No. C082727.

In re JULIAN G., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CARLOS G. et al., Defendants and Appellants.

Court of Appeals of California, Third District, San Joaquin.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Emily E. (mother) and Carlos G. (father) appeal from the juvenile court's order terminating parental rights for their child, Julian G. (the minor). (Welf. & Inst. Code, § 366.26; unless otherwise set forth, statutory section citations that follow are to the Welfare and Institutions Code.) Mother and father each contend the San Joaquin County Human Services Agency (Agency) failed to comply with the inquiry and notice procedures of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Mother also contends the juvenile court erred in (a) denying mother's section 388 modification petition without a hearing, and (b) failing to find the beneficial parental relationship exception applied. (§ 366.26, subd. (c)(1)(B)(i).) Agreeing with the claim of ICWA error only, we reverse and remand for proper inquiry and notice.


By February 3, 2015, mother and father had been dating for three years. They lived together in an apartment with David E. (maternal grandfather) and the minor, then age five months. That day, father became upset when mother said he needed to change the minor's diaper. Father grabbed mother by the neck and twice said, "I'm going to kill you." There were "many" previous domestic violence incidents between mother and father, and, given their history, mother told police she believed father would kill her. After briefly walking away, father returned and squeezed mother's neck so tightly she could not breathe. He asked, "Why, why, why?," released her, and left their apartment. They resumed fighting when he returned, with father grabbing mother by the neck, getting on top of her, and "wrestling" with her. Father headbutted mother on the forehead, causing mother to hyperventilate and black out. Mother was taken to the hospital, although she eventually left without receiving treatment. Police provided mother with an emergency protective order. Maternal grandfather, who witnessed the incident, told police father denied fighting with mother and said "something's wrong with [her]."

On February 21, 2015, mother called police after father "just went off" when she failed to shut the bedroom door quickly enough. Even though the minor was with her, father yelled and punched her in the head with closed fists 10 to 15 times. One of father's punches missed mother but hit the minor in the stomach, and minor began to cry and scream. Mother had head pain, a cut on her forehead, and redness on her face and near her stomach. Mother and the minor were taken to the hospital for evaluation, and police provided mother with an emergency protective order. The police report stated there were six prior reports of domestic violence between mother and father, and father was on probation for domestic violence until October 2017.

On February 26, 2015, mother told the social worker she and father "love each other" but have "anger problems" and fought every other day, with the fights "always" becoming physical. The fights "always" were in minor's presence, and father had twice struck the minor while trying to hit mother. Minor usually watched the fights and cried, and mother said minor was "afraid and jump[ed] at everything." Father told mother the minor acted this way, "because [mother] jumped a lot when she was pregnant," but the social worker explained this behavior could be due to witnessing the parents fight. Mother denied prior abusive relationships but said her relationship with father involved physical fights "the whole time." If mother tried to leave before the fights become physical, father "follow[ed] her and hit her in the back of the head," regardless of whether neighbors were watching or the police were called. Although mother had previously left father, she refused to do so now, "because she loves him." Although mother feared the landlord was going to evict her, she refused to go to a shelter, denied having family or friends to stay with, and claimed to lack money for her own apartment. Mother also stated she did not want to leave maternal grandfather, who she claimed needed her as a caregiver. Maternal grandfather said he could care for himself.

Although mother said she would seek a permanent restraining order to replace the expiring emergency protective order, the plan was for father to return to the apartment. Mother and father were not complying with the existing emergency protective order, with mother bringing food to father because she was concerned father was losing weight and smoking methamphetamine. During mother's visit, father said, "We are going to end up killing each other," although mother did not take this as a threat. Father also texted mother and suggested he come home that day. Maternal grandfather said he was not afraid of father and could protect mother and the minor.

On February 27, 2015, mother told the social worker she had requested a permanent restraining order. Mother feared she would be evicted because father had refused to pay the rent for the month. Still, mother refused to move into a shelter and said she was trying to raise money for a motel room. Mother told the social worker she still texted back and forth with father, despite the protective order.

That same day, the social worker separately met with father, who denied using methamphetamines but admitted smoking marijuana outside the apartment. Father said he fought often with mother due to her jealousy but denied the fights got physical. He said he "only" holds mother down "when she gets feisty," and denied hitting the minor. He claimed mother had mental health issues and was inflicting the injuries and blaming him, including making false allegations to the police. Father, who had also been accused of domestic violence in a prior relationship, attended weekly domestic violence classes. Father said mother was violating the protective order by calling and visiting him, although he ignored her calls. Father agreed to pay rent for their apartment for March.

