Opinion
E043735
4-18-2008
In re D.L. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. S.L., Defendant and Appellant.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant. Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent. Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.
NOT TO BE PUBLISHED
INTRODUCTION
D.L. (born December 2000), T.M. (born January 2003), L.L. (born February 2004), and K.L. (born January 2006), all are sons of S.L. (mother), each having a different father. The three older boys were removed from mothers custody in October 2005; the youngest was detained shortly after his birth three months later. In July 2007, mothers parental rights were terminated. (Welf. & Inst. Code, § 366.26.) On appeal mother contends the juvenile court (1) failed to consider the childrens sibling relationship before terminating parental right, (2) committed prejudicial error in conducting the permanency hearing in the absence of her two older sons, and (3) failed to ensure adequate notice under the Indian Child Welfare Act (ICWA). We agree with mothers final contention and reverse on that basis.
The boys alleged fathers, Clarence D., Larry M., Gilbert M., and Juan E., respectively, are not involved in this appeal, nor were their whereabouts known at any time during the course of these proceedings.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Facts pertaining to the issue of ICWA notice will be presented later in this opinion.
In October 2005, when she was 25 weeks pregnant with her fourth child, mother sought hospital treatment for bleeding. As a result, she required monitoring for the safety of her unborn child. She also tested positive for methamphetamine, and her three children, who had accompanied her to the hospital, were detained and eventually placed together in a foster home. A dependency petition was filed under section 300, subdivisions (b) and (g).
When she was released from the hospital, mother moved into an inpatient substance abuse recovery home. While there, she visited with D.L., T.M., and L.L., and during those visits the social worker observed that mother and the boys shared "a close bond."
A jurisdictional hearing was held in November, at which mother entered a plea of no contest. The allegations of the petition were found to be true and the children were declared dependents of the court. Thereafter, although the court authorized the Department of Public Social Services (DPSS) to place the children with mother in her inpatient program, the children remained together in foster care. They did, however, visit mother in November, December, and January.
K.L. was born in January 2006, after which a dependency petition was filed as to him. He was permitted to stay with mother, who was still residing in a recovery home, while the older boys remained in foster care. At this time, mother was said to be making progress. Later that month, the court formally ordered K.L. placed with mother at her inpatient treatment program.
On February 8, 2006, the court granted the social workers request (to which all parties agreed) to provide for family maintenance services while the children resided with mother. Mother was said to have addressed her issues and had visited the children regularly.
After testing positive for methamphetamine on February 15, 2006, mother vacated the inpatient facility where she had been residing. At a hearing on March 9, 2006, the court took jurisdiction over K.L.; mother was not present, apparently having fled with the boys to Imperial County. The following day the court signed arrest warrants as to all four children.
On May 2, 2006, mother was located in an El Centro shelter, along with her children, who were removed from her custody and placed in two different foster homes. A supplemental petition was filed under section 387, (the social worker apparently anticipated that all four children would soon be placed together in the same foster home) and two weeks later, the court held a combined jurisdictional and a status review hearing. Mother did not arrive at court in time for the hearing, but her attorney submitted on a request to transfer the case to Imperial County, where mother then resided. The court found the allegations of the supplemental petition to be true and ordered the case transferred to Imperial County. Soon thereafter, the case was transferred back to Riverside County after mother, who was already on probation, was arrested for burglary and trying to pass a forged check, and was incarcerated in Indio jail; she was released on July 6, 2006, and placed on probation.
Mothers criminal background also includes charges arising from automobile theft, possession of a controlled substance, and receiving stolen property.
Thereafter, mother visited her sons on a regular basis. Following visits, however, upon the boys return to their foster homes, their aggressive behaviors would seem to escalate, and they would "often require a lot of redirection, separation from one another, and it [would] take[] longer for them to deescalate."
On October 31, 2006, DPSS recommended terminating mothers reunification services. One day earlier, T.M. and L.L. were placed in a prospective adoptive home in San Bernardino. Due to limited bedroom space in that home, D.L. was placed in a separate prospective adoptive home in the same city. K.L. remained in his Moreno Valley foster home. In January 2007, apparently in spite of the space limitations, K.L. was placed in the same home as T.M. and L.L.
Reunification services were terminated on November 16, 2006, and the court scheduled a permanency hearing for March 19, 2007. Mother thereafter visited with the boys, and was upset to learn that they were placed in different homes. The social worker indicated an intention to find a single home for all four children.
