Filed 8/18/15 In re Heaven G. CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


In re HEAVEN G., a Person Coming Under                                        2d Juv. No. B260160
the Juvenile Court Law.                                                     (Super. Ct. No. 1435841)
                                                                             (Santa Barbara County)

CHILD PROTECTIVE SERVICES,

     Plaintiff and Appellant,

v.

ERNEST G.,

     Defendant and Appellant.



                   Ernest G., the biological father of Heaven G., appeals from an order
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terminating his parental rights. (Welf. & Inst. Code, § 366.26.) Appellant contends that
Santa Barbara County Child Welfare Services failed to comply with the notice provisions
of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq) and the California
ICWA related statutes (§ 224 et seq.). We conclude that proper notice was not provided
and conditionally reverse for the limited purpose of complying with the notice provisions
of ICWA. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1437-1438; In re Francisco W.
(2006) 139 Cal.App.4th 695, 711.)

1
    All statutory references are to the Welfare & Institutions Code unless otherwise stated.
                                      Procedural History
              On September 19, 2013, Santa Barbara County Child Welfare Services
(CWS) detained two-year-old Heaven after the child's mother, Rosa G., was arrested at
home where drugs were being used. Mother was under the influence of
methamphetamine. Heaven was wet and filthy, and toddling about the room with access
to the drugs. A male subject was in the room and had a heroin needle in his arm.
              CWS filed an amended petition for failure to protect (§ 300, subd. (b)) and
no provision for support (§ 300, subd. (g)). The petition alleged that mother suffered
from substance abuse and had a lengthy criminal history for inflicting corporal injury on
a spouse, battery, burglary theft, providing a false ID to an officer, and making criminal
threats. The petition stated that appellant had a lengthy criminal history, was in the Santa
Barbara County Jail awaiting transport to state prison, and had left Heaven with no
provision for her care and support.
              Before the detention hearing, mother told CWS "[t]here is a little bit of
Indian" in her family. Appellant declared that he had no Indian heritage.
              At the October 17, 2013 jurisdiction hearing, mother filed a Parental
Notification of Indian Status form (ICWA-020) that she was or may be a member or
eligible for membership in the Shoshone tribe. The trial court sustained the petition,
found that Heaven may be an Indian child, and ordered reunification services for mother
but not appellant.
              When CWS inquired about mother's Indian heritage, mother referred the
case worker to the maternal grandmother (Maria C.). The maternal grandmother believed
that her last name came from a Shoshone tribe and that her family had Indian heritage.
The maternal grandmother provided the names, partial birthdates, and birthplaces of the
maternal grandmother and grandfather, the maternal great-grandmother and great-
grandfather, and the maternal great-great-grandparents.
              CWS, however, failed to list the information in the ICWA notice which
was mailed to the Bureau of Indian Affairs and the Shoshone tribes. (§ 224.2, subd.
(a)(3)-(4).) Nineteen Shoshone tribes responded that Heaven was not an Indian child.


                                              2
One tribe, the Winnemucca Tribe, refused to respond. On March 10, 2014, the trial court
found that ICWA did not apply.
              At the six month review hearing, CWS reported that mother was using
drugs and had not followed through on her substance abuse treatment. The trial court
terminated reunification services and, following a contested section 366.26 hearing,
found that Heaven was adoptable and terminated parental rights.
                                        ICWA Notice
              ICWA requires that proper notice be given to Indian tribes so the tribes can
                                                                                           2
identify Indian children from tribal records and participate in a dependency proceeding.
(In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) The ICWA notice requirements serve
the interests of the Indian tribes irrespective of the position of the parents and may not be
waived by a parent. (In re Justin S., supra, 150 Cal.App.4th at p. 1435.)
              By federal regulation (25 C.F.R. § 23.11(d)(3)) the ICWA notice must
include, if known, (1) the name, birthplace, and birth date of the Indian child; (2) the
name of the tribe in which the Indian child is enrolled or may be eligible for enrollment;
(3) names and addresses of the child's parents, grandparents, great-grandparents and other
identifying information; and (4) a copy of the dependency petition. (In re Karla C.
(2003) 113 Cal.App.4th 166, 175; In re D.T. (2003) 113 Cal.App.4th 1449, 1454.) CWS
is statutorily required to follow the ICWA inquiry and notice requirements. (See §§ 224-
224.3; Cal. Rules of Court, rules 5.481 & 5.482; In re W.B. (2012) 55 Cal.4th 30, 52-53.)
              Before serving the ICWA notice, CWS contacted the mother, the paternal
aunt, and the maternal grandmother and reported the following information in an ICWA
Matrix: The paternal aunt thought there might be Indian heritage on the child's maternal
side but was uncertain. The maternal grandmother believed her family had Shoshone


