In re
J.B.

 

 

 

Filed 10/3/13  In re J.B. CA5

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA>

FIFTH APPELLATE DISTRICT

 
>

In re J.B., a Person Coming Under the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,   Plaintiff and Respondent,                           v.   B.B.,   Defendant and Appellant.	F066404   (Super. Ct. No. 516396)       OPINION

 

THE COURThref="#_ftn1" name="_ftnref1" title="">*

            APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Stanislaus
County.  Ann Q. Ameral,
Judge.

            Jennifer A. Gibson, under
appointment by the Court of Appeal, for Defendant and Appellant.

            John P. Doering, County Counsel, and Carrie M. Stephens, Deputy
County Counsel, for Plaintiff and Respondent.

-ooOoo-

            In this dependency case (Welf. &
Inst. Code, § 300),href="#_ftn2"
name="_ftnref2" title="">>[1] B.B. (mother) appeals from the href="http://www.fearnotlaw.com/">jurisdictional and dispositional orders
regarding her son, J.B. (the child). 
Mother contends (1) the juvenile court erred by failing to evaluate her
competency and the need to appoint a guardian ad litem, and (2) the notice of
the hearing failed to comply with the Indian Child Welfare Act (ICWA) (25
U.S.C., § 1901 et seq.) and California law.  We reverse for the limited purpose of
ensuring adequate notice as prescribed by law.

>FACTUAL
AND PROCEDURAL BACKGROUNDhref="#_ftn3" name="_ftnref3" title="">>[2]

            On September
4, 2012,href="#_ftn4" name="_ftnref4" title="">>>[3] a juvenile
dependency petition was filed on behalf of the child, who was then 22
months old.  It alleged that he came
within the jurisdiction of the juvenile court under section 300, subdivisions
(b) (failure to protect) based primarily on allegations that his parents
exposed him to domestic violence on
several occasions.  There were also
allegations of substance abuse. 

On
September 5, mother failed to appear at the detention hearing.  The court noted the hearing had been
scheduled for 8:30 a.m., and at 11:35 a.m., mother was still not present.  Addressing the social worker, the court
queried, “apparently the mother … had some confusion about the court
date…?” 

In
response, the social worker informed the court that the agency had provided
mother with both written and telephonic notice of the hearing.  On the morning of the hearing, however,
mother contacted her previous family maintenance worker asking for the court
date. 

Following
its inquiry into mother’s absence, the court appointed counsel for mother,
noting it would relieve counsel if mother failed to communicate or remain in
contact with her. 

The
child’s father (not a party to this appeal) did appear and the court proceeded
to conduct the detention hearing in mother’s absence.  The court found a prima facie showing had
been made that the child was a person described by section 300.  The court ordered the child temporarily
removed from the parents’ custody and ordered supervised visitation.  The court also set a combined
jurisdiction/disposition hearing for October 10. 

On
October 5, the Stanislaus County Community Services Agency (agency) filed a
jurisdiction/disposition report. 
According to the social history contained in the report, mother was born
in 1975 and was raised primarily by her mother and stepfather.  She did not know her biological father who
died when she was 13 or 14 years old. 

Mother
reported sustaining a brain
injury when she was in high school as a result of being struck by a drunk
driver.  Mother also suffered a broken
clavicle in the accident and had to have a titanium rod placed in her leg.  The rod, which doctors had been unable to
remove due to bone growth, was now beginning to move up into her hip, causing
her constant pain.  Due to the constant
pain, mother was depressed and took medication for the depression.  She was also unable to work.  She experienced blackouts, was easily
stressed, and suffered from migraine
headaches and back pain.  

In the
delivered service log attached to the jurisdiction/disposition report, the
social worker described a meeting with mother and the child’s maternal
grandmother in late September, during which mother “appeared agitated and was a
little hard to follow.”  Mother repeatedly
asked why the child was removed from her when she was the victim and father was
the violent person.  Mother also insisted
she was keeping herself and the child safe, adding that, when she and father
did fight, a neighbor would come over and pick up the child. 

The
social worker also described a phone call from mother’s domestic violence
counselor in early October.  The
counselor expressed concern for mother’s safety as it appeared mother might be
living with father.  Mother also told the
counselor that father was helping her understand the child protective services
(CPS) paperwork.  The counselor noted
that mother seemed fixated on why the child was removed and unable to move
beyond that.  The counselor “[w]ondered”
if mother’s head injury was “affecting her ability to comprehend.”  The counselor also opined that mother “may
have a limited mental health capacity because of the head injury.” 

