Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. DP014054, Dennis J. Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
RYLAARSDAM, ACTING P. J.
We reverse termination of the parental rights of Nathan M. to three-year-old Melanie S. for failure to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA). Father contends SSA did not properly comply with the notice provisions of ICWA. SSA concedes there were some deficiencies.
Welfare and Institutions Code section 224.3 provides that the court and SSA “have an affirmative and continuing duty to inquire” about whether a child for whom a section 300 petition been filed has or may have Indian heritage. If so, proper and complete notice must be given to the Bureau of Indian Affairs (Bureau), any applicable tribes, or both. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 994.)
In our case, the detention report stated that ICWA “does or may apply.” At the detention hearing, the court ordered SSA to investigate any Indian heritage and to send notice about both parents to the Bureau and proper Cherokee tribes. That same day, both parents advised SSA of Cherokee heritage. The notice SSA sent to the BIA and three Cherokee tribes showed father as the alleged father, although the court had already found he was the presumed father. Under ICWA, a parent of an Indian child is biological only. (25 U.S.C. § 1903(4); In re Gerardo A., supra, 119 Cal.App.4th at p. 994.) SSA acknowledges this was error and amended notices should have been served showing father’s correct status.
The notices showed the named maternal grandmother was Cherokee. Maternal and paternal great-grandparents, not named, were also shown as being Cherokee. However, SSA knew the name of the maternal great-grandmother because the child had been placed with her. ICWA was not satisfied when SSA failed to provide information it had about child’s Indian heritage to the Bureau or interested tribes. (In re Gerardo A., supra, 119 Cal.App.4th at p. 995.)
The notice also referred to an addendum, which showed the maternal great-great-great-grandfather was 100 percent Cherokee and the maternal great-great-grandfather was 50 percent Cherokee; both were identified by name. The notice stated this was the extent of the known information. Father suggests that the addendum may not have been included with the original notice because it stated that SSA had received the information one day after the notice was sent. But the response from one of the three tribes specifically refers to the disclosures of family members named in the addendum.
Each of the three tribes responded that it did not consider the child an Indian. In contemplation of the six-month review hearing the parties stipulated ICWA had been complied with and did not apply; at the hearing the court made such findings.
Prior to the continued six-month review hearing father notified SSA he had just learned his grandmother was of Cherokee heritage. SSA stated in its addendum report that it had forwarded the information to an ICWA group for research. The record contains no further mention of a follow-up or copies of any additional notices.
There is a continuing duty to provide notice if the court or SSA “has reason to know that an Indian child is involved . . . .” (Welf. & Inst. Code, § 224.3, subd. (d); see also § 224, subd. (b).) Further, even if there has been a determination that ICWA does not apply, if SSA or the court receives additional or contrary information thereafter that was not included in previous notices, amended notices must be sent. (Welf. & Inst. Code, § 224.3, subd. (f).) SSA concedes it had a duty to serve an amended notice.
Because these notice provisions are strictly construed, failure to give proper notice requires reversal. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) The order terminating parental rights is conditionally reversed and the case is remanded to the juvenile court with directions to order SSA to comply with ICWA notice requirements and to file all required documentation. After proper notice, if a tribe claims the child is an Indian child within the meaning of ICWA, the juvenile court shall proceed according to ICWA provisions. If, after proper notice, there is no response or a response indicates the child is not an Indian child, the order terminating parental rights shall be reinstated immediately. In all other respects the order is affirmed. Pursuant to the parties’ agreement, the remittitur shall issue immediately.
WE CONCUR: O’LEARY, J., ARONSON, J.