The social worker spoke with father again on March 3, 2015. Father was frustrated that mother had obtained a protective order against him and was not allowing him to see the minor. He refused to pay the March rent for the apartment.

On March 4, 2015, mother was hosting a garage sale when father arrived, yelled, "This is my [stuff]!," and threatened to hit her. Mother told the social worker father "doesn't care" about the protective order, although neither she nor the maternal grandfather had called the police. Mother said she and the minor were safe and she was not afraid because father did not have a key. While the social worker was meeting with mother, father violated the protective order by calling mother 17 times and texting her.

During the March 6, 2015, team decision meeting, mother stated father had sent her a text saying he had obtained a gun and was going to come to the apartment and "blow his head off in front of her," maternal grandfather, and minor, to show how much he loved mother. The social worker said father had previously threatened to kill himself and the children when women try to leave him. Mother and maternal grandfather continued to refuse alternate housing and said they could not ensure father would not find out where mother was staying.

Based on mother's failure to participate in safety planning, the Agency obtained a protective custody order for the minor (then age six months) and removed him from mother's care.

The Agency filed a section 300 petition on behalf of the minor, alleging serious physical harm, failure to protect, and serious emotional damage. (§ 300, subds. (a), (b), & (c).) The petition was amended in April 2015 to remove the allegation of serious emotional damage. (§ 300, subd. (c).)

During the March 11, 2015 detention hearing, the juvenile court ordered the minor detained with parental visitation three times a week. On March 25, 2015, the juvenile court took jurisdiction over the minor. In May 2015, the juvenile court ordered supervised visits for father. In June 2015, the juvenile court found father was the presumed father.

The July 7, 2015, jurisdiction/disposition report stated mother and father continued to communicate with each other, despite the existing protective order. This contact, "demonstrate[ed] that [mother and father] do not comprehend how their dangerous relationship has a negative impact on [minor]." Minor was developing well and his "mental and emotional needs [were] currently being met by his foster parents." At the time of the report, mother was visiting the minor three times a week.

Although mother was initially consistent with visits, she had missed seven visits since April 2015. Mother had been referred to parenting classes twice, but she had failed to keep the social worker apprised of her contact information. Father was originally receiving two visits per week, but the visitation center cancelled one of his time slots because he missed three visits in a row. Father was arrested and detained in county jail in May 2015 but was able to resume visits in June 2015. Father was referred to parenting classes but had not yet scheduled an orientation. The social worker was "very concerned about the parents' ability to reunify as they have not taken any steps towards mitigating the problems that led them to the attention of the [juvenile court]."

During the July 15, 2015 jurisdiction hearing, the court sustained the allegations and found that reasonable services had been offered, but mother's participation was "minimal," and father's was "none."

The January 5, 2016, status review report stated mother failed to participate in services in a timely manner. She was enrolled in a parenting class and counseling, but she missed appointments and "often reschedule[d]." Mother self-reported she was discharged from a shelter due to testing positive for nonauthorized drugs and having nonprescribed medication near her bed. Mother asked for help with her drug abuse, and the social worker referred her to drug court, but the matter was dropped when she failed to appear.

Mother's visits with minor were reduced from twice a week to once a week, due to mother missing three consecutive visits. The visits were "appropriate." However, there was a domestic violence altercation between father and mother on July 28, 2015, during which mother "thought she was going to die." As of December 18, 2015, father was in custody in county jail. He had "never" contacted the social worker or participated in any services, and had not requested visitation with minor.

The minor was doing well in his placement, with his "mental and emotional needs" being met by his foster parents. The minor was deemed to be adoptable on December 30, 2015, and the report requested termination of services to mother and father and changing the permanent plan to adoption.

During the February 22, 2016 dependent review hearing, father did not testify. The social worker testified she met with mother in August 2015 to assess mother's progress with services. Mother had started but was unable to complete parenting classes in July 2015 and had not yet started counseling in August 2015, two required elements of her case plan. In August 2015, mother was homeless and was violating the restraining order by having contact with father. She lived in a shelter from October 5 to 19, 2015, but she was terminated after personnel found prescription bottles around her bed area. In addition, mother self-reported to the social worker that she had tested positive for marijuana in October 2015 when she entered the shelter. Mother denied having a substance abuse problem and explained the positive marijuana test was due to being around people who were using.

