Filed 8/12/15 In re Roman P. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


In re ROMAN P., a Person Coming Under
the Juvenile Court Law.


DEL NORTE COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
         Plaintiff and Respondent,                                   A143774
v.
                                                                     (Del Norte County
NINA P.,                                                             Super. Ct. No. JVSQ 13-6015)
         Defendant and Appellant.



         In this Welfare and Institutions Code section 3001 dependency proceeding, mother
Nina P. appeals from an order terminating parental rights to minor Roman P. and
ordering adoption as the permanent plan. Nina argues only that respondent Del Norte
County Department of Health and Human Services (the Department) failed to comply
with the notice requirements of the Indian Child Welfare Act (ICWA), 25 United States
Code section 1901 et seq., and related provisions of California law. More specifically,
she contends the Department failed to: conduct an inquiry into Roman’s potential Native
American ancestry, include all available information regarding his maternal relatives in



         1
        All subsequent statutory references are to the Welfare and Institutions Code
unless otherwise noted.

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the ICWA notice, and inquire of his father whether he had any Native American heritage.
We agree the notice was defective, and we conditionally reverse.
                                    BACKGROUND
        Roman was born in October 2005 to Nina and Stephen P. In January 2013, Nina
and her then partner, James H., had a child, Robert H. Nina, James, and the two children
lived in Crescent City, while Stephen lived in Texas and had no involvement in Roman’s
life.
        On February 11, 2013, the Department filed a section 300 dependency petition
concerning Roman, alleging that: Nina and James had substance abuse problems that
impaired their ability to care for Roman (b-1); Nina and James were involved in a
“domestically volatile relationship” and had made death threats against James’s mother
(b-2); Roman was at risk of emotional and physical harm because James had slapped him
in the face and hit him on the arm (b-3); Roman’s father did not have a relationship with
Roman and his ability to parent Roman had not been assessed (b-4); Roman was at risk
for abuse or neglect because Nina and James failed to seek medical attention for Robert
when the infant was in serious respiratory distress (j-1); and Roman was at risk for abuse
or neglect because Nina and James had left Robert in the care of James’s mother when he
was in respiratory distress (j-2). A petition asserting the same allegations was filed on
Robert’s behalf.
        At a detention hearing two days later, the following exchange occurred regarding
the children’s Native American heritage:
        “THE COURT: Let me ask the mother: Do you have any American Indian
heritage?
        “NINA: My grandmother told me one time that there’s Comanche in our family
line somewhere, but I don’t remember exactly where she stated.
        “THE COURT: All right. And I’m going to order you to provide all the
information you have to the social worker. We have an ICWA 20 form that you need to
fill out. [¶] . . .



                                             2
       “THE COURT: What about [Stephen], do you know if he has any American
Indian heritage?
       “NINA: I don’t know his family history. [¶] . . .
       “THE COURT: And is your grandmother still alive?
       “NINA: No. She passed away in 2006.
       “THE COURT: Do you have any more information that might help us track down
the tribe that your children might be affiliated with?
       “NINA: I don’t know which of my family members I’d be able to talk to about
that because I don’t know who has that information.
       “THE COURT: Okay. Are you a member of a tribe?
       “NINA: No. I can’t—I don’t currently claim. I don’t know if I can.
       “THE COURT: All right. And are your mother and father alive?
       “NINA: My mother, yes. My biological father I don’t know.
       “THE COURT: And so this grandmother who gave you this information, that was
your maternal grandmother?
       “NINA: Yes.
       “THE COURT: I’m going to direct you to provide as much information as you
can to the department.”
       At the conclusion of the detention hearing, the court ordered Roman and Robert
detained, and they were placed together in a foster home.
       At a March 15 jurisdictional hearing, the court found the allegations in the petition
to be true and sustained the petition. The court was informed that Roman’s father lived
in Texas and was being assessed by the Department for possible placement.
       ICWA Notice
       On March 19, the Department served a notice of child custody proceeding for
Indian child on the Comanche Nation in Oklahoma, the Bureau of Indian Affairs, and the
Secretary of the Interior. The notice identified Roman by name but omitted his place of
birth. It named Nina as Roman’s mother, listing her “Tribe or band, and location” as



