Filed 5/6/16 In re H.J. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re H.J., a Person Coming Under the
Juvenile Court Law.
                                                                 D068936
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. CJ-1171)
         Plaintiff and Respondent,

         v.

A.J., et al.,

         Defendants and Appellants.


         APPEAL from an order and judgment of the Superior Court of San Diego County,

Laura J. Birkmeyer, Judge. Conditionally reversed in part for further Indian Child

Welfare Act (ICWA) notification proceedings, and affirmed in part as to modification

order.

         Clare M. Lemon, under appointment by the Court of Appeal, for A.J., Defendant

and Appellant.
       Christopher Blake, under appointment by the Court of Appeal, for C.C., Defendant

and Appellant.

       Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy, and

Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.

       Appellants C.C. (Mother) and A.J. (Father) appeal a juvenile court order denying

Mother's modification motion for return of their child, H.J. (the child), to her care. (Welf.

& Inst. Code, § 388; all further statutory references are to this code unless noted.)

Mother, joined by Father, first argues the court abused its discretion when it denied her

motion for modification and then proceeded to the permanency planning hearing.

(§§ 388, 366.26.)

       The parents further contend reversal of the permanency planning judgment is

necessary because the San Diego County Health and Human Services Agency (the

Agency) did not adequately comply with the notice provisions of the ICWA. (25 U.S.C.

§ 1901 et seq.) After the court made a preliminary finding that the child was not an

Indian child, the Agency was placed in possession of additional genealogical information

from Mother's relatives, and it pursued additional notification procedures regarding her

ongoing claim of her Native American heritage. However, the Agency failed to provide

the court with the updated results when hearings resumed, which the parents argue failed

to meet the notification standards of the ICWA.1




1       Father's counsel filed a brief and letter joining in Mother's briefs on appeal. The
child's counsel filed a letter joining in the Agency's respondent's brief.
                                              2
       The Agency argues no error occurred, or it was waived or invited by the parents.

We conclude the parents' substantive contentions on modification lack merit, and there

was no abuse of discretion in the juvenile court's denial of Mother's motion for

modification. However, we agree with the parents that on this record, the Agency failed

to fully comply with the ICWA. We order a conditional reversal and limited remand for

the purpose of further ICWA notice verification, while affirming the order denying the

modification petition. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711; In re

Justin S. (2007) 150 Cal.App.4th 1426, 1437-1438.)

                                              I

                    FACTUAL AND PROCEDURAL BACKGROUND

                        A. Jurisdictional and Dispositional Orders

       The parents do not challenge the court's jurisdictional or dispositional findings.

The child came to the attention of the Agency in May 2014, when she was about nine

months old. After a relative told police officers that the parents were allegedly smoking

heroin in front of the child, they investigated and found them leaving the premises with

the child and the drugs. The parents were arrested for child endangerment and Mother

was found to be in possession of heroin residue and a pipe of the sort used for smoking

controlled substances. Father's backpack had a quantity of controlled substances in it and

he was arrested for possession for sale of same. The Agency originally placed the child

with the paternal grandparents, but she was removed to foster care when that Agency

learned the grandfather had a conviction for sexual abuse.



                                             3
       The Agency filed its petition on May 14, 2014, alleging the child was dependent

within the meaning of section 300, subdivision (b), because her parents were heroin

abusers who were unable to properly care for her. Mother, age 22 at the time, was being

prosecuted for driving under the influence and was in custody when initially interviewed

by the Agency. She acknowledged she had used controlled substances for the past five or

six years and had tested positive for opiates when the child was born, but claimed she

was not an addict. She said she understood she would need to stay clean so that she

could regain custody of the child. She participated in drug court and by August 2014,

was residing as an in-patient at the KIVA drug rehabilitation program. Father has a

record of several criminal offenses, including driving while under the influence of drugs

and alcohol.

