Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge, Super.Ct. No. INJ016873
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.
OPINION
King, J.
I. INTRODUCTION
Appellant Ricardo B. (father) appeals from an order terminating parental rights to his three children, R.B., M.B., and R.S., at a hearing held pursuant to Welfare and Institutions Code section 366.26. Mother of the children is not a party to this appeal. Father contends that the court violated the Indian Child Welfare Act (ICWA) and California law in failing to inquire of mother as to her Indian ancestry. We reverse.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Counsel for the children filed a letter brief joining in the San Bernardino County Department of Children’s Services’s (DPSS) arguments, and requesting that the orders made at the section 366.26 hearing be affirmed.
II. SUMMARY OF FACTS AND PROCEDURAL HISTORY
In January 2005, mother and R.B. were the subject of a child neglect referral to DPSS. A social worker concluded that the allegation of neglect was “unfounded.” However, the social worker determined that issues concerning mother’s outstanding bench warrant for probation violation and drug use called for DPSS involvement.
In February 2005, mother failed to appear for two drug tests. On March 1, 2005, she tested positive for methamphetamine. After she failed to appear in court on the bench warrant on March 15, 2005, the social worker lost contact with her and believed she had moved out of the area with the children.
On March 31, 2005, a search warrant for narcotics was executed at a home in Coachella. Another child of mother, 14-year-old G.S., was there. G.S. told the social worker that she thought mother might be in Niland, but did not have an address or telephone number for her. The social worker also spoke with the maternal grandmother, R.B. and M.B.’s paternal aunt, and G.S.’s father. There is nothing in the record to indicate that the social worker asked any of these people about any possible Indian ancestry or tribal affiliation.
G.S. and a fifth child, S.S., were involved in the dependency proceedings below. They have a different father, however, and are not subjects of this appeal.
In April 2005, DPSS filed a juvenile dependency petition under section 300 concerning the children. R.B. was three years old at this time, and M.B. was two years old. DPSS alleged that the children were within the juvenile court’s jurisdiction based upon allegations of mother’s substance abuse and abandonment of R.B., and that father failed to provide the children with adequate food, clothing, shelter, and medical treatment. The petition also alleged that father’s whereabouts were unknown. The form of the petition (JV-100 rev. January 1, 1991) includes a checkbox next to the statement, “Child may be a member of, or eligible for, membership in a federally recognized Indian tribe,” and a second checkbox next to the statement, “Child may be of Indian ancestry.” Neither of these checkboxes are checked.
Concurrent with the filing of the petition, DPSS filed a detention report stating that the whereabouts of mother, R.B., M.B., and S.S. is unknown. It further states that ICWA “does not apply.”
At the detention hearing, separate counsel was appointed for mother and the children. Neither mother nor father was present. The minute order of the proceedings states, “JV130 & JV140 to be filed with the Court.” Judicial Council form JV-130 calls for the parents to inform the court as to whether the parent or the child has Indian ancestry and whether the parent or the child is or may be a member of, or eligible for membership in, a federally recognized Indian tribe. The minute order further states, “The child(ren) does not come under the provisions of the Indian Child Welfare Act.” Our record does not include a transcript of oral proceedings of this hearing.
In a jurisdictional/dispositional report, the social worker stated that she has been unable to locate or interview mother. The social worker spoke with mother’s sister, who said she received a call from mother. According to the sister, when mother was “told that [DPSS] was looking for her and her children[,] she stated ‘Good luck catching me.’” The report states that ICWA “does not apply.”
Neither mother nor father were present at the jurisdictional/dispositional hearing. Mother’s counsel was present. The court found true the allegations in the petition, and ruled that the children were within its juvenile court jurisdiction. Reunification services were not ordered for mother or father because their whereabouts were unknown.
A six-month status review hearing was held in October 2005. DPSS again reported that ICWA did not apply. Neither mother nor father were present. Mother’s counsel appeared. There was no mention of any issues raised by ICWA at the hearing.
Mother gave birth to R.S. in Imperial County in January 2006. Both mother and R.S. tested positive for methamphetamine. Before the infant was detained by Imperial County child protective services, mother took her and left the area.
