Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. 3161-DEP, 3162-DEP.
SIMONS, J.
Jennifer C. and Michelle C. (jointly, appellants) appeal from the juvenile court’s order terminating their parental rights at a Welfare and Institutions Code section 366.26 permanency planning hearing. They contend the Sonoma County Human Services Department (Department) violated the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We conditionally reverse the court’s order and remand for compliance with the ICWA inquiry and notice requirements.
All undesignated section references are to the Welfare and Institutions Code.
Background
Michelle is the biological mother of Eric C. (born March 2006) and Wyatt C. (born January 2008) (jointly Minors). Jennifer is married to Michelle and is the presumed mother of the Minors.
On August 11, 2009, the Department filed a section 300 petition alleging the Minors were subject to the jurisdiction of the juvenile court because Michelle “has a history of mental health issues that, at times, renders her unable to provide adequate care, supervision and safe living environment for the [M]inors... placing the [M]inors at substantial risk of harm in her care....”
On August 12, 2009, the Minors were ordered detained. At the detention hearing, the juvenile court inquired as to whether any parent had Native American heritage and was advised that appellants had provided the social worker completed forms on that topic. Michelle indicated on her “Parental Notification of Indian Status” form that she “may have Indian ancestry through grandparents” but the name of the tribe is “unknown.”
In a report dated September 4, 2009, the Department asserted that, on September 1, Michelle “denied... having any Native American Ancestry.”
On September 30, 2009, the Department filed a second amended petition (Petition). The Petition identified Jennifer as a presumed mother, restated the original allegations regarding Michelle, and alleged, as to Jennifer, that “[o]n or about July 17, 2009, and on numerous prior occasions Jennifer... physically assaulted [Eric] by pinching him, causing injury to include but not limited to bruising.” The Petition also alleged that Michelle had assaulted Eric and that the Minors were at substantial risk of serious physical harm or illness due to appellants’ history of domestic disputes and Jennifer’s failure to protect the Minors by responding appropriately to Michelle’s numerous suicide threats. The juvenile court sustained the allegations in the Petition and adopted the Department’s proposed findings and orders, including a finding that the ICWA does not apply.
On March 25, 2010, at a review hearing to terminate family reunification services, the juvenile court asked Michelle whether she had any Native American ancestry. She responded that she had “some that are slightly removed but not recent.” She thought it was her “great-grandmother who may have been a Native American” and she knew “that [her] uncle and his kids from [her] grandma’s side actually live on a reservation still.” Michelle did not know the name of the tribe, but it is in northern Oregon. She said her great-grandmother’s married name is Dorothy Ocasio, indicated her grandmother may have more information, and provided her grandmother’s address in Sebastopol. Michelle is not in contact with her grandmother because her grandmother ceased contact after Michelle and Jennifer began a relationship.
On April 1, 2010, the Department sent to the Bureau of Indian Affairs (BIA) a “Notice of Child Custody Proceeding for Indian Child” with respect to each of the Minors (Notices). The Department included information about Michelle, her mother, and her grandparents. The Notices did not specify any tribe and did not include the information Michelle provided in court on March 25. The Department apparently received no response from the BIA indicating that the Minors are Indian children under the ICWA.
In its six-month status review report, the Department recommended termination of reunification services to appellants. On July 1, 2010, the juvenile court terminated reunification services and set the matter for a section 366.26 permanency planning hearing. The Department’s section 366.26 hearing report recommended termination of parental rights with a permanent plan of adoption. The report also asserted without explanation that the ICWA “does not apply.”
On March 17, 2011, the juvenile court terminated parental rights and adopted a permanent plan of adoption. Both Michelle and Jennifer appealed.
Discussion
Appellants contend the juvenile court failed to ensure the Department complied with the ICWA. We agree.
Appellants did not forfeit the issue of compliance with the ICWA by failing to raise the issue below. (In re J.T. (2007) 154 Cal.App.4th 986, 991.) The Department’s attempt to analogize this case to In re Rebecca R. (2006) 143 Cal.App.4th 1426 is unavailing. In that case, the appellant sought a reversal under the ICWA despite the absence of any indication of Indian ancestry in the record. (In re Rebecca R., at pp. 1428-1431.)
“Congress enacted ICWA in 1978 ‘to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families....’ (25 U.S.C. § 1902.) ‘The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.’ [Citation.] Section 1911 of ICWA provides that a tribe may intervene in state court dependency proceedings. (25 U.S.C. § 1911(c).) Notice to the tribe provides it the opportunity to exercise its right to intervene. [Citation.]” (In re Damian C. (2009) 178 Cal.App.4th 192, 196 (Damian C.); see also In re Jack C. (2011) 192 Cal.App.4th 967, 977 [“ICWA sets forth minimum substantive and procedural standards to protect the interests of Indian children, Indian families and Indian tribes. [Citations.]”].)
In part, the ICWA provides, “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).) Section 224.3, subdivision (a) imposes an “affirmative and continuing duty” on the court and the Department “to inquire whether a child for whom a petition... is to be, or has been, filed is or may be an Indian child in all dependency proceedings.” A circumstance that may provide reason to know a child is an Indian child is that “a person having an interest in the child... informs or otherwise provides information suggesting that the child is an Indian child.” (Cal. Rules of Court, rule 5.481(a)(5)(A); see also § 224.3, subd. (b)(1).) Section 224.3, subdivision (c) provides, if a social worker “knows or has reason to know that an Indian child is involved, the social worker... is required 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 to gather the information required in paragraph (5) of subdivision (a) of Section 224.2....” (See also rule 5.481(a)(4).) Section 224.2, subdivision (a)(5) specifies information to be included in a notice including, for example, “All names known of the Indian child’s biological parents, grandparents, and great-grandparents... as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” (§ 224.2, subd. (a)(5)(C).)
