Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIJ113065. Robert M. Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant E.K.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant J.D.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Amanda F. Benedict, under appointment by the Court of Appeal, for Minors.
OPINION
McKinster, Acting P.J.
E.K. (father), the presumed father of I.K., and J.D. (mother) the mother of both I.K. and I.W., appeal from the trial court’s order under Welfare and Institutions Code, section 366.26, terminating their parental rights and selecting adoption as the permanent plan. Father contends that the trial court erred when it summarily denied his section 388 petition. Mother and father both claim that the exception to termination of parental rights set out in section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)) applies in this case, and therefore the trial court erred in terminating those rights. In addition, mother contends that the evidence does not support the trial court’s finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) does not apply in this case. We agree with mother’s claim that the evidence does not support the trial court’s finding that ICWA does not apply in this case because the record does not indicate that DPSS provided adequate notice to the pertinent Indian tribes. Therefore, we will conditionally reverse the judgment and remand the matter to the trial court for the limited purpose of complying with ICWA.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The pertinent facts are not in dispute. On October 5, 2006, Riverside County Department of Public Social Services (DPSS) filed a section 300 dependency petition with respect to then three-year-old I.W. and 15-month-old I.K. after mother contacted DPSS and reported that she was unable to care for the children because she was homeless. A social worker contacted mother in the motel room where she was living with the children. Mother told the social worker that she was homeless and unable to care for her children because she did not have any money and was using her “cash aid [from CalWorks] to go half on the cost of the room with two other people.” Mother said that she did not know from one day to the next who she would be sharing a motel room with and that she has lived in six different locations over the past two years. Mother had lived in a home with father but he went to prison, and mother could not afford the rent on her own. Since then mother has lived in an apartment, homeless shelters, motels, and another home. At times mother and the children had to sleep in the car. Recently mother went to ask her mother, P.S., for help but Mrs. S. would not open the door to mother. Mother said that she had no other family member to ask for help. When the social worker suggested homeless shelters, mother said that she and the children had been kicked out of the last shelter because the older child, I.W., “was ‘too hyper.’” Mother told the social worker that she has not been employed for the past two years.
DPSS alleged in the dependency petition, among other things, that mother was homeless and could not, or would not, care for the children; that father has an arrest history for committing acts of domestic violence against mother; that mother has a history of abusing controlled substances; and that father is incarcerated. Based on the noted factual allegations DPSS alleged that the children came within the jurisdiction of the court under subdivisions (b) and (g) of section 300. At a hearing on October 6, 2006, the trial court detained the children and removed them from the custody of mother and father.
The petition also included an allegation that the whereabouts of I.W.’s father, were unknown. Because he was not located and did not participate in the dependency proceeding, we will not refer to I.W.’s father again, and instead use the term father to refer only to E.K., who according to mother is the only father I.W. has known.
According to the social worker’s report for the jurisdiction and disposition hearing on November 6, 2006, father and mother both denied the domestic violence allegation. Father stated that he was in prison on a parole violation because of a misunderstanding in which mother called the police, and father’s contact with the police violated the terms of his parole. Father reported that he was scheduled to be released from prison on December 5, 2006. In her statement to the social worker, mother admitted she had been using controlled substances for the past year and that she previously had participated in drug treatment but relapsed earlier this year “when things in her life went wrong.” Mother also said she currently was homeless and that she left the shelter in which she had been living because the rules were too strict—she had to be up at 6:00 a.m. and out of the shelter by 7:00 a.m. Mother explained that she called DPSS for help because she thought it was the best thing she could do for her children given that she did not have a place to live after father went to prison. Mother told the social worker that she was looking for work and had lost her last job as a telephone company sales representative “because of baby sitting issues.”
At the combined jurisdiction and disposition hearing, the trial court, among other things, ordered six months of reunification services for mother and father. According to their respective case plans, mother and father were both required to complete a domestic violence program and a parenting class. If “clinically appropriate” both parents would also participate in some form of counseling. Mother was required to enroll and actively participate in an approved substance abuse program, including aftercare, and both parents were required to drug test.
In the report for the six-month review hearing set for May 7, 2007, the social worker recommended six additional months of reunification services for mother and father, noting “it would be unjust to not provide [mother] additional services, especially knowing that she and [father] plan to remain together and it would be beneficial to offer the couple additional services so they can work on their relationship and complete the much needed services prior to returning the children.” The social worker reported that mother participated for several months in a substance abuse program but was “dropped from the program due to poor attendance. She has not drug tested regularly .. . and it is believed that she used drugs in the past six months.” In April, mother moved in with father, who had been released from prison and was living in San Diego. According to the social worker, mother “is now attending a substance abuse program in San Diego County. [Mother] does visit her children regularly and has shown her love for them consistently.”
