IN RE A.D.

In re A.D., a Person Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
J.D., Defendant and Appellant.

B216054

Court of Appeals of California, Second Appellate District, Division One

December 1, 2009

Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Richard Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Senior Associate County Counsel, for Plaintiff and Respondent.

Not to be Published in the Official Reports

JOHNSON, J.

In this appeal by a father, following an order terminating his parental rights under Welfare and Institutions Code section 366.26,^{[ 1 ]} we address three issues. Did the juvenile court err when it summarily denied the father's section 388 petition? Were parental rights appropriately terminated? And did the juvenile court err by finding the Indian Child Welfare Act (25 U.S.C. § 1901, et seq. (ICWA)) inapplicable because the tribal notice provided pursuant to that act was insufficient? With respect to the third issue, we conclude the notice provided was insufficient and a conditional reversal is required. On all other points, we find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Then five-month-old A.D. (born July 2006) first came to the attention of respondent Department of Children and Family Services (DCFS) in December 2006, when a family member contacted the child abuse hotline to report that S.V., the child's mother (Mother), was unable to care for the baby. Mother (who is not a party to this appeal) heard voices and was seeing things. She had been at an intake session at a local hospital, but left the hospital without permission and took A.D. with her. Mother was at the caller's home when he called DCFS, but had left with A.D. by the time the social workers arrived. DCFS was unable to find the child for four weeks, when it located him at the home of his paternal grandfather (Grandfather) and his live-in companion, J.P. Grandfather told DCFS the child had been with them since the beginning of January 2007, and that Mother was living on the street refusing to accept mental health treatment. A.D.'s father, appellant J.D. (Father), was homeless. Grandfather and J.P. appeared to be taking good care of A.D. DCFS advised Grandfather to seek a temporary guardianship of A.D. in the family law court, and closed the referral.

In late February 2007, DCFS began an assessment of A.D. for a probate legal guardianship. In early March, a children social worker (CSW) made an unannounced visit to the one-bedroom apartment of J.P.'s daughter, petitioner in the guardianship action; J.P.'s daughter was not home, but Mother was there with a friend and A.D. J.P.'s daughter arrived shortly after the CSW. She said she lived in the apartment with Grandfather and J.P. Mother claimed she had been discharged from a psychiatric ward, and was living in a board and care facility, and taking anti-psychotic medications. She admitted having used illegal drugs and alcohol in the past, but claimed she was now sober. DCFS's research revealed that J.P.'s daughter was convicted of assault and battery in 2002, and charged with "child stealing" in 2005. The CSW was concerned by this information, as well as the fact that DCFS had closed the earlier referral, recommending Grandfather seek a guardianship. He had not done so. Instead, J.P.'s adult daughter had sought a guardianship and claimed she couldn't locate Grandfather or J.P., even though the three of them shared an apartment. The CSW determined guardianship was no longer an appropriate course of action, and referred the matter to DCFS. The next day, DCFS returned to the apartment, to find A.D. with Father, Mother, Grandfather, J.P. and J.P.'s daughter. In light of the family's untruthfulness, Mother's mental illness, untreated substance abuse history and criminal record, and Father's inability to provide care or support for A.D., coupled with Father's own criminal record, DCFS determined the family posed a "high risk" of potential abuse, and placed A.D. in protective custody.

A petition was filed under section 300, alleging Mother had a history of illicit drug use, mental health and emotional problems which rendered her unable to provide regular care for A.D. and endangered his physical and emotional health and safety. Father was declared A.D.'s presumed father. His attorney requested that A.D. be released to Father's care, as he was nonoffending, had been a daily part of A.D.'s life, and was no longer homeless (he was living with Grandfather and J.P., and took care of A.D. when J.P. was at work). A.D. was released to Father's care on the condition that Mother not reside in the home, and Father not monitor her visits with A.D.