In the
concluding assessment/evaluation in the jurisdiction/disposition report, the
social worker noted the agency continued to have “significant concerns”
regarding the parents’ ability to parent the child appropriately and safely due
to the domestic violence in their relationship. 
The agency was also concerned mother did “not appear to understand how
the domestic violence … put [the child] at risk for abuse.”  On several occasions, mother had stated
father, not she, was the one with the problem. 
Mother also repeatedly asked for the child to be returned to her custody
on the basis father was no longer in the home. 
However, mother continued to invite father over, resulting in both
parents intentionally violating a standing restraining order against
father. 

The
jurisdiction/disposition hearing was subsequently continued to November 1.  On October 19, the agency filed an addendum
report which recounted a new incident of domestic violence between the
parents.  In early October, mother called
the social worker and said father had punched her in the face, causing her to
sustain bruising and swelling.  Mother
said she reported the incident to her counselor and the sheriff’s
department.  When the social worker saw
mother later in the month, mother appeared to have some “current bruises” which
were consistent with fingerprint marks. 
Mother claimed the bruises were old and would not disclose how she
sustained them. 

In the
attached delivered service log, the social worker reported mother had expressed
dislike of her court-appointed counsel. 
Mother felt counsel was “dismissive and looked at her like she was
scum.” 

The
concluding assessment/evaluation of the addendum report noted that “[a]lthough
there is a standing restraining order, the mother and father continue to be
involved in a relationship.”  It further
observed that “[t]he parent’s lack of understanding as to why [the child] was
removed from their care continues to be an on-going issue” and “[t]he parents
do not understand their incidents of domestic violence places [the child] at
risk.”

At the
hearing on November 1, mother’s counsel informed the court she had spoken with
mother “at some length” and mother had “changed her mind” and now wished to set
the matter as a contested hearing.  The
court set a contested jurisdiction/disposition hearing for November 13. 

At the
November 13 hearing, mother testified on her own behalf.  Mother’s counsel preliminarily asked mother
if she understood why she was in court. 
Mother responded, “[b]ecause I’m fighting to get my son back.”

Mother
next testified regarding her current medical conditions stemming from her
accident in high school, which occurred in 1991.  She now suffered from migraine headaches and
chronic back pain.  The rod in her leg
was moving up into hip joint, causing pain and stiffness.  When she was under stress, mother was unable
to “remember large chunks.”  She agreed
with counsel’s characterization of these episodes as “fugues or periods of time
where [she forgot] what’s going on.” 

Asked
what order she would like the court to make, mother responded she “would like
sole custody.”  In mother’s opinion, she
was able to protect the child from the domestic violence between her and
father.  When asked how she would protect
the child, this exchange occurred:

“[MOTHER]:  Well, first, I plan on not engaging in
domestic violence anymore.  But if it
happens, I—in the past, I have not maneuvered—I’ve worked it to where [the
child]’s not in our presence when we’re—when he’s angry.  You know, everybody knows their spouse.  Well, I kind of have a hint when it’s coming
on or when he’s going to get angry or violent. 
He gets agitated and so I try to take [the child] to a neighbor’s or—

            “THE
COURT:  And when you say he gets
agitated, he gets angry, are you referring to [father] or someone else?

            “[MOTHER]:  Correct, [father].  [¶] … [¶]

            “[COUNSEL]:  Q. 
Okay.  Are you planning on living
separately from [father]?

            “[MOTHER]:  A.  I’m
not planning anything.  I love him.  He’s my son’s dad.  I’ll always love him.  I’m not sure if I want to be with him.  It changes daily.

            “Q.  If a condition of you having [the child] back
were to be that you could not be around [father], would you obey that
condition?

            “A.  Well, yeah. 
If it meant getting my son back, yes.” 


            Mother went on to testify she was
familiar with her case plan and was aware it called on her to take parenting
classes.  Although mother was willing to
attend parenting classes, she expressed the opinion she did not need them,
explaining she had basically been raising the child by herself with father “in
and out” of the picture, and she had already raised another child. 

