Opinion
E069090
01-24-2018
In re T.N., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. L.N., Defendant and Appellant.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1600561) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
L.N. (mother) appeals from the juvenile court's order at the six-month review hearing. She argues there was insufficient evidence to support the findings (1) she received reasonable reunification services as to her teenage daughter, T.N., and (2) the Indian Child Welfare Act (ICWA) did not apply.
The juvenile court removed T.N. from mother based on mother's addiction to prescription pain killers and mental health issues. Early in the case, mother told the social worker she was a carrier of MRSA, a bacterial infection that is highly contagious and difficult to treat. Based on her representation, the court ordered mother to obtain medical clearance before visiting her daughter or beginning services. Over the next seven months, mother repeatedly promised clearance was forthcoming while simultaneously showing no interest in visitation or services. Just weeks before the six-month review, mother finally provided clearance, which meant she had made no progress on her case plan in the first reunification period. At the six-month review hearing, the court found Riverside County Department of Public Social Services (the department) had provided reasonable services under the unique circumstances of the case, and awarded mother another six months of services.
On appeal, mother argues the department failed to make a reasonable effort to accommodate her medical condition by finding providers who offered online or correspondence services she could attend remotely. We cannot agree with this position. The record demonstrates mother was resistant to services and failed to take the relatively small step that would give her access to the waiting referrals. "[R]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent." (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) Furthermore, the services mother needs to address her issues are not available remotely. Because mother's ICWA claim also lacks merit, we affirm the order.
I
FACTUAL BACKGROUND
A. Jurisdiction and Disposition
Thirteen-year-old T.N. came to the department's attention in August 2016 by way of a neglect referral. According to the referral, mother had called the police because T.N. was destroying property in mother's boyfriend's home, where all three resided. The police placed T.N. on a "5150 hold." She had cuts and burns on her arms and her toxicology report was positive for benzodiazepines, Xanax, methamphetamine, and marijuana. She admitted she had taken some of her mother's Xanax. The police observed mother also appeared under the influence.
Welfare and Institutions Code section 5150 allows for the involuntary hospitalization of a person who "as a result of a mental health disorder, is a danger to others, or to himself or herself." (Welf. & Inst. Code, § 5150, subd. (a).)
About two weeks later, when the social worker arrived to interview mother at her home, her boyfriend, C.D., answered the door. From a room in the back of the home mother refused to speak with the social worker, saying she was ill. C.D. told the social worker T.N. was a "terror" and had been "off" since her father died six years earlier. C.D. said just before T.N. had been hospitalized, she had shaved her head and painted herself blue then painted a doll blue and stabbed a knife through its head.
The following day, the department received another referral alleging mother was refusing to pick T.N. up from the hospital, where T.N. had been for the last 14 days. T.N. had been diagnosed with "mood disorder mixed with psychosis, poly-substance abuse disorder, substance abuse mood disorder and substance induced psychosis," and had been prescribed Abilify. She had been self-harming.
When the social worker called mother to ask why she had not picked up her daughter from the hospital, mother said she had food poisoning. The social worker noted mother was "incoherent" and her speech was slurred and difficult to understand. Mother ultimately conveyed C.D. would pick up T.N. from the hospital.
Later that day, after T.N. had returned home, the social worker arrived for an interview. T.N.'s head was shaved and her hair and eyebrows dyed blue. She wore a sock on one of her arms to cover self-inflicted wounds. She had no affect and would stare blankly into space, repeating, "things are fine now." T.N. said mother took "a large amount of medication." Mother again appeared incoherent. Her speech was slurred, she changed topics quickly, and at one point got up to turn off the television, which was already off.
Mother said she suffered from degenerative disc disease and had a "history of MRSA." Mother took a plethora of medications she said were for pain and anxiety—Morphine, Oxycontin, Percocet, Xanax, and Zofran. Instead of keeping them in their prescription bottles, she had them mixed together in a clear plastic box. She admitted having been hospitalized a few years earlier for overdosing on her medications. She also said T.N. had been hospitalized three times in the last year, but she never suspected T.N. was self-harming. She thought the wounds on her daughter's arm were from cooking.