                                              3
“Comanche Nation, Comanche, Continental U.S. Indian Tribes” and her membership or
enrollment number as “Comanche Nation.”
       The notice also provided names for Nina’s mother and father (Roman’s maternal
grandmother and grandfather), and listed “Grants Pass, Oregon” as the current address for
the grandmother and no address for the grandfather. Other than stating “Bureau of Indian
Affairs” for membership or enrollment number, no other information was provided for
the maternal grandmother and grandfather. The notice also provided names for one
maternal great-grandmother and one maternal great-grandfather, identifying the
Comanche Nation as the applicable tribe or band. No other information concerning the
great-grandparents was provided.
       The notice identified Stephen as Roman’s biological father and provided his
address in Texas. It contained no other information regarding Stephen or any other
paternal relatives, stating, “No information available” for every category.
       Disposition
       In its March 27, 2013 dispositional report, the Department noted that Nina had
indicated she may be of Comanche descent and that it was in the process of verifying the
information. It reported, however, that records from a dependency proceeding when
Nina was a minor indicated ICWA did not apply to her.
       By letter dated April 2, the Comanche Nation responded that it had determined
through its enrollment records that Robert and Roman were not eligible to be enrolled
members of the Comanche Nation. The letter identified the requirements for enrollment,
one of which was a one-eighth blood quantum of Comanche blood.
       Following the conclusion of a contested disposition hearing on April 12, the court
found that notice was given as required by ICWA. The court declared Roman and Robert
dependents of the court and ordered reunification services for Nina, James, and Stephen.
       Six-Month Review
       In advance of the six-month review hearing, a court-appointed special advocate
(CASA) submitted a report recommending continued services as to both Roman and
Robert. While much of the report is irrelevant to the issues before us, pertinent is the


                                             4
CASA’s observation that when asked who was important to him, Roman named Nina,
Robert, and his maternal aunt (Nina’s sister), who lived next to his maternal grandparents
in Oregon.
      At an October 2 contested six-month review hearing, the court terminated
reunification services as to Robert. Two days later, it continued services as to Roman for
six months.
      Nina’s Writ Petition and Appeal as to Robert
      Nina petitioned for extraordinary writ review of the court’s order terminating
services as to Robert, which we denied on its merits. (In re Robert H. (Dec. 30, 2013,
A139958) [nonpub. opn.].)
      The juvenile court subsequently terminated parental rights to Robert and ordered
adoption as the permanent plan. Nina appealed, asserting only one argument: that the
Department failed to comply with the notice requirements of ICWA. On March 25,
2015, we issued our opinion, agreeing that the ICWA notice was defective and
conditionally reversing to allow the Department to provide notice of the proceeding in
accordance with ICWA and related provisions of California law. (In re Robert H. (Mar.
25, 2015, A142091) [nonpub. opn.] (Robert H.).)2
      12-Month and 18-Month Reviews as to Roman
      At a 12-month review hearing in March 2014, the court noted that the potential
transfer of Roman to Stephen in Texas had fallen through because Stephen had failed to
make himself available for a home inspection. Despite this, and the fact that Nina was
now homeless, the court again continued services for six more months.
      Tragically, Nina’s mother suddenly passed away the following month in an
automobile accident.
      On August 15, the court held an 18-month review hearing at which it terminated
reunification services as to Roman and set the matter for a section 366.26 permanency




      2
          Nina requests that we take judicial notice of our opinion, which request we grant.

                                              5
hearing. Nina sought writ review of the order, which we again denied on the merits. (In
re Roman P. (Oct. 10, 2014, A142790) [nonpub. opn.].)
       Section 366.26 Permanency Hearing
       At a December 12 section 366.26 permanency hearing, the juvenile court
terminated the parental rights to Roman and ordered adoption as the permanent plan.
       Nina filed a timely notice of appeal.
                                       DISCUSSION
       Nina’s challenge to the juvenile court’s order terminating her parental rights
begins with the same error she asserted in Robert H. There, she contended that the
Department failed to comply with the notice requirements of ICWA because it failed to
conduct an adequate inquiry into Nina’s Native American heritage and to include all
known information in the notice. We agreed, conditionally reversing the order to allow
the Department to provide proper notice. Nina argues here that the ICWA notice as to
Roman contained the same defects, an argument that is well taken.
       In Robert H., we set forth the law governing the Department’s ICWA notice
obligations, and we need not repeat it here. We simply reiterate that ICWA’s strict notice
requirements are a fundamental component of the statutory scheme, because “ ‘the tribe’s
right to assert jurisdiction over the proceeding or to intervene is meaningless if the tribe
has no notice that the action is pending.’ [Citation.]” (Dwayne P. v. Superior Court
(2002) 103 Cal.App.4th 247, 253; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421
[“Notice is a key component of the congressional goal to protect and preserve Indian
tribes and Indian families.”].) While ICWA itself does not impose any duty to inquire
into a minor’s Native American ancestry (In re H.B. (2008) 161 Cal.App.4th 115, 120),
California law imposes an affirmative duty on a social services agency to interview the
minor’s extended family to ascertain the required information. (Cal. Rules of Court., rule
5.481, subd. (a)(4) [social worker must, among other things, interview the parents, Indian
custodian, and extended family members to gather information required by the notice]; In
re C.D. (2003) 110 Cal.App.4th 214, 225 [agency “has a duty to inquire about and obtain,



                                               6
if possible, all of the information about a child’s family history” required under
regulations promulgated to enforce ICWA].)
       As with the notice concerning Robert, the notice here omitted information about
Roman’s maternal grandmother that the Department could readily have obtained had it
satisfied its duty of inquiry. The only information the Department provided for the
maternal grandmother—Nina’s mother—was her name and an incomplete address
(“Grants Pass, Oregon”). The record contains evidence, however, suggesting that with a
minimal amount of inquiry, the Department would have been able to obtain additional
information regarding the grandmother. First, the family was involved in a dependency
proceeding when Nina was a minor. By its own admission, the Department reviewed that
file as part of the instant proceeding and, at a very minimum, would have been able to
glean the grandmother’s date of birth, which was unquestionably in the file.
       Moreover, a CASA representative submitted a report in which he related that
Roman had identified the most important people in his life as Nina, Robert, and his
maternal aunt (Nina’s sister), who lived next door to the maternal grandmother in
Oregon. This should have indicated to the Department that Nina was or had recently
been in contact with her sister, such that her sister, in addition to her mother, was a
potential source of information regarding the family’s Native American ancestry.
       Nina made it clear that what little she knew about her potential Comanche
ancestry she had learned from her maternal grandmother, now deceased. It was
incumbent upon the Department to interview her extended family members to obtain
whatever further details it could about the family’s Native American heritage. (Cal.
Rules of Court, rule 5.481.) The logical place to start was with Nina’s sister and mother,
and there is nothing in the record suggesting the Department made any effort to obtain
information from them.
       Unquestionably, our conclusion in this regard is complicated by the fact of Nina’s
mother’s passing in April 2014. Had the Department conducted a timely inquiry into the
family’s native ancestry, the maternal grandmother was a potential source of information,
a source that is no longer available. But Nina’s sister is, and there may be other maternal


                                              7
relatives with pertinent information. The Department’s obligations under ICWA required
it to seek out that information. In light of its apparent failure to do so, we cannot
conclude that substantial evidence supports the trial court’s finding of proper ICWA
notice.
          In opposition, the Department contends it was not obligated to send an ICWA
notice in the first place because Nina’s suggestion that she may have Indian ancestry was
too “vague and speculative” to trigger the notice requirement. In support, it relies on In
re Shane G. (2008) 166 Cal.App.4th 1532, but its reliance is misplaced. There, the
mother claimed she may have Comanche heritage, although neither she nor her children
had ever been tribal members. (Id. at pp. 1536–1537.) The social worker interviewed the
maternal grandmother, who related that the minor’s great-great-great-grandmother was a
Comanche princess. The grandmother told the social worker, however, that she never
saw any ceremonial costumes and no one in the family ever participated in Indian
ceremonies, lived on a reservation, attended an Indian school, or received services from
an Indian health clinic. (Id. at p. 1537.) The parties also stipulated to the testimony of a
representative from the Comanche enrollment office, who would testify that the
Comanche tribe requires any member to be at least one-eighth Comanche, and the
testimony of the maternal grandmother, who would testify that the minor had 1/64th
Comanche heritage. In light of that information, the juvenile court found there to be no
reason to believe the minor was an Indian child, and no ICWA notice was required.
(Ibid.)
          The Court of Appeal affirmed, agreeing that ICWA notice was not required. It
reasoned that the agency’s inquiry produced no information that the minor was an Indian
child and the evidence before the court demonstrated that the Comanche tribe required a
minimum blood quantum for membership that excluded the minor. (In re Shane G.,
supra, 166 Cal.App.4th at p. 1539.) Here, in contrast, there was no evidence the
Department conducted an inquiry into the family’s Comanche ancestry, no evidence it
contacted Nina’s mother, or sister, or other relative. And while the Department
speculates that Roman would not meet the Comanche’s one-eighth blood quantum