Although mother's case plan did not include provisions for substance abuse, the social worker referred mother to the drug court. Mother failed to show up for the November 5, 2015 court date.

Mother did complete parenting classes on February 19, 2016. She also started individual and domestic violence counseling on December 3, 2015, and thus far had completed seven out of 20 scheduled sessions. Although mother's work schedule conflicted with counseling in January 2016, the social worker testified that mother's therapist said she was "cooperating" and "participating in" services. Mother's therapist said mother had ended a romantic relationship and was "now more aware of domestic violence." As of the hearing date, mother had moved out of a friend's home and was now living with maternal great-grandmother and working.

With respect to visits with minor, mother initially failed to attend all of their twice-weekly visits, but she became consistent after her visits were reduced to once a week in September 2015. Given mother's success, in January 2016 the social worker increased mother's visits to twice a week for two hours each time. Although mother initially was hard to reach, mother was now in regular contact with the social worker. The social worker was still recommending termination of services because mother started her services very late and had unstable housing. Mother tested positive for marijuana and had an extensive domestic violence history.

Mother testified she had violated the restraining order by contacting father but ended their relationship in September 2015, due to their fighting and communication problems. Mother's counseling was going well, and she had ended a month-long relationship with a different man due to some "red flags" she learned about during counseling. Mother testified she had difficulty finding housing, especially since her relationship with father caused her to "los[e] [her] family." Mother's homelessness caused her to be late starting with services. Mother initially testified that, despite what the shelter said in October 2015, the pill bottles they found had been prescribed to her and were empty, but she later testified the center did find pills. She also testified she tested positive for marijuana in October 2015 because she had contact with people who were using marijuana.

Mother testified she got confused about the drug court date and went to the wrong department, despite the social worker providing her with the correct information. Mother testified her visits with minor were "fantastic," although she had missed two visits due to illness and a class.

After considering the evidence, the juvenile court terminated services for mother and father. Although mother had "done well" in the previous two months, her progress during the six-month period was insufficient to warrant continued services. In addition, mother had historically shown immaturity and "self-sabotage[]." The juvenile court also found returning minor to his parents would create a substantial risk of harm to the minor, and there was not a substantial probability the minor would be returned to his parents' care within 18 months of detention. The court set a hearing under section 366.26 for June 15, 2016.

On May 17, 2016, mother filed a section 388 petition requesting reinstatement of reunification services. As proof that she had not used drugs the previous five months, mother submitted the results of a hair follicle test from April 2016, which tested negative for amphetamines, cocaine, marijuana, opiates, and phencyclidine (PCP). In addition, mother submitted a declaration stating she had now completed 15 of the 20 required counseling sessions and would complete all her required sessions by June 15, 2016 (the scheduled date for the section 366.26 hearing). Mother also stated she was working at a store and living in a three bedroom house with maternal great-grandparents, maternal grandmother, and maternal uncle, with sufficient room for herself and the minor. In addition, mother stated she and minor were "extremely bonded to each other." Minor "love[d] the visits," called her "mommy," and told her he loves her. Minor got sad and uncooperative when their visits ended, "because he wants to be with me." The Agency opposed the petition, arguing mother had shown changing but not changed circumstances and had failed to show modification was in the minor's best interests. The minor's counsel also opposed the petition.

The July 2016 status review report (filed June 3, 2016) stated father was no longer incarcerated and mother was living with maternal great-grandmother. Minor, who had remained with the same foster family since June 2015, was "doing well" and was developmentally on target. He was "very happy" and "bonded" with his foster family, who were meeting his mental and emotional needs. The foster parents were committed to the case plan of adoption. Mother "appear[ed] to be doing well," and continued to visit "regularly" with the minor twice a week for two hours each time. The visits were unsupervised and "appear[ed] to be going well." Mother informed the social worker she was working at a local store, living with maternal great-grandmother, and no longer in a relationship with father. Mother loved her son and did not want her parental rights terminated. The report recommended adoption.

The Agency's 366.26 report (filed June 6, 2016) recommended terminating parental rights of both mother and father and freeing minor for adoption. The report noted minor was "happy," "thriving," and "very bonded" with his foster family. In addition, minor was developing appropriately, and he looked to his foster family to meet his needs, including comfort when he was upset or hurt. The foster parents were likely to adopt the minor.

