Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. J39554
Bamattre-Manoukian, J.
Appellant is the biological father of the child who is the subject of this dependency proceeding. He appeals from an October 26, 2007 juvenile court order after remand finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) is not applicable in the proceeding, and reinstating a prior order terminating parental rights. He contends that the juvenile court order must be reversed because respondent Department of Social & Employment Services (the Department) and the court failed to comply with this court’s remand directions. He also contends that the court committed Marsden error, that he had a due process right to be transported for the October 26, 2007 hearing, and that he was denied effective assistance of counsel. As we find that the record does not support the juvenile court’s finding that the ICWA notice sent by the Department after remand was adequate, we will reverse the order and again remand the matter for the limited purpose of complying with the notice requirements of the ICWA.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
By order of March 4, 2008, we have taken judicial notice of the records in this court’s case Nos. H030430, In re L.D. (June 12, 2007, H030430) [nonpub. opn.], and H031213, In re Patricio S. on habeas corpus.
On December 9, 2004, the Department filed a petition under Welfare and Institutions Code section 300, subdivisions (b) [failure to protect], (g) [no provision for support], and (j) [abuse or neglect of sibling], as to then six-year-old L.D. The child’s mother was unable to provide stable housing for herself and L.D., and was noncompliant with services that had been previously ordered. Appellant had been sentenced to a four-year prison term on December 8, 2004, and was identified on the petition as the “alleged father.” His address was listed on the petition as the Delano State Prison with a Department of Corrections number.
Further unspecified statutory references are to the Welfare and Institutions Code.
L.D. was ordered detained on December 10, 2004. Appellant was not present at the hearing, and an attorney was appointed for him. Although the minute order for this hearing provides that notice was “given as required by law,” it did not appear from the record on appeal that appellant was given notice. L.D. was placed in foster care. No inquiry was made at the hearing as to either parent’s possible Indian heritage.
The jurisdiction and disposition hearing was held on March 11, 2005. The social worker’s report indicated that the ICWA did not apply. The report identified appellant as “an alleged father,” and noted that he was incarcerated at the Delano State Prison, but there was nothing in the record to indicate whether anyone at the Department had contacted appellant in prison. The report recommended no services be provided appellant. The court sustained the allegations in the petition and declared L.D. a dependent of the court. Family reunification services were ordered for the mother but not for appellant. There was no indication in the record that either the report or the notice of the hearing was sent to appellant in prison. Appellant’s appointed counsel was present at the hearing and told the court, “if I get any communication with the father, I’ll file those with the Court and give copies to Counsel.”
On May 23, 2005, the agency filed an application for an order for paternity testing. The application stated that the mother had named appellant as L.D.’s father, that appellant had informed the Department that he believed he was L.D.’s father, that appellant had requested paternity testing, and that appellant’s attorney was in agreement with the request. The court ordered the paternity testing.
The social worker’s report for the six-month review hearing set for August 12, 2005, did not mention that paternity testing had been ordered. The report simply repeated the information in the previous report and stated that appellant was not a presumed father. Notice of the August 12, 2005 hearing was served on appellant at the Delano State Prison. Appellant did not appear at the hearing, but his appointed counsel was present. The Department informed the court that the ordered paternity testing had not been completed; the Department had appellant’s DNA but L.D. had not been tested. The Department further informed the court that if appellant were found to be the biological father, the ICWA might apply, since appellant had indicated, apparently in a dependency proceeding involving another of the mother’s children, P., that appellant had Apache blood. The court changed the statement in the social worker’s report from “[t]he Indian Child Welfare Act does not apply” to “[t]he Indian Child Welfare Act MAY not apply.” However, the court did not order that any ICWA notices be sent. After all counsel submitted the matter on behalf of their clients, the court ordered a further six months of services for the mother.
In that proceeding, appellant was found to not be P.’s biological father.
On December 12, 2005, the court approved a travel request by the Department to allow L.D. to travel to Missouri to spend several weeks during the Christmas holidays with the family who was interested in adopting her. Appellant was notified by certified mail of the travel plans. His address was listed on the notice as the Pelican Bay State Prison.