            Mother was also aware her case plan
called on her to participate in domestic violence counseling.  However, mother quit her domestic violence
classes shortly after they started.  When
asked why she quit, mother testified:  “
Because [father] was in jail, and he’s hardly there, so I don’t have domestic
violence to talk about.  And what I do
have to talk about, it’s from the past, and that always ends up them using it
against me or bringing it up and—you know what I’m saying?”  The court then asked mother if she believed
she needed domestic violence counseling. 
Mother responded,  “I don’t think
so.  I mean, I know being in a domestic
violence relationship isn’t good, and one shouldn’t be.” 

            Mother went on to testify regarding
her current mental health issues as follows:

            “[MOTHER]:  I have—I’m being treated for depression,
borderline.  It’s not a high depression,
it’s not a low depression.  It’s just—I
forgot what they call it.

            “THE
COURT:  But for some type of depression?

            “[MOTHER]:  Yeah.

“THE COURT:  But you’re saying it’s not a severe
depression.

            “[MOTHER]:  No.

            “THE
COURT:  Is that what you’re
[saying]?  Are you on any type of
psychotropic medication at this time?  Do
you know what that is?  Like something
that—like Seroquel—

            “[MOTHER]:  Oh, yeah. 
I take Seroquel nightly.

            “THE
COURT:  So you are on—did you take any
medication today that might have an impact on your ability to testify?

            “[MOTHER]:  No. 
[¶] … [¶]

            “[COUNSEL]:  Q.  All
right.  Are you feeling well today? 

            “[MOTHER]:  A. 
Well, we’ve been fighting the flu and I’ve got a head—a migraine.  Not a migraine, but a really strong, bad
headache behind my eyes.  Other than
that, no.”

            Mother’s counsel went on to ask
mother why she had failed to sign up for classes required by her case
plan.  Mother responded:

“A. 
Because the courts don’t recognize or the CPS does not recognize that as
valid.

            “Q.  Doesn’t recognize what as being valid?

            “A.  Outside—there’s classes that I’ve inquired
about in Waterford, and they’re not—

            “Q.  They’re not what?

            “A.  You know—

            “THE
COURT:  Are you saying that there are
classes that you wanted to take that were different from what CPS wanted you to
take?

            “[MOTHER]:  No. 
It’s they’re not recognized. 
They’re not—they’re part of the program.

            “[COUNSEL]:  Are you saying that you were looking into
classes that were .… [¶] … [¶]  Your
Honor, I’m just trying to understand what she’s saying, and it’s a little
difficult.  I’d ask for a little bit of
leeway.

            “THE
COURT:  I’m trying to understand too, so
under the circumstances, I’m going to allow a little bit of leeway.  A little bit.

            “[COUNSEL]:  Q. 
Okay.  Are you saying that you
were looking into classes that were not in fact approved by CPS?

            “[MOTHER]:  A. 
Yes. 

            “Q.  Okay. 
And why have you—are you willing to go to the classes that are approved
by CPS?  [¶] … [¶]

            “A.  Yeah. 
I would prefer that they be in Waterford to where I can walk to them and
not have to, you know, be in the pain and—

            “Q.  How much pain does it cause you to travel
from Waterford to Modesto?

            “A.  It’s different, depending on the night
previous, the morning of, outside, you know, influence.  Or not influence, but what I’ve done that
day.” 

            After closing argument, the court
began to set forth its ruling and was interrupted by mother as follows:

            “THE
COURT:  All right.  The Court has read and considered the entire
file, all of the reports, and the Court will find that the petition filed on
September 4, 2012, is true, that [the child] is a person described by Section
300 .…  Court finds based upon a
presumption—or preponderance—

            “THE
MOTHER:  Your Honor.

            “THE
COURT:  [Counsel], your client—

            “THE
MOTHER:  I was never given the
opportunity to present my case the way—with the truth, because I missed my
first court appointment because of—not my own doing.  And I’ve never got a chance to speak to—speak
to a judge, to you, and let you know what’s going on.

            “THE
COURT:  Well, [mother], I’m not allowed
to speak solely to you.  You testified
just now, and it was my understanding that you testified based upon the
information that you wanted to give the Court.

            “Why
don’t we take a few minutes.  [Counsel],
why don’t you speak privately with your client please.

            “[Mother],
I want you to go and speak … privately … with your attorney, because when
you’re talking in the courtroom, everybody else hears what’s going on.” 

Following
a brief recess, mother’s counsel advised the court, “I think that she had
wanted the Court to know—perhaps I didn’t elicit this—that she felt the county
was not doing their jobs with respect to [father].” 

