Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ07008613
Bruiniers, J.
L.S. (Mother) and A.S. (Father) appeal the juvenile court’s order, made pursuant to Welfare and Institutions Code section 366.26, terminating parental rights to their daughter, Z.S. 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. § 1901 et seq. (ICWA)).
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
I. Factual and Procedural Background
Mother was 16 years old and herself a dependent of the juvenile court when she gave birth to Z. in May 2007. Father was 14 years old.
A. Section 300 Petition and Detention Report
On December 4, 2007, Alameda County Social Services Agency (Department) filed a section 300 petition on behalf of Z. The petition alleged failure to protect Z. (§ 300, subd. (b)), asserting that Mother had left the child at the group home where she resided or with “multiple random people” for extended periods of time. The petition also alleged that Mother had taken Z. out at “inappropriate hours of night” and that Mother engaged “in risky behaviors, including soliciting young girls for prostitution, and receiving payment from ‘men friends.’ ” The petition further indicated that Mother engaged in frequent physical fights, especially with Father, and that she had admitted having Z. in her arms while fighting with Father. According to the petition, Mother admitted smoking marijuana while caring for Z. Finally, the petition alleged that Father also resided in a group home, had anger management problems, and was unable to care for Z. Accordingly, on November 29, 2007, two child welfare workers went to Mother’s group home to bring Z. into protective custody.
The detention report indicates that Father also had become a dependent of the juvenile court, when both of his parents refused to accept him back into their homes after he was taken to juvenile hall. The report noted that Father wanted Z. to be returned to Mother or to be placed with a family member. The court ordered Z. detained in shelter care and ordered paternity testing. Thereafter, Father filed a parental notification of Indian status form (JV-130), which indicated that he “may have Indian ancestry.”
B. Jurisdiction Report and Determination
The jurisdiction/disposition report noted that Z. was “doing well” in an emergency foster home. It further stated that Father “has a great deal of difficulty controlling his angry impulses, and has outbursts at the therapeutic group home in which he resides on a daily basis. [Father] adamantly refuses to take medication to assist him in gaining composure. He has destroyed a great deal of property at his group home, and has attempted to physically assault staff (includ[ing] directors) at his residence on a number of occasions.” The jurisdiction/disposition report observed that Father had previously lived with his mother (Paternal Grandmother), who works the graveyard shift in a nursing home. Accordingly, Father “was left alone at night from the time he was 12 years old, with no supervision.” Paternal Grandmother would sleep during the daytime.
Paternity testing indicated a 99.99 percent probability of Father’s paternity. A jurisdiction and disposition hearing was held on January 24, 2008. The court found Father to be Z.’s “biological and presumed father.” The court adjudged Z. to be a dependant of the juvenile court and ordered visitation and reunification services for both Mother and Father.
On January 24, 2008, Mother filed a parental notification of Indian status form (ICWA-020), which indicated that she “may have Indian ancestry on father’s side,” but that the tribe was unknown. On January 25, 2008, the Department filed an amended section 300 petition, alleging both failure to protect Z. (§ 300, subd. (b)) and inability to provide for Z.’s support (§ 300, subd. (g)). The basis for the section 300, subdivision (g), allegation was Father’s residence in a group home and inability to care for Z.
C. Interim Reports and Reviews
An interim review report, filed by the Department on April 17, 2008, stated: “The Indian Child Welfare Act does not apply. There is insufficient reason to believe that ICWA may apply. On 1/25/2008 [the Department] contacted [the maternal grandfather], inquiring as to any Indian ancestry in his blood. This call was in response to [Mother’s] statement in Court on 1/24/2008, that she believed there was some Indian ancestry on her dad’s side. [Maternal grandfather] immediately deferred to his mother... and put her on the phone. [Maternal great-grandmother] stated she does not know anything about it. She said she might have a little Indian blood on her side, but she is not sure. Then further discussion with [maternal grandfather] revealed there was some Irish blood on his father’s side of the family, and possibly some Indian ancestry, but he is not clear on that.” (Emphasis omitted.)
The same interim report also indicated that a team decision meeting was held on March 14, 2008, and it was “decided... that if no relatives came forward prior to 4/1/2008 Z. would be placed in a concurrent planning home.” The report continued: “As of [April 16, 2008] no family members have come forward to be the foster parent of Z.”