On December 15, 2005, the Department sent ICWA notices to Apache and Yaqui tribes by registered mail. Apparently the mother had reported that she had Yaqui ancestry from her father’s family, and that appellant had Apache ancestry from his father’s family. Although 11 tribes were listed to receive notice, the record contained registered mail receipts from only 10 tribes. There is no record that the Tonto Apache Tribe was sent notice. Appellant was referred to in the ICWA notice as L.D.’s “presumed father,” and copies of the ICWA notice were also sent to appellant at the Pelican Bay State Prison.
On January 24, 2006, the Department noticed all parties, including appellant, that at the 12-month hearing set for February 10, 2006, it would recommend the termination of reunification services for the mother and the setting of a hearing pursuant to section 366.26 to terminate parental rights and determine a permanent plan for L.D.
The social worker’s report for the 12-month review hearing stated that responses had been received from seven tribes that L.D. was not eligible for enrollment, and that four tribes had not responded. The report referred to appellant as an “alleged father,” and noted that paternity testing had been requested and that appellant was in compliance. The report recommended that services be terminated for the mother, and that L.D. be placed with the family in Missouri who wished to adopt her and her half-brother P.
On February 10, 2006, the 12-month review hearing was continued because the mother had been incarcerated. Appellant’s attorney asked that appellant be transported from Pelican Bay for the hearing, but the court denied the request. At the continued hearing on February 17, 2006, the court terminated reunification services for the mother and set the matter for a section 366.26 hearing on June 9, 2006. Neither appellant nor his attorney were present at the continued hearing. The child’s attorney announced that he would “stand in” for appellant’s attorney, but nothing further was said on behalf of appellant. Counsel for the Department stated that appellant’s attorney had submitted the matter on appellant’s behalf at the previous hearing, but the record does not reflect this. Furthermore, the record does not indicate that appellant was notified of any rights he may have to file an extraordinary writ petition challenging the order setting the section 366.26 hearing.
On March 10, 2006, notice of the section 366.26 hearing was sent to appellant at the Pelican Bay prison. Notice was also sent to the tribes that had not yet responded to the ICWA notice, and to the Tonto Apache Tribe.
The social worker’s report for the section 366.26 hearing indicated that paternity test results were received on February 14, 2006, that showed that appellant was the biological father of L.D., by a 99.96 percent probability. The report further stated that ICWA notices had been sent to 11 tribes and that all of the tribes except one had responded stating that the child was not enrolled, and that the Fort Apache Tribe had not responded. Although the report stated that another certified letter was sent to this tribe on May 10, 2006, no copy of this second letter is in the record.
Appellant was present at the June 9, 2006 hearing, and requested a contested hearing. The contested hearing was held on July 14, 2006. At that hearing, appellant informed the court that he was unaware until January 2006, when the social worker made telephone contact with him, that L.D. had been placed in foster care. He said that he had never received any of the social worker’s reports. He said that he would be released in a year’s time and he asked the court to place L.D. with a family member. Alternatively, he asked that L.D. be placed with a family of Hispanic ethnicity so that she could be raised in a family of her own culture.
Counsel for the Department informed the court that appellant’s sister, L.D.’s aunt, had been considered for placement, but the Department wanted to place L.D. and her half-brother P. together, and the aunt had not communicated to the social worker a willingness to take both children. The court found by clear and convincing evidence that L.D. was adoptable and terminated the parental rights of the mother and appellant. The court made no findings regarding ICWA applicability, either in the written order from the section 366.26 hearing or on the record of the hearing.