The
court continued:

“Okay.  All right. 
Even though the testimony was concluded and the Agency has already
submitted its surrebuttal, I’m going to consider that additional piece from
[mother], because I think it’s important that [mother] feels that she is being
heard.  And so I’m going to allow it,
even though it’s not really properly before the Court.  [¶] … [¶]

            “The
Court is going to find that the petition is true, because the Court does have
some real concerns in this particular case. 
I am very concerned that mother is in what’s called denial.  I believe that in her heart she believes that
she is able to protect [the child], but I am not convinced.

            “This
matter came before the Court due to issues of substance abuse and domestic
violence.  There is a domestic violence
restraining order that was issued … September 10, 2012.  But despite the existence of that restraining
order, the mother has continued to have a relationship, whether it’s physical,
whether it’s a friendship, or otherwise. 
By her own admission, she has seen [father] on almost a daily basis,
that there has been ongoing domestic violence. 
And the Court does not believe that, given the ongoing domestic
violence, that the mother is able to protect her son from further domestic
violence.

            “It
is also very concerning to this Court that the mother says, ‘Yes, I’m willing
to take this class, yes, I’m willing to take that class, but I don’t need
it.’  Mother indicates that she doesn’t
feel that she has a need for any type of domestic violence classes.  And the Court feels that she is very much
misinformed and that she’s never going to be able to recognize what she needs
to do in order to protect her son from future domestic violence unless she
seriously engages.

            “It
might be that there are some issues with the brain damage that she suffered,
but this Court is very concerned and this Court is not convinced that mother
has the capacity at this time to protect her son.”

The
court then explained the reunification process to mother and directed the
agency to “look into if there are additional services that need to be offered
to mother or whether the services need to be tailored to her needs, given the
fact that she has indicated that she did suffer some href="http://www.sandiegohealthdirectory.com/">brain injuries.” 

Mother
again interrupted the court:

            “THE
MOTHER:  Please listen to me.  Please listen to me.  I’m emotional, and when I’m emotional and the
baby is gone, I can’t control it.  And I
know I’m going to go to jail, but you need to hear me.

            “THE
BAILIFF:  I’m not going to take you to
jail.  This is the judge’s opportunity to
talk with you, okay?  You need to sit and
listen.

            “THE
COURT:  Nobody is putting you in jail.

            “THE
BAILIFF:  I’m not taking you to jail.  I’m not taking you to jail.  Okay?

            “THE
MOTHER:  She hasn’t even heard—

            “THE
BAILIFF:  I just need you to be quiet and
listen.  Okay?” 

            The court finished its ruling and
set a six-month review hearing.  This
timely appeal followed.

DISCUSSION

>I.          Failure
to Investigate Mother’s Mental Competency

            Mother contends the juvenile court
abused its discretion in failing to inquire, on its own initiative, whether she
had the capacity to understand the nature and consequences of the proceedings
and to assist her counsel.  We conclude
the court did not abuse its discretion by refraining to raise, on its own
motion, the issue of mother’s competency and potentially appoint a guardian ad
litem.

            >A.        Applicable
Legal Principles

Our
Supreme Court has recognized that, “[i]n a dependency case, a parent who is
mentally incompetent must appear by a guardian ad litem appointed by the court.
[Citations.]”  (In re James F. (2008) 42 Cal.4th 901, 910; see also >In re D.D. (2006) 144 Cal.App.4th 646,
653; In re Sara D. (2001) 87 Cal.App.4th
661, 667 (Sara D.).)  Accordingly, the juvenile court has the
authority to appoint a guardian ad litem on its own motion, if the court
obtains “sufficient information that the parent does not understand the
proceedings or cannot assist his/her attorney in protecting his/her
interests.”  (Sara D., supra, at p.
672.)  The juvenile court must find by a
preponderance of evidence that the parent is incompetent before appointing a
guardian ad litem.  (Id. at p. 667.)

The
appointment of a guardian ad litem “dramatically change[s] the parent’s role in
[a dependency] proceeding ....”  (>Sara D., supra, 87 Cal.App.4th at p. 668.) 
“The effect of the appointment is to remove control over the litigation
from the parent, whose vital rights are at issue, and transfer it to the
guardian.”  (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186-1187 (>Jessica G.).)  Thereafter, the guardian ad litem, rather
than the parent, has the authority to make certain “tactical and even
fundamental decisions affecting the litigation ....”  (In re
Christina B. (1993) 19 Cal.App.4th 1441, 1453.)  “Consequently, the appointment must be
approached with care and appreciation of its very significant legal
effect.”  (Jessica G., supra, at p.
1187.)

