Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. JV-320178
Jenkins, J.
This is an appeal from the juvenile court’s order terminating the parental rights of appellant Sherry L. to her biological children, S.A. and T.M. For the reasons stated herein, we reverse the order and remand the matter to the juvenile court for the limited purpose of ensuring compliance with the notice and inquiry provisions of the Indian Child Welfare Act, 25 U.S.C. sections 1901 et seq.
We deny appellant’s motion to consider additional evidence (Cal. Rules of Court, rule 8.252(b), (c)), as we do not believe consideration of such evidence is necessary for resolution of the issues she raises on appeal. (In re Robert A. (2007) 147 Cal.App.4th 982, 990 [“Appellate courts rarely accept postjudgment evidence or evidence that is developed after the challenged ruling is made. (See In re Zeth S. (2003) 31 Cal.4th 396, 405, 413–414 [2 Cal.Rptr.3d 683, 73 P.3d 541].) This is so in part because an appellate court reviews the correctness of a record that was before the trial court at the time it made its ruling. (Id. at p. 405.)”].)
FACTUAL AND PROCEDURAL BACKGROUND
On November 13, 2007, the Lake County Department of Social Services (the Department) filed a juvenile dependency petition, alleging that S.A., born in May 2005, came within Welfare and Institutions Code section 300, subdivision (b) (failure to protect), subdivision (d) (sexual abuse) and subdivision (g) (no provision for support). According to the petition, appellant, who is developmentally disabled and shows signs of mental illness, placed S.A. at substantial risk of serious physical harm or illness. In particular, appellant had made poor parental choices, including allowing S.A. to be cared for by two registered sexual offenders, her current boyfriend and father of her unborn child, Thomas B., and her former boyfriend, Robert L. Thomas B.’s unsupervised contact with S.A. violated the registered sex offender restrictions placed upon him following his conviction for committing lewd and lascivious acts upon a child under the age of 14. Nonetheless, on November 3, 2007, appellant, distraught over the possible loss of her fourth child to Child Protective Services, threatened to give custody of S.A. to Thomas B. and then to commit suicide. Appellant also left S.A. with an acquaintance who was severely physically disabled and unable to care for the minor when appellant was hospitalized due to complications with her pregnancy.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code. Unless otherwise stated, all citations to Rules herein are to the California Rules of Court.
Appellant had four other children, with different fathers, involved in the dependency system. The whereabouts of S.A.’s biological father was unknown.
Appellant had been diagnosed with having placenta plevia, and was advised by her doctor not to have sexual intercourse during the remainder of her pregnancy. According to the petition, appellant failed to follow that medical advice, causing her to be hospitalized for excessive bleeding and placed on mandatory bed rest.
At the initial hearing in this case on November 14, 2007, the juvenile court appointed counsel for appellant, who was still hospitalized due to pregnancy complications and did not appear. The juvenile court then found that a prima facie showing had been made that S.A. came within the provisions of section 300, and thus ordered her detained and placed temporarily in a suitable foster home. The juvenile court also ordered appellant to disclose the names and contact information of her relatives for S.A.’s possible placement.
On December 10, 2007, a jurisdictional hearing was held. Appellant, who remained hospitalized, was not present but was represented by counsel. Following the hearing, the juvenile court found true the allegations in the petition, found that an inquiry had been made regarding whether S.A. was an Indian child, and continued her out-of-home placement.
On January 18, 2008, the Department filed a second petition alleging that T.M., born in January 2008, came within section 300, subdivision (b) (failure to protect), subdivision (d) (sexual abuse), subdivision (g) (no provision for support), and subdivision (j) (abuse of sibling). According to this petition, T.M. was “born premature” with some medical concerns due to appellant’s failure to comply with medical orders not to engage in sexual intercourse and to remain on bed rest. The petition further alleged that T.M.’s alleged father, Thomas B., was unable to provide adequate care and shelter due to his history of repeated incarcerations on convictions that included felony sexual abuse of children under the age of 14. At that time, Thomas B. was incarcerated at San Quentin State Prison for parole violations stemming from a felony sexual abuse conviction. The petition also noted that T.M.’s five half-siblings, including S.A., had been abused and neglected.
Following a hearing on January 22, 2008, the juvenile court detained T.M. and, as before, ordered appellant to disclose the names and contact information of her relatives for the minor’s possible placement.
On March 3, 2008, a jurisdictional/dispositional hearing was held with respect to both S.A. and T.M. (collectively, the children). In anticipation of the hearing, the Department filed a report which, among other things, attached two psychological assessments of appellant finding that she was mildly mentally retarded, had an IQ of 60, and likely would not benefit from reunification services or be able to develop the necessary skills for effective parenting. Appellant was present at the hearing and testified on her own behalf. Afterwards, the juvenile court, consistent with the Department’s recommendations, ordered that the children be removed from appellant’s custody and that no reunification services be provided. In addition, the juvenile court found that inquiry had been made regarding the children’s Indian status, and that the Indian Child Welfare Act did not apply. The juvenile court thus set a section 366.26 permanency planning hearing for June 30, 2008.
On March 6, 2008, appellant filed a notice of intent to file a writ petition to challenge the dispositional order and the setting of the section 366.26 hearing. However, no such petition was forthcoming, and the section 366.26 hearing went forward as scheduled on June 30, 2008.
In the section 366.26 report, the Department noted, among other things, that the children were placed together in a foster home, and appeared bonded to each other and to their foster parents. The Department opined that it was likely the children would be adopted by their foster parents.
Following the section 366.26 hearing, the juvenile court found the children likely to be adopted and terminated appellant’s parental rights to them. This appeal followed.
DISCUSSION
Appellant raises two issues on appeal. First, appellant contends the juvenile court failed to comply with the requirements of section 361.3, which codifies the legislative preference for placement of dependent children with suitable relatives. Second, she claims the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act, 25 U.S.C. sections 1901 et seq. (the ICWA). Each of these errors, appellant claims, provides an independent basis for reversing the order terminating her parental rights. We address each contention in turn.