In March 2007, the social worker reported that D.L. had adjusted in his new home "to being a child versus a parent." During a February visit, D.L.s prospective adoptive mother told the social worker that "her older son makes a difference. The older son helps because D.L. has often been the older brother who had to watch out for his siblings and now he enjoys being the younger sibling." The report also indicated that in times past, D.L. would assume a parental role with his siblings and sometimes try to usurp the foster parents authority. The social worker was concerned that D.L. might act this way again if he were placed with his brothers.
The permanency hearing ultimately proceeded on July 25, 2007, having been continued several times, initially to allow preparation of preliminary adoption assessments. Those adoption assessments indicated that the prospective adoptive parents of T.M., L.L., and K.L., who had three children of their own, were open to allowing the boys to have continuing contact with D.L. As for D.L., his prospective adoptive mother wished to provide him with a loving and stable environment, and had exhibited ability for compassion and understanding of his individual needs. Although D.L. had not made a statement at the time of the report, he had been observed responding positively to his prospective adoptive mother, whom he called, "Mom," and was said to be happy and comfortable in her home. Moreover, his behavior had been improving since he was in that home.
Mother was present at the July 2007 hearing, in custody. Her attorney objected to termination of parental rights on two grounds: Mother anticipated being sent to a place where she could have the children with her; and inasmuch as D.L. was to be placed apart from his three brothers, the sibling relationship exception precluded terminating parental rights and freeing the children for adoption. No evidence was presented on her behalf.
Counsel for the children voiced an objection on the ground the two older children were not present, noting that she had expressly asked that they be present, and indicated that she "would consider doing a guardianship if they are going to separate the children."
After reading and considering DPSSs reports, the court terminated parental rights. In a written order, the court found, among other things, that termination of parental rights would not be detrimental to the children, that adoption was in the childrens best interests, and that none of the exceptions set forth in section 366.26, subdivision (c)(1) applied.
DISCUSSION
A. The Sibling Relationship Exception Does Not Apply.
Mother argues the court erred in not applying the sibling relationship exception codified in former section 366.26, subdivision (c)(1)(E)., The sibling relationship exception applies when the court finds a compelling reason for determining that termination of parental rights would be detrimental to the child due to "substantial interference with [the] childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (Former § 366.26, subd. (c)(1)(E).)
Effective January 1, 2008, the sibling relationship exception to termination of parental rights is codified at section 366.26, subdivision (c)(1)(B)(v). For purposes of clarity, we shall refer to it as former section 366.26, subdivision (c)(1)(E).
Mother also faults the court for not making an express finding with regard to the sibling relationship exception. We do not read the statute as requiring an express finding if the exception is found not to apply. Indeed, the Judicial Council printed form utilized for this purpose, i.e., Form JV-320, does not provide for a finding that an exception does not apply, only that an exception does apply.
"The parent bears the burden of showing that a sibling relationship exists and that its severance would be detrimental to the child. [Citation.] The existence of a relationship alone is not enough, but it must be `sufficiently significant to cause detriment on termination. [Citation.] If the court finds that there is a substantial detriment, it must `weigh the childs best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption. [Citation.]" (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)
Thus, making a determination as to whether the exception applies is a two-step process. The court first determines whether terminating parental rights would substantially interfere with the sibling relationship. Then, if the court determines that there would be a substantial interference, it must weigh the childs best interest in continuing the relationship against the benefits the child would enjoy in a permanent adoptive home. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) Accordingly, in the absence of a finding of substantial interference, there is no need to reach the second prong.
In deciding this issue, we apply the substantial evidence standard of review. (In re Jacob S., supra, 104 Cal.App.4th at p. 1017.) Under this standard, an appellate court must affirm the juvenile courts order if there is evidence that is reasonable, credible, and of solid value to support the order (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered "in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Mother contends the proposed adoption of the boys into two separate homes warrants application of the sibling relationship exception in that the boys shared common life experiences while living together for most of their lives and also had a strong, bonded relationship which was maintained even after they were separated in 2006. Quoting from In re Hector A. (2005) 125 Cal.App.4th 783, 796 (Hector A.), she contends the court failed to consider the fact the older boys "`had the shared experiences of homelessness [and] their mothers substance abuse. [Citation.]" She also points to the social workers report indicating that D.L. had taken a parental role toward T.M. and L.L.