       At the detention hearing, Mother informed officials that she believed she had

Cherokee heritage, possibly on both sides of her family. The Agency began

investigations, providing Mother with forms to fill out about her ancestry. In a prior

dependency proceeding involving Mother's own sibling, their mother told the Agency

there was no Indian heritage in the family. Father's family is of Mexican descent, without

Indian heritage.

       Jurisdiction was asserted on July 21, 2014 and the dispositional hearing was held

on August 13, 2014. The child was placed in foster care and the parents were granted

reunification services. As of August 2014, the court determined it could not yet make an

ICWA finding on whether the child was an Indian child.



                                             4
       In preparation for the March 2015 six-month hearing date, the Agency prepared a

review report stating that from August 2014 through October 2014, Mother had been

visiting with the child twice a week at the KIVA facility. Once released from custody,

both parents had weekly supervised visits until December 2014. They had apparently

been using drugs as observed during a December visit with the child. Father's parents

had kicked them out of their house for using drugs, and Mother had been evicted from

her rehabilitation program. By the end of December, both had been arrested for

probation violations. Once Mother was released from custody on February 26, 2015, she

was readmitted to the KIVA program. Father remained in custody. The Agency was still

making efforts to get Mother to fill out the ICWA forms.

                             B. Six-Month Review Hearing

       The contested six-month review hearing took place March 25, 2015. Mother

testified she now was living at KIVA and the child was visiting with her twice a week on

a supervised basis, without any reported problems. Although Mother had briefly used

controlled substances while pregnant with her second child with Father, she reported that

she was now sober and expected to give birth to their son in July 2015. She believed that

she would be able to complete the KIVA program and pursue classes and counseling.

       Mother was having trouble contacting her parents on the ICWA questions, as her

mother was homeless and her father was always drunk. She did not complete the forms

providing further information about her claims of Native American heritage until

March 18, 2015. In April 2015, the Agency sent notice of the case to three tribal entities



                                             5
of the Cherokee Nation (the tribe).2 They responded that the child was not of Indian

descent and they would not be intervening.

        At the six-month hearing, the court heard testimony from both parents and

considered the Agency's reports. The court terminated both parents' reunification

services and advised them they had a right to seek appellate review via writ. Our court

records show that on May 14, 2015, this court dismissed the parents' notices of intent to

file a writ petition, based on counsel's representations that there were no viable issues for

writ review. (A.J. v. Superior Court (D067792).)

        C. Events leading to Modification Motion and Permanency Planning Hearing

        Father was released from custody in May 2015 and moved back in with his

parents. In June 2015, Mother used her day pass from KIVA to go to the parents' home

to pick up her belongings. She discovered Father there, unconscious, and called for

medical assistance for him. It was learned he had overdosed on controlled substances.

Mother did not report the incident to the Agency. Father was arrested again in August

2015.

        In July 2015, Mother was still at KIVA when she gave birth to their new child.

No dependency proceedings were initiated for him. By mid-August 2015, Mother

completed her in-patient program, which included attending Narcotics Anonymous (NA)

meetings. She moved into an apartment that her probation officer approved. However,



2     Notices were sent to the three federally recognized Cherokee tribes, the Cherokee
Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah
Band of Cherokee Indians in Oklahoma.
                                              6
she had to leave when her probation officer found out her roommates were smoking

marijuana there. Mother did not inform or consult Agency social workers about that

problem.

        The adoptions assessment report filed July 6, 2015 took note that Mother

previously had successful supervised visits with the child, although she was sometimes

inconsistent in attending. Further visits took place during July and August 2015. The

child was glad to see Mother, sometimes calling her Mom, but sometimes had difficulty

in following her directions. The child was evaluated to be adoptable, and the Agency

was considering the current foster parents for adoptive placement. However, due to some

concerns that were raised about them, the Agency was also assessing various relatives as

possible adoptive placements. In the opinion of the assessment worker, it would not be

detrimental to the child to terminate parental rights. The worker had observed that the

child's relationship with Mother seemed to be comparable to that of a family friend,

rather than of a parent-child nature, partly because Mother's visits had been sporadic due

to her unavailability while in custody or participating in treatment programs. Father's

visits had been inconsistent and he had been unable to participate in any meaningful way

in the child's life.