I. The Relative Placement Preference (Section 361.3).
“When a child is removed from parental custody, the child’s relatives are given preferential consideration for placement, whenever possible. (§§ 361.3, subd. (a), 16000, subd. (a), 16501.1, subd. (c)(1); see also § 309 [mandating detention with a responsible relative]; Fam. Code, § 7950, subd. (a)(1) [‘Placement shall, if possible, be made in the home of a relative, unless the placement would not be in the best interest of the child’].)” (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1055.)
Section 361.3 provides in relevant part: “(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. [¶¶ ] . . . The court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child. This inquiry shall not be construed, however, to guarantee that the child will be placed with any person so identified. The county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them. Those desiring placement shall be assessed according to the factors enumerated in this subdivision. The county social worker shall document these efforts in the social study prepared pursuant to Section 358.1 . . . . [¶¶ ] (c) For purposes of this section: [¶] (1) ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated. [¶] (2) ‘Relative’ means an adult who is . . . a grandparent, aunt, uncle, or sibling.” (§ 361.3, subd. (a), subd. (c).)
“It is well established that the relative placement preference found in section 361.3 does not apply after parental rights have been terminated and the child has been freed for adoption.” (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031.)
“[T]he abuse of discretion standard should be applied to the review on appeal of the juvenile court’s determination regarding relative placement pursuant to section 361.3. Such a determination, like decisions in custody cases, involves primarily factual matters and a judgment whether the ruling rests on a reasonable basis. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only ‘ “if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.” [Citations.]’ [Citation.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Here, appellant claims the juvenile court erred by failing to comply with the requirement of section 361.3 that relatives be given preferential consideration when placing a dependant. In particular, appellant claims both the juvenile court and the Department, acting as an “arm of the court,” failed to identify and contact her relatives before proceeding with a permanent plan of adoption and terminating her parental rights. The Department, however, claims appellant has forfeited the right to raise a claim pursuant to section 361.3 by failing to do so below. The relevant facts are as follows.
At the hearing on November 14, 2007, when S.A. was initially detained, the juvenile court, pursuant to section 361.3, subdivision (a), ordered appellant “to disclose all known paternal and maternal relatives including names, addresses, telephone numbers, and any other information that would be helpful for locating such relatives for possible placement of the child.” Appellant was not present at that hearing; however, her appointed counsel, Karen Evans, was present on her behalf.
At the January 22, 2008, hearing when T.M. was initially detained, the juvenile court again ordered appellant to “disclose all known paternal and maternal relatives including names, addresses, telephone numbers, and any other information that would be helpful for locating such relatives for possible placement of the child.” (§ 361.3, subd. (a).) Appellant was again absent from the hearing, but was represented by counsel.
On February 29, 2008, the Department filed a jurisdictional/dispositional report, served the same day on appellant’s attorney, advising as follows: “There have been no relatives come forward to ask for placement of [S.A.] A paternal aunt, Shadow [A.] has expressed interest in having [T.M.] placed with her. This is a fairly recent development and Ms. [A.] is starting the initial procedure for applying for placement.”
At the jurisdictional/dispositional hearing on March 3, 2008, the juvenile court, among other things, removed the children from appellant’s custody, continued their placement with the foster parents, and set the matter for a 366.26 permanency planning hearing. Thereafter, in the 366.26 report filed June 23, 2008, the Department recommended the juvenile court adopt a permanent plan of adoption for the children. In doing so, the Department advised that “No relative members have come forward seeking placement of [S.A.] Shadow [A.], paternal aunt, has expressed an interest in having [T.M.] placed in her care. The Department is currently conducting a background clearance check to determine if [the paternal aunt] can be considered a viable placement for [T.M.]”
The Department further states in the report that “On 05/05/2008, Dorothy [B.], paternal great grandmother of [T.M], had the opportunity for a one-hour visit with [T.M.] [¶] Susan [A.], paternal grandmother of [T.M.], had the opportunity to visit with [T.M.] on the following dates: 03/24/2008, 04/14/2008, 05/12/2008, and 05/20/2008. She attended the 03/24/2008 and 04/14/2008 visits and failed to appear for the other two visits. [¶] Paternal aunt, Shadow [A.], had the opportunity to visit with [T.M.] on 02/22/2008 and 05/20/2008. She attended the 02/22/2008 visit and missed the 05/20/2008 visit.”
At the 366.26 hearing on June 30, 2008, appellant and her attorney were both present, and advised the juvenile court they had reviewed the Department’s report and had nothing to add except a request for appellant’s continued visitation with the children. The juvenile court thus terminated appellant’s parental rights, ordered adoption as the permanent plan, and referred the children to the Department for adoptive placement.
Appellant’s attorney also advised the juvenile court that appellant intended to file a section 388 motion based upon changed circumstances, but, to our knowledge, no such motion has been filed.
Having considered this evidence, we agree with the Department that appellant has forfeited the right to challenge on appeal the order terminating her parental rights based upon the juvenile court’s alleged noncompliance with section 361.3 because she failed to first raise the issue below. “ ‘[A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would “ ‘ “permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.” ’ [Citations.]” [Citation.]’ (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 [286 Cal.Rptr. 592].)” (In re Aaron B. (1996) 46 Cal.App.4th 843, 846; see also In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.)
Here, as set forth above, consistent with section 361.3, the juvenile court twice ordered appellant to disclose information regarding her relatives for the children’s possible placement. In addition, the Department at least twice filed reports describing efforts it had made with respect to seeking placement with relatives. Nonetheless, appellant at no time objected that either the juvenile court’s or the Department’s actions in this regard were inadequate. Further, while appellant filed a notice of intent to file a writ petition to challenge the dispositional order and the setting of the section 366.26 hearing, she failed to do so. As such, she has forfeited the right to raise her section 361.3 challenge for the first time here. (In re Aaron B., supra, 46 Cal.App.4th at p. 846; In re Crystal J., supra, 12 Cal.App.4th at pp. 411-412.)