On March 21, 2007, DCFS filed the operative first amended petition (petition). It alleged that Father and Mother had a history of domestic violence, that Father had been convicted of domestic violence as the result of an altercation with Mother in mid-August 2006, and that the violence between his parents placed A.D. at risk of harm. (§ 300, subd. (b).) DCFS reported Father had allowed Mother to visit with A.D. in violation of the court's orders, and had refused to stop seeing her or to keep her away from A.D. In addition, during a meeting with a CSW, Father and Grandfather began to argue after Father verbally attacked Grandfather, blaming him for everything that had gone wrong. The CSW was forced to intervene to break up the fight. DCFS reported Father had pleaded guilty to domestic violence, had received a felony conviction, had been released from custody in January 2007, and ordered by the criminal court to complete a domestic violence counseling program. Father waived reading of the petition, and entered a denial. A.D. was detained and placed in foster care.^{[ 2 ]}

Grandfather attended a hearing in early April 2007, to request A.D. be placed in his care. He said DCFS had never interviewed him. DCFS was ordered to do so, but never did. The following month, Mother and Father agreed to proceed without trial, by way of Malinda S. The court ordered reunification services for both parents, including parenting classes and domestic violence counseling, and gave them monitored visits with A.D. at least twice each week.

At a hearing in mid-July 2007, DCFS reported Father and Mother had visited A.D. on a weekly basis from early April through mid-June, and twice weekly beginning July 19, 2007. The visits had gone well. The parents behaved lovingly and appropriately with A.D. who, in turn, referred to them as "mama," and "dada." Father kissed, fed and read to A.D. during visits, and changed his diaper as necessary. The parents brought A.D. some toys, clothes, books and a blanket. They also brought cake, a balloon and new shoes to celebrate his first birthday, and were present to watch him get his first haircut. A.D. seemed comfortable with and attached to his parents, and enjoyed being held by them. Father told DCFS he was enrolled in domestic violence counseling through the probation department, but failed to provide any verification of that fact, or any contact information so DCFS could follow up. Father was similarly unable to verify his attendance at court-ordered parenting classes.

In December 2007, DCFS reported Father had enrolled in a parenting program, and had attended 9 of 24 sessions. Father again told DCFS that he was participating in domestic violence counseling, but DCFS remained unable to verify that claim. The parents remained consistent and appropriate during their twice weekly visits with A.D. DCFS reported that A.D. was doing well in his foster home. At a review hearing on December 10, 2007, the juvenile court found DCFS had made reasonable efforts to return A.D. to his parents' care, but the parents had failed to fulfill their obligations under the case plan. Father was specifically admonished to participate in the court-ordered domestic violence counseling and told that the court could not change any prior order, including the order requiring monitored visitation, until it received proof that he had done so. The parents were told that, if the court was unable to return A.D. to their care by the time of the permanency planning hearing on June 9, 2008, the matter could be set for a hearing to select a permanent plan of adoption or legal guardianship for A.D. Reunification services were continued.

In its report for the June 9, 2008 hearing, DCFS said A.D. was thriving in the loving care of his foster mother, and appeared very happy. The foster mother had expressed an interest in adopting A.D. in the event family reunification was not successful. An adoption assessment had been initiated. Meanwhile, neither parent had completed any court-ordered program. The parents had monitored visits once a week. Their visits, however, were suspended from mid-January through mid-March 2008, after an incident of domestic violence occurred between Mother and Father. During a monitored visit with A.D. at a fast food restaurant, the parents became engaged in what a social worker described as "physical combat" with one another while Mother was holding A.D. on her lap. Mother threw a cup at Father, who responded by shoving her face into a fence. A.D. slipped out of Mother's lap and fell. He was slightly injured, receiving a bump on his head, and a bruised and scratched leg. When visits were reinstated, each parent had separate monitored visits with A.D. DCFS noted that the problems that brought this family before the court—domestic violence between the parents, and Mother's drug abuse and mental health issues—had not been ameliorated. It opined that it would be detrimental to A.D.'s safety to be returned to the care of either parent, neither of whom had complied with their case plan requirements or maintained contact with DCFS. DCFS recommended that reunification services be terminated, and that a section 366.26 hearing be scheduled to determine a permanent plan for A.D. The juvenile court continued the matter for a contested hearing.