In Hector A., parental rights were terminated as to four of six siblings, the remaining two (who opposed adoption) having unsuccessfully petitioned the court to allow them to participate at the permanency hearing in order to ask the court to maintain visitation with their siblings until they too were adopted. (Hector A., supra, 125 Cal.App.4th at p. 790.) On appeal, the court found that the trial court abused its discretion in refusing to allow the two siblings (ages nine and eight) to participate, but affirmed the order after finding that the trial court had nonetheless considered the ramifications of the sibling relationships. In making that decision, the court inferred that sharing experiences of homelessness and a parents substance abuse are among "the positive `indicators of the nature of the childs sibling relationships that must be . . . considered under [former] section 366.26, subdivision (c)(1)(E)." (Id. at p. 796.) Here, mother points to that language, insisting that it supports her position that the relationship between the siblings was crucial to the courts final decision. In Hector A., however, it was undisputed that the siblings had a close relationship. Moreover, "[a]t no point did any party to the dependency proceedings . . . suggest that interfering with the relationship would be inconsequential to the four children being considered for adoption." (Id. at p. 797.) Additionally, the two siblings who opposed adoption did not challenge the courts finding that adoption was in the best interests of the other four siblings. (Id. at p. 798.) Rather, the principal issue presented was whether the two siblings who opposed adoption had a right to participate at the permanency hearing involving the others. In short, Hector A. does not support mothers position.
We note that the ages of the siblings in Hector A. were 10, nine, eight, five, four and two; the three younger ones were considered too young to express an opinion. (Hector A., supra, 125 Cal.App.4th at p. 790.) In the present case, at the time of the permanency hearing the siblings were seven and one-half, four and one-half, three and one-half, and one and one-half years old.
Furthermore, simply because the boys lived together for a portion of their lives does not, without more, mean that they had a close relationship. Indeed, not all siblings derive a benefit from living together. In fact, the evidence here belies mothers position that the relationship between the siblings warranted application of the exception. What mother ignores is the social workers concern that permanently placing D.L. with his brothers might undo the progress he had made since he had adjusted to being a "child" rather than a "parent" to his brothers. In addition, he was enjoying his role as the "younger sibling" in the household. Mother also overlooks the fact that the prospective adoptive parents have every intention of fostering contact between the brothers in the future. Thus, the court could reasonably conclude from this evidence that separating D.L. from his brothers would not interfere with the sibling relationship and that it would actually have a positive effect upon D.L. In short, there is insufficient evidence that D.L. felt close to his siblings to the extent that he would rather give up a chance for a stable adoptive home than lose any relationship he had with them. We therefore conclude that substantial evidence supports the juvenile courts refusal to apply the sibling relationship exception.
B. By Not Raising the Issue Below, Mother Has Forfeited Her Right to Complain About the Older Boys Absence From the Hearing; However, Even if There Was No Forfeiture, Any Error Was Harmless Trial Error.
Mother fares no better with her second contention, that reversal is required because the juvenile court proceeded with the permanency hearing despite the absence of the two older boys, whose presence had been requested by their trial counsel. At the hearing, after the deputy county counsel submitted the matter for the courts consideration based upon the reports, counsel for the children stated: "The two older children were supposed to be present so I could speak to them. They are not here. So, I will object to the termination of parental rights. I would consider doing a guardianship if they are going to separate the children." No objection to the childrens absence was made on mothers behalf. Nor was a continuance requested on behalf of mother or the children.
Section 366.26, subdivision (h) requires a childs presence at the permanency hearing if requested by the child or his or her attorney, or if ordered by the court. Here, minors counsel merely "ask[ed] that D.L. [then seven and one-half] and T.M. [then four and one-half] be present in the childrens room at that hearing." Although the courts minute order states "Two oldest children to be present," their presence in the courtroom was not requested, although it can be surmised that counsel may have wanted either or both to testify.
Mother contends the error was prejudicial in that she was precluded from presenting evidence to support application of the sibling relationship exception. She further contends that, even if she were not prejudiced, the error was of the structural variety requiring a per se reversal. In response, DPSS argues mother lacks standing to assert this issue, that the issue was forfeited by failing to raise it below, and that any error is trial error subject to harmless error analysis.
