Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIJ119098, CK78042, Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
INTRODUCTION
K.K. (mother) appeals from orders denying her petition under Welfare and Institutions Code section 388 and terminating her parental rights to her son, E.B., born in November 2007. Mother contends the juvenile court abused its discretion by denying her section 388 petition seeking additional reunification services. She also argues the juvenile court erred in rejecting the beneficial parental relationship exception to adoption under section 366.26, subdivision (c)(1)(B)(i). In addition, mother argues there was noncompliance with the notice and inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
We agree there was noncompliance with ICWA investigation and notice requirements. We therefore conditionally reverse and remand for further proceedings in compliance with ICWA. We affirm in all other regards.
II
FACTS
E.B.’s mother was 17 years old and father was 18 years old when E.B. was born. Mother was a dependent of the juvenile court as a minor. She lived in a foster home until 2003, when she was placed with E.B.’s maternal great-grandmother (great-grandmother). Mother lived with great-grandmother until October 2007, when great-grandmother was arrested and charged with grand theft auto. Mother, who was pregnant with E.B., was temporarily placed with her maternal aunt.
On July 7, 2009, mother was arrested for child cruelty (Pen. Code, § 273a, subd. (a)) and for an outstanding warrant for failing to appear in court in a separate matter (Pen. Code, § 853.7). The Los Angeles County Department of Children and Family Services (LA Department) took E.B. into protective custody. Mother had just turned 19 years old and E.B. was one year and seven months old.
That same day, after mother was taken into custody for child endangerment, LA Department social worker Reyes Gaglio interviewed mother by phone. Mother said she was a dependent child herself and her guardian was great-grandmother. Father had not contributed toward the welfare of E.B. Mother explained that she left E.B. at home while she took out the trash and then went to her cousins’ home to visit. She did not know her cousins’ names. While at her cousins’ home, a neighbor told her the police were at her home. Only E.B. and mother were living in the apartment. Mother acknowledged her drug of choice was marijuana, which she had last used about three weeks before.
Gaglio also interviewed great-grandmother, who acknowledged she was mother’s guardian and had a criminal record. Great-grandmother said that, in January 2009, mother and E.B. moved to an apartment in Long Beach.
On July 10, 2009, the LA Department filed a juvenile dependency petition as to E.B., under section 300, subdivisions (b) and (g). The LA Department alleged in the petition that E.B.’s parents failed adequately to supervise and protect him. Mother left E.B. alone at home, with the oven on. In addition, mother was a current abuser of marijuana, preventing mother from adequately supervising and providing for E.B. Father allegedly had failed to provide the necessities of life for E.B. and was not living with mother and E.B.
On July 10, 2009, the LA Department also filed a detention report and addendum report. The LA Department reported that someone called the police and said that E.B. had been left at home alone. Officer Riordan reported to mother’s apartment to conduct a child welfare check. Riordan knocked on the door and no one answered. The apartment manager opened the door and Riordan found E.B., who was one year old, lying on the floor. He had a swollen forehead and a cut on his left toe. There were cats in the apartment. There were also exposed telephone and cable wires, and a black plastic bag, which was next to E.B. The oven was also on.
Mother showed up 10 minutes later. She had been a couple of doors down from her apartment. E.B. was removed from mother and placed in a foster home after mother was arrested for child endangerment for leaving E.B. alone at home. The LA Department concluded in its detention report that E.B. was at high risk of future neglect and abuse.
The addendum report stated that father had recently been caught taking money from an undercover officer during a drug transaction. The LA Department recommended that mother attend drug counseling with random drug testing, individual counseling and a parenting course. The LA Department also recommended monitored visitation.
At the detention hearing, the court ordered E.B. detained in foster care and ordered monitored visitation. The court further ordered the LA Department to provide reunification services and compliance with ICWA.
Mother missed two scheduled drug tests in July 2009.
On August 17, 2009, the LA Department filed an amended petition. The petition stated that father had a criminal history of arrests and convictions for drug related offenses and, in April 2009, had been convicted of transporting or selling a narcotic or controlled substance, a felony. Father was known to assist in selling rock cocaine and methamphetamine. Father’s drug selling activities placed E.B. at risk of harm.