Appellant appealed, contending that the Department failed to provide him adequate notice from the beginning of the proceeding and that such error warranted reversal of the jurisdiction order and all subsequent orders. He also contended that the Department failed to provide adequate ICWA notice. Lastly, he contended that his appointed counsel did not represent him competently and that the errors were prejudicial. He raised the same claim of incompetent representation in a petition for writ of habeas corpus, which we considered with the appeal and disposed of by separate order. (See Cal. Rules of Court, rule 8.264(b)(4).) Copies of the petition were served on counsel for the Department and appellant’s trial counsel. Attached as exhibit A to the petition was a declaration signed by appellant on February 6, 2007, that states in relevant part that he is the biological father of L.D.; that he told the social worker in P.’s dependency proceeding that he has Apache ancestors; that no one has asked him for information about L.D.’s Indian ancestry; and that the forms sent to the tribes did not include information that his family and he could have provided, “such as my middle name (Albert) and the place of my birth (Salinas, CA.) Though the social workers arranged at least one visit with my mother, they fail to give my mother’s full name and date and place of birth, which she would be able to provide. They fail to give my father’s middle name (Albert), and they fail to give his date and place of birth (August 16, 1951, California) his date and place of death (October 29, 1984, Solano County), and last known residence (Salinas, CA). They fail to give my paternal grandfather’s date and place of birth (March 17, 1910, California) and date and place of death (December 5, 1960, Monterey, CA).”
All further rule references are to the California Rules of Court.
The Department acknowledges receiving a copy of the petition.
In our June 12, 2007 opinion on appellant’s appeal, we concluded that, even if appellant had been properly noticed earlier in this proceeding, had been able to argue for a change in his status as an alleged father and had supported a placement for L.D. with his sister, based on the record on appeal, any failure in notice was not prejudicial beyond a reasonable doubt. We further concluded that there was not a reasonable probability that the result of the proceeding would have been more favorable to appellant in the absence of counsel’s alleged failings, so that appellant had not been able to establish that any deficiency in his representation resulted in prejudice.
However, we found that the inquiry and notice process in the proceeding did not substantially comply with ICWA requirements. “First, although it was apparently known by the mother that appellant claimed Apache heritage, the record does not show that any inquiry was made of appellant as to his Indian ancestry. The record contains no informational JV-130 form for either parent. No inquiry was made on the record when appellant appeared in these proceedings. And the social worker’s reports do not refer to any inquiry made of appellant. The social worker wrote that it was the mother who provided the information that appellant was Apache, possibly through his father’s side of the family. As we have noted, [former] rule 5.664(d) imposes on both the court and the social services agency ‘an affirmative and continuing duty to inquire’ as to whether a child may be an Indian child within the meaning of the ICWA. . . . Inquiry regarding Indian heritage is a key part of the ICWA’s notice provisions because it is the sole means of obtaining information that could trigger the notice requirement and provide a meaningful opportunity for the tribes to determine the child’s status. It is possible in this case that the only information appellant could have provided was that he had Apache blood through his father. But the record does not reflect that he was ever asked for any further information about his heritage. . . . We will therefore remand for compliance with the inquiry duty. If, after further inquiry, appellant does have further information regarding his Indian ancestry, it should be included in the ICWA notice to all of the appropriate tribes. [¶] We are also concerned that the Tonto Apache Tribe did not receive adequate notice. . . . [T]he notice that was sent was simply notice of a hearing and did not include any information whatsoever regarding the child’s parents or grandparents. . . . [¶] Finally, we are concerned that the juvenile court in this case made no finding regarding whether the ICWA did or did not apply.”
In our disposition we stated: “The February 17, 2006 order terminating reunification services and the July 14, 2006 order terminating parental rights are reversed and the matter is remanded to the juvenile court for the limited purpose of complying with inquiry and notice requirements of the ICWA. The juvenile court is directed to inquire of appellant as to whether the child L.D. is or could be an Indian child and to order the completion of Form JV-130. If appellant has no further information other than the name of his father and possible tribal affiliation, this information is to be included in notice sent to the Tonto Apache Tribe on Form JV-135. If appellant has additional information regarding his asserted Apache heritage, notice must be sent, including the additional information, to all relevant Apache tribes on Form JV-135. Respondent is directed to file proof of receipt of such notice by the tribe or tribes, along with a copy of the notice and any responses. When the tribe or tribes have responded, or the requisite time has elapsed, the juvenile court is to review the notices and responses and make a finding as to whether the notice was adequate and whether the ICWA applies. If any tribe determines that L.D. is an Indian child, within the meaning of the ICWA, the court shall conduct further proceedings in accordance with the ICWA. Otherwise, if the court determines that the ICWA does not apply, the order terminating reunification services and the order terminating parental rights shall be immediately reinstated.”