Mother was "regularly" making her twice a week unsupervised visits with minor since March 2016, was in therapy, and now had stable housing and employment. Still, the report indicated mother should have participated in services "in a timelier manner." Father's circumstances were "unknown," as he had not contacted the Agency about his son or the case.

On June 20, 2016, the juvenile court denied mother's section 388 petition without a hearing, reasoning her request did "not state new evidence or a change of circumstances." In addition, mother failed to demonstrate "sufficient evidence of change to address issues of substance abuse, domestic violence relationships, and a stable residence."

During the contested 366.26 hearing held on August 9, 2016, mother testified her visits with minor were "absolutely fantastic." Although she had missed some visits with minor during the first six months of the case, she had only missed one visit in 2016. During her visits, they would read books, color, run around, and play hide and go seek. Minor came straight to her at the start of the visits and called her mom, although mother referred to herself as "mom" or "mommy" when visiting with minor. It appeared to mother that minor "love[d]" his visits with her and the two have a "strong" emotional bond. If mother put minor down, he would say, "no," and he did not like other kids talking with mother. "[Minor] wants all of his time devoted to me and nobody else." Still, minor was also happy when he went to his foster parent and would run to the foster parent at the end of the visits. Minor also called his foster father, "daddy."

Mother also testified she had been living with maternal great-grandmother for nine months. In addition, mother testified she was the minor's primary caregiver before his detention and she felt "extremely" bonded with him at that time.

Father testified during the hearing that he wanted to have a relationship with the minor and was willing to make changes, although he had not visited with minor since July 2015. He was in a substance abuse program and had taken anger management classes. Father testified mother was "a good mother" who spent a lot of time with the minor while he was in their care. Mother and the minor developed a bond because they were "together every day."

The juvenile court terminated parental rights and ordered the minor freed for adoption. Although minor benefitted from his regular and "positive" visits with mother, mother had failed to "get engaged" with services "until late into the process." Mother and minor had a "loving connection," but she did not fill a parental role with him. The minor was bonded with his foster family and had lived with them longer than with mother. The juvenile court found none of the exceptions under section 366.26, subdivision (c)(1) applied, it was extremely likely the minor would be adopted, and it would not be detrimental to the minor to terminate parental rights. Mother and father appealed.



The Section 388 Petition

"To prevail on a section 388 petition, the moving party must establish that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. [Citation.]" (In re J.T. (2014) 228 Cal.App.4th 953, 965.) "Under section 388, a party `need only make a prima facie showing to trigger the right to proceed by way of a full hearing.' [Citation.] The prima facie showing is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.] The petition must be liberally construed in favor of its sufficiency. [Citations.]" (In re J.P. (2014) 229 Cal.App.4th 108, 127; see also Cal. Rules of Court, rule 5.570(d)(1); rule references are to the California Rules of Court.)

We review for abuse of discretion a juvenile court's summary denial of a section 388 petition. (In re A.S. (2009) 180 Cal.App.4th 351, 358; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) Reversal is warranted only when the court has made an arbitrary, capricious or "patently absurd" determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Mother contends she made a prima facie showing of changed circumstances, since she would complete her case plan requirements prior to June 15, 2016. According to mother, she had been visiting regularly with minor twice a week for four months, had stable employment and housing, had completed her parenting class, and would complete her domestic violence and individual counseling prior to June 15, 2016, with positive feedback from her therapist. She argues that even though substance abuse counseling was not part of her case plan, she provided a drug test showing she had no drugs in her system for at least five months prior to April 2016. Further, she was no longer in a relationship with father or any other man, and the last domestic violence incident was in July 2015.

Despite mother's contentions, she has failed to present facts legally sufficient to show the best interests of the minor would be served by modification. Aside from the negative drug test, the juvenile court was familiar with the facts mother presented in support of her section 388 petition, including that she was employed, had completed her parenting classes, was regularly visiting with minor, had attended counseling, and was living with maternal great-grandmother. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451 [parent failed to state changed circumstances showing the child's best interests might be promoted by the proposed change of order when the section 388 petition was supported with facts that were already part of the on-going record of the court]; see also In re Angel B. (2002) 97 Cal.App.4th 454, 463 (Angel B.).)