In
reviewing the juvenile court’s actions, the appropriate inquiry is whether the
circumstances as a whole should have alerted the juvenile court that the parent
was incapable of understanding the nature or consequences of the proceeding and
unable to assist counsel in representing the parent’s interests.  (See Sara
D., supra, 87 Cal.App.4th at p.
667; In re R.S. (1985) 167 Cal.App.3d
946, 979-980.)

>B.        Analysis

The
record as a whole reflects mother understood the nature of the proceedings in
which she was involved, and her reliance on selective excerpts from the record
does not persuade us otherwise.  Mother’s
testimony at the jurisdiction/disposition hearing reflects that, from her
perspective, the purpose of the contested hearing was essentially to give her
the opportunity to challenge the agency’s removal of the child from her
custody.  Thus, mother testified she was
there to fight to get her child back, and she was seeking an order granting
sole custody.  Mother’s testimony also
demonstrated familiarity with her case plan and the understanding she could be
required to comply with the plan’s components in order to have the child
returned to her custody.

That
mother sometimes had difficulty expressing herself or processing information
does not mean she was unable to understand the nature of the proceedings in
which she was involved or that she was unable to assist her counsel.  Indeed, despite these difficulties, mother
was able to express, both through her own testimony and through the argument of
counsel, a coherent, if misguided, position, which remained consistent
throughout the proceedings; namely, that mother believed the child had been
unfairly removed from her custody because it was father, not she, who
perpetrated the abuse in their relationship, and she believed she was able
adequately to protect the child from father’s abuse of her, in part by
anticipating when it would occur and having the child removed from the parents’
presence beforehand.  Thus,
notwithstanding mother’s expressed dislike of counsel, it appears mother was
able to communicate with and assist counsel in representing her interests at
the contested jurisdiction/disposition hearing.

Contrary
to mother’s suggestion, her inability to appreciate the risks posed to the
child by the domestic violence in her relationship with father or her need for
the services recommended by the agency is not necessarily indicative of href="http://www.sandiegohealthdirectory.com/">mental incompetency.  As the court noted, mother appeared to be in
denial.  Unfortunately, denial and minimization
of domestic violence is all too common in dependency cases and seen in both
victims and perpetrators of abuse. 
Indeed, the addendum report in this case noted that both parents continued to exhibit a lack of understanding as to why
the child was removed and how incidents of domestic violence between them
placed the child at risk.  Their lack of
insight did not indicate they lacked mental competency in the legal sense.

Moreover,
even assuming mother’s brain injury contributed to her lack of insight into the
seriousness of domestic violence, as was postulated by the court and others
connected to the proceedings, the court’s duty to inquire into her mental
competency was not therefore triggered. 
There was no evidence mother’s brain injury or any of the other current
manifestations of her 1991 accident rendered her incapable of understanding the
nature of the proceedings or assisting counsel. 
In other words, there was nothing so unique about mother’s attitude towards
domestic violence that it should have alerted the court of the need to inquire
into her mental competency.

Nor
did mother’s emotional outburst at the end of the hearing, including her
statements about being taken to jail or the baby being gone, trigger the
court’s duty to inquire into mother’s mental competency.  Mother asserts that this brief incident
showed “she did not understand that these proceedings were not criminal in
nature” or “that her son was temporarily removed from her custody and she would
have a six-month period to regain custody.” 
We disagree.  Acceptance of
mother’s assertion would require us to disregard the majority of her testimony
during the jurisdiction/disposition hearing, which indicated she did understand
the nature of the dependency proceedings, including the understanding the child
could potentially be returned to her custody if she complied with the agency’s
requirements. 

Viewing
mother’s outburst in context of the circumstances as a whole, we conclude it
did not constitute substantial evidence raising a reasonable doubt as to
mother’s competency.  Rather, she
appeared simply to be expressing strong emotions about the child’s removal and
her failure to convince the court to return him to her custody.  Again, it is not uncommon for parents to
become emotional during dependency proceedings and there was nothing so unique
about mother’s outburst as to raise a reasonable doubt concerning her mental
competence.

For
these reasons, the juvenile court did not abuse its discretion by failing, on
its own motion, to investigate mother’s mental competency.