We summarily denied appellant’s petition for writ of habeas corpus. Appellant’s appellate counsel filed petitions for review of both the appeal and the habeas petition in our Supreme Court. The court denied the petitions on August 22, 2007, and the remittitur issued in the appeal on August 27, 2007.
Proceedings after Remand
On August 28, 2007, appellant sent a letter to the juvenile court stating in relevant part that he and his appellate counsel “have been struggling to stay in touch with my trial attorney for a while now. This lack of communication has kept me from knowing the progress or lack . . . thereof in my daughter’s juvenile dependency case. I am requesting at the advice of my appellate attorney as well as my own willingness that the court replace my trial attorney . . . . If he is replaced I will be able to have better communication with the court as well as my appellate attorney with the replacement if the court allows this. . . . [¶] Due to the lack of communication from my trial attorney I am also including in this letter some information that was sent to me by my appellate attorney . . . . The Court of Appeal has ordered the Juvenile Court to investigate my Indian Heritage and to send out new ICWA notices. I was told I should be hearing from the social workers and have not heard from them yet. If you would be so kind to look at the declaration I signed in the writ petition I filed with the Court of Appeal it includes information about my relatives and Indian Heritage. Thank you very much for taking the time to read my request as this has been a difficult time with this communication barrier. . . .”
Attached to the letter from appellant to the court was a letter to appellant from his appellate attorney, which states in relevant part: “I did some more research about your ancestors, and I came up with a Jesse S[.], who is Apache and Mexican and who is involved in Indian activities. Please look at the information I am enclosing. . . . I also found out that the California Birth Records list you as S[. [using an “e”]] rather than as S[. [using an “i”]]. . . . So you may have relatives with that spelling of the family name.” Appellant’s letter to the court and its attachment were received and filed in the court’s file on September 12, 2007.
On September 27, 2007, counsel for the Department filed a request for calendar setting of a hearing on October 26, 2007. The request states: “The case was reversed on appeal for the limited purpose of complying with the Indian Child Welfare Act. This hearing is to apprise the court of the Department’s compliance with the Appellate Court’s directive.” Although the bottom of the request lists five names, including appellant’s trial counsel, after “cc:” appellant’s name is not listed and no proof of service was attached to the request. The request does not state that the Department will be seeking reinstatement of the order terminating parental rights at the October 26, 2007 hearing.
On September 28, 2007, a form JV-135 was filed by the Department with the court. The form states that a section 366.26 hearing as to L.D. is set for December 7, 2007. There is no mention on the form of a hearing set for October 26, 2007. The form lists appellant’s name using an “e,” but without his middle name; appellant’s birthdate but not his birthplace; appellant’s father’s name, spelled with an “i,” not an “e;” and his father’s middle name but not his birthdate or birthplace. It also states that it is unknown whether appellant has acknowledged paternity and whether there has been a judicial declaration of paternity. The form lists the possible tribal affiliations and states that copies of the form were mailed to appellant at the state prison in Corcoran, to appellant’s trial counsel, and to the Tonto Apache Tribe.
The social worker filed an addendum report with the court on October 22, 2007, for the October 26, 2007 hearing. Attached to the report was a September 19, 2007 letter from the social worker to appellant at the state prison in Corcoran. The letter states that a form JV-130 is enclosed with the letter for appellant to complete and return in an enclosed envelope, but a copy of the form JV-130 is not in the record. Also attached to the report are certified mail return receipts for the copies of the form JV-135 sent to appellant and to the Tonto Apache Tribe, and a letter from the Tonto Apache Tribe stating that “[b]ased on the information that you provided, [L.D.] is not enrolled, and is not eligible for enrollment into the Tonto Apache Tribe. There is also no indication of ancestral history with the Tonto Apache Tribe.” There is no indication in the record that copies of the addendum report were sent to either appellant or his trial counsel.