On March 29, 2006, a DPSS social worker found R.B. and M.B. at the Indio home of father’s parents. R.S., the infant, was also present. When father’s mother was asked about the identity of the infant, she replied that the infant was the child of a maternal aunt, Lucila O. DPSS immediately detained R.B. and M.B. Two days later, DPSS detained R.S., and placed her with the maternal grandparents.
A social worker spoke with father on April 3, 2006. He told the social worker that he had daily access to the children at his parents’ home, and acknowledged that he refused to contact DPSS regarding the children’s whereabouts. He said that he was R.S.’s father.
On April 4, 2006, DPSS filed a juvenile dependency petition under section 300 concerning R.S. The petition alleged mother’s substance abuse and father’s failure to protect the child from neglect and abuse. Neither of the checkboxes regarding Indian tribal affiliation or ancestry were checked. The concurrently filed detention report states: “The Indian Child Welfare Act does not apply. According to CWS/CMS and previous Juvenile Court proceedings, neither parent has Native American ancestry.”
At the detention hearing concerning R.S. held the following day, mother was not present. Mother’s counsel was present. Father was present with counsel. Our record does not include a transcript of the oral proceedings of this hearing. The court’s minute order states that “ICWA does not apply to this case,” and “JV130 & JV140 to be filed with the Court.” Father filed the JV-130 form that day, stating that he has “no Indian ancestry as far as I know.” The record does not indicate that mother ever received, completed, or filed a JV-130 form.
A jurisdictional/dispositional hearing concerning R.S. was held on April 19, 2006—12 months after the case commenced. DPSS again reported that ICWA “does not apply.” Mother and father were present at the hearing. This was the first time mother was present in court in this case. The parents were represented by separate counsel. No one asked mother whether she or any of her children had any Indian ancestry or tribal affiliation. It does not appear from the record that she was asked to complete form JV-130.
A review hearing for R.B. and M.B. was held immediately after the jurisdictional/dispositional hearing. In a report prepared for the hearing, DPSS reported that ICWA “does not apply.” Mother and father were both present. There was no mention of any issues raised by ICWA at the hearing.
In a report prepared for a review hearing set for November 16, 2006, DPSS again reported that ICWA “does not apply.” The report requested that the court find that “ICWA does not apply to this case.”
Mother was present at the review hearing. We do not have a transcript of the oral proceedings, and the court’s minute order provides no indication that any inquiry was made as to mother’s or the children’s Indian ancestry. Mother requested, and was granted, a contested hearing.
The contested review hearing was held on December 7, 2006. Father was present; mother was not. The court terminated services for the parents and set a hearing to be held pursuant to section 366.26. The transcript of the oral proceedings does not include any reference to ICWA. It does include the statement by the court that the court “adopts the recommendation and orders contained in the report regarding the review.” The minute order regarding the hearing includes the statement, “ICWA does not apply to this case.”
In DPSS’s section “366.26 WIC Report,” the agency reported that ICWA “does not apply.” DPSS requested a finding that “ICWA does not apply to this case.”
The section 366.26 hearing took place on March 22, 2007. Neither father nor mother were present. Their counsel did not object to DPSS’s report. The court found that the children would likely be adopted, and terminated the parents’ parental rights. ICWA was not mentioned. At the hearing, the court stated that it “adopts the orders contained in the report regarding the review.” The related minute order states, “ICWA does not apply to this case.”
III. Analysis
Father contends that DPSS and the court failed to inquire of mother as to her, and therefore the children’s, Indian ancestry as required by California law. Based on this record, we agree.
A. Legal Background
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) ICWA defines an Indian child as any unmarried person who is under age 18 and is either: (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C.A. § 1903(4).) When a court “knows or has reason to know that an Indian child is involved” in a juvenile dependency proceeding, the court must give the Indian child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C.A. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157 (S.B.).)
ICWA itself does not expressly impose any duty to inquire as to Indian ancestry. Neither do the controlling federal regulations. (See 25 C.F.R. § 23.11(a) (1994).) A federal source for a duty of inquiry is the Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 et seq. (Nov. 26, 1979)) (Guidelines). (See S.B., supra, 130 Cal.App.4th at p. 1158 .) The Guidelines provide that “the state court shall make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe.” (Guidelines, at 67588, part B.5. (a).) However, the Guidelines expressly provide that they “are not intended to have binding legislative effect.” (Id. at 67584.)