Nonetheless, appellant seeks to avoid this well-established forfeiture rule on three grounds. First, appellant claims she was never served with a copy of the orders to disclose the names and contact information of her relatives for the children’s possible placement and that, as such, those orders were not effective. Second, she claims the juvenile court’s failure to ensure compliance with section 361.3 amounted to a violation of her due process rights, which is not subject to forfeiture. Third, she claims that any forfeiture that may have been committed was the result of ineffective assistance of counsel, and thus should be excused. We address each claim in turn.
First, we address appellant’s claim that the juvenile court’s orders on November 14, 2007, and January 22, 2008, to disclose information regarding her relatives were not effective because they were not properly served. Appellant reasons that there are no proofs of service of those orders in the record. We reject her reasoning. Even without copies of the proofs of service of those orders, the record includes ample evidence that appellant had notice of them.
With respect to S.A., for example, the record includes a minute order from the November 14, 2007, hearing, stating that appellant’s attorney was present and that the “court adopts the separately lodged ‘Findings and Orders for Detention’ filed this date and signed by Honorable Arthur H. Mann.” One such order, as set forth above, was “to disclose all known paternal and maternal relatives including names, addresses, telephone numbers, and any other information that would be helpful for locating such relatives for possible placement of the child.” The record also includes a copy of the Department’s jurisdictional report, filed December 10, 2007, stating that appellant was given notice by the court on November 14, 2007, and that the detention order was entered on that date. There is no claim appellant and her attorney failed to receive a copy of that report.
Further, with respect to T.M., the reporter’s transcript from the January 22, 2008 hearing reflects that the order for appellant to disclose information regarding her relatives for T.M.’s possible placement was stated on the record, and that appellant’s attorney was present. In addition, the record again includes a minute order from the hearing stating that appellant’s attorney was present and that the “court adopts the separately lodged ‘Findings and Orders for Detention’ filed this date and signed by Hon. Vincent T. Lechowick.” The record also includes the jurisdictional/dispositional report filed and served on appellant’s attorney on February 29, 2008, indicating that appellant and her attorney were given notice by the court on January 28, 2008, and that the detention order regarding S.A. was entered on November 14, 2007, and the detention order regarding T.M. was entered on January 22, 2008. Again, there is no claim appellant and her attorney failed to receive a copy of the report.
Given these facts establishing appellant’s notice of the disclosure orders issued pursuant to section 361.3, subdivision (a), we reject her attempt to avoid the forfeiture doctrine on the ground that those orders were ineffective.
Appellant next contends that the forfeiture doctrine is inapplicable because “due process forbids it” in this case. Specifically, appellant claims “the defects in the proceeding qualify for the [due process] exception because the failure to identify and contact [her] relatives . . . ‘fundamentally undermined the statutory scheme’ ” relating to the relative placement preference. We again disagree.
“Due process requirements in the context of child dependency litigation have . . . focused principally on the right to a hearing and the right to notice. (In re B.G. (1974) 11 Cal.3d 679, 689 [114 Cal.Rptr. 444, 523 P.2d 244] [failure to give mother notice of hearing was a deprivation of due process].) A meaningful hearing requires an opportunity to examine evidence and cross-examine witnesses, and hence a failure to provide parents with a copy of the social worker’s report, upon which the court will rely in coming to a decision, is a denial of due process. (In re George G. (1977) 68 Cal.App.3d 146, 156-157 [137 Cal.Rptr. 201].) Where an investigative report is required prior to the making of a dependency decision, and it is completely omitted, due process may be implicated because a cornerstone of the evidentiary structure upon which both the court and parents are entitled to rely has been omitted. (See In re Linda W. (1989) 209 Cal.App.3d 222, 226-227 [257 Cal.Rptr. 52].) [¶] Where, however, the assessment report is prepared, is available to the parties in advance of the noticed hearing, and does address the principal questions at issue in the particular proceeding, errors or omissions in the report cannot be characterized in terms of denial of due process. (See [citations].) Deficiencies in an assessment report surely go to the weight of the evidence, and if sufficiently egregious may impair the basis of a court’s decision to terminate parental rights. Such deficiencies, however, will ordinarily not amount to a deprivation of procedural due process.” (In re Crystal J., supra, 12 Cal.App.4th at pp. 412-413.)
Applying these principles here, we decline to excuse appellant’s forfeiture of the section 361.3 issue on due process grounds. As the evidence set forth above indicates, appellant had notice that the juvenile court twice ordered her to disclose information pursuant to section 361.3. Moreover, several of the reports filed by the Department, which the juvenile court considered in issuing the relevant orders, addressed the possibility of placing the children with a relative before ultimately recommending a permanent plan of adoption with the children’s foster parents. Indeed, the reports reflect that the Department talked to at least one relative – T.M.’s paternal aunt – regarding placement, and to at least two other relatives – T.M.’s paternal grandmother and great-grandmother – regarding visitation. Moreover, appellant and her attorney undisputedly had the opportunity to respond to issues raised in those reports before the juvenile court. In particular, at the 366.26 hearing on June 30, 2008, when both appellant and her attorney were present, they advised the juvenile court that they had reviewed the Department’s report and had nothing to add except a request for appellant’s continued visitation with the children. As such, to the extent the reports contained deficiencies regarding the relative placement issue, appellant should have pointed them out below. Having failed to do so, any deficiencies in the report “go to the weight of the evidence” and do “not amount to a deprivation of [appellant’s] procedural due process [rights].” (In re Crystal J., supra, 12 Cal.App.4th at pp. 412-413. See also In re Janee J. (1999) 74 Cal.App.4th 198, 208.)
Accordingly, given the two trial court orders to disclose information pursuant to section 361.3, as well as the Department’s efforts with respect to the relative placement issue reflected in the reports discussed above, we cannot conclude, as appellant suggests, that the dependency scheme was wholly undermined in this case.