Neither father nor his trial counsel were present at the October 26, 2007 hearing. Counsel for the Department asked the court to find that “the Department did comply with the Indian Child Welfare Act as well as the requirements of the Court of Appeal, and to reinstate the order terminating not only reunification services to the father [sic], but also parental rights . . . .” “According to the Court of Appeal, if there were no further information from the father that would affect the notice, then the only tribe we needed to renotice was the Tonto Apache Tribe . . . .” Counsel did not mention the JV-130 form sent to appellant, nor did counsel state that appellant had in fact not been able to provide further information that would affect the ICWA notice requirements.
The court stated: “I notice on the JV-135 filed September 28 that the notice indicates that the date of the next hearing would be a hearing on December 7 at 10:30. At first, I was a little confused, but then noticed that the tribe had responded timely, October 8th, and it’s easy to conclude they had until December 8 [sic] to make a response. . . . [¶] I’m considering that issue, and finding that the date of hearing, December 7 contained in the [J]V-135, does not appear to have affected any response from the father, nor would we consider that after . . . December 7th that any different response would be forthcoming. [¶] Given that it does appear, then that the Department has complied with all of its requirements under the Indian Child Welfare Act, I will go ahead and make that finding. And based on the information previously received from various noticed tribes, as well as the information received form the Tonto Apache Tribe by its communication dated October 8 of 2007, it does not appear that [L.D.] is a member of nor eligible for membership in any tribe. So I will make that finding as well. [¶] Given what has been complied with, then I will go ahead and reinstate the previous orders terminating parental rights as well.”
DISCUSSION
ICWA Inquiry and Notice
Appellant contends that the JV-135 notice sent to the Tonto Apache Tribe upon remand was incomplete, and that notice should have been sent to all of the Apache tribes. He argues that the JV-135 notice sent to the Tonto Apache Tribe did not include the page used for information about appellant’s grandfather (L.D.’s great-grandfather), and did not include other information appellant had made available to the Department, such as his middle name and place of birth, the alternate spelling of his last name, and additional information about appellant’s father and grandfather. The notice also included an incorrect date for the scheduled hearing, and an incorrect statement that it was unknown whether appellant acknowledged paternity. And, as the Department had and should have included information other than the name of appellant’s father and possible tribal affiliations, notice should have been sent to the other Apache tribes.
The Department contends that the inquiry ordered by this court was made and that it gave notice to the Tonto Apache Tribe as ordered. It further contends that since appellant provided the Department no information other that the name of his father and possible tribal affiliation, no other notice was required.
Both the court and the Department have “an affirmative and continuing duty to inquire” whether a child for whom a section 300 petition has been filed is or may be an Indian child. (§ 224.3; In re Nikki R. (2003) 106 Cal.App.4th 844, 849; In re N.E. (2008) 160 Cal.App.4th 766, 769.) An Indian child, within the meaning of the ICWA, is a child who is either a member of an Indian tribe, or is eligible for membership and is the biological child of a member. (25 U.S.C. § 1903(4); § 224.1, subd. (a).) Where a state court “knows or has reason to know” that an Indian child is involved in a section 300 proceeding, statutorily prescribed notice must be given to all tribes of which the child may be a member or eligible for membership. (25 U.S.C. § 1912(a); § 224.2, subd. (a)(3); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) At the time notice was originally sent in this case, and at the time the remittitur issued in appellant’s prior appeal, the notice was required to be provided on form JV-135. (Former Rule 5.664(f).) However, beginning January 1, 2008, notice is required to be provided on form ICWA-030. (Rule 5.481(b)(1).) Notice must be sent for every hearing whenever there is reason to believe that the child may be an Indian child, until there is a determination that the ICWA does not apply. (§ 224.2, subd. (b).) “The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings.” (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.)
California courts have adopted the federal rules as guidelines for what should be included in proper notice under the ICWA. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) “The notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner’s name; a statement of the right of the tribe to intervene in the proceeding; and information about 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, current and former addresses, tribal enrollment numbers, and/or other identifying information.” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116; 25 C.F.R. § 23.11(a) & (d); see form ICWA-030.) Where the notice fails to include information on the person who is alleged to be the source of Indian heritage, the notice is inadequate because “the tribes could not conduct a meaningful search with the information provided.” (In re S.M., supra, 118 Cal.App.4th at p. 1116.) “Notice is meaningless if no information or insufficient information is presented to the tribe.” (Ibid.)