All rule references are to the California Rules of Court.
We review the juvenile court’s determination that the Department complied with the ICWA for substantial evidence. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) “The substantial evidence standard requires evidence that is ‘ “ ‘ “reasonable in nature, credible, and of solid value.” ’ ” ’ [Citation.] A judgment is not supported by substantial evidence if it is based solely upon unreasonable inferences, speculation or conjecture. [Citation.]” (In re H.B. (2008) 161 Cal.App.4th 115, 120.)
In the present case, the first suggestion that the Minors might be Indian children appeared in a parental notification form completed by Michelle in August 2009. Michelle provided significant additional details at a review hearing on March 25, 2010. In particular, although she did not know the name of the tribe, she said that the tribe was in northern Oregon, her great-grandparents were Native Americans, and she had an uncle and cousins still living on a reservation. She provided her great-grandmother’s married name and a Sebastopol street address for her grandmother, who she said would know more of the family history. In sum, the Department received information suggesting the Minors are Indian children. This information “triggered the requirement to make further inquiry.” (Damian C., supra, 178 Cal.App.4th at p. 199; see also § 224.3, subd. (c).) In Damian C., an agency had reason to know the minor was an Indian child because the mother and maternal grandfather indicated they might have Indian ancestry, even though the grandfather stated that “the family’s attempts to research their possible Indian heritage had been unsuccessful and he has no contact information for his father.” (Damian C., at p. 199.)
Jennifer also indicated she may have Native American ancestry, but she does not claim on appeal that the information she provided triggered any requirements under the ICWA.
The Department fails to directly address the section 224.3, subdivision (c) requirement of further inquiry. Instead, the Department argues the information provided by Michelle did not obligate it to send an ICWA notice because “At no time did Michelle identify any tribe to explain her possible Indian ancestry. The information provided by Michelle was too vague and speculative to give the juvenile court reason to believe the children might be Indian children by virtue of her heritage.” But, regardless of whether the notice requirement was triggered, it was the Department’s obligation to investigate and gather more information—from Michelle, her mother, her grandmother, and, if possible, from other extended family members—once the Department received clear indications of possible Indian heritage. The requirement of further inquiry does not turn on whether a parent is able to identify a specific tribe. As the court explained in In re Alice M., supra, 161 Cal.App.4th at page 1200, “there are many instances in which vague or ambiguous information is provided regarding Indian heritage or association.... In these types of cases, ... inquiry is necessary before any attempt at notice to a specific tribe even can be made.” It would seriously undermine the ICWA—and the interests of the Indian tribes, families, and children it is meant to protect—if a parent’s failure to provide conclusive information could relieve the Department of the requirement of further inquiry, particularly because parents in dependency proceedings are often undependable. (Cf. In re K.M. (2009) 172 Cal.App.4th 115, 119 [“The record shows the [a]gency attempted on several occasions to elicit further information from the child’s family, but was unsuccessful due to the family’s hostility toward the [a]gency. In sum, the [a]gency did all that can or should be reasonably expected of it to meet its obligation to the child, to the family, to the tribes and to the court.”].)
None of the cases cited by the Department on this issue address the section 224.3, subdivision (c) requirement of further inquiry. (See In re Alice M., supra, 161 Cal.App.4th at p. 1200 [comparing duty to inquire and duty to provide notice].) In any event, even the notice cases do not require a conclusive showing that a minor is an Indian child to trigger the notice requirement. (See, e.g., In re Nikki R. (2003) 106 Cal.App.4th 844, 848 [“[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.]”]; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254 [“ ‘The Indian status of the child need not be certain to invoke the notice requirement. [Citation.]’ [Citations.]”].)
In conclusion, the juvenile court’s implied finding that the Department complied with the requirement of further inquiry is not supported by substantial evidence. We conditionally reverse the order terminating appellants’ parental rights and remand with directions that the juvenile court ensure compliance with the inquiry and notice provisions of the ICWA.
Appellants also contend the Department’s April 2010 Notices were legally inadequate because, among other things, the Department failed to include the information Michelle provided regarding her great-grandmother and uncle, which would have assisted any effort to identify Michelle’s ancestral tribe. The Department points out that section 224.2, subdivision (a)(5)(C) did not specifically require it to provide information regarding the Minors’ great-great-grandmother and great-uncle. In light of our conclusion that the Department failed to comply with the inquiry requirement, we need not decide whether the Notices were legally adequate, although it is worth pointing out that the notice form does include in an optional question a space for providing information on other relatives. (See also In re Louis S. (2004) 117 Cal.App.4th 622, 630 [“The burden is on the [a]gency to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA. [Citation.]”].)
Disposition
The order terminating appellants’ parental rights is conditionally reversed and the matter is remanded to the juvenile court with directions to order the Department to comply with the inquiry and notice provisions of the ICWA, in accordance with the decision of this court. If, after any required notice, no tribe claims that the Minors are Indian children or seeks to intervene, or any responses received indicate that the Minors are not Indian children within the meaning of the ICWA, the order terminating appellants’ parental rights shall immediately be reinstated. If any noticed tribe determines that the Minors are Indian children within the meaning of the ICWA and seeks to intervene, the juvenile court shall conduct further proceedings applying the appropriate provisions of the ICWA, the Welfare and Institutions Code, and the California Rules of Court.
We concur: JONES, P.J., NEEDHAM, J.