Filed 6/6/13 In re C.L. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re C.L., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E057469

         Plaintiff and Respondent,                                       (Super.Ct.No. RIJ120738)

v.                                                                       OPINION

C.L.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.

         Lori A. Fields, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Pamela J. Walls, County Counsel, Anna M. Deckert, Deputy County Counsel, for

Plaintiff and Respondent.

         No appearance for minor.

                                                             1
       C.L. (minor, born August 2009) came to the attention of plaintiff and respondent

Riverside County Department of Public Social Services (the department) on December 2,

2010, upon receipt of a report from law enforcement that minor was living with his

paternal grandparents, who were suspected of operating a methamphetamine lab. Mother

was physically incapacitated and living in an assisted living facility, while father was

incarcerated. After sustaining a juvenile dependency petition filed by the department, the

juvenile court found the Indian Child Welfare Act (ICWA) applied as mother was a

registered member of the Chickasaw Nation, in which minor would also be eligible for

membership. Father reported Indian heritage as well.

       On February 7, 2011, the juvenile court removed minor from parents’ custody and

ordered parents’ receive six months of reunification services. On August 8, 2011, the

juvenile court terminated parents’ reunification services. The department initially placed

minor with caregivers through Indian Child and Family Services; however, those

caregivers requested minor be removed; the department subsequently placed minor with

non-Indian foster parents on May 2, 2011. After the Chickasaw Nation intervened and

could not find a placement for minor, it approved termination of parents’ parental rights

and adoption by minor’s foster care parents. On September 7, 2012, the juvenile court

terminated parents’ parental rights and ordered adoption as the permanent plan.

       On appeal, father contends the juvenile court erroneously terminated his parental

rights without complying with ICWA with respect to his own purported Indian heritage.1


       1   Mother is not a party to the appeal.


                                                  2
We agree the department failed to comply with ICWA notification with regard to father’s

purported Indian heritage and, therefore, conditionally reverse the juvenile court’s order

terminating father’s parental rights.

                     FACTUAL AND PROCEDURAL HISTORY

       On December 2, 2010, law enforcement investigated a report that paternal

grandparents were operating a methamphetamine lab at their residence.2 They had

responded to the home six times in the preceding two months, during which they had

conducted arrests. An officer opened the front door of the home and found minor

standing next to two pitbulls without adult supervision. Minor informed the officer

everyone was sleeping. The officer found paternal grandmother asleep in a back

bedroom. Paternal grandfather was talking with someone outside the home. The officer

found a drug pipe and controlled substances on paternal grandfather’s person; paternal

grandparents were both arrested for possession of illegal substances, possession of stolen

property, and passing bad checks.

       Minor had been living with paternal grandparents his entire life. At the time of his

delivery, he tested positive for opiates. Mother tested positively for opiates and

marijuana prior to delivery. On January 9, 2010, mother had been involved in an

automobile accident, which left her “non-mobile, non-verbal, and currently quadriplegic

and unaware of her surroundings.” She was reportedly in a “vegetative” state and placed


       2 The juvenile court had declared father a dependent of the court between August
3, 1998, and September 21, 2000, due to paternal grandmother’s operation of a
clandestine laboratory in the home.


                                             3
in an assisted living facility, which was required in order to meet her daily needs. Father

was incarcerated and would not be released until May 1, 2011.

       The department filed a Welfare and Institutions Code section 3003 petition

alleging father had left minor in the care of paternal grandparents despite knowing of

their criminal history and the inappropriateness of the residence (B-1), mother was unable

to provide care (B-2, G-1), and father was incarcerated (B-3, G-2). Maternal grandfather

reported maternal grandmother was Native American. On December 7, 2010, father filed

an ICWA-020 form indicating he may have Indian ancestry notating only “PGM.” At the

detention hearing, father’s attorney noted, “We have submitted an ICWA-20, and I

believe he’s indicating that he may have Indian ancestry also. It would be on his father’s

side, and he’s not sure of the tribe, your Honor.” Mother was a registered member of

Chickasaw Nation.

       The juvenile court found, “there is reason to know that an Indian child is involved

on possibly both the maternal and paternal side[s] of the family. We don’t know the tribe

however. At this time, at least [the department] must provide notice to any identified

tribes and if any are identified later and/or the Bureau of Indian Affairs as required by

law.” Thus, the court found ICWA may apply. It found minor had been placed in an

Indian home pursuant to section 361.31, appointed a guardian ad litem for mother, and

ordered minor detained.