The report further noted that both Mother and Father routinely attended their supervised visits with Z., which were on a bi-weekly basis for Mother and a weekly basis for Father. The report states: “The undersigned has observed [Father] to be very careful and cautious with Z. [Father] is very proud of Z. and likes to hold her during the visits. [Father] is comfortable feeding Z. and is learning how to change her diapers.... [¶] Z. sometimes appears to be anxious when she arrives to visit with her parents. She is transported to visits by a transportation worker and is unfamiliar with the environment of the Social Services visitation office. It appears that Z. is becoming more comfortable and less anxious at the beginning of her visits as she becomes more used to the routine and schedule of the visits with her parents.”
D. Six-Month Report and Review
The six-month report recommended termination of reunification services and scheduling a section 366.26 hearing. The report noted minimal progress by Mother, who was currently absent without leave (AWOL) from her group home, had missed parenting classes and visits with Z., had refused to participate in therapy or comply with drug testing, and had admitted to her child welfare worker that she continued smoking marijuana. The six month report noted that Father, too, had made minimal progress towards reunification. Father also had been AWOL from his group home, had recently been arrested, and “[a]lthough he ha[d] made progress towards controlling his emotions... he still continue[d] to struggle [with] containing his anger and expressing his feelings in a safe way.” The report noted that Father “has attempted to be very nurturing and supportive of his daughter during supervised visits[,]” but also that he had missed two recent visits. The assigned child welfare worker observed that “[Father] does not appear to be mature enough to care for himself, let alone a[n] infant.”
The six-month report noted that Z. had established a close relationship with her foster parents and their children, and that she appeared to be “a happy, socially adjusted toddler.” However, Z.’s emergency foster parents could not commit to caring for her long-term. At the review hearing on July 1, 2008, the court continued reunification services.
On September 17, 2008, the Department again recommended termination of reunification services and scheduling a section 366.26 hearing. The report indicated that Mother’s situation had not changed significantly since the last report. Mother had again been AWOL from her group home, had been recently cited for prostitution, had tested positive for using marijuana, and reported being pregnant. Since the July 1, 2008 hearing, Mother had only attended four out of a possible 10 visits with Z.
The September report further indicated that Father’s situation also had not changed significantly. He recently had been suspended from school for violence and had destroyed property at his group home. Father continued to visit consistently with Z. and was supportive and playful with her. Z. was observed as recognizing Father. The report noted that Paternal Grandmother had recently expressed an interest in being Z.’s foster parent. A relative assessment could not be conducted for Paternal Grandmother, however, because she did not have a permanent residence. The report also noted concerns that Paternal Grandmother was currently attempting to reunify with her own son, Father. Accordingly, the case had been assigned to an adoptions placement specialist and the Department was beginning to transition Z. from the emergency foster home to a potential adoptive home.
At the review hearing on September 18, 2008, the court concluded that the Department had made reasonable efforts to return the child to a safe home, and that reasonable services had been provided. The court further found that Mother and Father had made only minimal and partial progress, respectively, toward reunification. Reunification services were terminated and a section 366.26 hearing was scheduled. Thereafter, in a 15-day placement review hearing report, dated October 2, 2008, the Department indicated that an adoptive family had been identified and pre-placement visits with Z. had commenced.
E. ICWA Notice
On October 2, 2008, the Department sent a notice of child custody proceeding (ICWA-030) to the Bureau of Indian Affairs (BIA). The notice filed with the court showed that the Department had provided identifying information for only Z., Mother, Father, Z.’s maternal grandparents, and Z.’s maternal great-grandmother. In the spaces requesting information regarding Z.’s paternal grandparents and great-grandparents, the Department had written only “[n]o information available.” The BIA responded on October 27, 2008, that insufficient information had been provided. The BIA’s response further provided: “This form is not to be considered a determination that the child[] is or is not an Indian child under the ICWA.”
F. Placement Order
On October 31, 2008, the juvenile court acted on the Department’s request for an order approving Z.’s placement with a potential adoptive family. The court concluded that “[t]he permanent plan of adoption and a specific goal of adoption is appropriate and is so ordered as the permanent plan.”
G. Section 366.26 Hearing
On December 29, 2008, the Department filed a section 366.26 hearing report. The report recommended that parental rights be terminated so that Z. may be adopted. The report further noted: “[ICWA] does not appear to apply. [Mother] stated that she might have some Indian ancestry on her father’s side, but she could not identify a tribe. The [Department] spoke with the maternal grandfather... and [the maternal great-grandmother]. They stated that they believed there was Indian ancestry, but they could not identify a tribe. The [Department] sent notice to the [BIA], and received a reply on 10/27/2008 stating that there was insufficient information to substantiate the minor belonging to any known tribe.” The BIA’s response letter was submitted to the court.
