In re H.J. CA4/1

Filed 5/6/16 In re H.J. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re H.J., a Person Coming Under the
Juvenile Court Law.
D068936
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ-1171)
Plaintiff and Respondent,
v.
A.J., et al.,
Defendants and Appellants.
APPEAL from an order and judgment of the Superior Court of San Diego County,
Laura J. Birkmeyer, Judge. Conditionally reversed in part for further Indian Child
Welfare Act (ICWA) notification proceedings, and affirmed in part as to modification
order.
Clare M. Lemon, under appointment by the Court of Appeal, for A.J., Defendant
and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for C.C., Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy, and
Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Appellants C.C. (Mother) and A.J. (Father) appeal a juvenile court order denying
Mother's modification motion for return of their child, H.J. (the child), to her care. (Welf.
& Inst. Code, § 388; all further statutory references are to this code unless noted.)
Mother, joined by Father, first argues the court abused its discretion when it denied her
motion for modification and then proceeded to the permanency planning hearing.
(§§ 388, 366.26.)
The parents further contend reversal of the permanency planning judgment is
necessary because the San Diego County Health and Human Services Agency (the
Agency) did not adequately comply with the notice provisions of the ICWA. (25 U.S.C.
§ 1901 et seq.) After the court made a preliminary finding that the child was not an
Indian child, the Agency was placed in possession of additional genealogical information
from Mother's relatives, and it pursued additional notification procedures regarding her
ongoing claim of her Native American heritage. However, the Agency failed to provide
the court with the updated results when hearings resumed, which the parents argue failed
to meet the notification standards of the ICWA.1
1 Father's counsel filed a brief and letter joining in Mother's briefs on appeal. The
child's counsel filed a letter joining in the Agency's respondent's brief.
2
The Agency argues no error occurred, or it was waived or invited by the parents.
We conclude the parents' substantive contentions on modification lack merit, and there
was no abuse of discretion in the juvenile court's denial of Mother's motion for
modification. However, we agree with the parents that on this record, the Agency failed
to fully comply with the ICWA. We order a conditional reversal and limited remand for
the purpose of further ICWA notice verification, while affirming the order denying the
modification petition. (In re Francisco W. (2006) 139 Cal. App. 4th 695, 711; In re
Justin S. (2007) 150 Cal. App. 4th 1426, 1437-1438.)
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Jurisdictional and Dispositional Orders
The parents do not challenge the court's jurisdictional or dispositional findings.
The child came to the attention of the Agency in May 2014, when she was about nine
months old. After a relative told police officers that the parents were allegedly smoking
heroin in front of the child, they investigated and found them leaving the premises with
the child and the drugs. The parents were arrested for child endangerment and Mother
was found to be in possession of heroin residue and a pipe of the sort used for smoking
controlled substances. Father's backpack had a quantity of controlled substances in it and
he was arrested for possession for sale of same. The Agency originally placed the child
with the paternal grandparents, but she was removed to foster care when that Agency
learned the grandfather had a conviction for sexual abuse.
3
The Agency filed its petition on May 14, 2014, alleging the child was dependent
within the meaning of section 300, subdivision (b), because her parents were heroin
abusers who were unable to properly care for her. Mother, age 22 at the time, was being
prosecuted for driving under the influence and was in custody when initially interviewed
by the Agency. She acknowledged she had used controlled substances for the past five or
six years and had tested positive for opiates when the child was born, but claimed she
was not an addict. She said she understood she would need to stay clean so that she
could regain custody of the child. She participated in drug court and by August 2014,
was residing as an in-patient at the KIVA drug rehabilitation program. Father has a
record of several criminal offenses, including driving while under the influence of drugs
and alcohol.
At the detention hearing, Mother informed officials that she believed she had
Cherokee heritage, possibly on both sides of her family. The Agency began
investigations, providing Mother with forms to fill out about her ancestry. In a prior
dependency proceeding involving Mother's own sibling, their mother told the Agency
there was no Indian heritage in the family. Father's family is of Mexican descent, without
Indian heritage.
Jurisdiction was asserted on July 21, 2014 and the dispositional hearing was held
on August 13, 2014. The child was placed in foster care and the parents were granted
reunification services. As of August 2014, the court determined it could not yet make an
ICWA finding on whether the child was an Indian child.