       3All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


                                             4
       In the jurisdiction and disposition report dated December 30, 2010, the social

worker noted she had spoken with a representative of Chickasaw Nation who confirmed

mother was a registered member and that minor would be eligible for membership as

well. The department requested a continuance for the preparation of an Indian expert

declaration. On January 4, 2011, the department mailed notice of child custody

proceeding for an Indian child. The social worker noted mother’s tribe as Chickasaw

Nation and mailed the notice accordingly. Father’s tribe was listed as “not specified” and

mailed to the Bureau of Indian Affairs.

       An addendum report filed February 2, 2011, reflected the department’s receipt of a

letter from Chickasaw Nation confirming mother’s membership and minor’s status as an

Indian child pursuant to ICWA. An Indian expert averred via declaration, “There is no

evidence that the father is a Native American Person.” He recommended removal of

minor’s custody from parents. After sustaining the petition, the juvenile court found an

Indian child was involved and that the department “has provided notice to all identified

tribes as required by law.”

       In a status review report filed July 26, 2011, the social worker noted minor’s

Indian family placement had requested minor be removed on May 2, 2011. The

department placed minor in non-Indian foster care. At the six-month review hearing on

August 8, 2011, the juvenile court found good cause existed to deviate from ICWA

regarding placement since the Indian family had requested minor’s removal, and no other

Indian family could be found. The juvenile court terminated parents’ reunification

services and set the section 366.26 hearing.


                                               5
       On November 10, 2011, Chickasaw Nation filed a motion to intervene in the

proceedings.4 In subsequent reports filed November 17, 2011, and March 27, 2012, the

department requested continuances of the section 366.26 hearing to allow Chickasaw

Nation to intervene; as of the latter report, Chickasaw Nation had not determined whether

an adoptive placement within its tribe could be located. In an addendum report filed July

20, 2012, the social worker noted Chickasaw Nation had given its approval to proceed

with adoption by the prospective adoptive parents with whom minor had been placed on

May 2, 2011. On September 7, 2012, the juvenile court terminated parental rights and

ordered adoption as the permanent plan.

                                        DISCUSSION

       Father contends the juvenile court erroneously terminated his parental rights

without complying with the notification requirements of ICWA with respect to his

alleged Indian heritage. We agree.

       The ICWA was enacted “to protect the best interests of Indian children and to

promote the stability and security of Indian tribes and families . . . .” (25 U.S.C.A.

§ 1902.) “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 . . .

.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) To this end, section 1911 of the

ICWA allows a tribe to intervene in state court dependency proceedings. (25 U.S.C.A.

§ 1911(c).)

       4 The record does not disclose whether the juvenile court formally ruled on the
motion, but subsequent circumstances indicate it implicitly granted the request.


                                                6
       Notice of the proceedings is required to be sent whenever it is known or there is

reason to know that an Indian child is involved. (25 U.S.C.A. § 1912(a); Welf. & Inst.

Code, § 224.2, subd. (a); see In re Desiree F., supra, 83 Cal.App.4th at p. 469.) Notice

serves a twofold purpose: “(1) it enables the tribe to investigate and determine whether

the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its

right to intervene or assume tribal jurisdiction.” (In re Desiree F., supra, at p. 470.) No

foster care placement or termination of parental rights proceeding may be held until at

least 10 days after the tribe (or the Bureau of Indian Affairs where the tribe is unknown)

receives notice. (25 U.S.C.A. § 1912(a); In re A.B. (2008) 164 Cal.App.4th 832, 838.)

       In addition to the minor’s name, and date and place of birth, if known, the notice is

required to include the “name of the Indian tribe in which the child is a member or may

be eligible for membership, if known.” (§ 224.2, subd. (a)(5)(B).) The notice is also

required to contain “[a]ll names known of the Indian child’s biological parents,

grandparents, and great-grandparents, . . . as well as their current and former addresses,

birthdates, places of birth and death, tribal enrollment numbers, and any other identifying

information, if known.” (§ 224.2, subd. (a)(5)(C).)

       Juvenile courts and child protective agencies have “‘an affirmative and continuing

duty to inquire whether a [dependent] child . . . is or may be an Indian child.’ [Citation.]”

(In re H.B. (2008) 161 Cal.App.4th 115, 121; § 224.3; Cal. Rules of Court, rule 5.481.)

As soon as practicable, the social worker is required to interview the child’s parents,

extended family members, the Indian custodian, if any, and any other person who can

reasonably be expected to have information concerning the child’s membership status or


                                             7
eligibility. (§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal.

Rules of Court, rule 5.481(a)(4).)

       “‘The [trial] court must determine whether proper notice was given under ICWA

and whether ICWA applies to the proceedings. [Citation]. We review the trial court’s

findings for substantial evidence. [Citation.]’ [Citation.]” (In re Christian P. (2012) 207

Cal.App.4th 1266, 451.)