As stated above, in the disposition of appellant’s prior appeal we directed the juvenile court to order completion of form JV-130 as to appellant. If appellant had no information other than the name of his father and tribal affiliation, notice was to be sent to the Tonto Apache Tribe on form JV-135. If appellant had additional information regarding his asserted Apache heritage, notice was to be sent, including all the additional information, to all relevant Apache tribes on Form JV-135. The court was to review the notices and the tribes’ responses and to make a finding as to whether the notice was adequate and whether the ICWA applies.
On remand, the court found that the Department complied with all ICWA notice requirements. We conclude that the court’s finding is not supported by the record. First, the form JV-130 that was to be completed by appellant is not part of the record. This especially concerns us as appellant informed the court in his letter filed September 17, 2007, that he had additional information “about his relatives and his Indian heritage.” Without having the form JV-130 before it, the court could not appropriately review the JV-135 notice sent to the Tonto Apache Tribe and make a finding as to whether the JV-135 notice included the additional information appellant had. Second, the Department acknowledges receiving a copy of the declaration appellant filed with his petition for writ of habeas corpus that was considered with his prior appeal. Thus, the Department cannot now claim that appellant did not provide the Department with the information included in the declaration. Yet, the information appellant included in the declaration about his relatives and his Indian heritage was not included in the JV-135 notice sent to the Tonto Apache Tribe. Third, because appellant made additional information available to the Department about his relatives and his Indian heritage, the Department should have sent the JV-135 notice with all the additional information to all possible Apache tribes, not just to the Tonto Apache Tribe. Fourth, neither appellant nor his attorney were present at the October 26, 2007 hearing, and it is unclear from the record whether either of them were notified that the Department intended to seek at that hearing reinstatement of the prior order terminating parental rights. Thus, appellant was not able to address the Department’s request at the hearing that the court find that the notices were adequate and that the court reinstate the order terminating parental rights.
We will therefore reverse the court’s October 26, 2007 order, and direct that the Department complete an ICWA-030 notice form with all the information appellant has already made available to it about his possible Indian ancestry. The Department shall then send the notice to appellant and all relevant Apache tribes and file proof of receipt of such notices, along with a copy of the notice and any responses. When all the tribes have responded, or the requisite time has elapsed, the juvenile court is to review the notices and responses and make a finding as to whether the ICWA notice requirements as set out by this court were complied with. If any tribe determines that L.D. is an Indian child, the court is to conduct further proceedings in accordance with the ICWA. Otherwise, if the court determines that the ICWA does not apply, the court is to reinstate the order terminating parental rights.
This includes the information included in the juvenile court file as well as information appellant provided the Department on form JV-130 and in the petition for writ of habeas corpus filed in this court and served on counsel for the Department. Appellant does not claim that he has any additional information.
Other Contentions
When the juvenile court initially ordered termination of parental rights, it ordered that appellant’s appointed counsel would be relieved 60 days after the hearing if no party filed a timely notice of appeal. As appellant filed a timely notice of appeal, appointed counsel remained his counsel of record. In that appeal, appellant contended that his appointed counsel rendered ineffective assistance. This court held that appellant had not established that any deficiency in his representation resulted in prejudice. In his letter to the juvenile court filed September 12, 2007, after the remittitur issued in that appeal, appellant asked the court to appoint him new counsel as his appointed counsel was not communicating with him. No action was taken on appellant’s request.
It is unclear from the record whether appellant and/or his appointed counsel received notice of the October 26, 2007 hearing and, if so, whether that notice indicated that the Department was going to recommend at the hearing that the previous order terminating parental rights be reinstated. It is clear that neither appellant nor his appointed counsel were present for the hearing, that a waiver of the right to be present signed by appellant or a prison official on his behalf is not in the record, and that no counsel present at the hearing claimed to be representing appellant’s rights.