        At the request of the Agency on July 20, 2015, the court made a finding that the

ICWA did not apply to the child. The court set the matter for a pretrial settlement

conference and scheduled a contested permanency planning hearing for September 18,

2015.



                                             7
       At the pretrial status conference on August 24, 2015, the court made findings that

Mother's relatives had supplied new information on potential applicability of the ICWA,

and directed that they provide further information to the social worker. The court

confirmed that the contested hearings would proceed on Mother's modification petition,

which was anticipated to be filed soon, and on permanency planning matters in

September 2015.

       Based on the new information received about Mother's other relatives, the Agency

sent renewed notices on September 3, 2015 to the three Cherokee tribal entities,

referencing the previous April 2015 notices sent. Agency workers spoke to some of the

maternal relatives, who told them that the child's great-great-grandmother had said she

was one quarter or one eighth Cherokee Indian, although they were never registered

members of the tribe. As of September 10, 2015, the Agency had not yet received any

signed certified mail green receipt cards.

       Mother filed her section 388 motion on September 2, 2015, on the grounds that

she had made material changes in improving her situation and opposed a permanent plan

of adoption. She argued the child's best interests would be best served by being returned

to her care. She had remained clean and sober since December 2014, and had been

attending a half-day family recovery aftercare program, Vista Hill ParentCare Central,

every weekday since August 10, 2015. Her therapy group leaders felt that she was doing

well there and presented herself as motivated to improve her circumstances. Her healthy

baby boy was born in July 2015 and remained in her care.



                                             8
       The Agency opposed the modification request, filing addendum reports in July,

August and September 2015. The Agency was concerned that Mother had not yet

identified her own NA sponsor, which she had been encouraged to do as part of her

recovery. The Agency questioned why Mother had not taken more action to exclude

herself from situations where individuals were actively using drugs. She had previously

moved in with marijuana smokers, and it was she who discovered Father's drug overdose.

The Agency had no evidence that Mother had completed therapy about any unresolved

mental health issues she had, which might have contributed to her substance abuse.

Overall, Mother was still in the initial stages of recovery and was only in the process of

changing her circumstances. The Agency recommended that the petition be denied.

       The court ruled that Mother had made out a prima facie case for modification, and

it combined the hearing on that request with the hearing on adoption of a permanent plan.

                             C. Combined Hearing; Rulings

       At the September 18, 2015 contested modification and permanency planning

hearing, Mother's attorney did not refer to the recent additional ICWA notices sent to the

three tribes by the Agency, or seek a continuance to get the results. The parties were

ready to proceed and the court considered the merits of her petition for modification.

Testimony from Mother's therapist at the aftercare program, Cara Silva, stated that

Mother had successfully completed an intensive inpatient program and was now an

outpatient. She was attending group therapy five times a week and doing well. She was

not really working on her "12 step" program, since she had not obtained an NA sponsor,



                                             9
but was otherwise making very substantial progress. The court admitted into evidence

the therapist's report and proof of Mother's regular attendance at NA meetings.

       The court heard testimony from the Agency's assessment worker, who was

concerned that Mother had not voluntarily addressed or overcome her six to seven years

of heroin and methamphetamine abuse. It was the caregivers who had been meeting the

child's needs on a daily basis for the preceding 16 months. The social worker questioned

why Mother had been the one to discover Father's drug overdose and why she had lived

with persons who allegedly used marijuana. The social worker had not seen any

beneficial parent/child bond among the parties.

       In Mother's testimony, she explained that when her probation officer approved the

home she had moved into, they were not aware that the roommates were using marijuana.

She no longer has any relationship with Father because he is not compatible with her new

lifestyle. She discovered his drug overdose in June 2015 only by accident, when she

arrived at his parents' house to pick up some of her property. She has been sober for nine

months and is living in a drug and alcohol free home. She attends not only daily group

therapy but also three NA sessions per week. Her visitation frequency has improved

since she finally decided in February to comply with her rehabilitation program.

       The court heard arguments of counsel, and read and considered the evidence

contained in the motion and the Agency reports and exhibits. In its ruling, the court

found Mother did not show the required "changed circumstances" that would justify

modifying the current orders, nor could she show that the child's best interests would be

served by returning her to Mother's custody. After additional argument on the

                                            10
permanency planning issues, the court made findings by clear and convincing evidence

the child was likely to be adopted and none of the statutory exceptions applied (no

beneficial parent/child exception). Parental rights were terminated and the child was

referred to the Agency for adoptive placement.

       Each parent filed a timely notice of appeal.

                                             II

                                MODIFICATION MOTION

       Mother, joined by Father, argues the juvenile court abused its discretion in

denying her section 388 motion seeking placement of the child with her. Father points

out that if the order and related judgment were to be reversed as to her, they should be

reversed as to him as well. (In re Mary G. (2007) 151 Cal.App.4th 184, 208.)

                          A. Applicable Standards: Two Prongs

       A petitioner requesting modification has the burden of proof to show a change of

circumstances or new evidence, and that the proposed modification is in the child's best

interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47; § 388, subd. (a)(1).) The focus

of a modification hearing is whether the petitioner has shown a significant change of

circumstances. In deciding whether the petition makes the necessary showing, the

juvenile court may consider the entire factual and procedural history of the case. (In re

Justice P. (2004) 123 Cal.App.4th 181, 189.)

       By the time that the juvenile court decides that a parent's reunification services

should be terminated, the dependency focus shifts from reunification toward how best to

promote the circumstances of permanency and stability for the child. (In re J.C. (2014)

                                             11
226 Cal.App.4th 503, 527.) The court held a full hearing on modification, after Mother

made a prima facie showing. (In re Marilyn H. (1993) 5 Ca1.4th 295, 310.) The petition

for modification under those circumstances was addressed to the sound discretion of the

juvenile court, and its decision will not be overturned on appeal in the absence of a clear

abuse of discretion, which must be demonstrated by the appellants. (In re A.A. (2012)

203 Cal.App.4th 597, 612; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)

       Although the abuse of discretion standard gives the trial court substantial latitude,

" '[t]he scope of discretion always resides in the particular law being applied, i.e., in the

"legal principles governing the subject of [the] action . . . ." ' " (Nickolas F. v. Superior

Court (2006) 144 Cal.App.4th 92, 119, citing City of Sacramento v. Drew (1989) 207

Cal.App.3d 1287, 1297.) It is not our role to reweigh the evidence. "It is the trial court's

role to assess the credibility of the various witnesses, to weigh the evidence to resolve the

conflicts in the evidence. We have no power to judge the effect or value of the evidence,

to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in

the evidence or the reasonable inferences which may be drawn from that evidence." (In

re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

                              B. Evidence at Hearing; Ruling

       In Mother's modification petition under section 388, she presented evidence that

since her reunification services were terminated in March 2015, she continued to

participate and progress in group therapy, and was attending NA meetings. Since

December 2014, she had been clean and sober. Her new baby was born in July 2015 and

she was successfully caring for him.

                                              12
       The Agency filed an addendum report in opposition to the section 388 petition,

noting Mother had not yet obtained a sponsor for her 12-step program, although required

to do so. This was her second effort to complete the family recovery program, as she had

dropped out in 2014.

       At the hearing on whether ordering placement of the child with Mother would

promote her best interests, the court specifically addressed the modification factors set

out in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532. These included (1) the

seriousness of the problem leading to the dependency; (2) the relative strength of the

child's bonds with the parent and with the caretaker; (3) the degree to which the problem

could be easily resolved. (Ibid.)