With regard to father, the social worker reported that when released from prison in December, he “immediately requested case plan services so that he could reunify with his son. [Father] started working as a ‘car salesman’ . . . in January 2007. [Father] has continued to work as a car salesman, and has recently moved into a new home in El Cajon, CA. [Father] chose to allow [mother] to move with him into his apartment and they plan to remain a couple.” Father completed an anger management class while in prison and enrolled in and completed a parenting class when released from prison. Father “has been referred to begin random drug testing in El Cajon, CA, but has not yet begun testing.” The social worker also expressed the opinion that mother and father should enroll in couples and/or individual counseling in order “to deal with their dependency on each other and to help them strengthen themselves so they will have the necessary tools to raise their children on their own, if they needed to.” In the social worker’s opinion, father “has jeopardized his chances of reunifying with his children” at the six-month review hearing because he was living with mother who has been unable to remain clean and sober.
Father did not have a controlled substance issue but apparently had a problem with alcohol as evidenced by his admission that on at least one occasion he came to a visit with the children “smelling like he had been drinking.”
The trial court continued the six-month review hearing to June 18, 2007. In an addendum report, DPSS changed its initial recommendation for additional reunification services and instead recommended that services be terminated and a hearing set under section 366.26. The social worker reported that after the last hearing on May 7, mother said she would be staying in Moreno Valley and living with her mother but on June 5, mother called to advise that she was “living back with [father] and that she wanted services in the El Cajon area.” In the social worker’s opinion, “[Mother] does not seem to be steady and capable of making sound decisions. She appears to love her children but has not met the requirements in order to regain custody of them.”
The social worker reported that father had completed his case plan and was in the process of drug testing. According to the social worker, father said he was “having relationship problems with [mother]” as evidenced by a phone call to the social worker on June 12 in which father stated that mother had “left to visit friends about a week ago, and she has not returned to the home.” In the social worker’s view, “[Father] appears to be deeply in love with [mother] and it does not appear in the children’s best interest to return to either parent at this time. [Father] would most likely allow the mother to enter back into the children’s lives without protecting them from her.” The social worker reported that the children were doing well in their current foster care placement but were being moved at the request of their current caretakers who reported that mother and father “have ‘harassed them and left bad messages on their phone.’ . . . The foster parents also stated that the parents ‘sounded intoxicated and were cursing’ on the phone because they were not able to speak with their children when they wanted to.”
Because he did not feel able to care for the children on his own, father asked the social worker about the possibility of moving to Massachusetts so that he and the children could live with his parents. Mother and father also identified a maternal great-aunt as a possible caretaker for the children.
In the social worker’s assessment and evaluation, the children “deserve to live with parents that will be able to nurture them, live a sober and drug free lifestyle, interact in an appropriate manner with them, and facilitate their mental, educational and emotional growth. [Mother and father] are not ready to have placement of these children. The parents are currently ‘not getting along’ . . . and their relationship is in limbo. In addition, [mother] reports she has ‘not had a bass [sic] (support system) . . . but she has because [father] has provided [mother] with that support system since he was released from jail. [Mother] does not appear to want stability in her life and does not appear to be capable of making positive decisions. [Father] has been near completion with his case plan for some time. However, he continues to open his home, heart, and emotions to [mother] and can not understand why she ‘walks over him’ and does not make progress on her case plan. [Father] appears to be too codependent and unable to raise the children on his own. He would most likely allow [mother] back into his home if the children were placed with him.”
At the review hearing on June 18, 2007, counsel for the minors joined in the social worker’s recommendation to terminate reunification services and set a section 366.26 selection and implementation hearing. The trial court adopted that recommendation, terminated reunification services to both parents, and set the selection and implementation hearing for October 15, 2007. Father challenged that order in a writ petition which this court denied.
In September, DPSS placed both I.K. and I.W. in the Los Angeles home of their maternal great-aunt S.M. As a result of that placement, DPSS requested a continuance of the selection and implementation hearing in order for the adoption unit to complete an assessment of the great-aunt as a prospective adoptive parent. In the meantime, father filed a petition under section 388 in which he alleged that his circumstances had changed, and as a result father asked the trial court to reinstate reunification services so that he could obtain custody of the children. The trial court summarily denied that motion.