Moreover, mother failed to present facts sufficient to rebut the presumption that, "in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. [Citation.]" (Angel B., supra, 97 Cal.App.4th at pp. 464-465.) Despite mother's evidence that, during their visits, minor called her "mommy," and said he loved her, minor was also "very happy" and "bonded" with the foster family, who were meeting his mental and emotional needs. Moreover, minor had not lived with mother since he was six months old, and he looked to his foster family for his needs, including comfort when he was upset or hurt. We find no abuse of discretion.


Beneficial Parental Relationship

Mother contends the juvenile court erred by failing to find the beneficial parental relationship existed and constituted an exception to adoption as a permanent plan. According to mother, she maintained regular visitation and contact with minor, and the court recognized the "positive and beneficial loving connection between mother and [minor]."

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several "`possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; rule 5.725(d)(2); Evid. Code, § 500.)

Termination of parental rights may be detrimental to the minor when: "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) We review with deference a juvenile court's rejection of an exception to adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [whether the standard of review is deemed substantial evidence or abuse of discretion, broad deference to the lower court is required]; Jasmine D., at p. 1351 [abuse of discretion]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [substantial evidence].)

To prove the beneficial parental relationship exception applies, "the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Moreover, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) "[T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (Angel B., supra, 97 Cal.App.4th at p. 466.)

Here, mother can show neither substantial attachment nor great harm. Although mother had visited regularly with minor since January 2016 and the visits went well, she failed to show the minor had a significant, positive, emotional attachment to her that would outweigh the well-being the minor would gain in a permanent home with adoptive parents. (See In re S.B. (2008) 164 Cal.App.4th 289, 297; accord, Jasmine D., supra, 78 Cal.App.4th at p. 1345.) Minor, who had not lived with mother since he was six months old, was "very happy" and "very bonded" to his foster family. His foster family was meeting his mental and emotional needs, and he looked to them to do so. Although he called mother, "mom," and appeared to enjoy their visits, he also would run to his foster parent at the end of his visits with mother and called his foster father, "daddy." The juvenile court did not err in finding that the beneficial parental relationship exception did not apply in this case.


The Indian Child Welfare Act

Father contends the Agency failed to investigate adequately mother's allegations that she had Native American heritage. Mother further contends the juvenile court erred by failing to require notice of the proceedings to relevant Native American tribes under the ICWA. The Agency contends the Agency complied with its duty of inquiry under ICWA and any error was harmless. We agree with mother and father.

For purposes of the ICWA, an "Indian child" is one who is "either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. . . ." (25 U.S.C. § 1903(4).) "The juvenile court and social services agencies 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. [Citation.]" (In re K.M. (2009) 172 Cal.App.4th 115, 118-119.)

"The Indian status of the child need not be certain to invoke the notice requirement. [Citation.] Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary." (In re Desiree F. (2000) 83 Cal.App.4th 460, 471 (Desiree F.); see also 25 U.S.C. §§ 1903(8), 1912(a).) A mere suggestion of Indian ancestry is sufficient to trigger the notice requirements, which are construed strictly. (In re Robert A. (2007) 147 Cal.App.4th 982, 989 (Robert A.).)

A non-Indian parent may raise an ICWA claim on behalf of the other biological parent. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 339-340; In re Riva M. (1991) 235 Cal.App.3d 403, 411, fn. 6.) In addition, a parent does not forfeit a claim of ICWA notice violation by failing to raise it in the juvenile court. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1.)

Although mother initially told the social worker she did not have Native American ancestry, on March 6, 2016, she stated she had Cherokee ancestry. The social worker completed an ICWA-010 form the same day and attached it to the March 2015 detention report, which was filed with the court. During the March 11, 2015 detention hearing, the juvenile court ordered mother to complete an ICWA-20 form, which mother did on March 6, 2015. The Agency failed to file mother's completed form, which stated she may have Cherokee heritage, until March 8, 2016. In February 2016, father told the social worker he had no known Native American ancestry, and the juvenile court found that ICWA did not apply to father on March 25, 2015. On March 4, 2016, father also completed an ICWA-020 form stating he had no Indian ancestry.

