4th at pp. 632-633) and identifying the childs tribe and prospective tribes whenever possible (see, e.g., In re Miguel E. (2004) 120 Cal.App.4th 521, 550; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 257; In re Marinna J. (2001) 90 Cal.App.4th 731, 737, 740.).) The Agencys duty includes researching the identity of tribes within a specific location as well as the history of non-federally registered tribes in the area to determine whether they have been absorbed into a federally registered tribe. (See, e.g., Louis S., supra, 117 Cal.App.4th at pp. 632-633.) The Agency may contact the BIA and/or any tribal entities if it requires assistance locating or identifying the childs prospective tribe. (See, e.g., In re Kahlen W., supra, 233 Cal.App.3d at p. 1420; Louis S., supra, 117 Cal.App.4th at pp. 632-633.)
The observations of the Louis S. court illustrate the extent to which a social service agency must attempt to fulfill its obligation to identify the childs tribe. "There are eight recognized Apache Tribes, but the Chiricahua Tribe is not one of them. (68 Fed.Reg. 68180 (Dec. 5, 2003).) The social worker contacted the San Carlos Apache Tribe, presumably to determine the affiliation of members of the Chiricahua Tribe. She learned members of the Chiricahua Tribe had blended with the San Carlos Apache tribe. If all members of the Chiricahua Tribe had merged with the San Carlos Apache Tribe, notice solely to that tribe is sufficient. (25 U.S.C. § 1912(a); rule 1439(f)(3).) However, the social worker did not represent that the San Carlos Apache Tribe absorbed all members of the Chiricahua Tribe. Further, the San Carlos Apache Tribe is located in Arizona, as are the Tonto and White Mountain Apache Tribes. (68 Fed.Reg. 68180 (Dec. 5, 2003).) Minors counsel represents the three tribes live in close proximity. We have no reason to doubt that representation. If it is true, the social worker should have determined whether any members of the Chiricahua Tribe were absorbed into either the Tonto or the White Mountain Apache Tribes or confirmed the San Carlos Apache Tribe absorbed all members of the Chiricahua Tribe. Once the social worker learns which tribe or tribes absorbed the Chiricahua, she need notice only those tribes. (25 U.S.C. § 1912(a); rule 1439(f)(3).) If the social worker cannot determine which tribes absorbed the Chiricahua, she should give notice to the BIA and the tribes she knows absorbed members of the Chiricahua Tribe. (25 U.S.C. § 1912(a); In re Edward H. [(2002)] 100 Cal.App.4th [1,] 4.) Serving the BIA eliminates the need to serve the remaining Apache Tribes. (25 U.S.C. § 1912(a); rule 1439(f)(4).)" (Louis S., supra, 117 Cal.App.4th at pp. 632-633.)
Contacting the BIA (or a tribe) for assistance in identifying the childs tribe does not substitute for proper notice. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422; 25 U.S.C. § 1912(a); rule 1439(f)(4).)
Second, in this case, county counsel asked the trial court to continue the proceedings to allow the Agency sufficient time to properly notify the prospective tribes. This suggests that the Agency had the ability to identify and notify the prospective tribes of the section 366.26 hearing. We conclude that the Agency properly understood its obligation to inquire into the identity of any "tribes of which the child may be a member or eligible for membership" and to provide notice to any prospective tribes. (Rule 1439(f)(3); see 25 U.S.C. § 1912.) In view the information contained in form JV-135 about A.U.s American Indian heritage and county counsels representation to the court that the Agency needed more time to provide notice to A.U.s prospective tribes, the courts determination that the Agency was not required to provide notice to prospective tribes was error.
C
In The Absence of a Determinative Response by the BIA, the Court Erred When It Did Not Wait 60 Days before Finding That the ICWA Did Not Apply
Sonia contends that the notice provided to the BIA was untimely. The Agency sent notice by registered or certified mail to the BIA of the November 8, 2005 permanency plan hearing on November 4. That hearing was continued to November 22, without further notice to the BIA. The Agency did not file with the court the proof of registered or certified mail, the return receipts, or any responses from the BIA. (Rule 1439(f).) The record does not reflect when the BIA received notice of the dependency proceedings. (§ 294, subd. (c)(3)).
Rule 1439(f) states in part: "The parent or legal guardian and Indian custodian of an Indian child, and the Indian childs tribe, must be notified of the pending petition and the right of the tribe to intervene in the proceedings, and proof of such notice, including copies of notices sent and all return receipts and responses received, must be filed with the juvenile court."
Rule 1439(f)(6) states:
"If, after a reasonable time following the sending of notice under this rule — but in no event less than 60 days — no determinative response to the notice is received, the court may determine that the act does not apply to the case unless further evidence of the applicability of the act is later received."
In the absence of a determinative response by the BIA to the notice sent on November 4, the court erred when it found on November 8 that ICWA did not apply. We therefore remand the matter with the following observations:
"`To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, [a social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Rule 1439(f).) Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA. [Citation.]" (In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703, quoting In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740.)
In any dependency hearing concerning foster care or termination of parental rights, the BIA is entitled to "fifteen days after receipt to provide the requisite notice to . . . the tribe." (25 U.S.C. § 1912(a), § 294, subd. (c)(3).) The hearing shall not be held "until at least ten days after receipt of notice by . . . the tribe." (rule 1439(h); see § 294, subd. (c)(2).) In computing these periods, the day of the hearing is included, and intermediate Saturdays, Sundays, and legal holidays are excluded. Legal holidays include state holidays. (Fed. Rules Civ. Proc., rule 6(a); In re H.A. (2002) 103 Cal.App.4th 1206, 1213.)
In this case, notice to the prospective Indian tribe or tribes was not provided in accord with federal and state law. (See 25 U.S.C. § 1912(a); § 294, subd. (c); rule 1439(f).) We are therefore compelled to reverse the judgment giving A.U. a permanent home and to remand the case for compliance with the requirements of the ICWA and with applicable state law. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1254-1255; see, generally, In re Francisco W. (2006) 139 Cal.App.4th 695, 704, 711.)
DISPOSITION
The judgment terminating parental rights is reversed. The matter is remanded to the juvenile court, with directions that it: (1) require the Agency to give proper notice under applicable federal and state law to any prospective tribes and the BIA, and file with the court the notices, return receipts, and any responses; (2) vacate the appointment of the guardian ad litem for future hearings in this matter; and (3) hold a new permanency plan hearing under section 366.26 hearing.
If, at the permanency plan hearing, the court determines that ICWA notice was proper and no Indian tribe seeks to intervene or otherwise indicates that the child is an Indian child as defined by ICWA, the court shall reinstate its findings and orders terminating parental rights. If, on the other hand, an Indian tribe determines that the child is an Indian child under ICWA, the court shall conduct the jurisdiction, disposition, and all subsequent hearings in accordance with ICWA and applicable state law.
We Concur:
BENKE, Acting P. J.
HUFFMAN, J.