The trial court conducted a contested selection and implementation hearing on January 28, 2008. In his testimony at that hearing, father stated, in pertinent part, that he is the father of I.K. and has been a father to I.W. since the child was two months old. Since January 2007, father visited both boys every week until the court terminated reunification services and DPSS placed the boys in Los Angeles with their maternal great-aunt. Since then father has visited with the boys once a month. Both I.K. and I.W. call him daddy, and are “very, very” excited to see him when he visits. He plays with the boys during his visits and does “[n]ormal toddler things” with them, like playing games, “and wrestling around with dad, regular boy stuff.” The boys are “very disappointed when they have to leave” and “sullen” when the visits end. Father testified that he is in contact with the boys’ caregiver on a weekly basis. Father also stated that he had arranged all the services necessary, including housing and day care, to have the children returned to his custody. According to father the children are “inseparably” bonded to mother. Finally father testified that the children would suffer if his parental rights were terminated.
Mother also testified at the section 366.26 hearing and stated, in pertinent part, that she has been visiting with the children every weekend since the dependency proceeding was initiated. Mother’s visits originally were limited to an hour but now that the boys are placed with her great-aunt, mother’s visits can last all day and sometimes mother stays until the boys go to sleep. Both boys call her mommy and are “ecstatic” to see her when she visits. The children are very sad when the visits end and want to stay with her. Mother talks with I.W., the older child, on the telephone. Mother stated that during her visits she and the boys “eat, play, talk, laugh, [and do] lots of things.” The boys even ask her if she has changed her hair style; they remember what her hair was like from the previous visit. Mother expressed the opinion that her children would be “very distraught” and “terrified” if her parental rights were terminated.
At the conclusion of the hearing, and with the repeated caveat to mother and father not to get their hopes up, the trial court took the issue under submission. The following day, the trial court found that both children were adoptable, and termination of parental rights would not be detrimental because none of the exceptions set out in section 366.26 subdivision (c)(1)(B) are applicable. Consequently, the trial court terminated mother’s parental rights to both I.W. and I.K. and father’s parental rights to I.K., and ordered adoption as the permanent plan.
DISCUSSION
As previously noted, mother and father both contend that the exception to parental rights termination set out in section 366.26, subdivision (c)(1)(B)(i) applies in this case and therefore the trial court erred when it terminated their parental rights to I.K. and I.W. We first address that claim.
1.
BENEFICIAL RELATIONSHIP EXCEPTION
“Adoption, where possible, is the permanent plan preferred by the Legislature. [Citations.] ‘Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child’s best interests are other, less permanent plans, such as guardianship or long-term foster care considered.’ [Citation.] Adoption, of course, requires terminating the natural parents’ legal rights to the child; guardianship and long-term foster care leave parental rights intact. After the parent has failed to reunify and the court has found the child likely to be adopted, it is the parent’s burden to show exceptional circumstances exist. [Citation.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).) The exception to parental rights termination set out in section 366.26, subdivision (c)(1)(B)(i) “applies if ‘termination of parental rights would be detrimental to the child because “[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.”’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 207 (Mary G.).)
In Autumn H., Division One of this court interpreted the phrase “‘benefit from continuing the [parent/child] relationship’ . . . to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
“In describing a parent-child relationship that may confer more than incidental benefit to a child [the Autumn H. court] noted: ‘The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’ [Citation.]” (In re S.B. (2008) 164 Cal.App.4th 289, 297 (S.B.).) “We determine whether there is substantial evidence to support the trial court’s ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.] If the court’s ruling is supported by substantial evidence, the reviewing court must affirm the court’s rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c).” (Id. at pp. 297-298.)
In this case the evidence is undisputed that mother and father both regularly visited and maintained contact with I.K., who was 18 months old, and I.W., who was three years old, when mother turned them over to DPSS because she was unable to care for them. Both children had lived with mother and father since birth, a fact that supports an inference that mother and father, at least until he went to prison, had day-to-day interaction with I.K. and I.W. The testimony of mother and father, set out above, supports an inference that the children had a strong, positive connection with both parents, as evidenced not only by the enthusiasm the children displayed for visits with mother and father, and their corresponding sadness when those visits would end, but also by father’s statement, previously noted, that the children are inseparably bonded to mother. In addition, the social worker reported that visits between the children and their parents “were always rewarding for the children and they look forward to seeing their parents. The mother normally brings items in for her children such as celebrating [I.W.’s] birthday with a cake and toys, bringing balloons to the visits for her children, and bringing Easter baskets for her children. The parents appear to earnestly love their children . . . .” The social worker also acknowledged that the children love their parents and want to live with them.