2
  "For purposes of ICWA, an 'Indian child' is one who is either a 'member of an Indian
tribe' or 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).)" (In re K.M., supra, 172 Cal.App.4th
at p. 118.)



                                              3
Indian heritage and provided her full name, date of birth and birthplace, and the names of
the maternal grandfather, great-grandfather, great-grandmother, and great-great-
grandparents with some information about dates of birth and birthplaces. None of the
information, not even the maternal grandmother's name, was listed in the ICWA notice.
              " 'One of the primary purposes of giving notice to the tribe is to enable the
tribe to determine whether the child involved in the proceedings is an Indian child.
[Citation.]' [Citation.] Notice is meaningless if no information is provided to assist the
tribes and the BIA in making this determination." (In re D.T., supra, 113 Cal.App.4th at
p. 1455; see e.g., In re S.M. (2004) 118 Cal.App.4th 1108, 1116 [ICWA notice omitted
known information about child's grandmother or great-grandmother].)
              CWS argues that it is unlikely that Heaven has Indian heritage because the
maternal grandmother and maternal great-grandparents were born in Mexico. Federally
recognized Shoshone tribes are located in California, Wyoming, Nevada and Idaho but
not central Mexico. The argument fails because "[t]he Indian status of a child need not
be certain or conclusive to trigger the ICWA's notice requirements. [Citations.]" (In re
D.T., supra, 113 Cal.App.4th at p. 1454; see In re Merrick V. (2004) 122 Cal.App.4th
235, 246 ["juvenile court needs only a suggestion of Indian ancestry to trigger the notice
requirement"]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411 [defective ICWA
notice "usually prejudicial"].) The trial court found that Heaven may be an Indian child
and ordered that ICWA notice be given. We conclude that the notice provided was
insufficient and reverse with directions to correct the notice defect. (In re Francisco,
supra, 139 Cal.App.4th at pp. 703-705 [limited reversal].)




                                              4
                                        Disposition
              The order terminating parental rights is conditionally reversed and the
                                                                                 3
matter is remanded with directions to file and serve an amended ICWA notice. If no
tribe declares Heaven to be an Indian child or if no timely response is received, the trial
court shall reinstate the judgment terminating parental rights. If, however, after proper
inquiry and notice, a tribe determines that Heaven is an Indian child as defined by ICWA,
the trial court shall proceed in compliance with ICWA and the Welfare and Institutions
Code. (In re Justin S., supra, 150 Cal.App.4th at pp. 1437-1438; In re Francisco W.,
supra, 139 Cal.App.4th at p. 711.)
              NOT TO BE PUBLISHED.



                                                         YEGAN, J.


We concur:


              GILBERT, P.J.


              PERREN, J.




3
 Appellant argues that CWS failed to give ICWA notice to the Summit Lake Paiute
Tribe. The tribe is not a Shoshone tribe. (See Federally-Recognized Tribes, ICWA
Contacts for Noticing Purposes (March 2014) http://www.childsworld.ca.gov/res/
pdf/CDSSTribes.pdf).


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                                  Arthur A. Garcia, Judge
                       Superior Court County of Santa Barbara
                         ______________________________


             Lelah S. Fisher, under appointment by the Court of Appeal, for Appellant.


             Michael C. Ghizzoni, County Counsel, County of Santa Barbara and Toni
Lorien, Deputy, for Respondent.




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