The contested hearing began on October 23, 2008. In its report for that hearing, DCFS noted Father had completed some components of his case plan. However, the only evidence of Father's participation in a domestic violence program showed he had failed to enroll in any program until early June 2008, and was then dismissed from that 52-week program in mid-July after attending just two classes. The program director told DCFS Father "disappear[ed]" once he obtained proof he had enrolled in the domestic violence program. At the hearing, Father informed the court he had a job, and a home to provide A.D. He argued he had completed the parenting and anger management classes, but said he had not been able to complete the domestic violence counseling due to his work schedule and inability to pay for classes.

At the conclusion of the hearing, the court noted the parents had received reunification services for about 16 months, but had failed to comply with their case plan or to ameliorate the significant problems that led the juvenile court to assume jurisdiction in the first place. The court was particularly troubled by the fact that neither parent was close to completing the domestic violence components of his or her case plan in an action which had arisen, in large measure, as a result of their domestic violence, and in which the parents had recently engaged in a physical confrontation so severe it resulted in injuries to A.D. The court found by clear and convincing evidence that the parents had failed to make significant progress to alleviate or mitigate the causes that necessitated A.D.'s removal. Based on that finding, coupled with its conclusion that it was unlikely A.D. would be returned to his parents' care within the statutorily allotted 18-month period, the court terminated reunification services. The matter was set for a section 366.26 hearing to select a permanent plan.

In March 2009, DCFS submitted its report for the section 366.26 hearing. It noted that A.D.'s foster parents had an approved home study, and DCFS had no reason to believe they would not adopt the child. A.D. was thriving in their care, and had bonded with them and their adopted son (A.D.'s former foster brother). The parents continued to visit, although their visits did not always go smoothly or entirely consistent. DCFS recommended that the court terminate parental rights, and place A.D. for adoption. The matter was set for a contested hearing.

On April 21, 2009, Father filed a section 388 petition seeking reinstatement of his reunification services. Father stated that he had completed parenting and anger management classes, and was in the process of completing domestic violence counseling. Attached to the petition was a certificate reflecting Father's completion of a 24-week course on parenting, and a letter from a counselor indicating he was one class shy of completing a 24-week course in anger management. Father also said he was in the process of completing a domestic violence program, although he did not submit documentation to support that claim.^{[ 3 ]} As to why reinstatement of reunification services would benefit A.D., Father said, "I regularly visit my child and have completed my programs. I also have housing and a job and can provide for my child." The petition was summarily denied. The court noted that the petition failed to state new evidence or a change of circumstances, and the proposed modification would not promote A.D.'s best interest.

The court proceeded with the section 366.26 hearing. Father testified he had regularly visited A.D. and that his son, who called him "daddy," was excited and happy during the visits, which went well. Father brought A.D. food and fed him. He read to him and brought him toys, with which they played together; and they hugged each other. At the end of some visits, A.D. said "bye-bye," or "see you later." Sometimes, however, A.D. would say to Father, "No. No. I don't want you to leave."^{[ 4 ]} Father said he believed A.D. was emotionally bonded to him. He believed he could raise him better than adoptive parents could, because "he's my son, I would treat him, you know, differently." Father conceded that he couldn't really speak to the nature or quality of care A.D. received from his caregivers, but he knew he would "treat [A.D.] really well and raise him right." Father conceded he had not had A.D. in his care for two years, and that his visits were still monitored.

At the conclusion of the hearing, the court found by clear and convincing evidence that A.D. was adoptable, and that Father had failed to establish any statutory exception. Parental rights were terminated.

ICWA notice-related issues

On March 7, 2007, Father informed the court he believed A.D. had Native American heritage through the Cherokee or Blackfeet tribes, through his paternal grandmother. Mother claimed no knowledge of any Indian ancestry in her family. The court found the ICWA inapplicable with respect to A.D.'s maternal relations, and ordered DCFS to notify the Secretary of the Interior, Bureau of Indian Affairs (BIA), and the Cherokee and Blackfeet tribes.

