Filed 7/14/16 In re Josiah M. CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re JOSIAH M., a Person Coming Under the
Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN                                                            F073016
SERVICES,
                                                                            (Super. Ct. No. JD133673-00)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
ASIA B.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega,
Judge.
         Shayla Padgett-Weibel, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Theresa A. Goldner, County Counsel, and Jennifer E. Feige, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Poochigian, J. and Peña, J.
         Appellant Asia B. (mother) appeals from the juvenile court’s order terminating her
parental rights as to her 20-month-old son, Josiah. (Welf. & Inst. Code, § 366.26.)1
Josiah’s father, Joseph M., is not a party to the appeal. Mother contends the Kern County
Department of Human Services (the Department) failed to investigate her Native
American heritage and comply with the notice requirements as required by the Indian
Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). The Department does not dispute
that it violated ICWA’s inquiry and notice requirements. We conditionally reverse the
order terminating parental rights and direct the juvenile court to ensure compliance with
ICWA’s inquiry and notice requirements.
                     PROCEDURAL AND FACTUAL SUMMARY
         In October 2014, the department received a report that mother gave birth to Josiah.
At that time, mother had been participating in family reunification services since April
2014 as part of an ongoing dependency case as to her three older children. She was also
receiving inpatient substance abuse counseling and testing negative for drugs. In
addition, she and Josiah screened negative for drugs at the time of his birth.
Nevertheless, the department considered Josiah at risk because of mother’s history of
substance abuse and neglect and filed a dependency petition asking the juvenile court to
assume jurisdiction but not detain him.
         On November 4, 2014, the juvenile court conducted the initial hearing on the
petition. The court conducted a paternity inquiry and declared Joseph M. (father) to be
Josiah’s presumed father. The court scheduled a hearing on jurisdiction and disposition
for December 9, 2014. The court did not inquire whether mother or father had Native
American ancestry. However, mother and father completed a form Parental Notification
of Indian Status (ICWA-020). Father checked the block indicating that he did not have

1        Statutory references are to the Welfare and Institutions Code unless otherwise
noted.


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any Indian ancestry as far as he knew. Mother checked the box indicating that she may
have Indian ancestry and specified Blackfoot and Cherokee as tribes to which she might
belong. The department did not notify the Blackfoot and Cherokee tribes of the
dependency proceedings.
       On November 21, 2014, the department took Josiah into protective custody and
filed an amended petition after mother failed to submit to drug testing as court-ordered in
the siblings’ case. At the detention hearing, the juvenile court ordered Josiah returned to
mother’s custody with the understanding that Josiah would be detained if she missed any
more drug tests. The court vacated the December hearing and scheduled a hearing on
jurisdiction and disposition for January 2015.
       In its report for the hearing, the department recommended the juvenile court order
family maintenance services for mother and family reunification services for father. The
department informed the court that mother and Josiah possibly had Native American
ancestry with the Blackfoot tribe.
       In January 2015, the juvenile court sustained the amended petition, adjudged
Josiah a dependent of the court and ordered family maintenance services for mother and
family reunification services for father.
       Over the ensuing five months, the department monitored several issues with
increasing concern. One related to a yeast infection that Josiah acquired in his diaper
area that mother was not adequately treating. Ultimately, it spread to his mouth in the
form of thrush. Another was father’s unauthorized presence in the home. Father was
homeless and suffered from nonspecified psychotic and mood disorders. Father’s clothes
were found in mother’s home and the police found him there while conducting a welfare
check. Another concern was that mother was not actively participating in her recovery.
She was reportedly missing meetings with her counselor and not attending
Narcotics/Alcoholics Anonymous meetings.