II.        ICWA Notice

            Mother contends the agency failed to
follow the notice and inquiry requirements of the ICWA.  We agree and reverse for the limited purpose
of ensuring compliance with the ICWA and California law.

            >A.        Background

At the
detention hearing on September 4, father stated both he and mother had Native
American ancestry.  The same day he
“signed the ICWA 20 form indicating he has Sac and Fox Nation as well as
Citizen Potawatomi Nation.”  Mother later
“signed the ICWA 20 form indicating that she has Cherokee ancestry.”  The court selected October 10, as the initial
date for the jurisdiction/disposition hearing, in part, “to provide sufficient
time for the Agency to send out ICWA notifications.” 

On
September 20, the agency sent Judicial Council Form ICWA-030 (Notice of Child
Custody Proceeding for Indian Child) to the Bureau of Indian Affairs (BIA) and
to the relevant tribes.  The form gave
notice of the proceedings and of the next hearing date, October 10.  In response to the notice, the Cherokee
Nation sent a letter to the agency, received on October 8, advising:

“…[T]he information sent is not
complete and does not meet the [BIA] Guidelines which augment 25 U.S.C.
§ 1901.  In order to verify Cherokee
heritage and comply with your request we need additional information as
follows:  [mother’s biological father’s]
COMPLETE AND CORRECT DATE OF BIRTH.

“We need dates of birth for everyone
involved, their relationship to the child or children in question, and maiden
names of all females listed.  It is
impossible to validate or invalidate this claim without more complete
information.

“You may not have access to complete
family information, however, we are asking you to diligently research to the
best of your ability and supply us with as much information as possible.…  We also require a response from you if you
are unable to find additional information so we can relay to you the proper
response to your inquiry.” 

At the
hearing on October 10, the court remarked that “[n]otice of hearing was
properly given, however, we do not have all the return receipt cards as to
notice under the [ICWA], and because we don’t have that, the matter is going to
have to be continued, unfortunately.” 
The agency requested the matter be continued two to three weeks,
explaining:  “It looks like the Agency
needs to gather some personal information about the family members that is
being requested about one of the tribes, and it looks like that might take some
time.” 

As
noted above, the jurisdiction/disposition hearing was continued twice, first to
November 1, and then to November 13, after mother requested the court to set it
as a contested hearing.  At the beginning
of the November 13 hearing, the court stated that notice of the hearing was
properly given and that it was unknown at that time whether the ICWA applied.

>B.        Applicable
Legal Principles

Whenever
the court or a social worker “knows or has reason to know that an Indian child
is involved” in dependency proceedings, notice of a pending Indian child
custody proceeding must be sent to the child’s tribe, among others.  (§ 224.2, subd. (a); see § 224.1, subds.
(a)-(d) [definitions]; 25 U.S.C. §§ 1903(1), 1912(a).)  The notice must include, among other
information, “All 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.”  (§ 224.2, subd. (a)(5)(C); see 25 C.F.R. §
23.11(d)(3).)

A
social worker who “knows or has reason to know that an Indian child is involved
… 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.”  (§ 224.3, subd. (c); see Cal. Rules of Court,
rule 5.481(a)(4).)  “[I]f the court [or]
social worker ... subsequently receives any information required under
paragraph (5) of subdivision (a) of Section 224.2 that was not previously
available or included in the notice issued under Section 224.2, the social
worker ... shall provide the additional information to any tribes entitled to
notice under paragraph (3) of subdivision (a) of Section 224.2 and the
[BIA].”  (§ 224.3, subd. (f).)

Notice
must be “sent to all tribes of which the child may be a member or eligible for
membership, until the court makes a determination as to which tribe is the
child’s tribe in accordance with subdivision (d) of Section 224.1, after which
notice need only be sent to the tribe determined to be the Indian child’s tribe.”  (§ 224.2, subd. (a)(3).)  Section 224.2, subdivision (d),
provides:  “No proceeding shall be held
until at least 10 days after receipt of notice by the parent, Indian custodian,
the tribe, or the [BIA], except for the detention hearing, provided that notice
of the detention hearing shall be given as soon as possible after the filing of
the petition initiating the proceeding and proof of the notice is filed with
the court within 10 days after the filing of the petition.”  Upon request, the Indian child’s tribe must
be granted “up to 20 additional days to prepare for such proceeding.”  (§ 224.2, subd. (d); see 25 U.S.C. §
1912(a).)  An Indian child’s tribe has
“the right to intervene at any point in an Indian child custody
proceeding.”  (§ 224.4; see 25 U.S.C. §
1911(c).)