ICWA also provides that states may provide “a higher standard of protection to the rights of the parent . . . of an Indian child than the rights provided under [ICWA].” (25 U.S.C.A. § 1921.) Consistent with this provision, California law imposes on county welfare departments and the juvenile court “an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . is to be, or has been, filed is or may be an Indian child” for purposes of ICWA. (Cal. Rules of Court, rule 5.664(d).) Specifically, “[i]n dependency cases, the social worker must ask the child, if the child is old enough, and the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors.” (Rule 5.664(d)(2).) In addition, “At the first appearance by a parent . . . in any dependency case, . . . the parent or guardian must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).” (Rule 5.664(d)(3).)
All further references to rules are to the California Rules of Court. Rule 5.664 was formerly numbered rule 1439. As of January 2007, the duty of inquiry is also statutory. Section 224.3, subdivision (a) provides: “The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.”
1. The Social Worker’s Duty of Inquiry
Father argues that DPSS never made the inquiry of mother required by rule 5.664(d)(2). DPSS contends that the requisite inquiry can be inferred from the social workers’ repeated statements that ICWA “does not apply.”
We review factual findings in the light most favorable to the trial court’s order. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).) Indeed, “[w]e must indulge in all legitimate and reasonable inferences to uphold the [judgment]. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Our deference to the factfinder, of course, is not without limit. The substantial evidence standard requires evidence that is “reasonable in nature, credible, and of solid value.” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.) A judgment is not supported by substantial evidence if it is based solely upon unreasonable inferences, speculation, or conjecture. (Cf. People v. Anderson (1968) 70 Cal.2d 15, 23-24.)
There is no direct evidence in the record indicating that the social workers, the court, or anyone ever asked mother about any possible Indian ancestry or tribal affiliation. DPSS acknowledges that “there is no specific indication in the record of a conversation” regarding possible Indian heritage, but contends that we should infer from the social workers’ repeated statement that ICWA “does not apply” that the social workers made the requisite inquiry.
Initially, we observe that the statement that ICWA “does not apply” is ambiguous and permits at least two inferences. Under one interpretation of the statement, it simply means that (in the opinion of the social workers) the provisions of ICWA do not apply in this case; by itself, it offers no information as to whether the independent state law duty of inquiry has been fulfilled. For example, the notice provisions of ICWA apply when the court knows or has reason to know that the children are Indian children. (25 U.S.C.A. § 1912(a).) By stating that ICWA does not apply, the social workers might have intended to communicate merely that the court did not at that time know or have reason to know that the children are Indian children. That is, if no one has asked the parents about their Indian ancestry and reported their responses to the court (and the court is not otherwise aware of the child’s Indian ancestry), the court would not have known or have had reason to know that the children are Indian children; and the social workers could therefore honestly conclude that ICWA does not apply. If this interpretation is correct, the statement that ICWA does not apply does not imply that anyone has asked the parents anything.
It is also possible to construe the statement as encompassing not only the inapplicability of ICWA, but also an implied fact that the social workers fulfilled the duty of inquiry. (See, e.g., In re Aaliyah G. (2003) 109 Cal.App.4th 939 (Aaliyah G.); S.B., supra, 130 Cal.App.4th at p. 1154.) Arguably, a social worker charged with that duty would not inform the court that ICWA does not apply unless he or she had asked the parents about their ancestry. This possible inference is supported by the evidentiary presumption that official duties are regularly performed. (Evid. Code, § 664.)
As noted above, when we are reviewing a lower court’s ruling for substantial evidence and are presented with facts from which different inferences can be drawn, we must accept any inferences that support the ruling, provided the inference is reasonable. There are several reasons why, under the particular circumstances of this case, it is not reasonable to draw the inference that the social workers asked mother about her ancestry.