"Methicillin-resistant Staphylococcus aureus (MRSA) infection is caused by a type of staph bacteria that's become resistant to many of the antibiotics used to treat ordinary staph infections." (https://www.mayoclinic.org/diseases-conditions/mrsa/symptoms-causes/syc-20375336) MRSA can cause skin infections, sepsis, and pneumonia, (https://www.medicinenet.com/is_mrsa_contagious/article.htm.) It is "very contagious"—"spread occurs through person-to-person contact with a skin infection or even indirect contact, such as contact with a MRSA-infected person's clothing or towels." (Ibid.)
Mother had a record of prior referrals from 2013 and 2016, each closed due to a lack of information. Those referrals alleged she had been intoxicated and incoherent and T.N. had not been attending school. They also alleged T.N. was taking mother's drugs and attacking mother.
It became readily apparent to the social worker T.N. was not attending school. Mother claimed T.N. was taking courses online, but she could provide no details about the program, did not know her daughter's grade, and their computer was broken. The social worker felt strongly that a psychologist should evaluate T.N. because the teen at times presented as a five-year-old child.
The home was in a disturbing state. Scrawled in black marker across the walls and doors were bilious statements like "Pray for Satan," "fuck you, die, die, just fucking die," "Give my knife back dumb fuck," and "I don't give a fuck." The bathroom sink and walls were covered in blue dye, and the phrase "Kill Yo Self" had been spray painted in large letters across the back of the door. There were several large holes in the walls and doors, as if someone had taken a hammer to them. T.N.'s bedroom was in complete disarray. The walls were covered in writing and her dresser and desk had been overturned. Mother said T.N. had made the mess two weeks earlier and she had not gotten around to cleaning it.
The social worker attached photographs of the home to the detention report. The damage is just as she described.
As part of a safety plan, mother agreed to take a urine drug test; keep all knives, sharp objects, medications, and alcohol locked up; turn off the stove gas when not cooking; clean the home; schedule a mental health appointment for T.N.; and fill T.N.'s prescription for Abilify. The social worker offered mother several pre-placement preventative services, including a list of mental health and substance abuse providers in Riverside County and a referral for a children's clinic for T.N.
Several days later—the day the social worker was scheduled to follow-up with mother on her safety plan progress—mother called to reschedule. Her speech was slurred and she said she still had food poisoning. She admitted she had not completed her urine test, made a therapy appointment for T.N., or filled T.N.'s prescription. She had, however, made a medical appointment for herself to obtain more pain killers. Two days later, the social worker came to the home unannounced. T.N. had a new burn on her arm and there was unsecured alcohol in the refrigerator.
The social worker spoke with a supervisor at an organization called Youth Hospital Intervention Team and arranged preventative services for mother and T.N. But when the supervisor called the home, mother declined services saying everything was fine. The intervention team continued to call mother and even tried visiting her home, to no avail. The Riverside County Sheriff's Department attempted a welfare check on September 19, 2016, but was unable to make contact with mother or her family.
A few days later, the social worker and a sheriff's deputy returned to mother's home, but no one answered. After multiple knocks, they saw mother through one of the windows and called out to her. When she eventually let them in, the social worker found unsecured knives in the kitchen. The social worker took T.N. into emergency protective custody and mother became upset, yelling that she would "lose money" if T.N. was not in the home. However, she quickly changed subjects, glancing at her watch and remarking that she needed to get her pain medication before the pharmacy closed. The following day, the department placed T.N. in a safe house in Riverside.
Concerned for T.N.'s physical and mental safety, the department filed a dependency petition alleging she fell within the meaning of section 300, subdivision (b). The petition alleged T.N. suffered from serious unresolved mental health and substance abuse issues and mother was abusing prescription medication and neglecting to care for T.N. or send her to school.
Unlabeled statutory citations refer to the Welfare and Institutions Code.
The juvenile court held the detention hearing on September 26, 2016. Mother's counsel said mother was in the hallway outside the courtroom and suffered from a medical condition that needed to be cleared. The court detained T.N. from mother and authorized supervised semiweekly phone visitation. It ordered mother to obtain MRSA clearance from her doctor, saying mother could not have any in-person contact with T.N. until the clearance came through.
A few days after the hearing, the department placed T.N. in a group home in Ventura County. A month passed and mother did not call T.N. or call the department to get T.N.'s phone number. On October 24, 2016, the social worker called mother and gave her T.N.'s number.