DCFS provided notice in April 2007. It sent notices to the BIA, the Blackfeet Tribe, the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians. Father was identified in those notices by his first and last (but not middle) names, address, date of birth and possible tribal affiliations. The notice identified Mother as "[S.L.V.]" and listed her date of birth as September 27, 1982. A CLETS report on Mother identifies her as "[S.A.V.]" A.D.'s birth certificate, identifies Mother as "S.L.V. but, like the CLETS report, states that her date of birth is September 23, 1983. The notice identified A.D.'s paternal grandmother, the state in which she was born on an unknown date, and her possible tribal affiliations. It also identified Grandfather by name, but identified his date of birth (in an unidentified place) by the meaningless series of numbers, "02//08048." A.D.'s paternal great grandmother, purportedly "half-blooded" Cherokee and Blackfeet, was not identified by name. No other paternal relatives are identified, and the record does not reflect that DCFS interviewed any of A.D.'s relatives to obtain information about his Native American ancestry.

The court received responses from three Cherokee tribes, the Office of Tribal Services, the BIA and the Blackfeet tribe. Each tribe indicated that, based on the information DCFS had provided, A.D. was not enrolled or eligible for tribal enrollment. On May 9, 2007, after a colloquy between court and counsel, DCFS stated its intention to assert that the ICWA did not apply to this matter, and sought input from the other attorneys as to whether any would object to such a finding. Each attorney, including Father's, stated that he or she would have "no objection" to such a finding. The court found the ICWA inquiry had been "completed, and there is no relationship to an Indian tribe." On December 10, 2007, the juvenile court reiterated its intention to find A.D. was not an "Indian child" as defined by the ICWA. Before the court did so, DCFS asked the court to inquire whether anyone objected to such a finding. The court did not make such an inquiry, and no counsel posed an objection. The court found that A.D. was not an Indian child under the ICWA.

DISCUSSION

Father raises three issues. Did the juvenile court err by denying his section 388 petition without a hearing? Were parental rights erroneously terminated? Did the court fail to provide proper notice under the ICWA? We consider each issue in turn.

1. Summary denial of section 388 petition

Father contends that the juvenile court erred when it denied his section 388 petition without conducting a hearing, because the petition demonstrated both that a sufficient change of circumstances had occurred since the court terminated reunification services, and that reinstating those services would benefit his son. We conclude otherwise.

In pertinent part, section 388 provides that: "Any parent [of] . . . a dependent child . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition shall . . . set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order . . . . If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ." (§ 388, subds. (a), (d); Cal. Rules of Court, rule 5.570(e).) Courts must liberally construe such petitions in favor of their sufficiency. If a petition states a change of circumstance or identifies new evidence, and it appears that the child's best interests may be promoted by the requested change of order, the court must grant a hearing. (Cal. Rules of Court, rule 5.570(a), (e), (f).) A parent need only present a prima facie showing to trigger his right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799.) If, however, "the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; Cal. Rules of Court, rule 5.570(d).) We review an order denying a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Father's section 388 petition was filed the same day as the section 366.26 hearing. When identifying what circumstances had "changed" since the court's order that would change the judge's mind, Father said he had completed his parenting and anger management classes, and was "in the process of completing domestic violence counseling." As to why the modification he sought would benefit A.D., Father repeated that he had completed his programs, visited A.D. regularly, had a house and a job and could provide for his son.