First, at the time the social worker first reported that ICWA does not apply, he had lost contact with mother for two or three weeks and could not have talked to mother about her ancestry during that time. The social worker did have previous contact with mother, including driving her to a drug testing facility in February 2005. DPSS contends that we should apply the presumption that official duties are regularly performed and infer that he talked with mother about her ancestry during that time. The presumption, however, does not apply in this situation. At the time the social worker was in contact with mother, he had no duty to inquire about mother’s Indian ancestry. That duty arises only when a dependency petition “is to be, or had been, filed.” (Rule 5.664(d), italics added.) The dependency petition was not filed until after the social worker lost contact with mother, and there is no basis for finding that a petition was contemplated, or “to be” filed, during the time the social worker was working with mother. Indeed, the social worker reported that the allegation in the initial child neglect referral “was unfounded.” Although “other issues emerged” that called for the social worker’s assistance, there is no hint in the social worker’s report that a dependency petition was in the offing. It was not until narcotics officers found 14-year-old G.S. during a drug raid—after the social worker lost contact with mother—that DPSS filed the petition initiating this case. Because the duty to inquire had not yet arisen, there was no “official duty” that we could presume had been “regularly performed.” (See Evid. Code, § 664.) Without the aid of this presumption, there is no reasonable basis for inferring that the social worker spoke with mother about her ancestry.
Second, even if, as DPSS contends, the social worker must have spoken with mother about her Indian ancestry prior to the time when he lost contact with mother, there is no suggestion in the record that the social worker had ever spoken with father. So, if the statement that ICWA does not apply implies that the requisite inquiry was made of the parents, then the statement would necessarily be incorrect because no inquiry could have been made of father as of the time of the social worker’s report. If the statement is not correct as to father, then it is not credible as to mother and cannot constitute substantial evidence of the fact that the social worker inquired of mother. We will assume, of course, that the social worker was not inaccurate or misleading when he stated that ICWA did not apply. With this in mind, the statement can be credible only if it implies nothing more than that ICWA did not apply, not the additional fact that the duty of inquiry had been fulfilled.
Third, although the DPSS reports repeatedly stated that ICWA “does not apply,” one report—the detention report regarding R.S.—states, “The Indian Child Welfare Act does not apply. According to CWS/CMS and previous Juvenile Court proceedings, neither parent has Native American ancestry.” (Italics added.) This language indicates that when the social workers intended to report that mother does not have Indian ancestry, they would say so and indicate the source of the information. Here, the basis for the social workers’ belief that the parents did not have Indian ancestry was based entirely upon sources other than inquiries of the parents. If mother had been asked about her Indian ancestry, we would certainly expect the social workers to include that fact along with the reference to the “CWS/CMS and previous Juvenile Court proceedings.” Thus, even if we could otherwise infer the required parental inquiry from the social workers’ reports that ICWA did not apply, the additional language in the detention report effectively rebuts that inference.
For these reasons, it appears to us that the only reasonable inference to be drawn from the social workers’ statements that ICWA “does not apply” is that the social workers intended to communicate just that, and nothing more. We cannot reasonably infer the additional fact that the social workers inquired of mother about her Indian ancestry.
DPSS contends that even if we conclude that the initial reports that ICWA does not apply does not support an inference that the social workers talked with mother regarding Indian ancestry, we should accept that inference once mother personally appeared in the case. By that time, the duty to inquire had arisen and we should, the argument goes, presume that the social workers complied with that duty. We reject this argument. The statement in the initial detention report that ICWA does not apply cannot mean, as we explained above, that the social workers made the requisite inquiry of mother. The social workers thereafter repeated the statement four more times during the ensuing 12 months while mother’s whereabouts remained unknown. Because there was no contact with mother during this time, we cannot infer in these reports that the social workers made the required inquiry. Indeed, any possibility of such an inference was negated when the social workers stated separately that mother did not have Indian ancestry “[a]ccording to CWS/CMS and previous Juvenile Court proceedings.” Following mother’s personal appearance in the case, the social workers simply returned to the practice of stating that ICWA “does not apply” in every report. DPSS, in essence, asserts that these words took on the additional meaning that the social workers asked mother about her Indian ancestry once she personally appeared in the case. We cannot agree. Under these circumstances, if the social workers meant to indicate that they asked mother about her ancestry, we would expect the social workers to use explicit language saying so. In light of these facts, it is not reasonable to construe or infer from the statements that ICWA “does not apply” made after mother’s appearance to include the additional meaning that the social workers had asked mother about her ancestry.