       First, the court evaluated the significance and seriousness of the problem leading

to dependency as high, because Mother had a lengthy history of drug abuse and had

struggled to achieve sobriety. The child was born with a positive toxicology screen of

opiates, and during the dependency proceedings, the parents had visited the child while

apparently under the influence of drugs. At the beginning of her pregnancy with her

second child, Mother had continued to use drugs, which was a concern for the court.

       Although Mother had been able to achieve sobriety in a very structured inpatient

and outpatient program, and was showing that she could make changes in her

circumstances, it was still a relatively early stage in her treatment. Also, there was a

significant month-long gap between the beginning of the aftercare program and Mother's

first NA meeting, and Mother was still looking for a sponsor in that program, which

delayed her progress.

                                             13
         Next, the court commented that Mother did not appear to be acknowledging that

she had triggers, such as being around people that were abusing drugs, and she had not

been able to keep herself out of those situations. Although Mother had made progress,

the court did not see that she was yet able to fully accept and address the issues before her

with respect to her drug treatment. For example, she appeared to have a way to go in

terms of her ability to focus not only on self-improvement but also on the needs of the

child.

         In discussing the second factor in the modification decision, the strength of the

relative bonding between the child and Mother, as opposed to the caretakers, the court

noted that the child was significantly bonded to her current caregivers. (In re

Kimberly F., supra, 56 Cal.App.4th 519, 532.) Although Mother had made efforts to

engage the child in age appropriate activities when they visited, Mother had not been able

to achieve a strong connection to the child. Visitations were still supervised, and the

Agency's social worker had reason to characterize Mother as a family visitor to the child,

not dominantly a parental figure.

         The third factor from In re Kimberly F., supra, 56 Cal.App.4th 519, 532, addresses

the relative ease with which dependency issues can be resolved. The court evaluated

Mother as still having some significant issues in being able to parent safely without a lot

of outside structure and support, and it was unknown how Mother would be able to meet

those challenges, which now included her second child. The court concluded that Mother

had not shown by a preponderance of the evidence that she would have the insight and

ability to assist this child and protect her interests, if she were removed from her

                                              14
caregivers and made a transition back to Mother's care. The trial court accordingly

denied Mother's section 388 petition.

                C. Analysis on Changed Circumstances and Best Interests

       In support of her claims of abuse of discretion in the court's ruling that no material

changes in circumstances had been demonstrated, Mother admits that she had initial

problems with maintaining sobriety, but emphasizes that once she put her mind to it, she

succeeded, despite some immaturity that she had to overcome. She argues that even in

light of the short period of reunification that is allowed for a very young child in the

dependency system, "she has done everything imaginable to demonstrate her

commitment to sobriety that is possible within the very short time period that was allotted

to her." (§ 361.5, subd. (a)(1)(B) [six months of reunification services for a dependent

child under three years old].)

       Mother also contends that the court and the Agency placed undue emphasis on the

factor that she briefly lived with people who used marijuana, even though she moved out

as soon as she found out. She also argues she should not be penalized simply because she

discovered Father unconscious at his parents' house, since she had gone over there for

legitimate reasons and did not know he would be there. It does not appear that the court

placed undue emphasis upon inappropriate factors. Rather, the court's extensive analysis

focused mainly upon Mother's individual qualities, activities and abilities to meet her

identified challenges. The court was concerned that Mother's life would become more

challenging, now that she had another baby to care for, and that it was unknown how she

would meet those challenges with the tools she had developed. The trial court referred to

                                             15
supporting evidence in the record that justified its ongoing serious concerns about

Mother's ability to implement and continue with the changes that she was making, even

though they were positive in nature.

       On this record, Mother was not able to show by a preponderance of the evidence

that her requested modification would advance the child's need for permanency and

stability. (In re Kimberly F., supra, 56 Cal.App.4th 519, 532.) Although her evidence

shows that Mother is making positive changes for herself and her new baby, in light of

the entire record, we are not persuaded that Mother showed sufficiently changed

circumstances on the essential issues that brought this child into the dependency system.

