Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. J32266, J33648
BUTZ, J.
G.C., mother of minors S.C. and R.C., appeals from the juvenile court’s orders terminating her parental rights and creating a plan of adoption. (Welf. & Inst. Code, § 366.26.) She raises only claims of inadequate notice and inquiry under the Indian Child Welfare Act (the ICWA). (25 U.S.C. § 1901 et seq.) Because we cannot determine on this record what inquiry was made or what notice was given, we shall reverse and remand for further proceedings.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Since this appeal turns on the ICWA issues, we set out only the minimum background here, reserving the facts relating to the ICWA for the discussion.
This proceeding began in October 2007, when the Butte County Department of Employment and Social Services (the Department) filed section 300 petitions alleging that the deplorable condition of mother’s home endangered S.C. (a 23-month-old female) and R.C. (a five-month-old male). The petitions also alleged that mother had a significant history of substance abuse and had received services for substance abuse and child neglect since 2004, and that the minors’ respective fathers had not participated in their care and custody.
A prior section 300 petition involving only S.C. was filed in November 2005, following the detention of an older female half sibling in 2004; the petition alleged a filthy home, domestic violence, and drug problems on mother’s part. S.C. was placed with mother under a family maintenance plan in January 2006. The dependency terminated on June 27, 2006, when the juvenile court returned S.C. to mother’s custody on successful completion of her case plan.
After the juvenile court sustained the petitions, the Department recommended placement of S.C. and R.C. with mother under a family maintenance plan. The court so ordered, and maintained that order at the six-month review in May 2008.
In August 2008, the Department filed section 387 petitions as to both minors, alleging: (1) one of their fathers had taken them out in a stroller on a 103-degree day, then passed out drunk in front of a liquor store; and (2) mother’s home was again in deplorable condition. In October 2008, the juvenile court sustained the petitions.
The Department’s dispositional report recommended denying reunification services and setting a section 366.26 hearing. In February 2009, the juvenile court so ordered.
The Department and the state Department of Social Services recommended termination of parental rights and a permanent plan of adoption for both minors.
In July 2009, mother filed section 388 petitions, requesting that the minors be placed with her. At a consolidated hearing in October 2009, the juvenile court denied mother’s petitions and terminated the parental rights of all parents.
DISCUSSION
Mother contends the judgment must be reversed because (1) the Department did not comply with the ICWA’s inquiry and notice requirements; (2) the juvenile court never found that the ICWA did not apply; and (3) if such a finding was made, substantial evidence did not support it. The Department responds that it substantially complied with the ICWA, and any error should be considered harmless because there is no evidence that further information could have been provided. Because we cannot determine whether the Department and the court complied with the ICWA, we must reverse and remand for further proceedings.
When the juvenile court knows or has reason to know that a minor in a dependency proceeding may be an Indian child, “the party seeking the foster care placement of, or termination of parental rights to, [the] 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); see also Welf. & Inst. Code, § 224.2, subd. (b) [implementing the ICWA].)
“Notice must be sent whenever there is reason to believe the child may be an Indian child. [Citation.] ‘[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.’” (In re Robert A. (2007) 147 Cal.App.4th 982, 989.)
“Because ‘“failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, [the ICWA] notice requirements are strictly construed.”’ [Citation.] The notice sent to the Indian tribes must contain enough identifying information to be meaningful. [Citation.] A ‘social worker has “a duty to inquire about and obtain, if possible, all of the information about a child’s family history”’ required under regulations promulgated to enforce ICWA.” (In re Robert A., supra, 147 Cal.App.4th at p. 989.) This requires interviewing the parents, Indian custodian, and extended family members, so far as possible. (§ 224.3, subd. (c).)
“To enable the juvenile court to review whether sufficient information was supplied, [the Department] must file with the court ICWA notice, return receipts and responses received from the tribes.” (In re Robert A., supra, 147 Cal.App.4th at p. 989.) The ICWA’s notice receipts are mandatory and cannot be waived by the parties. (Ibid.) The ICWA notice must include, if known, the Indian child’s name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information, and a copy of the dependency petition. (§ 224.2, subd. (a)(5); In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
As the principal purpose of the ICWA is to protect and preserve Indian tribes, an alleged failure of the ICWA notice may be raised for the first time on appeal; a parent’s failure to do so in the juvenile court does not forfeit the issue. (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.)
Where the tribes have received the ICWA notice, any error as to that notice is subject to harmless error review. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 784.)
The record (which includes an augmentation requested by appellate counsel) shows the following:
In the first dependency proceeding (as to S.C. alone), mother told the juvenile court she had Cherokee heritage through her father, but did not know if he was an enrolled tribe member. The court provided both parents with JV-130 forms (which ask only whether a parent claims Indian heritage). S.C.’s father returned the JV-130 form on November 8, 2005, stating he had no Indian ancestry.
The record does not contain any ICWA form signed by mother in 2005. However, on November 21, 2005, the Department filed signed return receipts for JV-135 forms (the subsequent form detailing the family information of a parent claiming Indian ancestry) from the parents, the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, and the Bureau of Indian Affairs’ (BIA) regional office. Since S.C.’s father had disclaimed Indian ancestry, we infer that notice was given based on information provided by mother.
The record does not contain copies of the JV-135 form or the tribes’ substantive responses, however. Thus, we do not know what notice was provided to the tribes in 2005 or on what information they based their responses. The record also does not show any ICWA ruling by the juvenile court during the 2005-2006 dependency proceedings.
In the present proceeding, the juvenile court asked mother at the interim detention hearing on October 9, 2007, whether she had any new information about her Indian heritage. After saying “No, ” she added: “I know I’m Indian” specifically, Cherokee but did not know if she was a member of a tribe. She said her father was deceased and her mother was “supposedly down in L.A., homeless for the past eight years.” She would try to contact her mother and pass on any information she obtained to the social worker. She did not name any other relatives who might have information.