Father's petition failed to identify changed circumstances or new information. Virtually all of the information in the petition had already been presented to the court in October 2008, when reunification services were cut off. The court knew then that Father had completed the parenting and anger management components of the case plan. It was also aware Father had begun to participate in, but had been dismissed from, a domestic violence counseling program. At the October 2008 hearing, Father's attorney said Father stopped attending domestic violence classes because they conflicted with his work schedule, and he was unable to pay for the classes. But, since then, Father had re-enrolled again in a domestic violence program, which he expected to complete within three months. The attorney also told the court Father visited A.D. regularly, and had a job and a home. None of this information persuaded the court that services should be continued. By that time, Father had received reunification services for over 18 months. He had participated in, and even completed some, court-ordered programs. Nevertheless, as the court observed, Father had been unable to resist engaging in a physical fight with Mother in A.D.'s presence in January 2008, an incident so severe his son was physically injured as a result.

To the extent there was a showing of any change in Father's circumstances at the time his section 388 petition was filed in April 2009, it was that he had completed 15 weeks of a 52-week domestic violence program.^{[ 5 ]} This was insufficient. A section 388 petition must be considered in the fact-specific context of the entire dependency proceeding, and in the gravity of the circumstances that led to the child's removal. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532 [factors for determining a child's best interest in the section 388 context, include "the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem[,] . . . degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been"].)

The requisite "change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) Here, it was Father's problem with anger management and domestic violence that gave rise to the allegations against him. The record shows he failed to truly grapple with these issues in any significant respect since this action was filed, as evidenced by his physically assaultive behavior with Mother in 2008, and his failure to complete or make measurable progress in a one-year domestic violence program for more than two years. Accordingly, we conclude the juvenile court did not abuse its discretion by finding the petition failed to state any change of circumstances or new evidence that, if proven, might justify a change of order.

In addition to a showing of new evidence or a change of circumstances, a parent seeking relief by way of a section 388 petition must also make some showing that the proposed change will benefit the child in a way the extant order does not. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) The court found Father's petition fell short on this point. We agree. First, the information that Father regularly visited A.D., or that he had a job and a place to live, was no different from the circumstances in effect when reunification services were terminated. Like the juvenile court, we question Father's representation that he was "able to care for his son." Although the ability to provide food and housing are pivotal aspects of parenting, so too are the abilities to model appropriate behavior and to refrain from physical violence. While Father may be able to provide food and a place for A.D. to stay, he has not consistently demonstrated an ability to satisfy the latter requirements. By the time a dependency proceeding reaches the stage of a section 366.26 hearing, the court's focus is squarely on the child's best interest. (§ 388; Cal. Rules of Court, rule 5.570(d), (e).) Father's bare assertion that his son would be better off with his biological father—who claimed (but had not yet shown), he was "able to care for him,"—than he was in the consistent, loving care of the prospective adoptive parents with whom he had lived since March 2007, and in whose care he continued to thrive, was insufficient to satisfy the second prong of section 388. No evidentiary hearing was required. The juvenile court did not err by summarily denying the section 388 petition.

2. Termination of parental rights

Where, as here, the juvenile court has determined by clear and convincing evidence that a dependent child is adoptable, it must terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (c)(1).) An exception exists only in cases in which the parent is able to demonstrate that termination of parental rights would be detrimental to the child under one of several enumerated provisions. (§ 366.26, subd. (c)(1); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) The only provision potentially applicable here is the "beneficial relationship" exception of section 366.26. It provides an exception to termination of parental rights in cases in which a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Case law has defined a "beneficial relationship" as one that promotes the well-being of a child to such a degree that it would be detrimental to terminate parental rights, when weighed against the stability and permanence provided by an adoptive home and family. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)

The "beneficial relationship" exception has two components. Both must be satisfied for the exception to apply. First, the parent must show he has maintained consistent visitation and contact with his child. Once that showing is made, the juvenile court must decide whether those visits have engendered a "significant, positive emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We review a juvenile court's order refusing to apply the beneficial relationship exception for substantial evidence. (In re Derek W. (1999) 73 Cal.App.4th 823, 825.)

The juvenile court found Father failed to satisfy even the first prong of the beneficial relationship exception. His visitation was inconsistent—he had only two visits with A.D. in February and two in March—and visitation remained monitored, two years into this action. Father insisted he only missed two visits, and that the only reason he was unable to visit A.D. more often was because DCFS prevented him from doing so.