Finally, appellant claims that, to the extent she forfeited her right to appeal the section 366.26 order based upon the alleged violation of section 361.3, such forfeiture should be excused because it resulted from ineffective assistance received from counsel. “Where an ineffective assistance of counsel claim is applied in dependency proceedings, an appellant must . . . show that ‘counsel’s representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms.’ [Citations.] Second, he or she must show prejudice, ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1100-1101.)
This argument, we conclude, must likewise be rejected. First, section 361.3 does not “impose on counsel for an indigent parent of a dependent child any obligation to pursue the possibility of relative placement; that responsibility falls to the probation officer and to the court.” (In re Jessica Z., supra, 225 Cal.App.3d at pp. 1101-1102 [superseded on other grounds].). Further, “[w]here the factual basis for the [ineffective assistance] claim rests in pertinent part on evidence not contained in the record on appeal, a habeas corpus proceeding [rather than a direct appeal] is the proper vehicle to raise the issue. (People v. Jackson (1973) 10 Cal.3d 265, 268 [110 Cal.Rptr. 142, 514 P.2d 1222].)” (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136. See also In re Carrie M. (2001) 90 Cal.App.4th 530, 533.)
Nor does counsel have an obligation to file a writ petition once, as here, the indigent parent has filed a notice of intent to file such petition. “[I]t is the parent, not the attorney, who has the burden to pursue appeal rights, particularly in the rule 39.1B setting. (Cathina W., supra, 68 Cal.App.4th at pp. 723-724; Janice J. v. Superior Court (1997) 55 Cal.App.4th 690, 692 [64 Cal.Rptr.2d 227] [parent must personally sign or authorize the notice of intent]; Suzanne J. Superior Court (1996) 46 Cal.App.4th 785, 788 [54 Cal.Rptr. 25] [same].)” (In re Janee J., supra, 74 Cal.App.4th at p. 210.)
Here, nothing in the record on appeal shows that appellant communicated to anyone –not the court or counsel – her desire to have the children placed with a relative. This is despite the fact that, as discussed above, the juvenile court twice ordered her to disclose information regarding her relatives. It is also despite the fact that appellant has previously had four other children involved in the dependency system, one of whom was placed with her sister, and thus should have been aware of the possibility of relative placement.
Given these omissions in the appellate record, we have no basis upon which to conclude that the conduct of appellant’s counsel with respect to the relative placement issue fell below an objective standard of reasonableness. To the extent appellant believed she received ineffective assistance of counsel, she should have raised the issue in a habeas corpus proceeding, which would have enabled her to provide the necessary record for our review. (Adoption of Michael D., supra, 209 Cal.App.3d at p. 136. See also In re Janee J., supra, 74 Cal.App.4th at p. 209.)
As such, we proceed to the next issue – whether the juvenile court violated the ICWA’s inquiry and notice provisions.
Given our conclusion that appellant has forfeited the right to claim any error based upon noncompliance with section 361.3, we need not address her related argument that such noncompliance was a “structural error” mandating automatic reversal. (See Arizona v. Fulminante (1991) 499 U.S. 279.) We note, in any event, that, as the California Supreme Court recently observed, the “structural error” doctrine has never been applied by the United States Supreme Court outside the context of criminal proceedings. (In re James F. (2008) 42 Cal.4th 901, 917.)
II. The Indian Child Welfare Act (25 U.S.C. § 1901 et seq.).
“In the context of juvenile dependency proceedings, notice to Indian tribes is governed by both federal and state law.” (In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.) Specifically, “[t]he ICWA (25 U.S.C. § 1901-1963) was enacted for ‘ “the protection of the best interests of Indian children, and the promotion of stable and secure Indian tribal entities. [Citation.]” ’ (In re Crystal K. (1990) 226 Cal.App.3d 655, 661 [276 Cal.Rptr. 619].)” (In re Riva M., supra, 235 Cal.App.3d at p. 410.) “[T]he ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1921.) ‘Indian child’ is defined as a child who 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. § 1903(4).) ‘Indian tribe’ is defined so as to include only federally recognized Indian tribes. (25 U.S.C. § 1903(8).)” (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.)
In enacting the ICWA, “Congress declared that ‘it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the 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.’ (25 U.S.C. § 1902.)” (In re Riva M., supra, 235 Cal.App.3d at p. 410.)
To accomplish these goals, an Indian tribe has the right under the ICWA to intervene or a qualified right to transfer an action to its jurisdiction in certain involuntary actions involving children residing off the reservation. (25 U.S.C. § 1911; In re Riva M., supra, 235 Cal.App.3d 403, 410; In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 1616.)
Further, under section 1912, subdivision (f) of the ICWA, “No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (In re Riva M., supra, 235 Cal.App.3d at p. 410; see also 25 U.S.C. § 1912(a).)
“Concerning notice, the ICWA provides: ‘[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify . . . the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the [Bureau of Indian Affairs (BIA)] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by . . . the tribe or the [BIA] . . . .’ (25 U.S.C. § 1912(a); see also 25 U.S.C. §§ 1a, 1903(11).)” (In re Jonathon S., supra, 129 Cal.App.4th at p. 338; see also In re Junious M. (1983) 144 Cal.App.3d 786, 793.)
“To enforce this notice provision, the ICWA further provides: ‘Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section [] . . . 1912 . . . of this title.’ (25 U.S.C. § 1914.)” (In re Jonathon S., supra, 129 Cal.App.4th at p. 338.)
“This court has characterized notice as a ‘key component of the congressional goal to protect and preserve Indian tribes and Indian families.’ (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) We also have observed: ‘the statute and all cases applying the Act unequivocally require actual notice to the tribe [or the Secretary]’ of both the proceedings and of the right to intervene. (Id. at p. 1422.) The requisite notice to the tribe serves a twofold purpose: (1) it enables the tribe to investigate and determine whether the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its right to intervene or assume tribal jurisdiction. (In re Pedro N. (1995) 35 Cal.App.4th 183, 186-187 [41 Cal.Rptr.2d 819].)” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469-470.) “Without notice, the[] important rights granted by the [ICWA] would become meaningless.” (In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.)