       We are not authorized to reweigh the evidence. The trial court resolved conflicts

in the evidence and concluded that reasonable inferences should be drawn that the

required changed circumstances had not been demonstrated, to enable the court to grant

the motion as promoting the child's best interests. (See In re Casey D., supra, 70

Cal.App.4th at pp. 52-53.) It was not an abuse of discretion for the trial court to find that

a preponderance of the evidence did not support the granting of the modification motion.

                                               III

                                   ICWA NOTICE ISSUES

                                   A. Applicable Standards

       "Congress enacted ICWA in 1978 'to protect the best interests of Indian children

and to promote the stability of Indian tribes and families. . . .' [Citation.] 'The ICWA

presumes it is in the best interests of the child to retain tribal ties and cultural heritage and

in the interest of the tribe to preserve its future generations, a most important resource.'

                                               16
[Citation.] Section 1911 of ICWA provides that a tribe may intervene in state court

dependency proceedings. [Citation.] Notice to the tribe provides it the opportunity to

exercise its right to intervene." (In re Damian C. (2009) 178 Cal.App.4th 192, 196.)

Each tribe has the authority to decide and apply its own membership criteria. (In re

Santos Y. (2001) 92 Cal.App.4th 1274, 1300; In re Kadence P. (2015) 241 Cal.App.4th

1376, 1386-1387; In re K.P. (2015) 242 Cal.App.4th 1063, 1071; § 224.3, subd. (e)(1).)

       California's implementing rules specify that a court has reason to know a child is

an Indian child when, among other circumstances, an interested person "informs or

otherwise provides information suggesting that the child is an Indian child to the court."

(Cal. Rules of Court, rule 5.481(a)(5)(A).) Section 224.3, subdivision (a) imposes a

continuing duty on the court and social services agency to conduct an adequate inquiry

regarding Indian ancestry. (In re A.B. (2008) 164 Cal.App.4th 832, 838; In re I.B. (2015)

239 Cal.App.4th 367, 376-377.) Under the ICWA, "where 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 parent or Indian

custodian and the Indian child's tribe, by registered mail with return receipt requested, of

the pending proceedings, and of their right of intervention." (25 U.S.C. § 1912(a).)

Generally, section 224.3, subdivision (e)(3) sets the time allowed for reply by the notified

party as 60 days. (Cal. Rules of Court, rule 5.482(d).) The ICWA notices, return receipts

and responses of the BIA and tribes must be filed in the juvenile court, and hearings on

foster care placements or terminations of parental rights shall be delayed at least 10 days



                                             17
after receipt of such notice. (In re X.V. (2005) 132 Cal.App.4th 794, 802; 25 U.S.C.

§ 1912(a).)

       Although doctrines of waiver and estoppel generally apply to issues arising during

dependency proceedings, ICWA notice issues may be addressed for the first time on

appeal. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 251; In re Dakota H.

(2005) 132 Cal.App.4th 212, 221-222.) Even so, the courts have acknowledged that

unwarranted delay in the proceedings may harm a dependent child's interest in finality

and stability. (In re X.V., supra, 132 Cal.App.4th 794, 804 [parents had duty on remand

to assist the Agency in ensuring proper notice was given; their silence on remand

precluded their second appeal on it].)3

       When the facts on compliance with the notice requirements of the ICWA are

undisputed, we review the matter independently. (Dwayne P., supra, 103 Cal.App.4th

247, 254.)