We will assume, for purposes of discussion, that Father satisfied the first prong of the beneficial relationship exception and maintained regular contact with A.D. Although there were times when Father visited less consistently than others—and one period during which he was not permitted to visit for several weeks at all—overall, Father maintained regular contact with A.D. during the two years preceding termination of his parental rights. Consistent visits, while necessary, are not sufficient unto themselves. To establish the beneficial relationship exception, "[t]he parent must do more than demonstrate `frequent and loving contact[,]' . . . an emotional bond with the child, or that the parent and the child find their visits pleasant. . . . Instead, the parent must show that he or she occupies a `parental role' in the child's life." (In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) It is not disputed that A.D. was comfortable with Father and enjoyed their visits. Father brought him things like toys, a blanket and food. He read to him, held and kissed him and, on occasion, fed A.D. or changed his diaper. The monitor who observed their interactions told DCFS A.D. was clearly attached to his birth parents.

Nevertheless, after two years of reunification services, Father had not progressed beyond monitored visitation. Moreover, in January 2008, his visits were suspended entirely for a period after he pushed Mother's face into a fence during a visit with A.D., and also injured A.D. At the section 366.26 hearing, Father testified A.D. had told him such things as "see you later," and "I don't want you to leave," at the end of some visits. The court, however, did not find Father entirely credible on this point, noting they were "talking about an infant that's not communicating." Moreover, as the court observed, even by the time the section 366.26 hearing was held, Father still had 75 percent of a domestic violence counseling program left to complete. This delay was particularly significant in light of the fact that it was Father's tendency to resort to domestic violence in stressful situations that gave rise to the allegations against him in the first place and evidence that, notwithstanding his knowledge that his parental relationship with A.D. was at stake, he remained unable to control those tendencies, even to prevent his son from being injured. "Children should not be required to wait until their parents grow up." (In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632, disapproved on another ground by In re Jesusa V. (2004) 32 Cal.4th 588, 624, fn. 12.) Father has had a lifetime to learn to control his violent and aggressive behavior, and over two years in this action to demonstrate a commitment to do so. All that time, A.D. has waited for Father to demonstrate his ability to parent. The child's right to a stable future with the loving family committed to his adoption need no longer be sacrificed in order to give Father another opportunity to learn to control his behavior. Substantial evidence supports the juvenile court's decision to deny application of the beneficial relationship exception, and to terminate parental rights.

3. Improper ICWA notice

Father maintains a limited reversal of the order terminating parental rights is required, so that we may remand this matter to the juvenile court with directions to comply with the notice provisions of the ICWA. He is correct.

Under the pertinent provisions of the ICWA, if a juvenile court "knows or has reason to know an Indian child is involved, the party seeking foster placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe . . . of the pending proceedings and of their right to intervene." (25 U.S.C. § 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 988; In re S.B. (2005) 130 Cal.App.4th 1148, 1157.) The mere suggestion that a child is of Indian ancestry will trigger the notice requirements. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)

Only an Indian tribe may determine whether a child is or is not a member of or eligible for membership in the tribe, and its determination is conclusive. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255; In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) Failure to provide proper notice of a dependency action to a tribe with which a child may be affiliated forecloses the tribe's ability to participate in the action. For this reason, ICWA notice provisions are strictly construed. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.)

The notice provided to a tribe must contain enough identifying information to be meaningful. (In re Karla C., supra, 113 Cal.App.4th at p. 175.) The object of providing notice is to enable the tribe to review its records to ascertain a child's status as an Indian child. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) Thus, the notice must contain enough information to be meaningful and must include, among other things, the child's name, date and place of birth, and the names and addresses of his or her parents, grandparents, great grandparents and other known identifying information, such as former or birth names or aliases, place of birth, dates of birth and death, former addresses and tribal enrollment numbers. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; In re C.D. (2003) 110 Cal.App.4th 214, 224-225.) Moreover, at the outset of the action, if DCFS has reason to believe an Indian child is involved, it must make further inquiry by interviewing "extended family member[s]," including the child's grandparents, aunts and uncles. (25 U.S.C. § 1903(2); Cal. Rules of Court, rule 5.481(a).) A juvenile court's finding that ICWA notice is complete is reviewed for substantial evidence. (In re J.T. (2007) 154 Cal.App.4th 986, 991.)