Appellant now contends that because he clearly and unequivocally asked for appointment of new counsel, the court erred in failing to act on the request. He also contends that he was denied his statutory and due process right to be transported for the hearing, and that he was denied his right to representation by competent counsel at the hearing. The Department contends that the court did not err by not acting on appellant’s request because appellant’s letter was an improper ex parte communication and appellant made no proper request for appointment of new trial counsel. The Department further contends that appellant had no statutory right to be transported from prison for the limited remand hearing and that any error in holding the hearing in the absence of both appellant and his counsel was not prejudicial.
In a dependency proceeding, parents have a statutory right, and in some cases a due process right, to competent counsel. (§ 317.5, subd. (a); In re Meranda P. (1997) 56 Cal.App.4th 1143, 1153, fn. 6; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) Parents must have some mechanism for challenging the representation of their appointed counsel, or their right to competent counsel is meaningless. However, an exhaustive hearing as set forth in People v. Marsden, supra, 2 Cal.3d 118, for a defendant in a criminal proceeding, is not required in a dependency proceeding. It is only necessary that the juvenile court “make some inquiry into the nature of the complaints against the attorney.” (In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13.) Substitute counsel should be appointed when, and only when, in the exercise of the court’s discretion, the court finds that defendant has shown either that counsel is not providing adequate representation or that there is such an irreconcilable conflict between the parent and counsel that ineffective representation is likely to result. (See People v. Smith (1993) 6 Cal.4th 684, 696.)
“In any proceeding brought under . . . Section 366.26 of the Welfare and Institutions Code, where the proceeding seeks to terminate the parental rights of any prisoner, . . . the superior court of the county in which the proceeding is pending, or a judge thereof, shall order notice of any court proceeding regarding the proceeding transmitted to the prisoner.” (Pen. Code, § 2625, subd. (b).) “Upon receipt by the court of a statement from the prisoner or his or her attorney indicating the prisoner’s desire to be present during the court’s proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner’s production before the court. No proceeding may be held under . . . Section 366.26 of the Welfare and Institutions Code . . . without the physical presence of the prisoner or the prisoner’s attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative, stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding.” (Id., at subd. (d).)
In this case, the juvenile court could not make any inquiry into the nature of appellant’s complaints against his appointed counsel because neither appellant nor his counsel were present at the October 26, 2007 hearing. In addition, the record is unclear as to whether appellant and his counsel received adequate notice of the hearing and the Department’s intention at the hearing to seek reinstatement of the order terminating appellant’s parental rights. We found above that the court’s finding at the hearing that the Department’s new ICWA notice was adequate is not supported by the record, and that this is due in part to the absence of appellant and his appointed counsel at the hearing. Accordingly, appellant and/or his appointed counsel must be present at the hearing where the court reviews the new ICWA notices required by this court upon remand if the Department again recommends reinstatement of the order terminating parental rights at that hearing. (Pen. Code, § 2625, subd. (d).) In order to assure the presence of appellant and/or his counsel, the court shall issue an order that appellant be transported from prison for the hearing, and it retains the discretion to appoint new counsel for appellant.
DISPOSITION
The October 26, 2007 order reinstating the order terminating parental rights is reversed and the matter is remanded to the juvenile court for the limited purpose of complying with the notice requirements of the ICWA. The Department is directed to complete an ICWA-030 notice form with all the information we have described above that appellant has already made available to the Department about his possible Indian ancestry. The Department shall then send copies of the notice to appellant and all relevant Apache tribes and file proof of receipt of such notices, along with a copy of the notice and any responses. When all the tribes have responded, or the requisite time has elapsed, the Department shall request a hearing be set for the juvenile court’s review of the notices and responses and for the possible reinstatement of the order terminating parental rights, and shall file proof of service on appellant and his appointed counsel of that request. Upon the setting of the hearing, the juvenile court shall order appellant transported from prison for the hearing and may appoint appellant new counsel. If either appellant or his appointed counsel, or both, are present at the scheduled hearing, the juvenile court shall review the notices and responses and make a finding as to whether the ICWA notice requirements as set out by this court were complied with. If any tribe determines that L.D. is an Indian child, the court is to conduct further proceedings in accordance with the ICWA. Otherwise, if the court determines that the ICWA does not apply, the court is to reinstate the order terminating parental rights.
WE CONCUR: RUSHING, P.J., PREMO, J.