The above noted evidence is sufficient to establish that the children have a substantial positive relationship with mother and father. The remaining issue is whether the evidence also shows that severance of the parental relationship would cause the children great harm. No evidence directly related to this issue, such as a bonding study or a psychologist’s evaluation, was presented in the trial court. Therefore, resolution of this issue depends on the inferences the trial court could draw from the evidence presented in the trial court.
We cannot say that the evidence regarding the children’s relationships with their parents compels a finding that severance of parental rights would cause the children great harm. The adoption assessment included with the addendum report prepared for the selection and implementation hearing states that the children are “happy, comfortable, confident and playful” in the home of the prospective adoptive parents, whom the children call Auntie and Uncle. The assessment also states that the children communicate their wants and needs to the prospective adoptive parents and go to them for affection and attention. This evidence supports the inference that severance of the parental relationship would not cause the children great harm and that inference in turn supports the trial court’s finding that the beneficial relationship exception does not apply in this case. (Cf., S.B., supra, 164 Cal.App.4th at pp. 300-301 [“Based on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [her father]”].)
In summary, we conclude the trial court’s finding that the beneficial relationship exception set out in section 366.26, subdivision (c)(1)(B)(i) does not apply is supported by substantial evidence.
2.
SECTION 388 PETITION
Father contends that the trial court erred when it summarily denied his petition under section 388 to modify the order denying reunification services to him and to reinstate those services. At the outset father notes that he did not include denial of the section 388 petition in his notice of appeal, which states that the appeal is from the order terminating parental rights. Father requests that we construe that notice liberally, as the Fifth District did in In re Madison W. (2006) 141 Cal.App.4th 1447, which holds in pertinent part that, “[L]iberal construction of a parent’s notice of appeal from an order terminating parental rights encompasses the denial of the parent’s section 388 petition, provided the trial court issued its denial during the 60-day period prior to the parent’s filing the notice of appeal.” (Id. at p. 1449.)
Father’s appeal in this case is timely with respect to the order summarily denying his section 388 petition because that order was issued on January 14, 2008, which is within 60 days prior to January 30, 2008, the date on which father filed his notice of appeal. Therefore, we grant father’s request to liberally construe his notice of appeal to include the order denying his section 388 motion, in accordance with In re Madison W.
Under section 388, “Any parent . . . having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . .” (§ 388, subd. (a).) “If it appears that the best interests of the child may be promoted by the proposed change . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (c).) The right to a hearing on a section 388 petition is triggered only when a parent seeking modification has made a prima facie showing that (1) there is “a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
“‘The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.’ [Citations.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) In his petition father alleged, “Father is currently in a treatment program, Escondido Community Sobering Services (ECSS). Father started program November 2007 and will continue until May 2008. The program transitions father to an apartment, assists with childcare, food, clothing and employment. Additionally, father completed a drug treatment program, anger management and parenting.” (Sic.) Father appended to the section 388 petition a copy of a letter of recommendation dated December 31, 2007, written on Interfaith Community Services letterhead, and signed by Diane Madera, “Bilingual Case Manager,” recommending father for admission into the “Genesis program.” Father also attached a copy of an application to Interfaith Community Services for family housing. The application is dated December 27, 2007.
Father not only fails to describe the Genesis program in his petition, he also does not demonstrate that he has been admitted into that program or that his application for family housing has been accepted. Moreover, father’s allegations show that he had only been in treatment for two months, at most, and that he had five more months to complete before finishing the treatment program. Even liberally construed, father’s allegations show, at best, that he is in the process of changing his circumstances. Such a showing does not support granting a section 388 petition. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Therefore, father’s section 388 petition does not make a prima facie showing of changed circumstances that would warrant the modification requested by father. Accordingly, a hearing on that petition was not required and the trial court did not err when it summarily denied father’s petition. (See Cal. Rules of Court, rule 5.570(d); In re Angel B. (2002) 97 Cal.App.4th 454, 461.) Because we conclude father failed to show changed circumstances or new evidence, we will not address the issue of whether he demonstrated that the proposed change would be in the best interests of the children because a hearing is required only if the allegations establish both requirements set out in section 388.
3.
ICWA COMPLIANCE
Mother contends that DPSS failed to comply with the requirements of ICWA because the notices DPSS sent were incomplete and, therefore, the evidence does not support the trial court’s finding that ICWA does not apply. We agree.
In 2006, the California Legislature enacted a state version of ICWA that mirrors the federal law. (See § 224 et seq.) We use the term “ICWA” to refer to both the state and federal enactments unless indicated otherwise.