4
In preparation for the March 2015 six-month hearing date, the Agency prepared a
review report stating that from August 2014 through October 2014, Mother had been
visiting with the child twice a week at the KIVA facility. Once released from custody,
both parents had weekly supervised visits until December 2014. They had apparently
been using drugs as observed during a December visit with the child. Father's parents
had kicked them out of their house for using drugs, and Mother had been evicted from
her rehabilitation program. By the end of December, both had been arrested for
probation violations. Once Mother was released from custody on February 26, 2015, she
was readmitted to the KIVA program. Father remained in custody. The Agency was still
making efforts to get Mother to fill out the ICWA forms.
B. Six-Month Review Hearing
The contested six-month review hearing took place March 25, 2015. Mother
testified she now was living at KIVA and the child was visiting with her twice a week on
a supervised basis, without any reported problems. Although Mother had briefly used
controlled substances while pregnant with her second child with Father, she reported that
she was now sober and expected to give birth to their son in July 2015. She believed that
she would be able to complete the KIVA program and pursue classes and counseling.
Mother was having trouble contacting her parents on the ICWA questions, as her
mother was homeless and her father was always drunk. She did not complete the forms
providing further information about her claims of Native American heritage until
March 18, 2015. In April 2015, the Agency sent notice of the case to three tribal entities
5
of the Cherokee Nation (the tribe).2 They responded that the child was not of Indian
descent and they would not be intervening.
At the six-month hearing, the court heard testimony from both parents and
considered the Agency's reports. The court terminated both parents' reunification
services and advised them they had a right to seek appellate review via writ. Our court
records show that on May 14, 2015, this court dismissed the parents' notices of intent to
file a writ petition, based on counsel's representations that there were no viable issues for
writ review. (A.J. v. Superior Court (D067792).)
C. Events leading to Modification Motion and Permanency Planning Hearing
Father was released from custody in May 2015 and moved back in with his
parents. In June 2015, Mother used her day pass from KIVA to go to the parents' home
to pick up her belongings. She discovered Father there, unconscious, and called for
medical assistance for him. It was learned he had overdosed on controlled substances.
Mother did not report the incident to the Agency. Father was arrested again in August
2015.
In July 2015, Mother was still at KIVA when she gave birth to their new child.
No dependency proceedings were initiated for him. By mid-August 2015, Mother
completed her in-patient program, which included attending Narcotics Anonymous (NA)
meetings. She moved into an apartment that her probation officer approved. However,
2 Notices were sent to the three federally recognized Cherokee tribes, the Cherokee
Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah
Band of Cherokee Indians in Oklahoma.
6
she had to leave when her probation officer found out her roommates were smoking
marijuana there. Mother did not inform or consult Agency social workers about that
problem.
The adoptions assessment report filed July 6, 2015 took note that Mother
previously had successful supervised visits with the child, although she was sometimes
inconsistent in attending. Further visits took place during July and August 2015. The
child was glad to see Mother, sometimes calling her Mom, but sometimes had difficulty
in following her directions. The child was evaluated to be adoptable, and the Agency
was considering the current foster parents for adoptive placement. However, due to some
concerns that were raised about them, the Agency was also assessing various relatives as
possible adoptive placements. In the opinion of the assessment worker, it would not be
detrimental to the child to terminate parental rights. The worker had observed that the
child's relationship with Mother seemed to be comparable to that of a family friend,
rather than of a parent-child nature, partly because Mother's visits had been sporadic due
to her unavailability while in custody or participating in treatment programs. Father's
visits had been inconsistent and he had been unable to participate in any meaningful way
in the child's life.
At the request of the Agency on July 20, 2015, the court made a finding that the
ICWA did not apply to the child. The court set the matter for a pretrial settlement
conference and scheduled a contested permanency planning hearing for September 18,
2015.
7
At the pretrial status conference on August 24, 2015, the court made findings that
Mother's relatives had supplied new information on potential applicability of the ICWA,
and directed that they provide further information to the social worker. The court
confirmed that the contested hearings would proceed on Mother's modification petition,
which was anticipated to be filed soon, and on permanency planning matters in
September 2015.
Based on the new information received about Mother's other relatives, the Agency
sent renewed notices on September 3, 2015 to the three Cherokee tribal entities,
referencing the previous April 2015 notices sent. Agency workers spoke to some of the
maternal relatives, who told them that the child's great-great-grandmother had said she
was one quarter or one eighth Cherokee Indian, although they were never registered
members of the tribe. As of September 10, 2015, the Agency had not yet received any
signed certified mail green receipt cards.