Mother believed T.N. alone was to blame for the detention; she had no understanding of the role her own neglect had played. She said T.N. knew if she wanted to come home she had to start therapy and go back to school. Mother called the allegation she abused prescription pain killers "ridiculous." She said she had a degenerative disc disease in her spine and her doctor used to have her on eight Percocet and eight Morphine pills a day. She said her prescription was "way lower" now, at three and two pills a day, respectively. She said she also takes Xanax for anxiety.
When asked if she had obtained MRSA clearance, she said she had a blood screening appointment later that day and was hoping to receive a note from her doctor within the next couple days. On October 26, 2016, the social worker referred mother to individual counseling and parenting classes and reminded her to obtain MRSA clearance before she could take advantage of the referrals. She also reminded mother the clearance was the only way she could start visiting her daughter. Mother said she understood.
T.N. was attending eighth grade and weekly therapy sessions, and generally doing well in the group home—except for an incident where she was caught hiding a tube of methamphetamine in her diary. T.N. liked living in the group home, but also wanted to return home.
The department recommended the court remove T.N. from mother and offer family reunification services. The social worker believed mother was insufficiently concerned for T.N.'s safety and was more concerned about her relationship with her boyfriend, C.D., and securing pain medication. She wrote, "It is concerning that mother is unable to recognize T.N.'s needs and blames the child for her behavior. The mother failed to provide for T.N.'s needs due to her own unresolved mental health and substance abuse issues. T.N. has been hospitalized on three separate occasions this year while mother has not followed through with any services for T.N. nor has she filled the child's prescription medications. . . . [¶] Mother has been able to make doctor appointments for herself and retrieve her pain medications, but she has not been able to do the same for T.N. . . . [¶] . . . [¶] Currently, the mother had not made any attempt to connect with her daughter. It is concerning that during the Jurisdiction/Disposition interview, when questioned about her family's strengths and what is going well in her life, mother kept talking about her boyfriend and her dogs."
Where names appear in quoted documents or transcripts, we substitute pronouns or initials to safeguard confidentiality.
In the few weeks leading up to the jurisdiction and disposition hearing, T.N. and mother began having supervised phone calls two to three times a week. The social worker noted that T.N. always did the calling, mother never reached out to T.N. On November 1, 2016, the social worker again reminded mother she needed to obtain MRSA clearance before she could see T.N or begin services, and mother said she would give her a note from her doctor.
On December 13, 2016, the social worker called mother to check on her progress in getting MRSA clearance. Mother told her she had 20 "bites" on her leg and had just taken four rounds of three different antibiotics to treat them. She said she would fax the social worker the MRSA clearance soon. The social worker told mother once she provided the clearance she could begin services, which would include drug testing, individual counseling, a psychological evaluation, and parenting classes. Mother responded, "You are doing this because you want to keep my daughter away from me. I cannot do these services. I have 3 degenerated disks in my neck and 1 degenerated disc in my tailbone."
Mother asked if the department was trying to terminate her parental rights saying, "I do not want to lose my daughter but now when I talk to her she sounds normal. This place is good for her and she needs to stay there a little longer." The social worker explained they were trying to help her reunify with T.N. and would give her services for up to one year for that purpose. She informed mother of the upcoming jurisdiction and disposition hearing but reminded her she would not be able to attend without clearance. Mother said she understood, adding, "I would not miss it for anything but why do I have to be there?"
The jurisdiction and disposition hearing took place on December 20, 2016. Mother's attorney said mother had left a voice message the previous day saying she had a note from her doctor "to clear herself." Her attorney had tried calling her back but was unable to reach her. The court found the petition allegations true, declared T.N. a dependent within the meaning of section 300, subdivision (b) (failure to protect), removed her from mother, and gave mother family reunification services. The court approved mother's case plan, which called for psychological evaluation, counseling, parenting courses, and substance abuse treatment. It ordered mother and T.N. to participate in psychological evaluations so their case plans could be further tailored to their mental health needs, if necessary.
B. Six-Month Review Period
T.N. was doing well in her placement. She had formed several positive relationships at the group home and never had any rule violations. She had made "great strides" in her emotional and social development and now presented at an age-appropriate level in both areas. She was still doing poorly in school, but had completed an individualized education plan, and was set to start participating in four hours of tutoring a week. She said she was not worried about catching up academically before starting high school. She believed her poor grades were a result of never completing homework assignments, which she pledged to change. She had successfully completed the diversion program resulting from her possession of methamphetamine (which included drug testing) and the court had taken her off informal probation. Her mental health had stabilized (her previously diagnosed mood and substance abuse disorders were in partial remission), she was not prescribed medication in her February 2017 evaluation, and she had been authorized to step down to a lower level of care (e.g., placement with a foster family).