                                  B. Analysis of Record

       The ICWA notices were sent out twice in this case, first in April 2015, when the

tribes responded that the child did not qualify for membership. The court's minute order

of July 20, 2015 states that ICWA did not apply and notice was not required. The



3       The Supreme Court has granted a petition for review after the Court of Appeal
affirmed an order terminating parental rights, in In re Isaiah W. (2014) 228 Cal.App.4th
981, review granted October 29, 2014, S221263. The issue on review is described as
follows: "Does a parent's failure to appeal from a juvenile court order finding that notice
under the [ICWA] was unnecessary preclude the parent from subsequently challenging
that finding more than a year later in the course of appealing an order terminating
parental rights?"
                                             18
reporter's transcript for that hearing does not include such a finding. However, the court

at the next hearing reminded counsel that a ruling had already been issued that the ICWA

did not apply, which seems to indicate it had made one. (See People v. Beltran (2013) 56

Cal.4th 935, 945, fn. 7 [whether clerk's minutes or reporter's transcript should prevail

depends on circumstances of the case].)

       Nevertheless, once Mother's relatives supplied further genealogy information to

the Agency, the court properly required the Agency to carry out further notification

procedures. We interpret that order as effectively invalidating the court's previous

finding from July 20, 2015 that the ICWA was inapplicable. (See In re K.M. (2015) 242

Cal.App.4th 450, 458 [receipt of new evidence that a child may be an Indian child would

require previous contrary orders taken in violation of the ICWA to be invalidated]; In re

Kahlen W. (1991) 233 Cal.App.3d 1414, 1424 ["failure to provide the required notice

requires remand"].) The court presumably ordered further notifications to be made

because it had developed a new "reason to know" that an Indian child might be involved.

(25 U.S.C. § 1912(a); see In re Gerardo A. (2004) 119 Cal.App.4th 988, 994; In re

Gabriel G. (2012) 206 Cal.App.4th 1160, 1165; Cal. Rules of Court, rule 5.481(a)(5)(A);

§ 224.3, subd. (b)(1).) It acted appropriately in view of its continuing duty to obtain

accurate information pertaining to the ICWA. (In re I.B., supra, 239 Cal.App.4th 367,

376-377.)

       In its September 3, 2015 supplemental ICWA notices, the Agency referenced the

previous April 2015 notices, and provided five new items of information about relatives.

In its reports as of September 10, 2015, the Agency had not yet reported the receipt of

                                             19
any signed certified mail green receipt cards from the tribes. As of the time of the

permanency planning hearing on September 18, the matter was not brought up. We

cannot find, however, that Mother waived her right to object by failing to request a

continuance or failing to seek a ruling expressly vacating the juvenile court's prior order,

that the ICWA did not apply. In this context, Father's silence on the matter was

inconclusive. Despite the previous indications in the record that a significant degree of

Indian ancestry for the child was unlikely, the ICWA issues had been reopened and the

court had the obligation to follow it up.

       Regardless of any arguable waiver issues, this record is susceptible to an

interpretation that some controversy remains about whether the ICWA applies to this

case. Conceivably, there might have been a different response to the renewed ICWA

notices given. (See In re E.W. (2009) 170 Cal.App.4th 396, 399-400, 402.) Although we

do not specify the extent of notice to be given (e.g., attaching copies of the previous

versions sent), we agree with the parents that the court did not have enough information

before it to again conclude that the ICWA was inapplicable to the proceedings. Limited,

conditional reversal of the judgment and remand is required, because the court had reason

to know there was such a possibility, but it lacked any information on the results of the

additional notice given. Such information was necessary before the permanency planning

issues could be properly resolved. (See In re Damian C., supra, 178 Cal.App.4th at

p. 199.)




                                             20
                                       DISPOSITION

       The order denying the modification order is affirmed, and the judgment

terminating parental rights is conditionally reversed. The case is remanded to the

juvenile court with directions to order the Agency to supply additional information

concerning any responses to the ICWA notices sent, insofar as the designated Cherokee

tribes are concerned. If, after proper notice, a tribe claims the child is an Indian child, the

court shall proceed in conformity with all provisions of the ICWA. If no tribe claims the

child is an Indian child, the judgment terminating parental rights shall be immediately

reinstated.




                                                                    HUFFMAN, Acting P. J.

WE CONCUR:



                        NARES, J.



                    McINTYRE, J.




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