       Here, substantial evidence fails to support the juvenile court’s determination that

the department had given proper notice regarding father’s claim of Indian heritage.

Father filed an ICWA-020 form indicating he may have Indian ancestry stemming,

presumably, from the paternal grandmother.5 Father’s counsel also notified the court at

the detention hearing that father had Indian heritage of unknown origin through his

paternal side.6 The juvenile court explicitly noted there was reason to believe minor had

Indian heritage on both sides of his family and the department had the responsibility to

“provide notice to any identified tribes and if any are identified later and/or the Bureau of

Indian Affairs as required by law.”


       5 The department contends father’s notation of “PGM” on his ICWA-020 form
means his own paternal grandmother, rather than minor’s. Either way, the department
had an obligation to inquire into any of father’s purported Indian heritage and provide as
much information as it could reasonably obtain to any identified tribe or the Bureau of
Indian Affairs.

       6 If “PGM” in father’s ICWA-020 meant father’s paternal grandmother, than his
counsel’s statement that he claimed Indian heritage through his father’s side would be
consistent. If father meant minor’s paternal grandmother, counsel’s statement would be
inconsistent. Nevertheless, the department had the obligation, and opportunity, to further
inquire.


                                              8
       This it did not do. With respect to father, the notice of child custody proceeding

for an Indian child listed paternal grandmother’s current address as only “California.” It

listed her former address as “unknown.” Although it listed her birth date, it listed her

birth place as “unknown.” Likewise, the notice listed paternal grandfather’s current

address as only “California” and his former address as “[no] information available.” The

notice reflected paternal grandfather’s birth date, but listed his place of birth as

“Unknown possibly Los Angeles, CA.” The notice did not give any information

regarding more removed relations of consanguinity on either side of father’s family.

       The lack of current or former addresses in the notice for paternal grandparents is

particularly glaring as the department responded to their address in taking protective

custody of minor which, at minimum, would reflect their former, if not, current address.

Moreover, the social worker interviewed paternal grandparents on December 27, 2010,

nearly three weeks after father had filed his ICWA-020 form indicating Indian heritage,

his counsel’s statement father had Indian ancestry, and the juvenile court’s order that the

department provide proper notification regarding both sides of minor’s family. Thus, the

department had ample opportunity to inquire of paternal grandparents regarding their

current and former addresses, their places of birth, any tribal affiliations, and any

information regarding their parents and grandparents that would be pertinent to the

ICWA notification.

       Indeed, even after the department issued its ICWA notice, it continued to have

contact and information regarding paternal grandmother’s location. The department’s

report filed July 26, 2011, reflects paternal grandmother engaged in weekly visits with


                                               9
father and minor at the department’s offices ending on May 11, 2011. A report filed

November 17, 2011, reflected the department knew paternal grandmother was in a federal

penitentiary. Thus, even if the department could be excused in providing an initially

inadequate ICWA notice, it failed its continuing duty to make the requisite inquires and

subsequent notice.

       Contrary to the department’s contention, we cannot hold the error harmless

because there is no information that father did not have Indian heritage. If he did, and

was eligible for membership, minor may have qualified as an Indian child via a different

tribe, which could have intervened and potentially found an Indian family placement for

him, unlike Chickasaw Nation. Thus, the department failed to provide adequate notice

pursuant to ICWA requiring conditional reversal. (In re Gabriel G. (2012) 206

Cal.App.4th 1160, 1168; In re A.G. (2012) 204 Cal.App.4th 1390, 1393-1394.)

                                     DISPOSITION

       The orders terminating parental rights and ordering adoption as the permanent

plan for minor are conditionally reversed and a limited remand is ordered as follows:

Upon remand, the juvenile court shall direct the department to make further inquiries

regarding minor’s paternal Indian ancestry, if any, pursuant to section 224.1 and send

ICWA notices to all relevant tribes and the BIA in accordance with ICWA and California

law. The department shall thereafter file certified mail, return receipts, for the ICWA

notices, together with any responses received. If no responses are received, the

department shall so inform the juvenile court. The juvenile court shall determine whether

the ICWA notices and the duty of inquiry requirements have been satisfied and whether


                                            10
minor is an Indian child on his paternal side. If the juvenile court finds minor is not an

Indian child on his paternal side, it shall reinstate the orders terminating parental rights

and placing minor for adoption. If the court finds minor is an Indian child on his paternal

side, it shall conduct all further proceedings in compliance with the ICWA and related

California law.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                          MILLER
                                                                                               J.


We concur:


RICHLI
                        Acting P. J.


KING
                                   J.




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