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       In June 2015, the department received a call from mother’s substance abuse
counselor who said mother had just left their facility and was under the influence of
methamphetamine, and that Josiah was dirty and had a smelly, soiled diaper. A social
worker took Josiah into protective custody at the family home. Mother appeared to be
under the influence of a controlled substance and could not drug test. Father was present
in the home and also appeared to be under the influence of a controlled substance. The
department filed a supplemental petition (§ 387) alleging that family maintenance had
been ineffective in protecting Josiah.
       In July 2015, the juvenile court sustained the supplemental petition and set a
dispositional hearing. At the same hearing, the court terminated mother and father’s
reunification services as to the older children and set a section 366.26 hearing. That same
month, the department placed Josiah with a relative.
       In September 2015, at the dispositional hearing on the supplemental petition, the
juvenile court denied mother and father reunification services and set a section 366.26
hearing. Neither parent challenged the court’s setting order by extraordinary writ
petition.
       In its report for the section 366.26 hearing, the department recommended the
juvenile court find that Josiah was likely to be adopted and to terminate parental rights.
In describing mother and Josiah, the department reported that they had no known Native
American heritage.
       In January 2016, following an uncontested section 366.26 hearing, the juvenile
court found that Josiah was likely to be adopted and terminated mother and father’s
parental rights.
       At no time did the department notify the Blackfoot and Cherokee tribes that Josiah
may be an Indian child and was the subject of dependency proceedings. Nor did the
juvenile court make a finding as to whether the ICWA applied. The only references to



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the ICWA and to Native American heritage in the juvenile court record are those
included in our summary of the case.
       This appeal ensued.
                                            DISCUSSION
       ICWA provides that “[i]n any involuntary proceeding in a State court, 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.) “The ICWA is designed to protect the interests of Indian children,
and to promote the stability and security of Indian tribes and families. It sets forth the
manner in which a tribe may obtain jurisdiction over proceedings involving the custody
of an Indian child, and the manner in which a tribe may intervene in state court
proceedings involving child custody. When the dependency court has reason to believe a
child is an Indian child within the meaning of [ICWA], notice on a prescribed form must
be given to the proper tribe or to the Bureau of Indian Affairs, and the notice must be sent
by registered mail, return receipt requested.” (In re Elizabeth W. (2004) 120 Cal.App.4th
900, 906.)
       Although ICWA itself does not expressly mandate that a court inquire into Indian
ancestry, California imposes on county welfare departments and the juvenile court “an
affirmative and continuing duty to inquire whether a child for whom a petition under
Section [300 has been filed] is or may be an Indian child in all dependency proceedings
… if the child is at risk of entering foster care or is in foster care.” (§ 224.3, subd. (a).)
A California court must order the parents to fill out a Parental Notification of Indian
Status form (ICWA–020) at the first appearance by the parent in a section 300
proceeding. (Cal. Rules of Court, rules 5.480, 5.481(a)(2).)



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       Finally, “[t]o satisfy the notice provisions of the Act and to provide a proper
record for the juvenile court and appellate courts, [a social service agency] should follow
a two-step procedure. First, it should identify any possible tribal affiliations and send
proper notice to those entities, return receipt requested. [Citation.] Second, [the agency]
should provide to the juvenile court a copy of the notice sent and the return receipt, as
well as any correspondence received from the Indian entity relevant to the minor’s
status.” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.)
       In this case, mother completed an ICWA–020 form, stating she may have Indian
heritage through the Blackfoot or Cherokee tribes. However, the department made no
attempt to inquire further or to comply with the ICWA notice requirements, and the
juvenile court did not follow up to make sure the department complied and to determine
if ICWA applied. Thus, we reverse the judgment terminating parental rights and remand
the case for further proceedings, as stated below. (In re A.G. (2012) 204 Cal.App.4th
1390, 1393-1394.)
                                       DISPOSITION
       The judgment terminating parental rights is reversed, and the case is remanded to
the juvenile court with directions to order the Kern County Department of Human
Services to comply with the inquiry and notice requirements of ICWA. If, after proper
notice, the juvenile court finds that Josiah is an Indian child as defined by ICWA, the
court shall proceed in conformity with all provisions of ICWA. If, on the other hand, the
court finds after proper notice that Josiah is not an Indian child, the judgment terminating
parental rights shall be reinstated.




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