The July 7, 2015, jurisdiction/disposition report stated the ICWA "may apply" to minor. During the July 15, 2015 jurisdiction hearing, the juvenile court found the minor "may be an Indian child" under the ICWA, and that "notice of the proceedings ha[d] been given as required by law. Proof of such notice has been filed with the Court." The record on appeal does not contain any notices under the ICWA, and the juvenile court was unable to provide a copy of any ICWA-030 form, proof of service, or response by any Indian tribe in response to our order to augment the record. (See Order dated November 3, 2016; see also Declaration of Mary Peterson, filed December 1, 2016)

Similar to the July 2015 jurisdiction/disposition report, the January 5, 2016, status review report stated mother had told the social worker she had Native American heritage and that ICWA "does or may apply." The report also stated the ICWA-010 and ICWA-020 forms had been completed and filed, even though mother's ICWA-020 form was not filed until March 2016. During the February 22, 2016 dependent review hearing, the juvenile court did not address whether ICWA applied, although it did find that notice had been given as required by law. Again, the record on appeal does not contain any notices under the ICWA.

The July 2016 status review report stated the social worker met with mother on April 11, 2016, to complete an ICWA-30 form. During their meeting, mother said "she didn't have the information to complete the [form] nor would she be able to obtain it. [Mother] stated that she believe[d] that her now deceased relatives may have had Indian heritage but that she is not for sure. Upon further discussion, [mother] decided to complete an updated [ICWA-20] indicating that she did not have Indian heritage. The mother signed an updated [ICWA-20] on April 11, 2016. It will be filed with the Court on June 6, 2016." The same information was provided in the section 366.26 report. The April 11, 2016, ICWA-020 form is not contained in the record on appeal. In making its ruling to terminate parental rights on August 9, 2016, the juvenile court did not address whether ICWA applied but still found that "notice as required has been given." Again, the record on appeal does not contain any notices under the ICWA.

Mother's statement to the social worker on March 6, 2015, that she had Cherokee ancestry was sufficient to trigger the duty of notice and inquiry under the ICWA. (Robert A., supra, 147 Cal.App.4th at p. 989.) The Agency and the court had an affirmative obligation "`to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members' (§ 224.3, subd. (c); see [rule] 5.481(a)(4)(A))." (In re Michael V. (2016) 3 Cal.App.5th 225, 235.)

Notwithstanding these express requirements, the record indicates the Agency failed to perform any further inquiry until April 2016, when the social worker finally met with mother to complete an ICWA-030 form. Although mother during this meeting completed an "updated" ICWA-020 indicating she did not have Indian heritage, she only did so after "further discussion," with the social worker, in which mother said she lacked the necessary information to complete the ICWA-030 form and was unable to obtain it because her relatives with Indian heritage were deceased. Rather than conduct further inquiry to assist mother in gathering the minimal information necessary for the ICWA-030 form, such as interviewing maternal great-grandmother (with whom mother lived), the Agency stated it would file mother's revised ICWA-020. The Agency also failed to inquire whether father might have any information regarding the minor's possible Indian ancestry through their mother. Moreover, the record on appeal fails to contain a copy of mother's April 2016 ICWA-020 form.

In addition, despite the juvenile court's finding that "notice as required has been given," the record on appeal does not indicate the Agency provided any notice to the Cherokee tribe. We also note that, while the juvenile court either adopted or incorporated the Agency's ICWA and notice findings throughout the proceedings, the court never made an express finding that ICWA did or did not apply. A juvenile court has "a continuing duty to inquire whether [the minor] was an Indian child in all dependency proceedings, including a proceeding to terminate parental rights." (In re Isaiah H. (2016) 1 Cal.5th 1, 10.) The failure to comply with the ICWA's notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; see also Desiree F., supra, 83 Cal.App.4th at p. 472.)

We remand the matter for the juvenile court to direct the Agency to conduct a meaningful investigation into mother's claim of Indian ancestry, including making appropriate efforts to locate other family members who might have information bearing on the minor's possible Indian ancestry. Notice must be provided to any tribe that is identified or, if the tribe cannot be determined, to the Bureau of Indian Affairs. The Agency shall thereafter notify the court of its actions and file certified mail return receipts for any ICWA notices that were sent, together with any responses received. The court shall then determine whether the ICWA inquiry and notice requirements have been satisfied and whether minor is an Indian child. If the court finds he is an Indian child, it shall conduct a new section 366.26 hearing, as well as all further proceedings, in compliance with ICWA and related California law. If not, the court's original section 366.26 order remains in effect.


The juvenile court's August 9, 2016, order is conditionally affirmed. The matter is remanded to the juvenile court with directions to order the Agency to comply with the inquiry and notice provisions of the ICWA and related California law, as directed in this opinion.

BLEASE, Acting P. J. and MAURO, J., concurs.


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Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases