Filed 8/27/13 In re A.W. CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----



In re A.W. et al., Persons Coming Under the Juvenile
Court Law.

SHASTA COUNTY HEALTH AND HUMAN                                                               C072502
SERVICES AGENCY,
                                                                                        (Super. Ct. Nos.
                   Plaintiff and Respondent,                                           10JVSQ2733302,
                                                                                       10JVSQ2733402,
         v.                                                                            10JVSQ2733502)

C.W.,

                   Defendant and Appellant.




         C.W., mother of the minors, appeals from orders of the juvenile court terminating
her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)1 Appellant contends the record
fails to show that appellant was informed and aware of her rights at the section 366.26
hearing and her submission on the issues was not, therefore, voluntary. Appellant further




1        Undesignated statutory references are to the Welfare and Institutions Code.

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argues, and respondent concedes that a limited reversal for compliance with the Indian
Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) notice provisions is required. While
finding no merit in appellant’s first contention, we accept respondent’s concession as to
the second contention and reverse and remand the orders for compliance with the notice
provisions of ICWA.
                                           FACTS
       In March 2008, the Shasta County Health and Human Services Agency (Agency)
filed a petition to remove A.W., age seven; D.S., age three; and I.S., age 13 months from
parental custody due to appellant’s drug issues. Mother successfully reunified and the
first dependency was terminated in October 2009.
       The Agency filed a new petition in September 2010 to remove the minors from
mother after D.S., then five years old, took a bag of methamphetamine to school. The
court ordered the minors detained. At the detention hearing, mother signed a notice of
rights and responsibilities which stated, in pertinent part: “The California Welfare and
Institutions Code requires that the Court provide you with the following information
concerning your rights and responsibilities during juvenile dependency court
proceedings: [¶] 1. Right to an Attorney: You have the right to have an attorney
represent you at all hearings . . . The court will appoint an attorney for you if you are
unable to afford one. [¶] 2. Hearing Rights You are entitled to the following: [¶] A. To
be present at all hearings [¶] . . . [¶] D. You have a limited right to assert the privilege
against self-incrimination. . . . [¶] E. You have the right to confront and cross-examine
the persons who prepared reports or documents submitted to the court and the witnesses
called to testify at the hearing. [¶] F. You have the right to have the court compel
witnesses to attend who may be helpful to you. [¶] G. You have the right to present
evidence to the court. [¶] H. You also have the right to have your legal rights explained
to you by the court. If you do not understand any of these rights, tell your lawyer or the
judge when your case is called.” (Italics added.) The notice of rights and responsibilities

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also informed mother that if she failed to reunify, the court could order the minors into
long-term foster care or set a hearing to determine whether guardianship, adoption, or
long-term foster care was the appropriate permanent plan.
       At the jurisdiction/disposition hearing in March 2011, the court denied services to
mother, set a section 366.26 hearing as to A.W., and ordered services for the father of
D.S. and I.S. In August 2011, mother filed a petition for modification seeking services
and an increase in visitation. The court set a hearing on the petition. The court intended
to deal with the petition for modification first then with the other pending issues of
review hearings for D.S. and I.S. and selection of a permanent plan for A.W. which
would trail.
       The September 2011 status review report for I.S. and D.S. recommended the court
terminate father’s services and set a section 366.26 hearing.
       A bonding assessment in August 2011 concluded the minors would benefit from
continuing contact with mother if she remained sober and visited consistently. A second
assessment in October 2011 concluded that if mother remained clean and sober and
worked on her personality issues, termination of parental rights would be detrimental to
the minors.
       The November 2011 report for the section 366.26 hearing for A.W., now age 10,
recommended termination of parental rights and a permanent plan of adoption. The
report stated A.W. was highly adoptable.
       The hearing on the petition for modification commenced in March 2012 and
included 10 days of testimony over the next three months. The court issued its ruling
denying the petition for modification as to all three minors, adopting the recommended
findings and orders terminating services as to the father of D.S. and I.S., setting a section
366.26 hearing as to them, and deferring ruling on A.W.’s section 366.26 hearing. As a
part of the orders, the court advised mother of the time and place of the section 366.26



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hearing, the right to counsel, and the nature of the proceedings, i.e. that the purpose of the
hearing was to select a permanent plan for the minors.
       The report for the section 366.26 hearing as to D.S. and I.S. recommended
termination of parental rights and adoption by a paternal aunt and uncle. The two minors
and A.W. were moved to this placement in September 2012. An addendum report
regarding A.W. continued to recommend termination of parental rights and a permanent
plan of adoption. A.W. told the social worker he was in favor of adoption by his current
caretakers.
       At the section 366.26 hearing for the three minors, the court declined to order a
sibling bond assessment as unnecessary. In response to mother’s counsel’s concerns, the
court observed that the prospective adoptive parents could allow contact between the
minors and mother if they chose to do so. Counsel for mother then informed the court
that mother was prepared to go forward with evidence, but had made a decision that she
wanted the matter concluded and wanted to address the court then submit the matter. The
court permitted mother to make a statement.
       Mother made the following statement: “I wouldn’t be here today if it wasn’t for
CPS coercing [D.S.] at school, and now they are again manipulating my child’s mind.
This is enough. And it’s too much to put on a little boy. CPS is doing more damage to
my kids than I ever did, and I’m shocked at the unethical way that CPS is handling my
case, the case of my children.
       “Their accusation of any offense that I would physically harm my children is one
hundred percent not true. I never would have ever or could have ever harmed any of
them, or any child for that matter.
       “In addition to harming me by these tricks from CPS, it’s also harming my
children, and using the fragile psyche of my seven-year-old child, [D.S.], and [A.S.] to
complete their task.



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       “I want my kids to be happy. I want my kids placed with their uncles. They can
adopt them. I just want this to end. I don’t want my kids -- my kids are old enough now
that they know me. They know that I love them. They will come home when they are
older. They don’t need to be messed with in their minds anymore. They don’t need any
more of this. It just needs to end.
       “I would give up my rights if they would just be with their family. I’m fine with
them being that way. I love my children and I always will. That’s it.”
       The court expressed the hope that the minors would be able to return to a healthy
relationship with mother, but had to proceed to permanency. The court adopted the
recommended findings and orders to terminate parental rights with a permanent plan of
adoption as to all three minors and found that ICWA did not apply.
                                      DISCUSSION
                                             I
                              Termination Of Parental Rights
       Mother argues that the record does not show her submission, plea, or waiver at the
section 366.26 hearing was voluntary and informed with an awareness of what she was
giving up and was; therefore, invalid as a waiver of her parental rights. Mother contends
she was not informed of her right to a hearing on termination and the defenses thereto.
       Mother misapprehends the state of the record. At the outset of the case, she was
informed of her right to counsel, to have hearings during the course of the dependency at
which she could contest the social worker’s recommendations, and to present evidence on
her own behalf. She was also informed that if she failed to reunify, the court could
choose a permanent plan after a hearing and the plan could be adoption. Mother was
represented by counsel at all stages of the proceeding and was assured conflict-free
counsel by appointment of new counsel prior to the hearing on her petition for
modification and the later section 366.26 hearings. She was also advised of the nature of



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the section 366.26 hearing and the possibility that her parental rights would be
terminated.
       Mother recognizes that, while there is a requirement of advisement of rights and
procedures to insure an informed plea or submission prior to a jurisdiction hearing (Cal.
Rules of Court, rule 5.682), a requirement for a written waiver of services (§ 361.5, subd.
(b)(14)), and a requirement for a written relinquishment of a child for adoption (Fam.
Code, § 8700, subd. (a)), there is no requirement that the court advise a parent of her
rights prior to the section 366.26 hearing. The only requirement is notice of the nature of
the proceedings and other particulars as set forth in section 294, subd. (e). This notice
was provided. Further, the social worker’s reports for the hearing made it clear that the
Agency recommended termination of parental rights with a permanent plan of adoption.
       Mother’s counsel had secured two assessments which supported application of the
beneficial relationship exception to termination of parental rights. (§ 366.26, subd.
(c)(1)(B)(i).) Counsel informed the court mother was ready to go forward with the
evidence but had made a decision not to do so. Clearly, mother had discussed the
strategy of the case with counsel and had a well-articulated reason for choosing not to
further litigate the issues. Mother chose to forego the contested hearing on the selection
of a permanent plan, not to relinquish her parental rights.2 Mother’s statement to the
court made it clear that she continued to be concerned about what she saw as
manipulation of her children from the outset of the proceedings. She had come to terms
with the reality of the Agency’s recommendation and the knowledge that the minors