Mother filed her section 388 motion on September 2, 2015, on the grounds that
she had made material changes in improving her situation and opposed a permanent plan
of adoption. She argued the child's best interests would be best served by being returned
to her care. She had remained clean and sober since December 2014, and had been
attending a half-day family recovery aftercare program, Vista Hill ParentCare Central,
every weekday since August 10, 2015. Her therapy group leaders felt that she was doing
well there and presented herself as motivated to improve her circumstances. Her healthy
baby boy was born in July 2015 and remained in her care.
8
The Agency opposed the modification request, filing addendum reports in July,
August and September 2015. The Agency was concerned that Mother had not yet
identified her own NA sponsor, which she had been encouraged to do as part of her
recovery. The Agency questioned why Mother had not taken more action to exclude
herself from situations where individuals were actively using drugs. She had previously
moved in with marijuana smokers, and it was she who discovered Father's drug overdose.
The Agency had no evidence that Mother had completed therapy about any unresolved
mental health issues she had, which might have contributed to her substance abuse.
Overall, Mother was still in the initial stages of recovery and was only in the process of
changing her circumstances. The Agency recommended that the petition be denied.
The court ruled that Mother had made out a prima facie case for modification, and
it combined the hearing on that request with the hearing on adoption of a permanent plan.
C. Combined Hearing; Rulings
At the September 18, 2015 contested modification and permanency planning
hearing, Mother's attorney did not refer to the recent additional ICWA notices sent to the
three tribes by the Agency, or seek a continuance to get the results. The parties were
ready to proceed and the court considered the merits of her petition for modification.
Testimony from Mother's therapist at the aftercare program, Cara Silva, stated that
Mother had successfully completed an intensive inpatient program and was now an
outpatient. She was attending group therapy five times a week and doing well. She was
not really working on her "12 step" program, since she had not obtained an NA sponsor,
9
but was otherwise making very substantial progress. The court admitted into evidence
the therapist's report and proof of Mother's regular attendance at NA meetings.
The court heard testimony from the Agency's assessment worker, who was
concerned that Mother had not voluntarily addressed or overcome her six to seven years
of heroin and methamphetamine abuse. It was the caregivers who had been meeting the
child's needs on a daily basis for the preceding 16 months. The social worker questioned
why Mother had been the one to discover Father's drug overdose and why she had lived
with persons who allegedly used marijuana. The social worker had not seen any
beneficial parent/child bond among the parties.
In Mother's testimony, she explained that when her probation officer approved the
home she had moved into, they were not aware that the roommates were using marijuana.
She no longer has any relationship with Father because he is not compatible with her new
lifestyle. She discovered his drug overdose in June 2015 only by accident, when she
arrived at his parents' house to pick up some of her property. She has been sober for nine
months and is living in a drug and alcohol free home. She attends not only daily group
therapy but also three NA sessions per week. Her visitation frequency has improved
since she finally decided in February to comply with her rehabilitation program.
The court heard arguments of counsel, and read and considered the evidence
contained in the motion and the Agency reports and exhibits. In its ruling, the court
found Mother did not show the required "changed circumstances" that would justify
modifying the current orders, nor could she show that the child's best interests would be
served by returning her to Mother's custody. After additional argument on the
10
permanency planning issues, the court made findings by clear and convincing evidence
the child was likely to be adopted and none of the statutory exceptions applied (no
beneficial parent/child exception). Parental rights were terminated and the child was
referred to the Agency for adoptive placement.
Each parent filed a timely notice of appeal.
II
MODIFICATION MOTION
Mother, joined by Father, argues the juvenile court abused its discretion in
denying her section 388 motion seeking placement of the child with her. Father points
out that if the order and related judgment were to be reversed as to her, they should be
reversed as to him as well. (In re Mary G. (2007) 151 Cal. App. 4th 184, 208.)
A. Applicable Standards: Two Prongs
A petitioner requesting modification has the burden of proof to show a change of
circumstances or new evidence, and that the proposed modification is in the child's best
interests. (In re Casey D. (1999) 70 Cal. App. 4th 38, 47; § 388, subd. (a)(1).) The focus
of a modification hearing is whether the petitioner has shown a significant change of
circumstances. In deciding whether the petition makes the necessary showing, the
juvenile court may consider the entire factual and procedural history of the case. (In re
Justice P. (2004) 123 Cal. App. 4th 181, 189.)