On the issue of adoptability, the report indicated that it was likely Z. would be adopted, noting that she was a healthy, 19-month-old toddler with no significant developmental or emotional problems. It was reported that the current foster parent, with whom Z. had developed a close relationship and appeared very comfortable, wished to adopt Z. It also was noted that Paternal Grandmother had expressed interest in adopting Z. and that a home study was in progress.
Father and Mother were present at the section 366.26 hearing which commenced on January 9, 2009, and opposed termination of their parental rights. Father testified regarding his weekly visits with his daughter, including the fact that she puts her arms out to be held when he arrives and sometimes calls him “dada.” Father denied refusing to let her down when he is holding her, as the Department had reported, but added that she often would want to be picked back up quickly after being put down. Father also testified that he helps to feed Z. during these visits and has brought her presents. Father testified that he loves Z. “a lot.” Paternal Grandmother testified that she would be willing to adopt Z. or serve as her legal guardian.
Father’s counsel urged the court not to terminate parental rights, relying on the continuing beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) to termination. Instead, both Mother and Father asked that the court grant legal guardianship to Paternal Grandmother, who would raise Z. until Father was old enough to take full responsibility. The juvenile court declined to find that the continuing beneficial relationship exception applied and, instead, followed the Department’s recommendations. It ruled that Z. was likely to be adopted and terminated Mother’s and Father’s parental rights. Adoption was selected as the permanent plan. The court also concluded that notice had been given as required by law, that the Department had complied with ICWA, and that Z. is not an Indian child as defined by ICWA. Mother and Father filed timely notices of appeal.
Formerly section 366.26, subdivision (c)(1)(A). (See Stats. 2005, ch. 640, § 6.5.)
II. Discussion
Father contends that the order terminating parental rights must be reversed because: (1) the juvenile court erred when it failed to find the continuing beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applicable, and (2) the juvenile court failed to comply with the inquiry and notice requirements of ICWA. Mother joins in Father’s arguments.
“[I]n order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated.... ‘[T]he critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.’ [Citation.] The task force’s intent was ‘to eliminate duplication between the regular review hearings and the termination hearing. Therefore, the decisions made at the review hearing regarding reunification are not subject to relitigation at the termination hearing. This hearing determines only the type of permanent home.’ [Citation.]” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249–250; accord, § 366.26, subd. (c).) “Once the court determines a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the... exceptions listed in section 366.26, subdivision (c)(1). [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809; accord, In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343–1345.)
Section 366.26, subdivision (c)(1) provides, in relevant part: “If the court determines... by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.... A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, under subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months, or that the parent has been convicted of a felony indicating parental unfitness, or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶]... [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.... ” (Italics added.)
It is important to note what is not at issue in this appeal. “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.... The court need not continue to consider the issue of reunification at the section 366.26 hearing.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “[S]ection 366.26 cannot properly be understood except in the context of the entire dependency process of which it is part.... [T]he purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement. By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness.... Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached.” (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 253, fn. omitted.)
An order terminating reunification services and setting a section 366.26 hearing must in any event be challenged by writ before it can be appealed. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) No such writ petition was filed by either Mother or Father.
A. Continuing Beneficial Relationship Exception
Neither parent challenges the juvenile court’s finding that Z. is likely to be adopted. Rather, Father asserts, pursuant to section 366.26, subdivision (c)(1)(B)(i), that he and Z. have established a beneficial relationship through regular visitation, and that the juvenile court erred by failing to find that the loss of that relationship would be detrimental to Z. Mother joins in his argument. Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
We need not consider whether Mother would be entitled to relief on this ground because we conclude that Father’s argument is without merit.
We assume that Father meets the first prong of the test by visiting Z. on a regular basis, despite several missed visits. In assessing the second prong, the juvenile court determines whether the benefit to the child from continuing the relationship with the parent “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and sense of belonging that a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs. [Citation.] While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination. [Citation.]” (In re Angel B. (2002)97 Cal.App.4th 454, 467, fn. omitted.)