“‘The ICWA provides that “where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs [BIA] as the agent for the Secretary of the Interior. ([25 U.S.C. § 1912(a)]; 25 C.F.R. § 23.11 (2003); In re Edward H. (2002) 100 Cal.App.4th 1, 4.) “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the . . . tribe [or] the [BIA].” (25 U.S.C. § 1912(a).)’ [Citations.]” (Mary G., supra, 151 Cal.App.4th at p. 209; see also §§ 224.2, subds. (a) & (b), 224.3, subd. (a).)
The notice requirement serves two purposes. “First, it enables the tribe or BIA to investigate and determine whether the minor is an ‘Indian child.’ AN INDIAN CHILD MUST BE EITHER: (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. [Citations.] Secondly, it advises the tribe or BIA of the proceedings and the tribe’s right to exercise its jurisdiction in the matter or at least intervene in the proceedings. [Citations.]” (In re Pedro N. (1995) 35 Cal.App.4th 183, 186-187, fn. omitted.) “‘Notice under the ICWA must, of course, contain enough information to constitute meaningful notice. The Guidelines for State Courts; Indian Child Custody Proceedings [citation] . . ., which are designed to implement the ICWA, require that the notice include, among other things, the name of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner’s name and address of the petitioner's attorney; and a statement of the right of the tribe to intervene in the proceeding.’ [Citation.] ‘Additionally, by federal regulation an ICWA notice must include, if known, (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. [Citations.] “[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.”’ [Citation.] ” (Mary G., supra, 151 Cal.App.4th at p. 209.)
In this case, when the court inquired about Indian ancestry, mother said that her maternal grandfather was “half” Cherokee. DPSS twice sent ICWA notices, first in October 2006 and again in November 2006. The October notices were sent to the appropriate Cherokee tribes and the BIA as evidenced by the certificate of mailing, which specifies the tribal entities to which the notices were mailed, and the pertinent return mail receipts, which are included in the record on appeal. The certificate of mailing for the November notices does not include the names and addresses of the persons or entities to which DPSS sent the notices nor are the return mail receipts included in the record. Moreover, only the November notice regarding I.K. is included in the record. Neither the October notice nor the November notice includes any information about the children’s maternal great-grandfather, not even his name. The only maternal ancestors identified in the notices are mother and grandmother. All other sections regarding information about ancestors contain the notation “unknown.” The record also does not include any indication that DPSS attempted to obtain information about the maternal great-grandfather either from mother or her mother, or the maternal great-aunt, the woman with whom DPSS ultimately placed I.K. and I.W. Although two tribes responded that the boys are not registered or eligible to register, those responses were based on the information, or more accurately the lack of information, contained in the notices.
Two Cherokee tribes responded to the November notices and those responses refer to I.W. and I.K., thus indicating that DPSS did send notices regarding both boys to at least two tribes.
DPSS contends that it complied with its obligation to investigate and that it did not have any further information about the maternal great-grandfather. To support this assertion, DPSS cites portions of the record that indicate mother did not have any additional information about her Indian ancestry, other than that her grandfather was half Cherokee. That showing does not demonstrate that mother did not have information about her maternal grandfather. The record does not indicate that DPSS attempted to get any information about mother’s grandfather. Presumably, mother would know her grandfather’s name, but not even that information is included in the ICWA notices DPSS sent to the tribes.
The maternal great-grandfather is the person through whom mother claims she and her children have Indian ancestry, and as a result might be eligible for tribal membership. Failure to either include information about him in the ICWA notice, or indicate on the record that the information is not available, renders the notice defective, and the record insufficient to support the trial court’s finding that ICWA does not apply. We, therefore, will direct the trial court on remand to comply with ICWA notice provisions by either obtaining information from mother regarding her maternal grandfather and providing that information to the pertinent Indian tribes, or indicating on the record that no information is available.
DISPOSITION
The order terminating the parental rights of mother and father is reversed for the limited purpose of remanding the matter to the trial court with directions to require DPSS to determine whether information about the children’s maternal great-grandfather is available, and if so, to provide that information in notices to the pertinent Indian tribes, and to the BIA if appropriate, and file with the court copies of the notices, the return receipts, and any responses. If an Indian tribe determines that I.K. and I.W. are Indian children within the meaning of ICWA, the court shall conduct the jurisdiction, disposition, and all subsequent hearings in accordance with ICWA.
If, on the other hand, the court determines that proper notice was given because no information is available about the maternal great-grandfather, or no Indian tribe seeks to intervene or otherwise indicates a child is an Indian child as defined in ICWA, the court shall reinstate the order terminating parental rights.
We concur: King, J., Miller, J.