By the time that the juvenile court decides that a parent's reunification services
should be terminated, the dependency focus shifts from reunification toward how best to
promote the circumstances of permanency and stability for the child. (In re J.C. (2014)
11
226 Cal. App. 4th 503, 527.) The court held a full hearing on modification, after Mother
made a prima facie showing. (In re Marilyn H. (1993) 5 Ca1.4th 295, 310.) The petition
for modification under those circumstances was addressed to the sound discretion of the
juvenile court, and its decision will not be overturned on appeal in the absence of a clear
abuse of discretion, which must be demonstrated by the appellants. (In re A.A. (2012)
203 Cal. App. 4th 597, 612; In re Cliffton B. (2000) 81 Cal. App. 4th 415, 423.)
Although the abuse of discretion standard gives the trial court substantial latitude,
" '[t]he scope of discretion always resides in the particular law being applied, i.e., in the
"legal principles governing the subject of [the] action . . . ." ' " (Nickolas F. v. Superior
Court (2006) 144 Cal. App. 4th 92, 119, citing City of Sacramento v. Drew (1989) 207
Cal. App. 3d 1287, 1297.) It is not our role to reweigh the evidence. "It is the trial court's
role to assess the credibility of the various witnesses, to weigh the evidence to resolve the
conflicts in the evidence. We have no power to judge the effect or value of the evidence,
to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in
the evidence or the reasonable inferences which may be drawn from that evidence." (In
re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
B. Evidence at Hearing; Ruling
In Mother's modification petition under section 388, she presented evidence that
since her reunification services were terminated in March 2015, she continued to
participate and progress in group therapy, and was attending NA meetings. Since
December 2014, she had been clean and sober. Her new baby was born in July 2015 and
she was successfully caring for him.
12
The Agency filed an addendum report in opposition to the section 388 petition,
noting Mother had not yet obtained a sponsor for her 12-step program, although required
to do so. This was her second effort to complete the family recovery program, as she had
dropped out in 2014.
At the hearing on whether ordering placement of the child with Mother would
promote her best interests, the court specifically addressed the modification factors set
out in In re Kimberly F. (1997) 56 Cal. App. 4th 519, 532. These included (1) the
seriousness of the problem leading to the dependency; (2) the relative strength of the
child's bonds with the parent and with the caretaker; (3) the degree to which the problem
could be easily resolved. (Ibid.)
First, the court evaluated the significance and seriousness of the problem leading
to dependency as high, because Mother had a lengthy history of drug abuse and had
struggled to achieve sobriety. The child was born with a positive toxicology screen of
opiates, and during the dependency proceedings, the parents had visited the child while
apparently under the influence of drugs. At the beginning of her pregnancy with her
second child, Mother had continued to use drugs, which was a concern for the court.
Although Mother had been able to achieve sobriety in a very structured inpatient
and outpatient program, and was showing that she could make changes in her
circumstances, it was still a relatively early stage in her treatment. Also, there was a
significant month-long gap between the beginning of the aftercare program and Mother's
first NA meeting, and Mother was still looking for a sponsor in that program, which
delayed her progress.
13
Next, the court commented that Mother did not appear to be acknowledging that
she had triggers, such as being around people that were abusing drugs, and she had not
been able to keep herself out of those situations. Although Mother had made progress,
the court did not see that she was yet able to fully accept and address the issues before her
with respect to her drug treatment. For example, she appeared to have a way to go in
terms of her ability to focus not only on self-improvement but also on the needs of the
child.
In discussing the second factor in the modification decision, the strength of the
relative bonding between the child and Mother, as opposed to the caretakers, the court
noted that the child was significantly bonded to her current caregivers. (In re
Kimberly F., supra, 56 Cal. App. 4th 519, 532.) Although Mother had made efforts to
engage the child in age appropriate activities when they visited, Mother had not been able
to achieve a strong connection to the child. Visitations were still supervised, and the
Agency's social worker had reason to characterize Mother as a family visitor to the child,
not dominantly a parental figure.
The third factor from In re Kimberly F., supra, 56 Cal. App. 4th 519, 532, addresses
the relative ease with which dependency issues can be resolved. The court evaluated
Mother as still having some significant issues in being able to parent safely without a lot
of outside structure and support, and it was unknown how Mother would be able to meet
those challenges, which now included her second child. The court concluded that Mother
had not shown by a preponderance of the evidence that she would have the insight and
ability to assist this child and protect her interests, if she were removed from her
14
caregivers and made a transition back to Mother's care. The trial court accordingly
denied Mother's section 388 petition.