Nonetheless, “[t]he ICWA notice requirement is not onerous. ‘[C]ompliance requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency, for the benefit of county welfare agencies.’ (In re Desiree F., supra, 83 Cal.App.4th at p. 475.) When [however] proper notice is not given under the ICWA, the court’s order is voidable. (25 U.S.C. § 1914.)” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)
At the time relevant to these proceedings, sections 224.2 and 224.3 and former rule 5.664 (repealed effective January 1, 2008) and current rule 5.481 (adopted effective January 1, 2008) provided the guidelines for inquiring and giving notice under the ICWA. Sections 224.2 and 224.3, enacted in 2006, were intended to codify into state law the ICWA guidelines promulgated by the BIA (the Guidelines) that set forth specific categories of information a state agency should include in the notice required under the ICWA. (25 C.F.R. 23.11; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 678 (2005–2006 Reg. Sess.) as amended June 14, 2006, p. 12; see also In re J.T. (2007) 154 Cal.App.4th 986, 993.)
For convenience, we set forth the relevant ICWA guidelines below.
Even before enactment of sections 224.2 and 224.3, California courts had held that the BIA guidelines were “entitled to great weight.” (In re C.D. (2003) 110 Cal.App.4th 214, 224 [“Like other California courts, we are ‘persuaded that insofar as the ICWA notice provisions are concerned, the Guidelines “represent a correct interpretation of the [ICWA].” ’ ”]; see also Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 255; In re Junious M., supra, 144 Cal.App.3d at p. 793 & fn. 7.)
Having set forth the applicable law, we consider whether it was violated in this case. According to appellant, she raised the possibility that her children are Indian children within the meaning of the ICWA, yet the juvenile court nonetheless failed to ensure the Department complied with ICWA’s inquiry and notice requirements. According to the Department, however, the ICWA’s inquiry and notice requirements were not triggered in this case because “there was never sufficient information provided by [appellant] to invoke the ICWA in the first place.” The Department further suggests that, even if the ICWA’s requirements were triggered, the Department’s notice to the BIA substantially complied with those requirements.
The following relevant facts are undisputed. On November 13, 2007, the Department filed a section 300 petition on behalf of S.A. alleging, among other things, that she may be of Indian ancestry. The petition explained that appellant had advised supervising social worker Sara Buske in a telephone interview on November 8, 2007, that “she may have Native American heritage but did not provide any additional information.”
Following S.A.’s detention hearing on November 14, 2007, the juvenile court found that the ICWA may apply to the case. Appellant, represented by counsel but not present at the hearing, was not ordered to complete the Parental Notification of Indian Status form (form JV-130). (See former rule 5.664(d)(3), effective until January 1, 2008.) The juvenile court did, however, ask the Department’s counsel: “Should we be notifying a tribal representative at this time,” to which counsel responded that “they will give notice to the various tribes.” The juvenile court, in turn, responded: “If you would, please.”
As previously mentioned, the juvenile court also ordered appellant “to disclose all known paternal and maternal relatives including . . . any other information that would be helpful for locating such relatives for possible placement of the child.” In doing so, the juvenile court was following section 361.3 rather than the ICWA.
On December 13, 2007, the Department mailed a completed copy of Notice of Involuntary Child Custody Proceedings for an Indian Child (form JV-135) to, among others, the BIA, appellant and her attorney. In that form, the Department provided S.A.’s name and birth date, her parents’ names and last known addresses, the date the section 300 petition was filed, and the date and location of the next scheduled hearing. However, the Department wrote “No information available” in the spaces on the form where information was requested regarding S.A.’s maternal and paternal grandparents and great-grandparents, and regarding any tribal affiliation and location.
On January 18, 2008, a section 300 petition was filed with respect to T.M, which indicated that the ICWA may apply to the proceedings. The petition noted the November 8, 2007, telephone interview during which appellant advised social worker Buske that she may have Native American heritage, but provided no further information. The petition further noted that during a telephone interview with social worker Angela Curry, T.M.’s paternal grandmother, Susan A., stated she was unaware of any Native American ancestry. Attached to the petition was a completed copy of Indian Child Inquiry Attachment (form ICWA-010(a)), describing the interview with Susan A. The Department did not, however, submit or state that it would submit the Notice of Involuntary Child Custody Proceedings for an Indian Child (form JV-135) on behalf of T.M., as it had done with S.A. Nonetheless, at the detention hearing for T.M. on January 22, 2008, the juvenile court found that “inquiry has been made by the . . . Department . . . regarding the possible applicability of the [ICWA], and ICWA might apply.”
On March 3, 2008, the Department filed a jurisdictional/dispositional report with respect to both children, which stated: “In accordance with ICWA regulations, on December 12, 2007, the Department sent JV135 - Notice of Involuntary Proceedings Regarding Indian Children to the [BIA] as the mother stated that she thought she had Indian Ancestry but did not identify a tribal affiliation. On December 13, 2007, the [BIA] was again sent a JV-135, as the Department had received no response. Further, on December 31, 2007, [the Department’s] ICWA expert Percy Tejada reviewed the CWS case for this family, and made the assessment that the Department has complied with ICWA regulations. . . . A response letter from the Department of the Interior, [BIA], dated January 4, 2008 . . . states that ‘the family has provided insufficient information substantiating any federally recognized tribe.’ . . . The family has not provided the Department with any additional information to determine a specific Tribe. Additionally, in a telephone interview with social worker Angela Curry on or about 01/17/2008, Susan [A.], the paternal grandmother of [T.M.], stated that there was no Indian Heritage in their family. The Department respectfully requests that the Court find that ICWA does not apply in this case.”