The showing required under section 366.26, subdivision (c)(1)(B)(i), “will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) The exception requires proof of “a parental relationship,” not merely a relationship that is “beneficial to some degree but does not meet the child’s need for a parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; see also In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450 [“mere ‘affectionate closeness’ between parent and child” does not outweigh need for permanent and stable home environment]; In re Dakota H. (2005) 132 Cal.App.4th 212, 229 [“to meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits”].)
Appellate courts have routinely applied the substantial evidence rule in similar cases. (See In re Dakota H., supra, 132 Cal.App.4th at p. 228; In re Autumn H., supra, 27 Cal.App.4th at p. 576.) However, Division Three of this court has ruled that abuse of discretion is the proper standard. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) The Jasmine D. court pointed out that the practical differences between the two standards are “not significant,” as both give deference to the juvenile court’s judgment. (Ibid.)
We need not resolve this conflict, because the juvenile court’s finding is supported under either standard. Father clearly did not meet his burden of establishing an “extraordinary case” when “preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The evidence shows Father had positive visits with Z., fed her, and Z. may have sometimes called him “dada.” But Z. is only two, has never lived in Father’s custody, and there is no evidence that Z. suffered anxiety when her visits with Father came to a close.
These factual circumstances distinguish In re S.B. (2008) 164 Cal.App.4th 289, 298.
In fact, the section 366.26 hearing report noted: “Although [Z.] is now able to walk, the father will continue to hold her until she squirms out of his arms. He will hold her very close to his face and kiss her repeatedly, which is clearly intended as affectionate, but he often does not pick up her cues when she is uncomfortable. When he persists in wanting to hold her, [Z.] will simply ‘shut down’ and remain still with her fingers in her mouth.” A letter from a psychologist who had supervised the visits provided: “[Z.] expresses a strong familiarity with her father and has over time been more responsive to his comforting, more than others, when she has become upset during the visit. However, in the eight to nine months of visitation with her father, she has not been observed to express the more independent, socially outgoing infant and toddler behaviors observed of her in other settings. The father continues to have a way to go in understanding his daughter’s true personality and allowing for more developmental independence. He appears to need to work through his fears of allowing her to be independent....”
On the other hand, the Department described Z.’s foster parent, who hopes to adopt her, as “meeting [Z.’s] physical and emotional needs” and Z. as “a happy, healthy toddler who receives good care and stimulation” in her foster home. Thus, substantial evidence supports the conclusion that any detriment resulting from severing Z.’s relationship with Father would be outweighed by the benefits received from a permanent and stable home. No abuse of discretion has been demonstrated.
Father concedes that he is currently unable to take custody of Z., but argues that guardianship with his mother would provide a better opportunity to continue the relationship. Under section 366.26, it is only if the court concludes that adoption is not a viable option that the court may consider alternative permanent plans such as legal guardianship. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1343.) We do not construe Father’s argument on appeal to be that Z. should have been placed with her paternal grandmother. In any event, Father lacks standing to raise such a claim. (See Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035; In re Devin M. (1997) 58 Cal.App.4th 1538, 1541; In re Gary P. (1995) 40 Cal.App.4th 875, 876–877.)
B. ICWA Compliance
Father also argues that the juvenile court erred in concluding that ICWA did not apply to Z. Although it is conceded that the Department made adequate efforts to investigate Indian ancestry on Z.’s maternal side, Father asserts that the juvenile court nonetheless failed to ensure compliance with ICWA’s inquiry and notice requirements with respect to possible Indian ancestry on his side. The Department argues, in response, that ICWA’s inquiry and notice requirements were not triggered here and, even if ICWA’s requirements were triggered, any error was harmless.
Mother joins in this argument. Mother has standing to raise the issue of ICWA notice even though the argument only addresses possible Indian heritage on Z.’s paternal side of the family. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.)
“In passing [ICWA], Congress identified two important, and sometimes independent, policies. The first, to protect the interests of the Indian child. The second, to promote the stability and security of Indian tribes and families. [Citations.] The Act sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies. [Citation.]” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) 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 Secretary [of the Interior] 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 Secretary....” (25 U.S.C. § 1912(a).) Appellate courts may void a termination order if notice is not given in accordance with ICWA. (25 U.S.C. § 1914.)
“[N]otice to the Secretary [of the Interior] is accomplished by notice to the BIA. [Citations.]” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1406.)
The federal ICWA notice provisions are incorporated into California law. (See §§ 224–224.3.) Section 224.2, subdivision (b), provides, in relevant part: “Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter... unless it is determined that [ICWA] does not apply to the case in accordance with Section 224.3.”