1. Standing.
DPSS contends mother is not an aggrieved party because she has no legally cognizable immediate and substantial interest injuriously affected by the courts decision. Not so. "Generally, parents can appeal judgments or orders in juvenile dependency matters. [Citation.] However, a parent must also establish [that he or she] is a `party aggrieved to obtain a review of a ruling on the merits. [Citation.]" (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) "To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the courts decision. [Citation.] The injury must be immediate and substantial, and not nominal or remote. [Citation.] We liberally construe the issue of standing and resolve doubts in favor of the right to appeal. [Citation.]" (In re L.Y.L., supra, 101 Cal.App.4th at p. 948.)
A parent has standing to assert the sibling relationship exception to adoption under former section 366.26, subdivision (c)(1)(E), because he or she is a party directly aggrieved by a decision concerning whether that section applies in that it directly impacts the parents interest in reunification. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 948-950; In re Erik P. (2002) 104 Cal.App.4th 395, 402.) For the same reason, we fail to see why a parent who has standing to assert the exception cannot make the challenge asserted herein on the basis that the testimony of the two older children could arguably have affected the decision to terminate parental rights.
We note that appellate counsel for minors agrees that mother has standing, but asserts that the issue has been forfeited for failing to raise it below.
2. Forfeiture.
Citing In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339, DPSS contends mother waived the issue by failing to raise it in the juvenile court. We agree. Here, mother neither objected to the childrens absence nor asked to continue the hearing so that the children could be present at a later date, at which she would have an opportunity to establish that the sibling relationship exception applied. Nor do we construe counsels mere reference to "sibling relationship" in presenting argument as a substitute for raising the issue. Further, we find unpersuasive mothers contention that she "has not forfeited the issue on appeal inasmuch as the childrens trial counsel had brought the juvenile courts error to its attention," and that the juvenile courts opportunity to correct the error did not depend upon the children later filing their own appeal or upon a request for a continuance. Mother has provided no authority for the proposition that an objection by one party preserves the issue for another.
Moreover, in the absence of evidence, or even argument, as to why the court should consider applying the exception, the juvenile court had no basis upon which to make its determination—and we have no basis upon which to perform our role. The issue is therefore forfeited.
3. Harmless error.
In any event, if there was error at all, it was harmless trial error, not structural error. "`Trial error is error that occurs during the presentation of the case. [Citation.] An error that occurs during the trial process itself does not require automatic reversal because a court may quantitatively assess such error in the context of other evidence presented in order to determine whether the error was harmless beyond a reasonable doubt. [Citation.] [¶] In contrast, `structural errors involve `"basic protections, [without which] a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." [Citation.] [¶] . . . [¶] In dependency cases, the analogous equivalent of a conviction (loss of liberty) is the permanent termination of the parent/child relationship (loss of the right to parent)." (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 555-556 (Judith P.).)
Characterizing the error as structural, mother contends, citing Arizona v. Fulminante (1991) 499 U.S. 279, that in the boys absence the court hearing "could not reliably serve its function as a vehicle for determining whether parental bonds should be severed." According to DPSS, the boys absence was at most a mistake which hindered mothers ability to effectively present her case. We agree with DPSS. Unlike the error in Judith P., which involved the failure to give proper notice, the impact of the error here, if any, took place during the hearing—it did not prevent a hearing from taking place. Indeed, error of this nature permits "an after-the-event assessment of the error in relation to what did happen at the hearing." (Judith P., supra, 102 Cal.App.4th at p. 557.) Moreover, as DPSS points out, neither mother nor her attorney did anything to ensure the childrens presence.
Insisting that the error is structural, mother contends In re Naomi P. (2005) 132 Cal.App.4th 808 (Naomi P.) illustrates the difficulty with which the effect of the alleged error can be assessed. In that case, the juvenile court selected a permanent plan of legal guardianship based upon its finding that the sibling relationship exception applied. In affirming the decision, the appellate court found that substantial evidence supported the lower courts determination that guardianship was necessary to ensure continuation of the sibling relationship. (Id. at p. 824.) In particular, the reviewing court commented that the juvenile court had been given the opportunity to observe the demeanor of the children, specifically its "description of the older childrens `happy, joyful expression on their face when they talked about Naomi. The trial courts observation of such testimony constituted powerful demonstrative evidence that it would be in Naomis best interest to ensure continuation of the relationship." (Ibid.)