The report by ICWA expert Tejada was attached to the jurisdictional/dispositional report and referenced S.A. but not T.M. In addition, the report stated in conclusory fashion that, in Tejada’s opinion, “the Department is complying with the ICWA as to notice of the proceeding[s].” The report further stated that, in his opinion, “placement [out of the home] is necessary and because of the unidentified eligibility of membership, placement of [S.A.] is consistent with tribal customs. When and if any tribe becomes a party to the case, the department should work with the tribal representative to identify placement preference under the ICWA.”
Nowhere did the jurisdictional/dispositional report acknowledge that the Department had not submitted a JV-135 form or requested an expert opinion with respect to T.M. Moreover, while the report noted that the family had failed to provide any of the information sought by the BIA in its response letter, it did not state whether the Department had asked appellant or any one else in her family to provide such information. The report did, however, provide new information regarding appellant’s extended family. Specifically, the report noted that appellant’s mother was Clara G., her father was Utimio M., and that they both lived in Oklahoma. It also noted that appellant was born in Pueblo, Colorado, and had four older sisters and one older brother.
Nor was there any other evidence in the record of such a request for information.
At the jurisdictional/dispositional hearing on March 3, 2008, appellant appeared and testified on her own behalf. But appellant was not questioned regarding her possible Indian ancestry, and the only mention of the ICWA was in the juvenile court’s findings following the hearing that the Department “ha[d] inquired of the parents(s) relative(s) [sic] whether the children are or may be Indian children,” and that the ICWA did not apply to either child. Neither appellant, her counsel, nor the children’s counsel objected to these findings, nor did they challenge them in an appeal of the jurisdictional/ dispositional order. The matter was thus set for a permanency planning hearing pursuant to section 366.26, at which the juvenile court found both children likely to be adopted and terminated appellant’s parental rights.
We first address the Department’s threshold claim that appellant forfeited the right to challenge the juvenile’s court section 366.26 order on ICWA grounds by failing to raise the issues below. We disagree. The forfeiture rule set forth above in considering appellant’s section 361.3 claim does not apply to ICWA notice issues. “The generally accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal. (See, e.g., In re Marinna J. (2001) 90 Cal.App.4th 731, 739 [109 Cal.Rptr.2d 267] (Marinna J.).) ‘As this court has held, “[t]he notice requirements serve the interests of the Indian tribes ‘irrespective of the position of the parents’ and cannot be waived by the parent.” [Citation.] A parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court.’ (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435 [59 Cal.Rptr.3d 376].)” (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.)
We thus conclude, based on this authority, that no forfeiture has occurred with respect to the ICWA issues raised by appellant. Further, having considered the merits of those issues, we agree the juvenile court failed to ensure that the Department fully complied with the ICWA’s inquiry and notice requirements. We reason as follows.
First, we conclude that appellant’s statement to social worker Buske that she may have Indian ancestry, while vague and without mention of a particular tribe, was sufficient to trigger further duties of the Department under the ICWA. As has often been stated, “The Indian status of the child need not be certain to invoke the [ICWA] notice requirement. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1422.)” (In re Desiree F., supra, 83 Cal.App.4th at p. 471.) In fact, “[t]he showing required to trigger the statutory notice provisions is minimal.” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549.) “A hint may suffice for this minimal showing.” (Ibid.) “[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirements.” (In re Alice M., supra, 161 Cal.App.4th at p. 1198.) As one California court explained: “We posit that there are many instances in which vague or ambiguous information is provided regarding Indian heritage or association (e.g., ‘I think my grandfather has some Indian blood.’ ‘My great-grandmother was born on an Indian reservation in New Mexico.’). In these types of cases, . . . inquiry is necessary before any attempt at notice to a specific tribe even can be made.” (In re Alice M., supra, 161 Cal.App.4th at p. 1200.) Indeed, “ ‘ “parents are not necessarily knowledgeable about tribal government or membership and their interests may diverge from those of the tribe and those of each other. [Citation.]” ’ (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 257, quoting In re Kahlen W., supra, 233 Cal.App.3d at p. 1425.) ‘We agree that “[t]o maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child. [Citation.]” ’ (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 257, quoting In re M.C.P. (1989) 153 Vt. 275 [571 A.2d 627, 634–635].)” (In re Miguel E., supra, 120 Cal.App.4th at p. 549.)
In In re Alice M., supra, the appellant stated merely that her daughter, the dependent, is or may be a member of, or eligible for membership in, an Apache and/or Navajo tribe. She provided no further information. Nonetheless, the appellate court concluded the ICWA notice provisions were indeed triggered, and that the juvenile court committed prejudicial error by failing to comply with them. (161 Cal.App.4th at pp. 1198, 1200. See also In re Desiree F., supra, 83 Cal.App.4th at p. 471 [notice requirement triggered by allegation in dependency petition that the ICWA possibly applied]; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at pp. 257-258 [father’s statement that the child “may have Cherokee Indian heritage” and mother’s statement that the child “does have Cherokee Indian heritage” were sufficient to trigger the ICWA’s notice requirements]; In re L.B. (2003) 110 Cal.App.4th 1420, 1424 [information that the child may have Cherokee Indian ancestry was sufficient to trigger ICWA notice requirements].)