DPSS further argues that mother or her counsel never objected to the social workers’ reports that ICWA does not apply or offered contrary evidence. Initially, we note that the statement that ICWA does not apply was not necessarily objectionable. Unless the court knew or had reason to know that the children were Indian children, the statement appeared to be accurate. Moreover, even if counsel understood the statement as implying that the requisite inquiry had been made, we cannot assume that counsel for a parent will bring the Indian ancestry of their client to the attention of the court or object to the statements. By statute and rule, the duty of inquiry is placed squarely on the social worker and the court, not counsel. (§ 224.3, subd. (a); rule 5.664(d); see also Guidelines at 67584 [“the state court shall make inquiries”].) While attorneys are officers of the court, their primary obligation is to represent the interests of their client, not the interests of Indian tribes for whom the inquiry and notice requirements are principally designed to protect. These requirements “serve the interests of the Indian tribes ‘irrespective of the position of the parents’ . . . .” (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) An attorney of a parent who learns that the parent has Indian ancestry may well decide not to bring such ancestry to the attention of the court if the parent does not want the Indian tribe involved in the proceeding. In any case, the absence of an objection to the social worker’s reports or the failure of counsel to bring the client’s Indian ancestry to the attention of the court does not constitute evidence of compliance with the duty of inquiry.
DPSS relies upon three cases, Aaliyah G., supra, 109 Cal.App.4th 939, S.B., supra, 130 Cal.App.4th 1148, and Rebecca R., supra, 143 Cal.App.4th 1426. These cases are factually distinguishable. None of these cases involve any of the circumstances that render the inference of inquiry unreasonable in this case. It appears that social workers in these cases had contact with the parents around the time of the commencement of the dependency case when they had a duty to inquire of the parents. Nor was there any report in these cases indicating that the social worker’s belief that the parents had no Indian ancestry was based on sources other than the parents. Moreover, the court rule imposing the duty of inquiry in effect at the time of the dependency proceedings in each of these cases did not impose a “continuing” duty to inquire, and did not impose on the social workers the specific duty of asking the parents “whether the child may be an Indian child or may have Indian ancestors.” (Rule 5.664(d)(2).)
Father relies upon In re J.N. (2006) 138 Cal.App.4th 450. That case was governed by the amended court rule imposing a specific duty of inquiry on the social worker. The dependency petition in J.N. appears to have included the same ICWA-related checkboxes found on the petitions in this case. (Id. at p. 460.) As here, the boxes were not checked. (Ibid.) The appellant father submitted a form JV-130, but the mother did not. (Ibid.) The minutes of the detention hearing indicated that the court inquired of the father about the child’s Indian heritage, and concluded that the court had no reason to know that the child may be an Indian child for purposes of ICWA. (Id. at pp. 460-461.) The mother first appeared at the jurisdictional/dispositional hearing, and was not asked about her heritage. According to the Court of Appeal, the “social study prepared for disposition states that mother is of ‘Caucasian descent’ and father ‘is of Caucasian descent with no known American Indian heritage,’ but none of the social study reports state that mother was asked whether she had any Indian ancestry.” (Id. at p. 461.) Based upon these facts, the Court of Appeal concluded: “It is apparent from the record that mother was never asked whether she had any Indian ancestry.” (Ibid.)
The facts in the present case are analogous to those in J.N. First, in our case, as in J.N., the dependency proceeding began after January 2005 and is therefore governed by the amended rule. As in J.N., father in this case submitted a JV-130 form, but mother did not. Finally, R.S.’s detention report in the present case—indicating that the social workers’ determination that the parents had no Indian ancestry was based upon sources other than inquiry of the parents—is somewhat analogous to the report in J.N., which stated that the father was asked about his Indian heritage, but was silent as to mother. Indeed, the inference of no parental inquiry from R.S.’s detention report appears to be even stronger than the inference drawn from the report in J.N.
Based on the foregoing, we conclude that under the particular facts of this case as disclosed by the record, it is not reasonable to infer that the social workers asked mother about her or the children’s Indian ancestry or tribal affiliation based solely upon the social workers’ statements that ICWA does not apply. Because such an inference is unreasonable, the social workers’ statements are not substantial evidence that mother made the requisite inquiry.
2. Court’s Duty to Order Completion of JV-130
As set forth above, California law requires the court in a dependency case to order the parents to complete Judicial Council form JV-130 at their first appearance. (Rule 5.664(d)(3).) Here, mother first appeared at the jurisdictional/dispositional hearing for R.S. The court did not mention the JV-130 form, let alone order mother to complete it. There is nothing in the record to indicate that mother was told of or provided with the form, or told to complete the form, at any point in the proceedings. Nor does the record disclose any excuse or justification for the court’s failure to make the required order. By failing to do so, the court erred.
3. Affirmative and Continuing Duty to Inquire
In addition to the specific duties imposed upon the social worker in rule 5.664(d)(2) and upon the court in rule 5.664(d)(3), the rules of court (and, as of January 2007, section 224.3) impose upon both the social worker and the court the more generally phrased “affirmative and continuing duty to inquire whether a child . . . may be an Indian child.” (Rule 5.664(d).) We do not need to decide whether this language requires that an inquiry be made at each hearing. Here, the record indicates that the court made no effort to inquire of mother at any hearing or otherwise. Thus, even under a narrow interpretation of the rule, the affirmative and continuing duty requirement was not satisfied.
B. Prejudice
DPSS contends that if the duty of inquiry was not satisfied, it was harmless. Father again relies on J.N., and DPSS on Rebecca R.
As discussed above, the J.N. court concluded that the mother was never asked about her Indian ancestry. Reversal was required, the court explained, because it “refuse[d] to speculate about what mother’s response to any inquiry would be . . . .” (J.N., supra, 138 Cal.App.4th at p. 461.)
In Rebecca R., this court rejected the appellant father’s reliance on this aspect of J.N., stating: “The sole reason an appellate court is put into a position of ‘speculation’ on the matter is the parent’s failure or refusal to tell us. Father complains that he was not asked below whether the child had any Indian heritage. Fair enough. But, there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry. [¶] Father is here, now, before this court. There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not. [¶] In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. [Citation.] The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control. The ICWA is not a ‘get out of jail free’ card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands.” (Rebecca R., supra, 143 Cal.App.4th at p. 1431.) In the absence of an affirmative representation, the court concluded, “there can be no prejudice and no miscarriage of justice requiring reversal.” (Ibid.)
Rebecca R. is again distinguishable on this point. Essential to Rebecca R.’s prejudice analysis is the fact that the father was complaining on appeal that he was not asked about his Indian ancestry. Here, father does not argue that he was not asked about his Indian heritage. Indeed, he indicated below that he does not have any Indian ancestry. Rather, he contends that mother was not asked about her Indian heritage. Thus, unlike the situation in Rebecca R., we cannot say that the “knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge . . . .” (Rebecca R., supra, 143 Cal.App.4th at p. 1431.) Indeed, there is nothing in the record to indicate that father has any knowledge of mother’s ancestry. Mother, the parent who presumably does have knowledge about her ancestry, is not before this court. There is no basis for concluding that father could make the kind of representation or offer of proof called for in Rebecca R.
Under these circumstances, reversal is required.
IV. DISPOSITION
The order terminating father’s parental rights is reversed. We order a limited remand, as follows: The juvenile court is directed to order DPSS to ask mother whether the children may be Indian children or may have Indian ancestors. If, following such inquiry, the court knows or has reason to know that any of the children may be Indian children, the court shall order DPSS to give notice in compliance with ICWA and related federal and state law. Once the juvenile court finds that there has been substantial compliance with the notice requirements of ICWA, it shall make a finding with respect to each child as to whether the children are or are not Indian children. (See 25 U.S.C.A. § 1903(4).)
If at any time within 60 days after notice has been given there is a determinative response that any of the children are Indian children, the juvenile court shall find that such children are Indian children. (§ 224.3, subd. (e).) The court shall set a new section 366.26 hearing and conduct all further proceedings in compliance with ICWA and all related federal and state law.
If there is no determinative response within 60 days after notice has been given, or if there is a response that the children are not Indian children, the juvenile court shall find the children are not Indian children. (§ 224.3, subd. (e)(3).) As to any child the juvenile court finds is not an Indian child, the court shall reinstate the original orders.
We concur: McKinster, Acting P.J., Gaut, J.