Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County Los Angeles County Super. Ct. No. CK39918, J. Stephen Czuleger, Judge.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Objector and Appellant L.R.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
L.R. (mother), mother of 18-month-old E.M., appeals from the juvenile court’s order terminating her parental rights to E.M. under Welfare and Institutions Code section 366.26. Mother contends that neither the juvenile court nor the Los Angeles County Department of Children and Family Services (Department) inquired about her or father Ernesto M.’s (father) potential Indian heritage in violation of the Indian Child Welfare Act (ICWA or Act). (25 U.S.C. § 1901, et seq.) Because the juvenile court did not comply with the ICWA’s inquiry requirements, we conditionally reverse the order terminating mother’s parental rights and remand this case with directions to the juvenile court to ensure full compliance with the ICWA.
All statutory citations are to the Welfare and Institutions Code unless otherwise noted.
Because mother challenges the termination of her parental rights solely on the asserted failure of the juvenile court and the Department to inquire about her or father’s Indian heritage under the ICWA, our recitation of the facts focuses on references to the ICWA in the record and related facts. We include a brief recitation of the facts that brought E.M. into the dependency system, and other contextual facts as needed.
On August 11, 2006, the Department filed a petition under section 300 alleging, among other things, that new born E.M. came within the juvenile court’s jurisdiction because mother had an 11-year history of substance abuse that periodically rendered her incapable of providing regular care for the child and that mother had failed to resolve her substance abuse problem. The petition also alleged that two of E.M.’s siblings were dependents of the juvenile court due to mother’s substance abuse, mother had failed to reunify with E.M.’s siblings, and mother had failed to comply with prior court orders regarding drug treatment and testing. The two boxes on the Judicial Council form dependency petition (form JV-100) relevant to E.M.’s Indian status were not checked. At the time the petition was filed, E.M. had been released from the hospital and his and mother’s whereabouts were unknown.
The August 11, 2006, Detention Report states, “The Indian Child Welfare Act does or may apply. Birth mother unavailable for questioning.” The September 7, 2006, Jurisdiction/Disposition Report also states, “The Indian Child Welfare Act does or may apply. Birth mother unavailable for questioning.” On September 22, 2006, through the due diligence efforts of the Department, E.M. and mother were found living with father at father’s parents’ home.
E.M. was placed with his paternal grandparents. In an addendum report dated October 31, 2006, the Department reported an interview with paternal grandmother in which she is reported as stating, “My son and the lady are not fit to be parents. They do not care what will happen to the baby. Many times when they fought, they would leave the house without telling us to take care of the baby. I love my son but he is an adult and should know what to do. It hurts me but I care more about the baby.” The paternal grandparents were reported to be “more than willing” to adopt E.M.
The March 29, 2007, adoption assessment, apparently prepared for the April 3, 2007, section 366.21, subdivision (e) six-month review hearing, contains a section entitled “Identifying Child Information.” Within that section are spaces for such identifying information as, among other things, the child’s name, date of birth, gender, ethnicity, religion, birthplace, legal status, ICWA eligibility, and tribe name. The space for ICWA eligibility states, “No.” The April 3, 2007, Status Review Report for the section 366.21, subdivision (e) six-month review hearing states, “The Indian Child Welfare Act does not apply.” At the April 3, 2007, six-month review hearing, the juvenile court terminated reunification services and set the matter on August 1, 2007, for a section 366.26 hearing to select and implement a permanent plan for E.M. The August 1, 2007, report for the section 366.26 hearing states, “The Indian Child Welfare Act does not apply.” At the section 366.26 hearing, the juvenile court terminated mother’s and father’s parental rights.
DISCUSSION
Mother contends that the order terminating her parental rights under section 366.26 was error because neither the juvenile court nor the Department inquired of her or father’s potential Indian heritage in violation of the ICWA. The Department does not dispute that the inquiry requirements of the ICWA were not complied with, but argues there was no prejudice. We agree that the juvenile court failed to comply with its inquiry obligations, and reverse the order terminating mother’s parental rights.