In particular, we conclude that under the circumstances presented here, the Department had a duty under the ICWA to, at a minimum, more thoroughly inquire into appellant’s family history to determine whether notice to the tribe or to the BIA was required and, if so, to enable it to provide proper notice to the appropriate entity. True, the Department, at the juvenile court’s request, submitted form JV-135, Notice of Involuntary Child Custody Proceedings for an Indian Child, to the BIA on behalf of S.A. (See In re Kahlen W., supra, 233 Cal.App.4th at p. 1422 [where the identity of a particular tribe to which the child may belong cannot be determined, “[s]ection 1912(a) provides . . . [that] notice is to be given to the Secretary of the [BIA] (Secretary) in the manner prescribed by the statute”].) However, the Department was advised by the BIA in its January 4, 2008 response letter that there was insufficient information in the JV-135 form to meet the notice requirements of the ICWA. The BIA explained: “We depend on the family’s information and the investigation conducted by the Dept. of Social Services to help us identify tribal heritage so that the appropriate tribe and/or rancheria can be notified. This form is not to be considered a determination that the child(ren) is or is not an Indian child under the ICWA. Notice to the [BIA] is not a substitute for serving notice on the identified federally recognized tribe and the parent or Indian custodian. Compliance with 25 U.S.C. 1912 is still required.” (Emphasis added.)
Thus, as the BIA’s letter indicates, mere submission of the JV-135 form does not constitute compliance with the ICWA notice requirements (particularly where, as here, only one of the children involved in the proceedings is mentioned). More is required. Specifically, after being put on notice that appellant may have Indian ancestry, the Department should have conducted a more thorough inquiry into appellant’s family background so that additional information regarding the children’s family background could have been included on the JV-135 form. Under California law, such additional information should, at a minimum, have included the names and locations of the children’s maternal and paternal grandparents, and possibly their maternal and paternal great-grandparents. Indeed, even before the enactment of sections 224.2 and 224.3, which, as discussed above, codified the BIA Guidelines, our colleagues in the Second Appellate District, Division Seven, held that “notice to a tribe under the Indian Child Welfare Act (ICWA) must include, among other things, the categories of information set forth in the Bureau of Indian Affairs Guidelines (Guidelines) at 25 Code of Federal Regulations part 23.11(d)(3) (2003), if such information is known, including, but not limited to, the name of a child’s grandparents.” (In re C.D. (2003) 110 Cal.App.4th 214, 217 [emphasis added].) Our colleagues further held that “the [child welfare] agency . . . has a duty to inquire about and obtain, if possible, all of the information about a child’s family history included . . . in 25 Code of Federal Regulations part 23.11(d)(3).” (In re C.D., supra, at p. 225.)
Requiring such an inquiry into a child’s family history where there is an indication of Indian ancestry is, we conclude, both necessary and not unduly burdensome to child welfare agencies. Indeed, here, the record reveals the Department had face-to-face contact with appellant at least five times and had phone contact with her numerous other times throughout these proceedings, providing ample opportunity for a more thorough inquiry consistent with the requirements of the ICWA. In addition, the Department had in fact gathered additional information regarding the names and location of the children’s maternal grandparents by the time it filed the jurisdictional/dispositional report. We find no reason why that information could not have been provided to the BIA, particularly in light of the juvenile court’s and the Department’s “affirmative and continuing duty” to inquire whether a child is or may be an Indian child for purposes of the ICWA. (§ 224.3, subdivision (a).)
In so concluding, we emphasize that “[w]ithout proper notice to a tribe of dependency proceedings, the purposes of the ICWA cannot be fulfilled.” (In re C.D., supra, 110 Cal.App.4th at p. 224.) Moreover, as the facts of this case make clear, proper notice under the ICWA depends upon proper inquiry. (See In re Riva M., supra, 235 Cal.App.3d at p. 410; In re Alice M., supra, 161 Cal.App.4th at p. 1200.) The failure of the Department to conduct a proper inquiry in this case precluded compliance with both the language and spirit of the ICWA’s notice provisions.
Given our conclusion, we determine that the order terminating appellant’s parental rights must be reversed, and that remand is necessary to permit the juvenile court to ensure compliance with the ICWA’s inquiry and notice provisions. As our appellate colleagues have recently stated: “We regret that ICWA errors often delay the resolution of dependency proceedings, but cannot conclude that the prospect of such a delay excuses noncompliance at the expense of those that ICWA is intended to protect. (See Kahlen W., supra, 233 Cal.App.3d at pp. 1425-1426 [rejecting forfeiture argument; ‘[w]hile we recognize the need for timely resolution of child custody proceedings, respondent cannot benefit from the delay it created’].)” (In re Alice M., supra, 161 Cal.App.4th at p. 1197.)
One issue remains. Appellant contends that, having concluded reversal of the order terminating her parental rights is required, we must also reverse the earlier dispositional order. She reasons that the juvenile court’s noncompliance with the ICWA inquiry and notice provisions requires the parties to be restored to their original positions because such noncompliance undermined the fairness of the entire proceedings. We disagree.
As our colleagues explained in In re Jonathon S., supra, 129 Cal.App.4th at p. 340, “[w]e do not believe . . . that we have jurisdiction to reverse any earlier orders. At this point, they have the stature of appealable orders from which no appeal was taken. “ ‘ “If an order is appealable . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata.” ’ [Citation.] ‘An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.’ [Citation.] Appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. [Citation.]” (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396 [49 Cal.Rptr.2d 175], quoting In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705 [34 Cal.Rptr.2d 345 and In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563 [283 Cal.Rptr. 483.) Thus, the only order before us is the order terminating parental rights.” (In re Jonathon S., supra, 129 Cal.App.4th at p. 340; see also In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385.)