At the detention hearing on October 10, 2007, county counsel said additional notice to the Cherokee tribes would be required for the new child (R.C.). The matter was repeatedly continued thereafter for that purpose.
At the contested jurisdictional hearing on November 15, 2007, there was no discussion of the ICWA as to mother.
Counsel mentioned that S.C.’s father had received a new JV-130 form; he subsequently filled it out claiming Indian heritage but not naming a tribe.
The dispositional report, filed November 30, 2007, stated that the ICWA did not apply “at this time.” The report included a table showing that all noticed tribes had denied Indian ancestry as to S.C., but two had still not responded as to R.C; however, the table does not show what information the tribes had been given.
A trial readiness conference hearing was held on January 17, 2008, at which the juvenile court did not make any oral ICWA findings or orders. The minute orders of this hearing do not show any written ICWA findings or orders, but as to R.C. states that the ICWA “may apply.” Nevertheless, the Department’s status review report filed on April 29, 2008, asserts (without foundation, so far as the record shows): “It was determined on January 17, 2008, by the Court[, ] that the [ICWA] does not apply.” The Department repeated this claim in its section 387 petitions and detention reports.
Perhaps relying on the Department’s word, the juvenile court entered a written finding after the detention hearing of August 20, 2008 (at which the ICWA was not mentioned on the record) that the ICWA did not apply. It was not discussed or ruled on thereafter.
In short, mother offered evidence in both 2005 and 2007 that was sufficient to trigger an ICWA inquiry and apparently did so. (In re Robert A., supra, 147 Cal.App.4th at p. 989.) But nothing in the record shows what inquiry was made or what information was provided at either time to any tribe. The tabular summary in the November 2007 dispositional report purports to show how the tribes responded to the notice they received at that time, but does not show what that notice consisted of. Thus, on this record, we cannot know whether the Department or the juvenile court complied with the ICWA’s inquiry and notice requirements.
The Department’s attempts to salvage the situation fail. The Department asserts first that it substantially complied with the ICWA. It appears to base this claim on the tribes’ 2005 return receipts and the summary table in the November 2007 dispositional report. However, because neither of these items shows what inquiry the Department made or what information it gave the tribes, they cannot show it substantially complied with its ICWA obligations. (See People v. Hoag (2000) 83 Cal.App.4th 1198, 1208 [substantial compliance means actual compliance as to substance essential to statute’s objectives].)
The Department asserts next that if mother was dissatisfied with the Department’s performance of its ICWA duties, the burden was on her to complain in the juvenile court. But it does not matter now whether she did so then, because a parent may raise the issue of inadequate ICWA compliance for the first time on appeal. (In re J.T., supra, 154 Cal.App.4th at p. 991; Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 783, fn. 1.) Furthermore, given the defects of this record, its failure to show that mother complained proves nothing.
In re Miracle M. (2008) 160 Cal.App.4th 834, cited by the Department, is inapposite. The parents there complained on appeal that they were not served with copies of a form, but the record showed it was in the juvenile court’s file and made available to them at each hearing. (Id. at p. 847.) In other words, the record was adequate to review the ICWA compliance. Here, it is not.
Lastly, to show that any error was necessarily harmless, the Department asserts: “There is nothing to indicate that a reversal would produce any additional information.” This is so, according to the Department, because the relative from whom mother claimed Indian heritage (her father) was deceased, she did not mention any paternal relatives, and she had been out of contact with her allegedly homeless mother for eight years. In other words, in the Department’s view, if it looks as though it would be hard to find out whether more information was available, it does not matter whether the Department even tried. This argument is unacceptable.
Where the record does not demonstrate that the Department performed its ICWA duties of inquiry and notice, the Department may not be heard to claim the error is harmless because the result would have been the same whether it performed its duties or not. If accepted, this question-begging premise would excuse almost any nonfeasance by the Department and render the ICWA impotent.
Because we cannot find harmless error on this record, we must reverse and remand for further ICWA proceedings. This also requires us to vacate the juvenile court’s orders denying mother’s section 388 petition and terminating her parental rights. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 785.)
On remand, the juvenile court shall direct the Department to re-notice the tribes after fully performing its duty of inquiry under the ICWA, and to provide the court with copies of all documentation required by the ICWA to be made part of the record. If the court is satisfied that the Department has fully performed its duties and concludes the children are not Indian children, the court shall reinstate its order terminating parental rights. If any tribe determines that one or both of the children are Indian children, the court shall proceed in accordance with the ICWA.
Mother asks that our disposition also expressly grant her the right to file a new section 388 petition. The Department opposes this request, relying on In re Terrance B. (2006) 144 Cal.App.4th 965, 972-973 [holding that “limited” remand for the ICWA notice compliance does not authorize the juvenile court to entertain a section 388 petition]. However, in Nicole K. v. Superior Court, supra, 146 Cal.App.4th at page 785, this court rejected the premise that a remand for an ICWA error may be limited to consider only ICWA compliance issues. Therefore, we reject the Department’s position. Our remand is without prejudice to mother’s right to file a new section 388 petition.
DISPOSITION
The judgment (orders denying mother’s section 388 petition and terminating her parental rights) is reversed. The matter is remanded for further proceedings in accordance with this opinion.
We concur: HULL, Acting P. J., CANTIL-SAKAUYE, J.
Mother stated in that proceeding that she had Cherokee heritage through her father. However, as we shall explain, the record does not show what ensued as to the ICWA at that time.
The section 300 petition which began the present proceeding was filed after police and social workers, investigating a reported altercation between mother and an older male half sibling, found that mother’s home had reverted to its prior state.