Although not raised by the Department, we briefly note that “[t]he generally accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal. [Citation.] ‘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.’ [Citation.]” (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) Accordingly, we address the merits of Father’s ICWA notice argument despite his failure to raise it below.
First, we reject the Department’s argument that ICWA was not triggered because insufficient evidence exists that Z. is an Indian child. In fact, the Indian status of a child need not be certain to trigger ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471; In re Kahlen W., supra, 233 Cal.App.3d at p. 1422.) “The determination of a child’s Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.]” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; see also § 224.3, subd. (b)(1) [“the circumstances that may provide reason to know the child is an Indian child, include, but are not limited to,... [¶] [a] person having an interest in the child... provides information suggesting the child is a member of a tribe or eligible for membership in a tribe”]; Dwayne P. v. Superior Court (2002)103 Cal.App.4th 247, 258 [concluding that the “minimal showing” required to trigger notice under the ICWA is merely evidence “suggest[ing]” the minor “may” be an Indian child].)
“Given the interests protected by [ICWA], the recommendations of the [federal] guidelines, and the requirements of our court rules, the bar is indeed very low to trigger ICWA notice.” (In re Antoinette S., supra, 104 Cal.App.4th at p. 1408 [father’s suggestion that child “might” be an Indian child because paternal great grandparents had unspecified Native American ancestry was enough to trigger notice requirements].) Thus, we conclude that Father’s indication that he “may have Indian ancestry” was sufficient to require the Department, at minimum, to inquire into Father’s family history so that it could provide proper notice to the BIA or the appropriate tribe. (See § 224.3, subd. (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”]; Cal. Rules of Court, rule 5.481(a)(4) [“if the social worker, probation officer,... investigator, or petitioner knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry”].)
In re Jeremiah G. (2009) 172 Cal.App.4th 1514 and In re O.K. (2003) 106 Cal.App.4th 152 are distinguishable. In Jeremiah G., the reviewing court determined that the juvenile court properly proceeded without ICWA notice “[b]ecause father retracted his claim of Indian heritage, and because there was no other basis for suspecting that Jeremiah might be an Indian child....” (In re Jeremiah G., supra, at p. 1521 (italics added).) In O.K., the child’s grandmother replied to inquiries by the court: “ ‘the young man may have Indian in him. I don’t know my family history that much, but where were [sic] from it is that section so I don’t know about checking that.’ ” (In re O.K., supra, at p. 155.) The reviewing court rejected the parents’ argument that the grandmother’s comments necessitated notice to the BIA. (Ibid.) The court stated: “The paternal grandmother was not a party to the proceedings, and neither the Guidelines nor [former] rule 1439(d)(2) expressly include relatives as a source of information that would give the court reason to believe that a minor is an Indian child.” (Id. at p. 156–157.) Furthermore, the court stated: “The information provided by the paternal grandmother that the father ‘may have Indian in him’ was not based on any known Indian ancestors but on the nebulous assertion that ‘where were [sic] from is that section....’ This information was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children.” (Id. at p. 157.)
The Department did send a notice of child custody proceeding for Indian child (ICWA-030) to the BIA. However, the form did not include any information for Z.’s paternal grandparents or great-grandparents. In the spaces requesting information regarding Z.’s paternal grandparents and great-grandparents, the Department entered only “[n]o information available.” In response, the BIA specifically advised the Department that insufficient information had been provided. The BIA explained: “The family has provided insufficient information substantiating any federally recognized tribe. The family must provide a history back to the year 1900 with names, birth dates and/or birthplaces of ancestors to help in establishing a biological link with the original ancestral tribal member(s). [¶]... [¶] 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[] 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.”
We are compelled to agree with Father that the juvenile court failed to ensure compliance with ICWA and that the section 366.26 order must be reversed. “[ICWA] notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation;... 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. [Citations.]” (In re Louis S. (2004) 117 Cal.App.4th 622, 630 (italics added); accord, In re S.M. (2004) 118 Cal.App.4th 1108, 1116; In re C.D. (2003) 110 Cal.App.4th 214, 225; § 224.2, subd. (a)(5); 25 C.F.R. § 23.11(b), (d).)