In so concluding, the court in In re Jonathon S., supra, first noted that “an ICWA notice violation is not jurisdictional. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385 [25 Cal.Rptr.3d 590], and cases cited.) It is simply an appealable error of federal law. Here, the mother forfeited her right to reversal of the earlier orders based on any such error by failing to file a timely appeal.” (In re Jonathon S., supra, 129 Cal.App.4th at pp. 340-341, fn. omitted.) The court then rejected the argument that “we could [reverse the earlier orders] if this appeal is, in essence, an invalidation proceeding under the ICWA enforcement provision [25 U.S.C. § 1914].” (In re Jonathon S., supra, 129 Cal.App.4th at p. 341.) The court reasoned as follows: “The enforcement provision does not give us any jurisdiction to invalidate a juvenile court order based on an ICWA notice violation that we would not otherwise have. Any petition under the enforcement provision to invalidate an order in an open dependency must be filed in the juvenile court; only after the juvenile court renders an appealable ruling on the petition can we review the issues on appeal. Accordingly, although some appellate courts have suggested that an appeal asserting an ICWA violation is, in itself, a proceeding under the enforcement provision (In re S.M. (2004) Cal.App.4th 1108, 1115, fn. 3 [13 Cal.Rptr.3d 606]; In re Daniel M. [(2003] . . . 110 Cal.App.4th 703, 707-708; In re Pedro N. (1995) 35 Cal.App.4th 183, 190 [41 Cal.Rptr.2d 819]; In re Riva M. (1991) 235 Cal.App.4th 403, 411, fn. 6 [286 Cal.Rptr. 592]), we must disagree.” (In re Jonathon S., supra, 129 Cal.App.4th at p. 342.)
Applying this same reasoning here, we conclude that appellant has forfeited her right to reversal of the dispositional order based upon the ICWA violations by failing to file a timely appeal of that order. As such, the only order subject to reversal in this appeal is the order terminating her parental rights.
DISPOSITION
The order terminating appellant’s parental rights is reversed. The case is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of the ICWA, if it has not already done so. If, after proper inquiry and notice, the juvenile court finds that S.A. or T.M. is an Indian child, the court shall proceed in conformity with the ICWA. If, however, after proper inquiry and notice, the juvenile court finds neither child is an Indian child, the order terminating appellant’s parental rights and selecting adoption as the permanent plan shall be reinstated. (In re Alice M., supra, 161 Cal.App.4th at p. 1203.)
We concur: McGuiness, P. J., Siggins, J.
Section 224.2,, provides in relevant part:
“(a) If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall be sent to the minor’s parents or legal guardian, Indian custodian, if any, and the minor’s tribe and comply with all of the following requirements: “(1) Notice shall be sent by registered or certified mail with return receipt requested. Additional notice by first-class mail is recommended, but not required. [¶] . . . [¶] “(4) Notice, to the extent required by federal law, shall be sent to the Secretary of the Interior’s designated agent, the Sacramento Area Director, Bureau of Indian Affairs. If the identity or location of the parents, Indian custodians, or the minor’s tribe is known, a copy of the notice shall also be sent directly to the Secretary of the Interior, unless the Secretary of the Interior has waived the notice in writing and the person responsible for giving notice under this section has filed proof of the waiver with the court.
“(5) In addition to the information specified in other sections of this article, notice shall include all of the following information: “(A) The name, birth date, and birthplace of the Indian child, if known. “(B) The name of the Indian tribe in which the child is a member or may be eligible for membership, if known. “(C) All names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known. “(D) A copy of the petition by which the proceeding was initiated. “(E) A copy of the child’s birth certificate, if available. “(F) The location, mailing address, and telephone number of the court and all parties notified pursuant to this section. “(G) A statement of the following: “(i) The absolute right of the child’s parents, Indian custodians, and tribe to intervene in the proceeding. “(ii) The right of the child’s parents, Indian custodians, and tribe to petition the court to transfer the proceeding to the tribal court of the Indian child’s tribe, absent objection by either parent and subject to declination by the tribal court. “(iii) The right of the child’s parents, Indian custodians, and tribe to, upon request, be granted up to an additional 20 days from the receipt of the notice to prepare for the proceeding. “(iv) The potential legal consequences of the proceedings on the future custodial and parental rights of the child’s parents or Indian custodians. “(v) That if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent the parents or Indian custodians pursuant to Section 1912 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). “(vi) That the information contained in the notice, petition, pleading, and other court documents is confidential, so any person or entity notified shall maintain the confidentiality of the information contained in the notice concerning the particular proceeding and not reveal it to anyone who does not need the information in order to exercise the tribe’s rights under the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). . . .” (§ 224.2, subd. (a) [emphasis added].)
Section 224.3 provides in relevant part: “(a) 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. “(b) The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: “(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or 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. …[¶¶] “(c) If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer 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 information required in paragraph (5) of subdivision (a) of Section 224.2, contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility. “(d) If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer shall provide notice in accordance with paragraph (5) of subdivision (a) of Section 224.2.” (§ 224.3 [emphasis added].)
Former rule 5.664, subdivisions (d) and (f), as amended in February 2007, provided in relevant part:
“(d) Inquiry
“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. [¶] . . . [¶]
“(3) At the first appearance by a parent . . . in any dependency case . . . in which the child is at risk of entering foster care or is in foster care, the parent . . . must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).
“(4) The circumstances that may provide probable cause for the court to believe the child is an Indian child include, but are not limited to, the following:
“(A) A person having an interest in the child, including the child, an Indian tribe, and Indian organization, an officer of the court, or a public or private agency, informs the court or the county welfare agency or the probation department or provides information suggesting that the child is an Indian child; . . . [¶¶]
“(f) Notice; 25 U.S.C. § 1912
“If there is reason to know that an Indian child is involved, the social worker . . . must send Notice of Involuntary Child Custody Proceedings for an Indian Child (Juvenile Court) (form JV-135) to the parent or legal guardian and Indian custodian of an Indian child, and the Indian child’s tribe, in accordance with Welfare and Institutions Code section 224.2.” (former rule 5.664(f)(1), as amended in February 2007.)
Finally, current rule 5.481, provides in relevant part that if the Department “knows or has reason to know that an Indian child is or may be involved, [it] must make further inquiry as soon as practicable by,” among other things, “[c]ontacting the tribes and any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.” (Rule 5.481(a)(4)(C) [emphasis added].) Further, “[i]f it is known or there is reason to know that an Indian child is involved in a proceeding . . . the court must send Notice of Child Custody Proceeding for Indian Child (form ICWA-030) to . . . the Indian child’s tribe, in the manner specified in Welfare and Institutions Code section 224.2. . . .” (Rule 5.481(b)(1).)