Focusing on that evidence, mother contends, "[t]he potential effect on the fact finder of a display of deep emotional feelings through a childs courtroom demeanor is beyond such assessment." Without discounting the impact of that testimony in Naomi P., we fail to see mothers point. She states: "Had the children been present to make statements pertinent to the parental or sibling relationships exceptions to adoption and indicative of the need to maintain parental or sibling bonds [citation], the juvenile court might well have been moved to issue an order short of adoption." Perhaps. But does that make it structural error? We think not. Indeed, the reports in the present case provided sufficient data about the children to enable the court to make a well-reasoned decision and to assess the effect of any error in relation to what did happen at the hearing.
By this reference, mother infers that the court also erred in not applying the subdivision (c)(1)(A) benefit exception. However, mother does not affirmatively raise this issue and we therefore do not address it.
Nonetheless,Naomi P. presented the sibling relationship exception in a different light. As the appellate court there observed, "Consideration of the published cases regarding the sibling relationship exception are of somewhat limited value to us because they all involve situations in which the court has found the exception inapplicable." (Naomi P., supra, 132 Cal.App.4th at p. 823.) The converse is true as well. Simply stated, the fact that the childrens demeanor in Naomi P. supported the juvenile courts finding that the exception applied does not mean that a childs demeanor is essential to enable the court to make a similar finding.
Having concluded that any error was trial error, we must determine if it was prejudicial. In making this determination, we note that it was not necessary to obtain the boys direct testimony regarding their wishes for a permanent plan. Indeed, it is permissible for the court to glean information from reports prepared for the hearing. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) Furthermore, mother acknowledges that the court was not bound by the childrens wishes because of their ages; however, citing section 366.26, subdivision (h)(1), she maintains the court was required to consider their wishes, along with their best interests. This the court did.
We note that DPSS analogizes this type of error to that of Penal Code section 2625 noncompliance, which is subject to harmless error analysis. (In re Jesusa V. (2004) 32 Cal.4th 588, 625.)
It is clear from the court reports and the adoption assessments that D.L. and T.M. were happy and thriving in their respective adoptive homes. D.L. said nothing about a relationship with his siblings, nor did T.M. say anything about his relationship with D.L. T.M. indicated that he understood that his adoptive parents would always take care of him and he seemed happy. More importantly, as we have previously indicated, the juvenile court could reasonably conclude that, in light of the boys past behavioral problems and despite DPSSs efforts to keep them together, it was to their benefit to be placed in different homes. We therefore conclude it is not reasonably probable the result would have been different had D.L. and T.M. been present in court on the date of the hearing and been asked about their wishes.
Attempts were made to comply with section 16002, which sets forth the legislative intent in keeping siblings together. At a review hearing in March of 2007, the court made a finding that the boys sibling relationships had been maintained under that section. However, as the record reflects, behavioral problems stood in the way of keeping the children in the same home.
C. Reversal is Mandated Due to Noncompliance With ICWAs Notice Requirements.
1. Pertinent Facts.
At the outset of the dependency proceedings, mother completed a Form JV-130. Although the form did not mention a particular tribe, she indicated that she may have Indian ancestry.
Following K.L.s birth, mother filed another Form JV-130, indicating "Fathers Mother [K.L.s paternal grandmother] is full blooded Cherokee."
DPSS then sent a Form JV-135 to "all three Cherokee Tribes" with regard to K.L. However, the form failed to identify either mothers paternal grandfather or K.L.s paternal grandmother. Three days later, mother informed the social worker that her paternal grandfather was a member of the Cherokee Nation in Oklahoma.
On February 16, 2006, DPSS transmitted a revised Form JV-135, this time providing information as to K.L.s maternal grandmother and his paternal grandfather, but omitting both K.L.s paternal grandmother and mothers paternal grandfather.
Early in April of 2006, mother apprised the social worker of possible Indian ancestry through her paternal grandmother, who she identified by name as a registered member of the Choctaw tribe. The social worker thereafter telephoned an individual at the Choctaw registry, who indicated there was no record of anyone with mothers name registered with the tribe, nor was mothers paternal grandmother affiliated with the tribe. The social worker noted that DPSS nonetheless was required to notice all Choctaw tribes.
Later that month, DPSS notified various Choctaw and Cherokee tribes. Mothers paternal grandfather, mothers paternal grandmother (referred to above), and K.L.s paternal grandmother were not identified.
Responses were received disclosing no Indian ancestry.
The court thereafter made no express finding as to ICWAs applicability, although DPSSs reports consistently stated that ICWA did not apply.
2. Applicable Law.
The purpose of ICWA notification requirements is to give tribes the opportunity to investigate and determine whether a child is an Indian child, and to advise the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) The failure to give any or proper ICWA notice will foreclose a tribes ability to participate. To that end, notice requirements are strictly construed and DPSS and the court have a continuing duty of inquiry until such time as the court finds a child is not an Indian child. (In re I.G. (2005) 133 Cal.App.4th 1246, 1254; Cal. Rules of Court, former rule 5.664(c)(3).)
"When a dependency court has reason to know the proceeding involves an Indian child, the Department must notify the Indian childs tribe, or, if the tribes identity or location cannot be determined, the Bureau of Indian Affairs, of the pending proceedings and of the right to intervene . . . . Notice must be sent to all tribes of which a child may be a member or eligible for membership. [Citation.]" (In re Brooke C. (2005) 127 Cal.App.4th 377, 383-384.)
Moreover, the fact that notice is given is meaningless if insufficient information is presented to the tribe to enable it to make the requisite determination. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) The notice must include all required information, including the childs name, date of birth, and place of birth; the names and addresses of the childs parents, grandparents, and great-grandparents, along with dates of birth or death and/or other identifying information. A copy of the dependency petition must also be provided. (Ibid.) It is the agencys responsibility to obtain as much information as possible about the childs potential Indian background and to provide that information to the relevant tribe or, if the name of the tribe is not known, to the BIA. (Ibid.) Failure to provide notice in a manner consistent with ICWA mandates reversal. (Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 416; In re Junious M. (1983) 144 Cal.App.3d at p. 796.)
3. DPSS Failed to Comply With ICWAs Notice Requirements.
Mother contends that reversal is mandated due to noncompliance with ICWAs notice requirements. Noting that she claimed Indian heritage through her paternal grandfather, she maintains that none of the JV-235 tribal inquiry forms identified him so as to enable the tribes to ascertain whether ICWA applied. She further argues that with regard to K.L., the form utilized by DPSS stated that no Indian heritage was being claimed with regard to K.L.s alleged father, which is inaccurate. DPSS acknowledges that mothers paternal grandfather was not identified; however, it insists it provided all known information and that it therefore complied with the notice. Contending that mother was ordered by the court to disclose to the social worker the names, addresses, and any known identifying information of any maternal or paternal relatives of the children, DPSS insists that in the absence of that information, it must be presumed that she failed to comply. As we shall explain, DPSSs position is flawed.
DPSS attempts to distinguish In re Louis S., supra, 117 Cal.App.4th 622, upon which mother relies, on the basis that the errors in that case were in providing known information. DPSS faults mother for not providing the information needed to enable DPSS to conduct its inquiry. DPSS further contends that it was mothers obligation to inform DPSS if she believed that the notices failed to provide known information about her paternal grandfather. In reply, mother argues the information was known to DPSS. Mother is correct.
The record discloses that early in March 2006, mother informed the social worker that she was staying with her father in his trailer and provided the social worker with the address. Mother also told the social worker that her fathers father—the relative alleged to have Indian ancestry—had suffered a stroke and was then in a local hospital. Mother contends this information "should have provided sufficient impetus for [DPSS] to have identified and interviewed the childrens hospitalized great-grandfather." We agree.
Moreover, mother also asserted potential Indian ancestry through both her paternal grandmother and K.L.s paternal grandmother. However, DPSSs inquiry notices failed to provide appropriate information as to these individuals as well. We are perplexed as to why, despite the ample record references, this data was repeatedly overlooked in the preparation of DPSSs inquiry notices.
In light of the foregoing, we are compelled under ICWA to reverse the order terminating mothers parental rights and to remand the matter to the juvenile court for the purpose of providing proper notice as required by law. "But this does not mean the trial court must go back to square one. It simply means the trial court must see to it that proper notice is given. If, after giving proper notice, it finds insufficient evidence that [the children are], in fact, [Indian children], it must reinstate its order terminating [mothers] parental rights. [Citation.]" (In re Suzanna L. (2002) 104 Cal.App.4th 223, 237.)
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded to the juvenile court so that the appropriate tribe(s) may be properly noticed of the proceedings. If, after proper notice, a tribe claims that any of the children are Indian children and seeks to intervene in the juvenile court proceedings, a further permanency hearing shall be held in accordance with ICWA. If, on the other hand, no tribe claims any of the children to be Indian children, or if no tribe seeks to intervene, the order terminating parental rights, which in all other respects is affirmed, shall be reinstated.
We concur:
RAMIREZ, P.J.
HOLLENHORST, J.