About three months into the reunification period, the social worker assigned to the case resigned. The department's call logs show she frequently contacted T.N., but had called and text messaged mother only once, in mid-May 2017 (mother never responded). The new social worker was able to reach mother on the phone on June 21, 2017. Mother reported she had finally obtained MRSA clearance and would fax it over.
Mother told the social worker she was unemployed and on disability due to back pain. She said she could drive only short distances and used a walker to get around on foot. She was attending her medical appointments with transportation assistance from her health care provider, and C.D. (whom she now described as her best friend) was taking her to the grocery store. She said she had taken up hobbies like painting and embroidering "to pass [the] time."
Mother reported taking the following medications: Cymbalta (for fibromyalgia); Xanax (for panic attacks); 120 mg of Morphine a day (for pain); up to three pills of Zofran a day (for nausea); a muscle relaxer; and Lidocaine (for cramping).
Mother finally submitted the MRSA clearance to the department sometime in July, and the social worker immediately placed new service referral requests. On August 24, the day the referrals went through, the social worker notified mother she was set for substance abuse, individual therapy, parenting classes, a medical evaluation, and a psychological evaluation. She said the department would provide any transportation mother might need, but mother said she had transportation through her health care and C.D.
The record does not indicate when exactly mother submitted the clearance, nor does it contain a copy of the clearance itself. We know mother had not submitted it by July 12, 2017, because the department did not have the clearance when it filed its status report on that date. But she must have submitted it by July 21, as that is when the social worker began renewing her service referrals.
The six-month review hearing took place about a week later, on August 31, 2017. The court commended T.N. on her progress and told her they would work on getting her placed in a foster home in Riverside so she could be closer to mother.
Mother's attorney objected that the department had not provided reasonable services. She argued the department should have kept better contact with mother and offered her the type of parenting correspondence courses available to incarcerated parents since she could not have in-person services until cleared of MRSA. The department disagreed, arguing a parenting correspondence course would not have been specifically tailored to mother's problems. It argued mother's pain medication abuse prevented her from taking care of her struggling teenage daughter's emotional and educational needs. It pointed out that what mother needed was a psychological evaluation and an in-depth substance abuse program, not a generic parenting course. The department further argued that, given mother's medical condition and delay in obtaining clearance, it had rightly focused its efforts on facilitating phone visitation and helping T.N. work through her issues, and had been successful on both fronts.
The court found the department had provided reasonable services. It noted the department gave mother referrals in the fall of 2016 and, had mother obtained MRSA clearance when initially ordered to do so, those services would have been available to her. The court also noted the department was diligent about requesting new referrals as soon as mother did finally provide clearance, seven months later. Agreeing with the department, it found a correspondence course on parenting was not a "reasonable alternative service" in light of the particular problems that led to T.N.'s removal. It concluded the services mother needed—a psychological evaluation and in-depth substance abuse treatment—could not be provided effectively online, over the telephone, or via a correspondence course. It also concluded telephonic therapy sessions were not an option because mother had not demonstrated she was 30-days sober, a county requirement for beginning therapy.
The court did, however, chide the department for failing to contact mother for a significant portion of the reunification period. Emphasizing how crucial timing would be in the next reunification period due to mother's lackluster efforts, the court told the department to keep in frequent contact with her and quickly secure alternative services if she faced administrative hurdles. "[B]ecause in this situation mom can't afford to be on a 90-day waiting list to get into a [program]." The court ordered six more months of services and scheduled the 12-month review hearing.
II
DISCUSSION
A. Reasonableness of Reunification Services
Subject to exceptions not at play here, a parent of a child three years of age or older is entitled to 12 months of family reunification services. (See § 361.5, subds. (a)(1), (b), & (e).) The 12-month period begins to run from the date the juvenile court removes the child from the parent's custody and determines the parent is entitled to court- ordered services—typically, the disposition hearing. (In re T.W. (2013) 214 Cal.App.4th 1154, 1165.)
When the juvenile court orders reunification services, the child welfare agency must specifically tailor those services to the unique needs of the family and design them to alleviate the circumstances that gave rise to the dependency. (In re Taylor J. (2014) 223 Cal.App.4th 1446, 1451.) The agency "must make a good faith effort to develop and implement a family reunification plan. [Citation.] '[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult.'" (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.)