                                              8
requirement, in the absence of any inquiry, that is nothing more than speculation that
cannot excuse the Department’s notice obligation.
       In re Hunter W. (2011) 200 Cal.App.4th 1454, on which the Department also
relies to support its “vague and speculative” argument, is similarly distinguishable.
There, the mother indicated she may have Native American ancestry through her father
and deceased paternal grandmother, although she could not identify the particular tribe or
nation, nor did she know of any relative who was a member of the tribe, provide contact
information for her father, or identify any other relative who could reveal more
information. (Id. at pp. 1458, 1468.) The court found that the information provided by
the mother was insufficient to trigger the ICWA notice requirement. (Id. at p. 1458.)
       The Court of Appeal affirmed, rejecting the mother’s claim that the juvenile court
erred by not requiring the social services agency to conduct an inquiry into the minor’s
possible Indian ancestry. (In re Hunter W., supra, 200 Cal.App.4th at p. 1466.) The
court observed that the mother “cite[d] no authority in which the court found sufficient
information to trigger ICWA when the parent could not even identify the tribe the family
may have had connections to.” (Id. at p. 1468.) Here, obviously, Nina identified the
tribe. And while the Department claims Nina “could not provide contact information for
any family member,” there is no evidence in the record that the Department asked Nina
for the information.
       In addition to the lack of information about her own native heritage, Nina also
argues that reversal is required because the Department failed to inquire of Roman’s
father whether he had Native American ancestry. As Nina notes, the Department was in
contact with Stephen and had at least two conversations with him prior to sending the
ICWA notice. Stephen’s counsel was present at the dispositional hearing on April 12
when the court found that proper ICWA notice had been provided, but no inquiry was
made of Stephen’s ancestry at either that hearing or any of the preceding hearings.
       ICWA itself imposes no duty to inquire as to a minor’s Native American ancestry.
(In re H.B., supra, 161 Cal.App.4th at p. 120.) But California provides a higher standard
in California Rules of Court, rule 5.481(a), which imposes upon the court and the county


                                             9
welfare agency “an affirmative and continuing duty to inquire whether a child is or may
be an Indian child . . . .” However, “any failure to comply with a higher state standard,
above and beyond what the ICWA itself requires, must be held harmless unless the
appellant can show a reasonable probability that he or she would have enjoyed a more
favorable result in the absence of the error.” (In re S.B. (2005) 130 Cal.App.4th 1148,
1162.) “Where the record below fails to demonstrate and the parents have made no offer
of proof or other affirmative assertion of Indian heritage on appeal, a miscarriage of
justice has not been established and reversal is not required.” (In re Noreen G. (2010)
181 Cal.App.4th 1359, 1388.) Here, Nina complains that no inquiry was made of
Stephen concerning his ancestry, but she makes no offer of proof or other affirmative
assertion that Stephen is of Native American heritage. She has thus not established a
reasonable probability that she would have obtained a more favorable result in the
absence of the error. And, we note, Stephen has not appealed and thus has not asserted
this argument on his own behalf. The Department’s apparent failure to inquire of
Stephen regarding his ancestry was thus harmless error.
                                      DISPOSITION
       While we are reluctant to delay permanency for Roman, the Department must
fulfill its obligations under ICWA and California law, and the juvenile court’s finding
that it did so was unsupported by substantial evidence. We therefore reverse the order
terminating parental rights to Roman and remand the matter for the limited purpose of
providing notice of the proceedings in accordance with the provisions of ICWA and
California law, and to file all required documentation with the juvenile court. If, after
proper notice, a tribe claims that Roman is an Indian child, the juvenile court shall
proceed in conformity with all provisions of ICWA. If, on the other hand, no tribe claims
him to be an Indian child, the order terminating parental rights to Roman shall be
reinstated.




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                                 _________________________
                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




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A143774




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