C. Analysis on Changed Circumstances and Best Interests
In support of her claims of abuse of discretion in the court's ruling that no material
changes in circumstances had been demonstrated, Mother admits that she had initial
problems with maintaining sobriety, but emphasizes that once she put her mind to it, she
succeeded, despite some immaturity that she had to overcome. She argues that even in
light of the short period of reunification that is allowed for a very young child in the
dependency system, "she has done everything imaginable to demonstrate her
commitment to sobriety that is possible within the very short time period that was allotted
to her." (§ 361.5, subd. (a)(1)(B) [six months of reunification services for a dependent
child under three years old].)
Mother also contends that the court and the Agency placed undue emphasis on the
factor that she briefly lived with people who used marijuana, even though she moved out
as soon as she found out. She also argues she should not be penalized simply because she
discovered Father unconscious at his parents' house, since she had gone over there for
legitimate reasons and did not know he would be there. It does not appear that the court
placed undue emphasis upon inappropriate factors. Rather, the court's extensive analysis
focused mainly upon Mother's individual qualities, activities and abilities to meet her
identified challenges. The court was concerned that Mother's life would become more
challenging, now that she had another baby to care for, and that it was unknown how she
would meet those challenges with the tools she had developed. The trial court referred to
15
supporting evidence in the record that justified its ongoing serious concerns about
Mother's ability to implement and continue with the changes that she was making, even
though they were positive in nature.
On this record, Mother was not able to show by a preponderance of the evidence
that her requested modification would advance the child's need for permanency and
stability. (In re Kimberly F., supra, 56 Cal. App. 4th 519, 532.) Although her evidence
shows that Mother is making positive changes for herself and her new baby, in light of
the entire record, we are not persuaded that Mother showed sufficiently changed
circumstances on the essential issues that brought this child into the dependency system.
We are not authorized to reweigh the evidence. The trial court resolved conflicts
in the evidence and concluded that reasonable inferences should be drawn that the
required changed circumstances had not been demonstrated, to enable the court to grant
the motion as promoting the child's best interests. (See In re Casey D., supra, 70
Cal.App.4th at pp. 52-53.) It was not an abuse of discretion for the trial court to find that
a preponderance of the evidence did not support the granting of the modification motion.
III
ICWA NOTICE ISSUES
A. Applicable Standards
"Congress enacted ICWA in 1978 'to protect the best interests of Indian children
and to promote the stability of Indian tribes and families. . . .' [Citation.] '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.'
16
[Citation.] Section 1911 of ICWA provides that a tribe may intervene in state court
dependency proceedings. [Citation.] Notice to the tribe provides it the opportunity to
exercise its right to intervene." (In re Damian C. (2009) 178 Cal. App. 4th 192, 196.)
Each tribe has the authority to decide and apply its own membership criteria. (In re
Santos Y. (2001) 92 Cal. App. 4th 1274, 1300; In re Kadence P. (2015) 241 Cal. App. 4th
1376, 1386-1387; In re K.P. (2015) 242 Cal. App. 4th 1063, 1071; § 224.3, subd. (e)(1).)
California's implementing rules specify that a court has reason to know a child is
an Indian child when, among other circumstances, an interested person "informs or
otherwise provides information suggesting that the child is an Indian child to the court."
(Cal. Rules of Court, rule 5.481(a)(5)(A).) Section 224.3, subdivision (a) imposes a
continuing duty on the court and social services agency to conduct an adequate inquiry
regarding Indian ancestry. (In re A.B. (2008) 164 Cal. App. 4th 832, 838; In re I.B. (2015)
239 Cal. App. 4th 367, 376-377.) Under the ICWA, "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).)
Generally, section 224.3, subdivision (e)(3) sets the time allowed for reply by the notified
party as 60 days. (Cal. Rules of Court, rule 5.482(d).) The ICWA notices, return receipts
and responses of the BIA and tribes must be filed in the juvenile court, and hearings on
foster care placements or terminations of parental rights shall be delayed at least 10 days
17
after receipt of such notice. (In re X.V. (2005) 132 Cal. App. 4th 794, 802; 25 U.S.C.
§ 1912(a).)
Although doctrines of waiver and estoppel generally apply to issues arising during
dependency proceedings, ICWA notice issues may be addressed for the first time on
appeal. (Dwayne P. v. Superior Court (2002) 103 Cal. App. 4th 247, 251; In re Dakota H.
(2005) 132 Cal. App. 4th 212, 221-222.) Even so, the courts have acknowledged that
unwarranted delay in the proceedings may harm a dependent child's interest in finality
and stability. (In re X.V., supra, 132 Cal. App. 4th 794, 804 [parents had duty on remand
to assist the Agency in ensuring proper notice was given; their silence on remand
precluded their second appeal on it].)3
When the facts on compliance with the notice requirements of the ICWA are
undisputed, we review the matter independently. (Dwayne P., supra, 103 Cal. App. 4th
247, 254.)