The agency must attempt to provide reasonable reunification services even if it is difficult to do so or the prospects of reunification are low. (In re Taylor J., supra, 223 Cal.App.4th at p. 1451; accord, In re Alvin R. (2003) 108 Cal.App.4th 962, 973 (Alvin R.) ["Some effort must be made to overcome obstacles to the provision of reunification services"].) The agency's efforts do not have to be perfect, but they must be reasonable given the circumstances of the case. (In re T.G. (2010) 188 Cal.App.4th 687, 697.) We review a reasonable services finding for substantial evidence. (Amanda H. v. Superior Court, supra, 166 Cal.App.4th at p. 1346.)
Mother claims no such evidence supports the juvenile court's finding in this case. She argues the department should have changed course as soon as it realized MRSA clearance was not forthcoming and focus instead on offering her creative alternative referrals not involving physical contact with service providers. This argument asks too much of the department and too little of mother.
While it is true an agency cannot sit back and watch a parent fail, it is equally true reunification services "cannot be forced on an unwilling or indifferent parent." (In re Christina L., supra, 3 Cal.App.4th 404, 414.) The reasonable services requirement "is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions." (Ibid.; accord, In re T.G., supra, 188 Cal.App.4th 687, 698 [upholding reasonable services finding because "[f]ather demonstrated no interest in completing the case plan or in taking advantage of the services offered to him"].) This is not a case where the agency failed to help a struggling parent find the means to participate in services. Rather, the record reveals mother was resistant to services and showed no interest in making progress on her case plan.
Throughout the reunification period, mother had a suite of services at her disposal and one court-ordered requirement to satisfy to gain access to them. It took her seven months to comply with the court order, even though the department repeatedly told her it was the only thing standing in the way of being able to see her daughter. Each time the department reminded her of her obligation, she would promise the clearance was on its way. She kept this up for over six months, despite knowing she could not hope to reunify with T.N. without the clearance. And tellingly, when the social worker described the services available once the clearance came through, mother replied she would not be able to do them, citing back pain. Mother may well suffer from severe back pain, but she was nevertheless able, in her condition, to grocery shop and attend various medical appointments to obtain pain medications and antibiotics. As a result, her blaming her failure to start services on the department's lack of creative alternative referrals strikes us as somewhat disingenuous. What the record instead indicates is that mother was resistant to services. Indeed, she had been resistant from the start, before the court ordered her to obtain medical clearance. Prior to detention, mother ignored a package of prevention services, including much-needed therapy sessions for T.N., and refused help from the Youth Hospital Intervention Team.
We do share the juvenile court's concern about the department's failure to contact mother from January to mid-May. And in a different sort of case, that same failure could constitute unreasonable services. (See, e.g., Mark N. v. Superior Court (1998) 60 Cal.App.4th 996.) Here, however, there was really nothing the department could do until mother obtained clearance. It had done what it could by lining up services and reminding her of her court-ordered obligation. In fact, there were periods where the social worker frequently contacted mother, but those consistent reminders did nothing to motivate her. What appears to finally have provided motivation was the impending review hearing.
Independent of the issue of her receptiveness to services, however, mother's argument fails because the alternatives she says the department should have offered are unworkable. A parenting correspondence course would not have been tailored to her unique needs and would not have brought her closer to reunifying with T.N. As the department argued at the hearing and the juvenile court agreed, the rift between her and T.N. was not one that could be healed by a general parenting course. To address the problems that lead to the dependency, mother needed to confront her addiction to pain medication, stop blaming T.N. for the department's involvement in their lives, and learn how to care for a grieving teenage child with mental health and substance abuse problems. In other words, mother needed a psychological evaluation and intensive substance abuse treatment, neither of which can effectively take place telephonically or by correspondence course.
We therefore conclude substantial evidence supports the juvenile court's finding the department provided reasonable reunification services during the six-month review period. Nevertheless, mother still has time to reunify with her daughter, and would do well to redirect her focus to regularly visiting T.N and participating in services.