“If
proper and adequate notice has been provided pursuant to Section 224.2, and
neither a tribe nor the [BIA] has provided a determinative response within 60
days after receiving that notice, the court may determine that the [ICWA] does
not apply to the proceedings, provided that the court shall reverse its
determination of the inapplicability of the [ICWA] and apply the act
prospectively if a tribe or the [BIA] subsequently confirms that the child is
an Indian child.”  (§ 224.3, subd. (e)(3).)

State
court proceedings involving an Indian child may be invalidated if the agency
fails to comply with the ICWA notice provisions.  (See § 224, subd. (e); 25 U.S.C.
§§ 1912, 1914.)  “The purpose of
giving notice is not ritual adherence to the statute but to make it possible
for Indian parents, custodians, and tribes to exercise their right of
intervention guaranteed by the ICWA. 
([25 U.S.C.] § 1911(c).)”  (>In re Antoinette S. (2002) 104
Cal.App.4th 1401, 1414, fn. 4.)  “One of
the purposes of giving notice to the tribe is to enable it to determine whether
the minor is an Indian child. 
[Citation.]  Notice is meaningless
if no information or insufficient information is presented to the tribe to make
that determination.  [Citation.] ... The
burden is on the Agency 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.]”  (>In re Louis S. (2004) 117 Cal.App.4th
622, 630.)

>C.        Analysis

Having
reviewed the record as summarized above, we agree that the agency did not
comply with ICWA notice requirements in at least two respects.

            First, it is undisputed the agency
failed to send notice for the continued hearings, including the November 13
hearing, the date of the actual jurisdiction/disposition hearing.  Section 224.2, subdivision (b) restates the
ICWA requirement that “[n]otice shall be sent whenever it is known or there is
reason to know that an Indian child is involved, and for every hearing thereafter … unless it is determined that [ICWA]
does not apply to the case.”  (§ 224.2,
subd. (b), italics added.)  We are
unconvinced by the agency’s argument that, for expediency’s sake, the phrase
“for every hearing thereafter” should be interpreted to apply only to initial,
not continued, hearing dates.  No
authority is cited for this interpretation and we reject it.href="#_ftn5" name="_ftnref5" title="">>>[4]

Second,
the record reflects the agency provided only partial information for the
child’s maternal grandparents.  Although the
agency acknowledged the need to conduct further inquiry at the October 10
hearing, the record is silent as to what subsequent efforts the agency made to
respond to the Cherokee Nation’s request for omitted information.  Even assuming the agency had obtained the
requested information at the time of the November 13 hearing, there was no
evidence in the record the agency had provided the missing information to the
tribe and, therefore, the court erred in determining notice of the hearing had
been properly given.  (>In re Nikki R. (2003) 106 Cal.App.4th
844, 852 (Nikki R.) [it is the role
of juvenile court, not agency, to determine whether ICWA notice was
proper].)  Unless a tribe has
participated in or expressly indicated no interest in the proceedings, the failure
to comply with the ICWA notice requirements is prejudicial error.  (In re
Desiree F. (2000) 83 Cal.App.4th 460, 472.)

            We also reject the agency’s
contention that mother’s ICWA claim is waived because she “did not request a
continuance in order to establish whether the agency had been able to supply a
birth date to the requesting tribe, or lodge an objection to going forward
without such information.”  It is well
established that the issue of ICWA notice is not waived by a failure to raise
it in the juvenile court.  (>Nikki R., supra, 106 Cal.App.4th at p. 849; In re H.A. (2002) 103 Cal.App.4th 1206, 1211.)  The notice requirements of
the ICWA serve the interests of the Indian tribes and cannot be waived by the
parent.  (In re Suzanna L. (2002) 104 Cal.App.4th 223, 231-232.)

>DISPOSITION

            The jurisdictional and dispositional
orders are reversed for the limited purpose of ensuring compliance with the
inquiry and notice requirements of the ICWA and California law.  Upon remand, the court shall direct the agency
to comply with those requirements.  At
least 10 days after proper and adequate notice has been received, the court
shall reinstate the jurisdictional and dispositional orders if no tribe
responds that the children are members or eligible for membership.  If a tribe responds that the children are
Indian children or eligible for membership, the court shall proceed in
conformity with ICWA and applicable California
law.