“In 1978, Congress passed the Act, which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.’” (In re Marinna J. (2001) 90 Cal.App.4th 731, 734, quoting 25 U.S.C. § 1902.) The Act “sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. When the dependency court has reason to believe a child is an Indian child within the meaning of the Act, notice on a prescribed form must be given to the proper tribe or to the Bureau of Indian Affairs, and the notice must be sent by registered mail, return receipt requested.” (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906, citing In re C.D. (2003) 110 Cal.App.4th 214, 222; In re Asia L. (2003) 107 Cal.App.4th 498, 506; 25 U.S.C. § 1912(a).)
“To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, DSS [the social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. ([California Rules of Court,] [r]ule 1439(f).) Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA.” (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.) “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. (2004) 117 Cal.App.4th 622, 630.) If proper notice under the Act is not given, the Indian child, the child’s parent or Indian custodian, or the child’s tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.)
Section 224.3 and California Rules of Court, rule 5.664(d) impose upon the Department and the juvenile court a continuing duty to inquire whether a child in dependency proceedings may be an Indian child under the ICWA. (In re J.N. (2006) 138 Cal.App.4th 450, 461.) 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.” Rule 5.664(d) provides, in pertinent part, “The court, the 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.” Rule 5.664(d)(3) provides, “At the first appearance by a parent or guardian in any dependency case, or in juvenile wardship proceedings in which the child is at risk of entering foster care or is in foster care, the parent or guardian must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).”
All citations to rules are to the California Rules of Court. Rule 5.664, in effect when mother’s parental rights were terminated, was repealed effective January 1, 2008. The ICWA’s provisions under the California Rules of Court are now contained in rules 5.480 through 5.487.
There is no indication in the record that the juvenile court inquired of mother or father whether E.M. has Indian heritage as required by section 224.3 and rule 5.664(d). The record also does not contain a completed Parental Notification of Indian Status (Juvenile Court) (form JV-130) for either mother or father as required by rule 5.664(d)(3).
The Department does not dispute that the juvenile court did not comply with the inquiry requirements of the ICWA. Instead, the Department argues that any error was harmless because mother does not claim that if she or father had been asked, they “would have provided information sufficient to trigger the ICWA notice requirements.” In support of its argument, the Department relies on In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, which held that to show prejudice on appeal, the appealing parent, in his appellate briefs “or otherwise,” must “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.” (Ibid.) Instead, we rely on In re J.N., supra, 138 Cal.App.4th at page 461, which rejected the argument that any error in failing to comply with the ICWA’s inquiry requirements was harmless when nothing in the record indicated the parent had any Indian ancestry. The Court of Appeal said, “[w]e refuse to speculate about what mother’s response to any inquiry would be . . . and instead remand the matter to the trial court with directions” to comply with the inquiry requirements and any resulting notice requirements under the ICWA. (Ibid.)
We are unaware of any rule of court that would allow such a procedure.
DISPOSITION
The order terminating mother’s parental rights is conditionally reversed. The matter is remanded to the juvenile court for the limited purpose of inquiring of mother and father whether E.M. is or may be an Indian child. If the inquiry produces evidence that E.M. is or may be an Indian child, then the juvenile court shall direct the Department to give notice of the underlying proceedings in compliance with the ICWA to the Bureau of Indian Affairs (BIA) and any identified tribes. (25 U.S.C. § 1912; rule 5.481(b).) The Department shall document its efforts to provide such notice by filing such notices and any and all responses received with the juvenile court. If the BIA or any tribe responds by confirming that E.M. is or may be eligible for Indian tribal membership, the juvenile court shall proceed pursuant to the ICWA. If the inquiry of mother and father produces no evidence that E.M. is or may be an Indian child, or there is no confirmation from the BIA or any tribe that E.M. is or may be eligible for Indian tribal membership, the juvenile court shall reinstate the order terminating mother’s parental rights as to E.M., and may proceed accordingly.
We concur: TURNER, P. J., KRIEGLER, J.