2      Mother’s discussion of waiver and voluntariness relies on several cases which are
distinguishable on their facts. Several involve relinquishment of, or consent to adopt, a
child to a department or agency and one deals with a narcotics addiction commitment.
(Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511 [relinquishment]; San
Diego County Dept. of Public Welfare v. Superior Court (1972) 7 Cal.3d 1
[relinquishment]; Adoption of Barnett (1960) 54 Cal.2d 370 [consent]; In re Walker
(1969) 71 Cal.2d 54 [commitment].)

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could return to her when they came of age. She had a right to say “enough” and decline
to engage in further litigation. The record demonstrates she was well advised of her
rights and fully represented by competent counsel. In the circumstances of this case, the
record demonstrates mother’s choice to forego a contested trial and the possibility of
establishing an exception to termination of her parental rights, was fully voluntary.
                                             II
                                 Indian Child Welfare Act
       Mother argues, and the Agency concedes, that a conditional reversal is required to
comply with the ICWA notice requirements. Mother also argues additional inquiry is
required.
       ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting tribal
participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.)
The juvenile court and the Agency have an affirmative duty to inquire at the outset of the
proceedings whether a child who is subject to the proceedings is, or may be, an Indian
child. (Cal. Rules of Court, rule 5.481(a).) The duty of inquiry is continuing and may
include interviewing extended family members to gather information. (§ 224.3, subds.
(a) & (c).)
       Here, the initial inquiry was made and mother denied any Indian heritage. Mother
subsequently identified possible heritage in the Iroquois, Blackfeet, and Cherokee tribes.
Mother told the social worker the maternal grandmother was adopted and mother had no
information about the maternal grandmother’s biological parents.3 Mother said she had
little information about the maternal grandfather and authorized the social worker to



3      Mother’s claimed Iroquois heritage through the maternal grandmother. There is
no indication in the record how that information arose if she had no knowledge of the
maternal grandmother’s birth parents or heritage.

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speak to his mother, the maternal great-grandmother. Through this contact, the social
worker developed further information about the maternal grandfather’s heritage and sent
notice to the relevant tribes. Mother provided additional details to the social worker who
sent a second notice to the tribes. None of the tribes responded that the children were
members or eligible for membership.
       Mother asserts that the Agency failed to ask the maternal grandmother and the
maternal grandfather about their Indian ancestry although the Agency had the ability to
contact both.
       The Agency apparently did not contact the maternal grandmother based on
mother’s information that she was adopted and mother had no information about the
maternal grandmother’s biological parents or birth name. The Agency has no duty to
attempt to open a forbearer’s adoption records to seek information about a child’s Indian
ancestry. (In re C.Y. (2012) 208 Cal.App.4th 34, 42.) However, an initial inquiry of the
maternal grandmother, for whom the agency has contact data, may be made to ascertain
whether there is any known Indian heritage.
       Presumably the Agency did not contact the maternal grandfather because the
social worker was able to get relevant information from his mother. Assuming the
Agency has contact data for the maternal grandfather, the Agency should be able to
ascertain his correct birth date and address from him. However, the Agency has no duty
to “cast about” to find him. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.)
       The inquiry coupled with known information on both the grandparents may
require additional notice to the tribes. Reversal with a limited remand is necessary to
permit compliance with the notice provisions of the ICWA.




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                                      DISPOSITION
       The orders terminating parental rights are reversed and the matter is remanded for
the limited purpose of complying with the notice provisions of the ICWA. If, after
further inquiry and notice by the Agency, the juvenile court determines that the tribes
were properly noticed and there either was no response or the tribes determined that the
minors are not Indian children, the orders shall be reinstated. However, if a tribe
determines the minor is an Indian child as defined by the ICWA and the court determines
the ICWA applies to this case, the juvenile court is ordered to conduct a new section
366.26 hearing in conformance with all provisions of the ICWA.




                                                   ROBIE         , J.



We concur:



      RAYE          , P. J.



      MURRAY           , J.




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