Here, Father notified the court at the detention hearing in March 2007 that A.D. might have Blackfeet or Cherokee ancestry through his paternal grandmother. Yet, the notices DCFS sent out did not contain any information about A.D.'s paternal grandmother, other than her name and the state in which she was born. It is not known whether A.D.'s paternal grandmother is alive, and there is no indication DCFS made any effort to contact Father, Grandfather, or any paternal relative to obtain any additional information to enable it to conduct an adequate investigation of the child's possible Native American heritage. DCFS need not contact all of Father's relatives. It is, however, required to contact known relatives to investigate the child's possible Indian heritage. (Cal. Rules of Court, rule 5.481(a).) DCFS failed to conduct an adequate investigation. As a result, the ICWA notice was incomplete.

In addition, as Father points out, the notices also contain omissions or discrepancies, including incorrect information regarding his full name, and Mother's name and date of birth. The notice also misstates Grandfather's birth date, and fails to identify his address or possible tribal affiliations.

DCFS claims Father forfeited the right to appellate review of issues related to deficiencies in the ICWA notice or that, even if there was no forfeiture, the error was harmless because Father has not shown a reasonable probability he would have obtained a more favorable result in the absence of error. We reject both contentions.

First, Father's failure to object to the juvenile court's findings regarding the inapplicability of the ICWA is of no import. "`[T]he notice requirements serve the interests of the Indian tribes `irrespective of the position of the parents' and cannot be waived by the parent.'" (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195; see also In re Marinna J. (2001) 90 Cal.App.4th 731, 739.)

Second, the error may not be deemed harmless. It is DCFS's burden, not Father's to conduct an adequate ICWA inquiry and to provide proper notice to the tribes. The notice provided must contain enough identifying information to be meaningful, and DCFS has the duty to conduct a reasonable inquiry to obtain that information. (In re Karla C., supra, 113 Cal.App.4th at p. 174.) Failure of an ICWA notice to comply with the notice requirements constitutes prejudicial error. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.) If the notice is defective and the juvenile court issues an order terminating parental rights, we must vacate that order and remand the matter for further proceedings that comply with the ICWA notice requirements. (Ibid.) We may, however, make the reversal conditional, by directing that, if after proper ICWA notice is given, and the juvenile court receives no information indicating the child is an Indian child, then its prior order shall be reinstated. (Ibid.) If, on the other hand, the juvenile court receives a tribal determination that the child is an Indian child as defined by the ICWA, the court must conduct a new section 366.26 hearing in compliance with the ICWA. (Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268-269; In re Jonathan D., supra, 92 Cal.App.4th at pp. 111-112.) The juvenile court's finding that ICWA notice was complete is not supported by substantial evidence. (In re J.T., supra, 154 Cal.App.4th at p. 991.) DCFS's failure to give proper ICWA notice was prejudicial error, and this matter must be remanded for proper notice to be given and, based upon the responses received, for a new determination of whether A.D. is an Indian child. (In re Jonathan D., supra, 92 Cal.App.4th at pp. 111-112.)

DISPOSITION

The order terminating parental rights is conditionally reversed. The matter is remanded to the juvenile court with directions to proceed in compliance with the notice provisions of section 224.2. If, after proper notice, the court finds that A.D. is an Indian child, the juvenile court shall proceed in accordance with the ICWA and section 224 et seq. If, however, the juvenile court finds A.D. is not an Indian child within the meaning of the ICWA, the court shall reinstate the order terminating parental rights.

We concur:

MALLANO, P. J.

ROTHSCHILD, J.

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