The social worker reported in an interim review report filed on September 10, 2009, that E.B. remained in foster care. Mother sporadically visited E.B. As of August 13, 2009, mother had not visited E.B. for two weeks. Mother started out consistently visiting E.B. but this changed, with mother cancelling several visits in July and August. Father did not visit E.B.
The social worker further reported that E.B.’s family came to the attention of the LA Department on July 7, 2009, when someone called the police at 7:30 p.m. and reported that E.B. had been home alone for one or two hours. The Long Beach police found E.B. home alone, lying on the floor. Mother claimed she was gone only 10 minutes while throwing out the trash and then visiting a cousin next door. The social worker concluded it was obvious mother was not being truthful since mother was unable to state the name of the cousin and it was apparent that mother had been gone much longer than 10 minutes. The social worker also noted that mother reportedly smoked marijuana and did so in E.B.’s presence. Mother was referred for two drug tests in July 2009.
The LA Department reported in its jurisdiction hearing report filed on October 28, 2009, that mother’s visitation continued to be sporadic and inconsistent. She scheduled and cancelled visits at the last minute. Mother also continued to miss drug tests, including four tests in August, September, and October.
At the jurisdiction and disposition hearing on October 28, 2009, mother told the court that she lost her apartment after E.B. was taken into protective custody. As a consequence, she became homeless. The court noted that, because mother had been a dependent of the court, she was entitled to housing. The court declared E.B. a dependent of the court and suitably placed in foster care. The court ordered reunification services and monitored visitation for mother and father. The court dismissed the allegation mother abused marijuana. Mother, nevertheless, requested she be permitted to establish her sobriety by participating in drug testing. Mother was ordered to complete 10 clean drug tests over 10 weeks and, if any were missed or positive, mother was required to complete a drug treatment program.
On December 15, 2009, the trial court transferred the case from Los Angeles County to the Riverside County juvenile court, which accepted the transfer. The transfer was based on mother moving to Riverside County.
On March 23, 2010, the Riverside County Department of Public Social Services (Riverside Department) filed a six-month status review report recommending termination of reunification services and setting a section 366.26 hearing (.26 hearing). It was further recommended that visitation be changed to supervised visitation at least twice a month. The Riverside Department reported that mother was living with maternal grandmother. She was unemployed and attending Cosmetology school from 8:30 a.m. to 5:00 p.m., Monday through Saturday. The Riverside Department social worker was unable to maintain contact with mother until March 1, 2010. Father was homeless and his whereabouts were unknown. E.B. was doing well in his foster home.
The social worker reported that, when the social worker spoke to mother on March 1, 2010, mother said that she had not begun any services. Mother last saw E.B. over a week before and it had been one and a half months since she had last smoked marijuana. The social worker told mother it was urgent she meet with her, go over her case plan, and enroll in services. Mother asked to reschedule her appointment but never followed up. Mother’s visitation was inconsistent. The visits she did attend were good. Mother maintained regular telephone contact with E.B. She normally called him at least four times a week. Mother had not made any progress on her case plan. Mother had six months to submit 10 clean drug tests and failed to do so. The social worker concluded mother’s continued instability created a risk for E.B.
At the six-month review hearing on May 5, 2010, the court terminated reunification services and set a.26 hearing. Mother did not attend the review hearing.
In June 2010, E.B. was removed from his foster home, at his foster mother’s request, because of a conflict between the foster mother adopting E.B. and continuing her home daycare business. On June 23, 2010, E.B. was placed in a second foster home.
On August 12, 2010, the Riverside Department filed a.26 hearing report stating that E.B. was well-adjusted and happy in his new foster home. He had bonded with his foster mother and would cry when separated from her. Mother had maintained contact with E.B. After the case was transferred to the Riverside Department in January, mother reportedly visited E.B. only twice, on July 20, 2010, and August 3, 2010. E.B. did not display any emotion when the visits with mother ended. The social worker concluded E.B. was adoptable. The Riverside Department recommended terminating parental rights and approving a permanent plan of adoption.
On November 3, 2010, mother filed a section 388 petition seeking to reinstate reunification services and vacate the.26 hearing. The petition stated that mother had obtained appropriate housing in a transitional living program in October 2010. She had also enrolled in a parenting program, which she was due to complete in December 2010, and had attended five counseling sessions. In addition, she was attending a pharmacy technician program and had maintained visitation. Mother drug tested negative as a condition of participating in the transitional living program. Mother asserted that granting her section 388 petition was in E.B.’s best interests because mother had a bond with E.B., which would be strengthened by allowing her to reunify with him.
On November 3, 2010, the trial court heard and denied mother’s section 388 petition, concluding there had not been changed circumstances. Rather, mother was in the process of changing her circumstances, which was laudable, but not enough to warrant granting her petition, when it was not in E.B.’s best interests to do so. E.B. was doing well in his prospective adoptive home.
After denying mother’s section 388 petition, the court conducted the.26 hearing. Mother argued that the beneficial parental relationship exception to adoption under section 366.26, subd. (c)(1)(B)(i) applied. Mother’s attorney asserted that mother had maintained consistent visitation with E.B. E.B. calls her “Mom, ” and runs up to her. Before E.B. was removed from mother’s custody, E.B. lived with mother until he was one year and seven months old. Mother requested the court to grant legal guardianship rather than terminating her parental rights. The trial court found that it was likely E.B. would be adopted, that adoption was in E.B.’s best interests, and that the beneficial parental relationship exception did not apply. The court ordered parental rights terminated in favor of adoption.
III
CHANGED CIRCUMSTANCES PETITION
Mother contends the juvenile court erred in denying her section 388 petition. Specifically, mother argues she established changed circumstances and the requested order seeking reinstatement of reunification services was in E.B.’s best interest.
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both ‘“a legitimate change of circumstances”’ and that undoing the prior order would be in the best interest of the child. [Citation.] The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. [Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].)
In evaluating whether the petitioner has met his or her burden to show changed circumstances, the trial court should consider: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) These factors become less significant once reunification services have been terminated, as in the instant case. This is because, “[a]fter the termination of reunification services, ... ‘the focus shifts to the needs of the child for permanency and stability’ [citation]....” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Here, the juvenile court reasonably found that mother’s circumstances were in the process of changing, but they had not changed enough to delay proceeding with the permanent plan of adoption. “‘A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent... might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] “‘[C]hildhood does not wait for the parent to become adequate.’”’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
At the section 388 petition hearing on November 3, 2010, mother claimed changed circumstances based on recently obtaining transitional living housing, enrolling in a parenting program, participating in counseling, attending a pharmacy technician program, drug testing negative, and maintaining visitation with E.B. But these activities did not occur until shortly before mother filed her section 388 petition, and she had not yet completed most of these activities. Mother enrolled in the pharmacy technician program in September 2010. The scheduled completion date was in April 2011. At the time of the hearing in November 2010, mother had completed only six weeks of the 30-week program.
In addition, mother had only attended 5 one-hour counseling sessions, which took place over a one-week period in September 2010. Although mother alleged in her section 388 petition that she had enrolled in a parenting class, she did not provide any corroborating evidence of this. Furthermore, she had not yet completed the program. Mother stated in the section 388 petition she was due to complete the program in December.
Her housing consisted of leasing an apartment beginning on October 13, 2010, less than a month before the hearing on the section 388 petition and the.26 hearing. The housing was provided by the Lutheran Social Services Transitional Living Program, which required random drug testing. Mother did not provide any evidence that drug testing was actually a requirement of her housing or the terms of the drug testing requirement. There was also no evidence she had been tested, with negative results. Mother thus did not establish that she had complied with her case plan or court order to drug test, with negative results, or alternatively participate in a substance abuse program. Mother did not drug test until she was obligated to do so in order to qualify for the transitional living program.
The record also shows that mother did not consistently visit E.B. throughout the juvenile dependency proceedings. Visitation was sporadic and inconsistent, at least up until September 2010, although she did regularly talk to E.B. on the telephone.
The juvenile court did not abuse its discretion in denying mother’s section 388 petition in view of mother’s failure to supervise E.B. adequately, her history of drug abuse, her refusal to drug test until shortly before the.26 hearing, and her failure to complete her case plan, which included drug testing or participating in a drug treatment program. The evidence more than adequately supports the juvenile court’s finding that mother’s circumstances had not changed but, rather, were merely changing.
The trial court also appropriately determined it was not in E.B.’s best interest to grant mother’s section 388 petition. Mother’s visitation of E.B. had been sporadic and infrequent at times. Although she generally remained in contact with him, the record indicates that she did not maintain a significantly close bond with E.B. at the time of the hearing on the section 388 petition. E.B. reportedly showed no reaction when the visits ended and he had bonded well with his prospective adoptive mother. E.B. had lived apart from mother for almost as long as he had lived with her. E.B. was removed from mother when he was a year and seven months old, and had not lived with her for over a year and four months. During most of the time E.B. was not living with mother, she did not consistently visit him and the visits were supervised.
Based on these facts, the trial court appropriately found that it was not in E.B.’s best interest to prolong the dependency proceedings: “[A] child’s need for permanency and stability cannot be delayed for an extended time without significant detriment.” (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611.) E.B.’s need for permanency and stability could best be met by allowing him to be adopted by his prospective adoptive mother. There thus was no abuse of discretion in denying mother’s section 388 petition.
IV
TERMINATION OF PARENTAL RIGHTS
Mother contends the trial court committed reversible error in terminating her parental rights. Specifically, she claims she was not an unfit parent and the beneficial parent-child relationship exception applied.
A. Fitness as a Parent
Mother argues that her homelessness and use of marijuana were not valid grounds for finding her unfit as a parent. (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212-1213.) As stated in In re G.S.R., supra, 159 Cal.App.4th at page 1212, “[P]overty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction. As the Legislature expressly stated in section 300, subdivision (b), ‘no child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family....’ Put differently, indigency, by itself, does not make one an unfit parent and ‘judges [and] social workers... have an obligation to guard against the influence of class and life style biases.’ [Citation.]”
The record shows that mother’s housing or poverty was not the sole basis for finding her unfit as a parent. For over a year, mother failed to comply with her case plan and did not drug test or complete a drug treatment program. As requested by mother’s attorney, the court ordered mother at the jurisdiction hearing to provide 10 consecutive positive drug test results within 10 weeks, and if she failed to do so or tested positive for drugs, she would be required to complete a drug treatment program. This was requested as a means of dispelling allegations mother had a history of smoking marijuana, including in the presence of E.B. Mother failed to comply with the drug test order. She claims she began drug testing in October 2010, when required to do so as a condition of her interim housing. But there is no verification of drug testing and the alleged testing would not have begun until about two weeks before the.26 hearing.
Although the allegations that mother used marijuana were dismissed, there remained allegations that mother had not provided sufficient supervision and protection of E.B. Her history of using drugs, along with her failure to complete her case plan and drug test 10 times or complete a drug treatment program, supported a reasonable finding that there remained a significant risk that mother would not adequately care for E.B.
Mother had only recently begun to attend parenting classes, counseling, job training and education, and drug testing. She had not yet completed the parenting course, she had only resided in her apartment a couple of weeks, she had only begun attending her pharmacy technician program, she had not drug tested negative 10 times or attended a drug treatment program, she had only attended one week of counseling (5 one-hour sessions), and she was unemployed. Furthermore, mother had not, until relatively recently, maintained continued visitation with E.B. Under these circumstances, we cannot say the juvenile court abused its discretion in terminating mother’s parental rights.
While we commend mother for making an effort to change her ways and do those things that were required in her case plan to reunite with E.B., unfortunately she waited too long to begin the process: “... The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it. [¶] ‘The Legislature has expressed increasing concern with the perceived and accurate reality that time is of the essence in offering permanent planning for dependent children....’ [Citation.]” (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 250-251, quoting In re Debra M. (1987) 189 Cal.App.3d 1032, 1038-1039.) The risk remained that mother would not succeed in reuniting with E.B., who needed a safe, permanent, loving home.
Furthermore, under the California dependency statutory scheme, “[I] n order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated.” (Cynthia D. v. Superior Court (1993) 215 Cal.App.3d 242, 249-250 (Cynthia D.).) Those determinations were made here and no other findings were necessary. The juvenile court was not required to find at the section 366.26 hearing that there was clear and convincing evidence mother was an unfit parent.
In Cynthia D., supra, 5 Cal.4th 242, the mother challenged the statutory provisions allowing termination of her parental rights without showing clear and convincing evidence of parental unfitness. The California Supreme Court in Cynthia D. held that the California procedure for terminating parental rights satisfies due process even though the provision under which rights are ultimately terminated, section 366.26, does not require clear and convincing evidence of detriment to the child or parental unfitness. (Cynthia D., at p. 256.)
The court in Cynthia D. explained: “By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness.” (Cynthia D., supra, 5 Cal.4th at p. 253.) By the time a section 366.26 hearing is held, unfitness has already been determined at a disposition hearing by clear and convincing evidence under section 361, subdivision (c). Therefore, “[b]y the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness, let alone evidence that meets an elevated standard of proof.” (Cynthia D., at p. 256.)
Mother cannot now challenge on appeal the orders as to parental fitness entered prior to the.26 hearing because she did not appeal them or seek writ review. She therefore waived any challenge to the sufficiency of evidence supporting those orders, and is foreclosed from raising a challenge to parental fitness findings in this appeal. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151-1160; §§ 395, 366.26, subd. (l); Cal. Rules of Court, rule 1436.5(b).) Furthermore, there was sufficient evidence establishing that mother was an unfit parent, despite her recent efforts to change.
B. The Beneficial Parental Relationship Exception
Mother contends the juvenile court erred in rejecting the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)). This exception is often raised but rarely applies. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413.) While it can have merit in an appropriate case (e.g., In re S.B. (2008) 164 Cal.App.4th 289, 296-301), this is not such a case.
Generally, at a.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies when “termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
“When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental relationship would deprive the child of ‘a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’ [Citation.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
“‘[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.’ [Citation.]” (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) “‘A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.’ [Citation.]” (Id. at p. 937.) “We must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
“We... review[] the evidence most favorably to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (In re B.D., supra, 159 Cal.App.4th at p. 1235.) Because mother had the burden of proof, we must affirm unless there was “indisputable evidence [in her favor] no reasonable trier of fact could have rejected....” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
Despite the evidence that mother appropriately interacted with E.B. and the visits went well, the evidence simply was not sufficient to establish that E.B. was so bonded with mother that it would be in his best interest to forego the benefits of adoption. The record shows that mother did not consistently visit E.B., although she regularly talked to him on the phone. Mother did not see E.B. for lengthy periods of time, and when she did visit, the visitations were sporadic, monitored, and brief. During the dependency proceedings, E.B. lived in foster care apart from mother for over a year and four months. At the time of the.26 hearing, E.B. had bonded with his new prospective adoptive mother, with whom he had been living for over four months. The social worker reported that after visits, E.B. did not show any emotion when mother’s visits ended.
Sadly, over time, the parent-child bond that may have existed at the time of E.B.’s removal likely dissipated. While mother’s relationship may be beneficial to E.B. to some degree, any such benefit is not enough to prevent E.B. from being placed in a stable, permanent adoption home. Mother had only recently begun to comply with her case plan. She had not established changed circumstances and the evidence did not show that she had maintained a close bond with E.B. throughout the proceedings. Mother has not established that, at the time of the.26 hearing, the emotional attachment between her and E.B. was “that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.’ [Citation.]” (In re Jason J., supra, 175 Cal.App.4th at p. 938.) We thus affirm the trial court’s rejection of the beneficial parental relationship exception. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
V
ICWA NOTICE
Mother contends the LA Department failed to comply with ICWA by not interviewing E.B.’s maternal grandmother and great-grandmother to obtain information about E.B.’s Native American ancestry. We agree.
A. Background Facts and Procedure
In the detention report filed on July 10, 2009, LA Department social worker Reyes Gaglio reported that Indian child inquiry was made and E.B. has no known Indian ancestry. Gaglio reported that “the family” said, “We do not have any Native American in our family.” However, on July 10, 2009, mother filed a parental notification of Indian status form (Judicial Council form ICWA-020). She stated in the form that she might have Indian ancestry in the Cherokee and Blackfeet tribes. Father also filed a parental notification of Indian status form, stating he did not have any Indian ancestry.
On August 13, 2009, the LA Department mailed ICWA notices of a pretrial resolution conference (Judicial Council form ICWA-030). The notices were sent to three Cherokee tribes (Cherokee Nation of Oklahoma, United Keetoowah Cherokee, and Eastern Band of Cherokee), the Blackfeet Tribe, the Bureau of Indian Affairs (the BIA), and the Secretary of the Interior. According to the notices, mother was the sole source of the information in the notices. Additional information was requested from the maternal great-grandmother but she had not responded.
The LA Department’s jurisdiction/disposition report, filed on August 17, 2003, stated with regard to ICWA compliance that IWCA may or does apply because E.B. may have Cherokee and Blackfeet Indian ancestry. The social worker reported that mother said she believed she had Blackfeet Indian ancestry. The social worker attempted to contact the maternal great-grandmother to obtain additional information. On August 10, 2009, the social worker left a message for the maternal great-grandmother. There was no response. Three days later, ICWA notices were mailed to the Cherokee and Blackfeet tribes, and to the BIA and Secretary of the Interior. On August 14, 2009, the day after mailing the ICWA notices, the social worker interviewed E.B.’s maternal great-grandmother. No mention was made of the social worker inquiring as to E.B.’s Indian ancestry.
By letter dated August 21, 2009, the Blackfeet tribe notified the LA Department that E.B. was not an Indian child of the Blackfeet tribe since there was no record that his parents, maternal grandparents and/or great-grandparents were on the tribal rolls. The LA Department reported in its interim review report, filed on September 10, 2009, that it had also received responses from the Cherokee Nation, Eastern Band of Cherokee, and United Keetoowah Band of Cherokee Indians in Oklahoma, stating that E.B. was not an Indian child of their tribes.
B. Applicable Law
ICWA requires that when the court has reason to know that a child involved in the dependency system might be an Indian child, notice of the proceedings must be provided to the child’s tribe, or to the BIA if the tribal affiliation is unknown. (In re Francisco W. (2006) 139 Cal.App.4th 695, 702-703.) In providing the notice, “It is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]” (Id. at p. 703.) “The social worker has ‘a duty to inquire about and obtain, if possible, all of the information about a child’s family history’ required by 25 Code of Federal Regulations part 23.11(d)(3). [Citation.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116-1117; see also In re Louis S. (2004) 117 Cal.App.4th 622, 630.)
Title 25 of the Code of Federal Regulations part 23.11(d)(3) provides: “(d) Notice to the appropriate Area Director... shall include the following information, if known: [¶]... [¶] (3) All names known, and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information.” (Italics added.)
Under section 224.3, subdivision (c), if the juvenile court or social worker “knows or has reason to know that an Indian child is involved, the social worker... is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the [relevant] information....” (Italics added.) (See also Cal. Rules of Court, rule 5.481(a)(4)(A).) The circumstances that may provide reason to know a child is an Indian child include that “a member of the child’s extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (§ 224.3, subd. (b)(1); italics added.)
California Rules of Court rule 5.481(a)(4) states: “(4) If the social worker... knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable by:
“One of the purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. [Citation.] Notice is meaningless if no information or insufficient information is presented to the tribe to make that determination.... The burden is on the Agency to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S., supra, 117 Cal.App.4th at p. 630.)
C. Analysis
Here, the LA Department did not meet this burden of reasonably investigating E.B.’s Indian ancestry. The ICWA notices did not provide grandmother and great-grandmother’s former addresses or any information regarding maternal great-grandfather. Mother apparently did not know this information. The notices also did not provide any membership or enrollment numbers. The information on the notice form is based solely on information obtained from mother. The LA and Riverside Departments should have followed up on attempting to obtain further information from grandmother and great-grandmother regarding possible tribe names, membership/enrollment numbers, and their former addresses.
Although the record indicates the LA Department included in the ICWA notice all information in its possession, further inquiry was necessary, even after the Department sent the notices to the tribes. The LA Department should have asked great-grandmother about E.B.’s Indian ancestry when interviewing her on August 14, 2009. The record also indicates the LA Department did not make any effort to contact grandmother to inquire regarding E.B.’s Indian ancestry. Even after the ICWA notices were sent to the Cherokee and Blackfeet tribes, the trial court and LA and Riverside Departments had an ongoing duty to inquire (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a)), yet failed to do so.
Citing In re Christopher I. (2003) 106 Cal.App.4th 533, 566, the Riverside Department argues there was substantial compliance with ICWA notice requirements. But the case the court in In re Christopher I. relies on for the proposition that substantial compliance is sufficient, does not stand for that proposition. Rather, the court in In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421-1422 merely observed that certain out-of-state cases applying ICWA hold that substantial compliance with ICWA notice provisions obviated the need for technical compliance. But the Kahlen W. court also held that ICWA unequivocally requires actual notice informing the tribe of the proceedings and its right to intervene. (Ibid.) A case is not authority for a proposition that it does not decide. Therefore the Riverside Department’s reliance on In re Christopher I., supra, for the proposition substantial compliance is sufficient, is questionable, if not unfounded, particularly since the courts have repeatedly held that ICWA notice requirements are to be strictly construed. (In re Francisco W., supra, 139 Cal.App.4th at p. 703; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
More importantly, there was not substantial compliance under ICWA to reasonably investigate E.B.’s Indian ancestry. The LA and Riverside Departments had a continuing obligation to interview those who were initially unavailable but were expected to have information about E.B.’s Indian status or eligibility, including grandmother and great-grandmother. (§ 224.3, subd. (c).) This did not occur in the instant case. Although mother provided the LA Department with contact information as to the grandmother and great-grandmother, the LA Department did not interview them regarding E.B.’s ICWA ancestry. ICWA investigation was thus incomplete and not in compliance with ICWA investigation and notice requirements.
D. Harmless Error
The Riverside Department argues that any failure to comply with ICWA notice provisions was harmless error. We disagree.
Deficiencies in an ICWA notice are generally prejudicial but may be deemed harmless under some circumstances, which do not apply here. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162; In re E.W. (2009) 170 Cal.App.4th 396, 402-403.) For instance, a deficiency in ICWA inquiry and notice is harmless error when, even if notice has been given, the child would not have been found to be an Indian child or, despite defective notice, the tribe eventually took part in the proceedings. (In re S.B., at p. 1162; In re E.W., at pp. 402-403.)
Here, based on the incomplete investigation and information provided, it cannot be determined whether E.B. is an Indian child. The information provided to the tribes was incomplete as to grandmother and great-grandmother’s former addresses. It was also incomplete as to maternal grandfather and maternal great-grandfather, although mother indicated she believed they did not have Indian ancestry. Additional reasonable investigation, such as asking grandmother and great-grandmother about E.B.’s Indian ancestry, might have led to disclosure of information establishing that E.B. is an Indian Child. (In re Francisco W., supra, 139 Cal.App.4th at p. 702.) Grandmother and great-grandmother may be able to provide additional information, such as the names of additional tribes or bands, membership or enrollment numbers, and the former addresses of grandmother and great-grandmother.
We thus reverse the order terminating parental rights for the limited purpose of allowing the Riverside Department to conduct additional ICWA investigation and notice, and remand the matter for further proceedings in compliance with ICWA. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343; In re Francisco W., supra, 139 Cal.App.4th at p. 711.)
VI
DISPOSITION
The order terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order the Riverside Department to comply with the inquiry and notice provisions of ICWA and related federal and state law, and to file all required documentation with the juvenile court for review. Specifically, the Riverside Department is instructed to perform a reasonable investigation, including interviewing maternal great-grandmother regarding E.B.’s Indian ancestry, to obtain the information necessary to provide proper ICWA notice. (In re Francisco W., supra, 139 Cal.App.4th at p. 702.).
If, after reasonable investigation and proper notice, a tribe or band claims E.B. is an Indian child, the juvenile court shall proceed in conformity with the provisions of ICWA. If no tribe or band claims that E.B. is an Indian child, the order terminating parental rights shall be reinstated.
We concur: Hollenhorst, Acting P.J., Richli, J.
(A) Interviewing the parents, Indian custodian, and ‘extended family members’ as defined in 25 United States Code sections 1901 and 1903(2), to gather the information listed in Welfare and Institutions Code section 224.2(a)(5)..., which is required to complete the Notice of Child Custody Proceeding for Indian Child (form ICWA-030)” (Italics added.)