B. Analysis of Record
The ICWA notices were sent out twice in this case, first in April 2015, when the
tribes responded that the child did not qualify for membership. The court's minute order
of July 20, 2015 states that ICWA did not apply and notice was not required. The
3 The Supreme Court has granted a petition for review after the Court of Appeal
affirmed an order terminating parental rights, in In re Isaiah W. (2014) 228 Cal. App. 4th
981, review granted October 29, 2014, S221263. The issue on review is described as
follows: "Does a parent's failure to appeal from a juvenile court order finding that notice
under the [ICWA] was unnecessary preclude the parent from subsequently challenging
that finding more than a year later in the course of appealing an order terminating
parental rights?"
18
reporter's transcript for that hearing does not include such a finding. However, the court
at the next hearing reminded counsel that a ruling had already been issued that the ICWA
did not apply, which seems to indicate it had made one. (See People v. Beltran (2013) 56
Cal. 4th 935, 945, fn. 7 [whether clerk's minutes or reporter's transcript should prevail
depends on circumstances of the case].)
Nevertheless, once Mother's relatives supplied further genealogy information to
the Agency, the court properly required the Agency to carry out further notification
procedures. We interpret that order as effectively invalidating the court's previous
finding from July 20, 2015 that the ICWA was inapplicable. (See In re K.M. (2015) 242
Cal. App. 4th 450, 458 [receipt of new evidence that a child may be an Indian child would
require previous contrary orders taken in violation of the ICWA to be invalidated]; In re
Kahlen W. (1991) 233 Cal. App. 3d 1414, 1424 ["failure to provide the required notice
requires remand"].) The court presumably ordered further notifications to be made
because it had developed a new "reason to know" that an Indian child might be involved.
(25 U.S.C. § 1912(a); see In re Gerardo A. (2004) 119 Cal. App. 4th 988, 994; In re
Gabriel G. (2012) 206 Cal. App. 4th 1160, 1165; Cal. Rules of Court, rule 5.481(a)(5)(A);
§ 224.3, subd. (b)(1).) It acted appropriately in view of its continuing duty to obtain
accurate information pertaining to the ICWA. (In re I.B., supra, 239 Cal. App. 4th 367,
376-377.)
In its September 3, 2015 supplemental ICWA notices, the Agency referenced the
previous April 2015 notices, and provided five new items of information about relatives.
In its reports as of September 10, 2015, the Agency had not yet reported the receipt of
19
any signed certified mail green receipt cards from the tribes. As of the time of the
permanency planning hearing on September 18, the matter was not brought up. We
cannot find, however, that Mother waived her right to object by failing to request a
continuance or failing to seek a ruling expressly vacating the juvenile court's prior order,
that the ICWA did not apply. In this context, Father's silence on the matter was
inconclusive. Despite the previous indications in the record that a significant degree of
Indian ancestry for the child was unlikely, the ICWA issues had been reopened and the
court had the obligation to follow it up.
Regardless of any arguable waiver issues, this record is susceptible to an
interpretation that some controversy remains about whether the ICWA applies to this
case. Conceivably, there might have been a different response to the renewed ICWA
notices given. (See In re E.W. (2009) 170 Cal. App. 4th 396, 399-400, 402.) Although we
do not specify the extent of notice to be given (e.g., attaching copies of the previous
versions sent), we agree with the parents that the court did not have enough information
before it to again conclude that the ICWA was inapplicable to the proceedings. Limited,
conditional reversal of the judgment and remand is required, because the court had reason
to know there was such a possibility, but it lacked any information on the results of the
additional notice given. Such information was necessary before the permanency planning
issues could be properly resolved. (See In re Damian C., supra, 178 Cal.App.4th at
p. 199.)
20
DISPOSITION
The order denying the modification order is affirmed, and the judgment
terminating parental rights is conditionally reversed. The case is remanded to the
juvenile court with directions to order the Agency to supply additional information
concerning any responses to the ICWA notices sent, insofar as the designated Cherokee
tribes are concerned. If, after proper notice, a tribe claims the child is an Indian child, the
court shall proceed in conformity with all provisions of the ICWA. If no tribe claims the
child is an Indian child, the judgment terminating parental rights shall be immediately
reinstated.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
McINTYRE, J.
21