Filed 2/22/18 In re J.B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re J.B., et al, Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

O.L.,

Defendant and Appellant.


E069244

(Super.Ct.Nos. J264651 &
J264652)

OPINION


APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Reversed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
The sole contention raised by defendant and appellant O.L. (Mother) is that San Bernardino County Department of Children and Family Services (CFS) failed to provide accurate notice under the Indian Child Welfare Act (ICWA). CFS agrees with Mother.
FACTUAL AND PROCEDURAL HISTORY
In March 2016 Mother gave birth to J.B. (Minor). Mother and Minor both tested positive for methamphetamine. Minor was also born with respiratory problems, causing him to remain in the hospital for over a week.
Mother admitted using drugs “off and on,” and admitted that J.B., Sr. (Father) recently “cracked her in the head.” According to hospital records, Mother did not receive prenatal care. A social worker visited Mother’s home and observed holes “punched” in the walls and doors.
On March 21, 2016, a juvenile dependency petition was filed under Welfare and Institutions Code section 300, on behalf of Minor. The petition alleged that Mother suffered from substance abuse issues and engaged in domestic violence. The petition also alleged that Father engaged in domestic violence and could not be located. Furthermore, the section 300 petition indicated that Minor had no known Indian ancestry according to Mother. When interviewed, Mother indicated she had no contact information for Father. Father did not appear at the detention hearing. At the detention hearing, the juvenile court ordered Minor detained from Mother and Father.
The jurisdiction and disposition report dated April 12, 2016, listed Father’s whereabouts as unknown, with a last known address in Twentynine Palms. The report indicated that ICWA “may apply, but there is no affirmative evidence. The mother denied she had any Indian heritage. The father’s whereabouts are unknown at this time.” During an interview, Mother stated that she had not seen Father lately and thought he moved to Oregon.
Father first appeared in the case at the jurisdiction and disposition hearing on April 12, 2016. The following colloquy occurred between the trial court and Father:
“The Court: [Father] is anyone in your family a Native American or an American Indian?
“Father: Yes, we are, but we’re not registered.
“The Court: That’s okay. Which tribes?
“Father: Blackfoot.
“The Court: All right. Any other tribes? And who aside from yourself and your family is going to be able to help the social worker with respect to identifying any Native American or American Indian [tribe]?
“Father: My aunt.
“The Court: All right. I don’t know if the social worker has that information.
“Father: I will make sure she gets it.
“The Court: Do you have it now?
“Father: No, I don’t have it with me.
“The Court: Okay. I will just order that you go ahead and give it because CFS is required to investigate the Indian heritage as is the Court. So we need to look into that, and so that relative would help. [¶] [Father], I’m holding up here a notification of Indian status where you had written Blackfoot and you signed it; is that correct?
“Father: Yes, sir.”
An ICWA 020 form was completed by Father that day; it indicated that he had Blackfoot Indian ancestry. Father also submitted a notification of mailing address form that day, indicating the same address previously contained in the detention report.
An ICWA declaration of due diligence was filed on May 9, 2016. The declaration indicated that notice was sent to the Blackfeet Tribe of Montana, the Bureau of Indian Affairs located in Sacramento, Mother, Father, and the U.S. Department of the Interior, Bureau of Indian Affairs located in Washington, D.C. A letter from the Blackfeet Tribe, dated April 25, 2016, indicated a search of the tribal enrollment records did not find Mother, maternal grandmother, or Father, and stated that Minor did not fall under the provisions of ICWA. The ICWA 030 was attached to the declaration and included Minor’s name, date of birth, place of birth; Mother’s name, Mother’s current address, Mother’s former address, Mother’s birthdate; Father’s name—including aliases, Father’s current address, Father’s date of birth, Father’s tribal association; maternal grandmother’s name, maternal grandmother’s current address and maternal grandmother’s country of birth.
The ICWA Declaration was signed on April 20, 2016.
An additional information to the court was filed on May 11, 2016, and reported that the social worker called Father on April 18, 2016; the number was no longer working. The social worker left a card at Father’s house on April 19, 2016. Mother reported that Father was going around town telling lies about her; she did not know Father’s current number, and Father was still living at the same house. Father did not contact the social worker.
On July 7, 2016, the juvenile court made a finding that notice was conducted as required by ICWA, the required timelines had passed and no affirmative response for tribal membership had been received. Therefore, ICWA did not apply. Attached to the ICWA findings and orders was an updated ICWA declaration of due diligence indicating no response was received indicating that Minor was an Indian child.