Reviewing courts have reversed termination orders when the purported notice does not contain all known information for the child’s ancestors. (In re S.M., supra, 118 Cal.App.4th at pp. 1116–1118, 1123; see also In re Louis S., supra, 117 Cal.App.4th at pp. 631, 634.) The Department’s failure to include, at the very least, Paternal Grandmother’s name and identifying information was error. The Department is not required to “cast about, attempting to learn the names of possible tribal units to which to send notices, or to make further inquiry with BIA.” (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) However, “[t]he 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. [Citation.]” (In re Louis S., supra, 117 Cal.App.4th at p. 630.)
Based on the record before the court, which shows the Department’s repeated contact with Paternal Grandmother and her attendance at several hearings, we cannot conclude the notice included all information known by the Department about Father’s family. Furthermore, the record contains no evidence that the social worker attempted to gather family information from Father or Paternal Grandmother, or to investigate at all Father’s claim of potential Indian ancestry. Accordingly, the juvenile court erred in finding that ICWA did not apply to Z.
Contrary to the Department’s suggestion, the error was not harmless. “Where there is reason to believe a dependent child may be an Indian child, defective ICWA notice is ‘usually prejudicial’ [citation], resulting in reversal and remand to the juvenile court so proper notice can be given. [Citations.]” (In re Nikki R., supra, 106 Cal.App.4th at p. 850; accord, In re Desiree F., supra, 83 Cal.App.4th at p. 472 [“The failure to provide the necessary notice requires this court to invalidate actions taken in violation of the ICWA and remand the case unless the tribe has participated in or expressly indicated no interest in the proceedings. [Citation.] Unless one of these exceptions applies, the failure... constitutes prejudicial error. [Citation.]”].) We agree with Father that because the purported notice contained no information about Z.’s paternal family (other than Father’s information), the BIA could not conduct a meaningful search. (See In re Louis S., supra, 117 Cal.App.4th at p. 630 [“One of the purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. [Citation.] Notice is meaningless if no information or insufficient information is presented to the tribe to make that determination. [Citation.]”].)
The Department argues that omission of information regarding Paternal Grandmother was harmless because “[e]ven in the off chance that [she] has Indian heritage... that heritage alone, without [Z.’s] or [Father’s] tribe membership, would not qualify [Z.] to be an Indian child.” The Department relies on section 1903(4) of title 25 of the United States Code, which provides: “ ‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” The record does not support the Department’s argument. The BIA has not conclusively responded regarding Z.’s or Father’s tribal membership. In fact, the BIA’s response stated that insufficient information had been submitted and its response “is not to be considered a determination that the child[] is or is not an Indian child under the ICWA.” Providing Paternal Grandmother’s information may assist the BIA in assessing Z.’s eligibility for tribal membership. We cannot conclude otherwise on this record.
The cases in which ICWA notice errors have been deemed harmless are distinguishable. (See, e.g., In re Antoinette S., supra, 104 Cal.App.4th at p. 1413 [“Father points to nothing more SSA might have done or any further information he or any other person might have regarding his alleged Indian ancestry. Reversal or remand here would exalt form over substance because it is apparent father cannot provide any more information.”]; In re S.B. (2005) 130 Cal.App.4th 1148, 1162 [tribe actually participated in juvenile dependency proceedings]; In re Christopher I. (2003) 106 Cal.App.4th 533, 567 [augmented record showed all arguably required notices had been sent and minor was neither a member of any tribe or eligible for membership; fact that child was in irreversible vegetative state prevented his appreciation of Indian culture or participation in Indian family].)
Accordingly, we must reverse and remand the order terminating parental rights to allow the notice inadequacies to be corrected. “The limited reversal approach is well adapted to dependency cases involving termination of parental rights in which we find the only error is defective ICWA notice. This approach allows the juvenile court to regain jurisdiction over the dependent child and determine the one remaining issue. The parties already have litigated all other issues at the section 366.26 hearing, and it is not necessary to have a complete retrial. Thus, the child is afforded the protection of the juvenile court, and, at the same time, his or her case is processed to cure the ICWA error, which is more expeditious than a full rehearing of all section 366.26 issues.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 705.)
III. Disposition
The juvenile court’s order terminating parental rights is reversed. The case is remanded to the juvenile court with directions to comply with the notice and inquiry provisions of ICWA. If, after proper inquiry and notice, the court determines Z. is an Indian child, the juvenile court shall proceed in conformity with ICWA. If, however, after proper inquiry and notice, the juvenile court determines Z. is not an Indian child, the order terminating parental rights and selecting adoption as the permanent plan shall be reinstated.
We concur: Simons, Acting P. J., Needham, J.