B. ICWA
When mother first spoke with the social worker, she denied any Indian ancestry. However, at the detention hearing, her attorney told the court mother "believed that somewhere in her past that there was somebody that had American Indian ancestry," though she "had no idea" which tribe. Based on this representation, the court ordered the department to send ICWA notice to the Bureau of Indian Affairs (BIA). Less than a month later, the department sent notice to the BIA. As mother points out on appeal, the notice did not contain addresses for any of T.N.'s grandparents and it erroneously stated mother's father's name was Glen Thomas Hathaway, when the department's reports reflected this was mother's adoptive father and that her biological father's name was Harley Spenser Ferguson. At the next hearing, the juvenile court found proper notice had been given, then at the six-month review hearing found ICWA did not apply. Mother now argues that finding must be reversed because the department's notice was deficient.
We disagree. Deficient ICWA notice is error only when notice is required under the statute, and on these facts, notice was never required. As a result, the court arrived at the correct determination that ICWA did not apply. We recognize the court ordered the department to give notice, but we affirm a trial court's determination on any correct basis, even one the court itself did not rely on. (E.g., In re Zamer G. (2007) 153 Cal.App.4th 1253, 1271 ["If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion"].)
ICWA establishes minimum federal standards for the removal and placement of Indian children in dependency proceedings. (In re Abbigail A. (2016) 1 Cal.5th 83, 90.) The court and the parties must follow ICWA's procedural and substantive requirements when an Indian child is involved, and the statute defines "Indian child" as "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." (25 U.S.C. § 1903(4).)
Notice to the tribe or the BIA is one of ICWA's procedural requirements. (In re Francisco W. (2006) 139 Cal.App.4th 695, 702 [if the tribe's identity is unknown, the agency must give notice to the BIA].) "The purpose of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether the child is in fact an Indian child" and if so whether to intervene. (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) Notice is required "where the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a), italics added; In re Andrew S. (2016) 2 Cal.App.5th 536, 546.) In addition to circumstances not applicable here, a juvenile court has "reason to know" an Indian child is involved where the agency "has discovered information which suggests that the child is an Indian child." (In re O.K. (2003) 106 Cal.App.4th 152, 156, citing Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979)).) However, information that is "too vague, attenuated and speculative" does not trigger the notice requirement because it does not suggest the child meets the statutory definition of an Indian child. (In re J.D. (2010) 189 Cal.App.4th 118, 125.) For example, notice is not required when the family member who believes the child might be an Indian child is not an enrolled member of a tribe, cannot identify a particular tribe, and does not know whether he or she or another family member is eligible for tribal membership. In those situations, appellate courts have found the family member's suspicion of Indian ancestry to be too "nebulous" and "speculative" to suggest the minor might be an Indian child. (See, e.g., In re O.K., supra, 106 Cal.App.4th at pp. 154-157; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467-1468; In re Z.N. (2009) 181 Cal.App.4th 282, 298.) Such is the case here.
Mother argues the showing required to trigger the notice requirement is minimal and cites a handful of cases where the reviewing courts found sufficient information to suggest the minors might be Indian children. She is correct the threshold is minimal, but as low as the bar is, she has not cleared it. In each of the cases she cites, the record contained evidence tying a family member to a specific tribe or nation. (E.g., In re Miguel E. (2004) 120 Cal.App.4th 521, 549 [mother believed child's father had Apache ancestry]; In re B.H. (2015) 241 Cal.App.4th 603, 607 [distinguishing cases where parent cannot identify a specific tribe or nation and finding father's claim of Cherokee ancestry through his father sufficient to trigger notice].) Here, in contrast, mother could not identify which relative might have Indian ancestry or which tribe that relative might be linked with. The belief she might have Indian ancestry somewhere in her past is extremely nebulous, and speculation that one might have Indian ancestry, without more, is insufficient to trigger the notice requirement. (E.g., In re O.K., supra, 106 Cal.App.4th at pp. 154-157 [mother's statement she "may be of Native American [h]eritage" was insufficient to trigger notice].)
However, because the juvenile court's duty to inquire whether T.N. is an Indian child is both "affirmative and continuing" (In re Isaiah W. (2016) 1 Cal.5th 1, 9), if as this case progresses mother can identify a family member and a tribe or nation to support her belief she might have Indian ancestry, the juvenile court should order the department to issue adequate notice. Because the current record contains no information suggesting T.N. or any of her relatives is a member of a tribe or eligible for membership, we uphold the court's ICWA finding.
III
DISPOSITION
We affirm the order from the six-month review hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: CODRINGTON
Acting P. J. FIELDS
J.