The six-month status review report dated November 14, 2016, listed Father’s whereabouts as unknown. According to the report, Father took a paternity test; it was determined that he was Minor’s biological father. Father was not present at the six-month review hearing wherein services were continued for Mother.
The 12-month status review report dated April 12, 2017, continued to list Father’s whereabouts as unknown. According to the report, Father had not contacted CFS. A call was received on January 3, 2017, from a woman reporting to be Father’s wife. The social worker called the number provided three times and left a voice message and a text; no return call was ever received.
Father appeared at the 12-month review hearing on March 29, 2017, in custody at county jail. The record does not reflect a further inquiry was made of Father regarding ICWA or contact information for his aunt. Father appeared again on April 12, 2017, in custody. ICWA was not discussed.
After services were terminated at the contested 12-month hearing, Mother filed a notice of intent file a writ petition. The writ proceedings were dismissed after a letter brief was filed indicating no issues had been found.
The section 366.26 report listed Father’s whereabouts as unknown. Father was not present at the section 366.26 hearing on August 10, 2017, at which time the parental rights of Mother and Father were terminated. On October 2, 2017, Mother filed her notice of appeal.
DISCUSSION
On appeal, Mother contends that CFS failed to comply with ICWA’s notice requirements. CFS agrees.
“Congress enacted ICWA to further the federal policy ‘ “that, where possible, an Indian child should remain in the Indian community.” ’ ” (In re W.B. (2012) 55 Cal.4th 30, 48.) “When applicable, ICWA imposes three types of requirements: notice, procedural rules, and enforcement. [Citation.] First, if the court knows or has reason to know that an ‘ “Indian child” ’ is involved in a ‘ “child custody proceeding,” ’ . . . the social services agency must send notice to the child’s parent, Indian custodian, and tribe by registered mail, with return receipt requested. . . . [¶]
“Next, after notice has been given, the child’s tribe has ‘a right to intervene at any point in the proceeding.’ . . . . [¶]
“Finally, an enforcement provision offers recourse if an Indian child has been removed from parental custody in violation of ICWA.” (Id. at pp. 48-49.) “Thorough compliance with ICWA is required.” (In re J.M. (2012) 206 Cal.App.4th 375, 381.)
Of concern here is the notice requirement. If an agency “knows or has reason to know that an Indian child is involved” in a dependency proceeding, the agency must send notice of the proceeding to, among others, a representative of all potentially interested Indian tribes. (§ 224.2, subd. (a).) “[F]ederal and state law require that the notice sent to the potentially concerned tribes include ‘available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.’ [Citations.] To fulfill its responsibility, the Agency has an affirmative and continuing duty to inquire about, and if possible obtain, this information. [Citations.] Thus, a social worker who knows or has reason to know the child is Indian ‘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 . . . .’ [Citation.] That information ‘shall include’ ‘[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.’ [Citation.] Because of their critical importance, ICWA’s notice requirements are strictly construed.” (In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)
Here, CFS states, “In the interest of expeditiously resolving the underlying juvenile dependency case, CFS concedes that the appellate record in this case fails to show that CFS complied with the inquiry requirements of the Indian Child Welfare Fact (ICWA) as to [Minor].” Here, although Father indicated that his aunt could assist with identifying the tribes to which his family belonged, CFS failed to ask Father about the name of his aunt to follow up with Father’s aunt. Thereafter, CFS concedes that “there was error in not inquiring further concerning Father’s Native American ancestry.”
We agree with the parties that CFS failed to comply with ICWA’s noticing requirements.
DISPOSITION
The juvenile court’s findings and orders that ICWA does not apply in this case are reversed. The case is remanded to the juvenile court with directions to ensure that CFS complies with the notice requirements of ICWA. Specifically, CFS is ordered (1) to interview Father about the identity of his aunt who has knowledge about Father’s family’s Indian ancestry; and (2) to interview the aunt to identify the tribe(s) to which Father’s family belong(s). If, after new notices are sent, any tribe claims that Minor is eligible for membership and seeks to intervene, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, no new tribe is identified by the paternal aunt or no tribe makes such claims following the new notices, the jurisdiction and disposition hearing order of August 10, 2017, shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


McKINSTER
Acting P. J.


SLOUGH
J.