In re Jose G.

Filed 2/20/08 In re Jose G. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Jacqueline Lewis, Referee. Reversed and remanded with directions.

Niccol Kording, under appointment by the Court of Appeal, for Objector and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Plaintiff and Respondent.

______________________________

Jennifer C. appeals from the juvenile dependency courts order terminating her parental rights to her toddler son Jose G. On appeal Jennifer C. contends the court erred in terminating her parental rights because (1) there was not sufficient evidence to support the courts finding that Jose G. was adoptable; and (2) the Department of Children and Family Services (DCFS) failed to provide adequate notice as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). As we shall explain, the record before this court supports the lower courts finding Jose G. was adoptable based on his age, physical condition, emotional state and the fact that a prospective adoptive parent expressed an interest in adopting him. This notwithstanding, a review of the record indicates that notice under ICWA was legally inadequate. Consequently the order terminating her parental rights must be reversed for the sole purpose of ensuring compliance with ICWA.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

1. Circumstances Warranting Jose G.s Detention

On January 18, 2006, when Jose G. was two months old, Jennifer C. took him to the hospital for an injury to his clavicle and a rash. An examination revealed Jose G. had a broken left clavicle that was two to three weeks old, five broken ribs three to five weeks old, and two subdural hematomas.^[2] Jennifer C. gave various inconsistent stories as to how Jose G. sustained the injuries, none of them consistent with the injuries. She told the examining doctor Jose G. sustained the broken ribs when he fell from a chair to the floor.^[3] Later, she told the hospital staff the broken clavicle and fractured ribs resulted from a fall from a car seat that had been resting on a chair, onto a tile floor. When interviewed by a police officer, Jennifer C. initially stated she did not know how Jose G. was injured, then said she had put Jose G. to sleep, took a shower, and when she emerged Jose G.s father told her he had wrapped Jose G. tightly in a blanket and heard a cracking noise. The next day Jennifer contacted the officer and changed her story, explaining she was afraid, did not want to go to jail, and thought she may have hurt Jose G. Jennifer C. proceeded to tell the officer she took Jose G. to a medical clinic on December 12 after he fell out of a car seat. Three days later the father was holding Jose G. while she and the father were arguing, and when she tried to forcefully pull the baby from the father, Jose G. cried and she heard a cracking noise. Jennifer C. wrapped Jose G. in a blanket and placed him in a bassinet. Jose G. continued to cry, so she unwrapped him, heard another cracking sound, and felt swelling on Jose G.s back.

On January 23 the DCFS filed a petition to declare Jose G. a dependent child of the juvenile court under Welfare and Institutions Code^[4]section 300. The petition included an allegation Jose G. had suffered severe physical abuse by a parent or a person known by the parent.^[5] At the detention hearing, the court found prima facie evidence to detain Jose G. from Jennifer C. and the father, and advised Jennifer C. that the DCFS recommended reunification services not be provided to her. The court ordered an expert medical examination of Jose G.

2. Jurisdiction and Dispositional Proceedings

In a report for the jurisdiction and disposition hearing, the DCFS outlined in detail Jennifer C.s inconsistent accounts of how Jose G. suffered his various injuries, as well as different versions she had given of the same story. The DCFS also reported that several physicians who examined Jose G. at the hospital opined his injuries were caused by non-accidental trauma.

The March 2006 report from the medical examination of Jose G. and the review of his medical records, revealed Jose G. suffered from multiple clavicle and rib fracture injuries in different stages of healing and subdural hematomas, also in different stages of resolution which had required a neurosurgical procedure, including the implantation of a shunt, to relieve pressure on the brain. The report concluded as follows:

The injuries could not have been self-inflicted, as the child is too

young to physically injure himself. There are multiple injuries

on this young infant which are in different stages of healing,

which is the classic definition of the Child Abuse Syndrome. The

injuries are not consistent with one huge event as the cause of all

the trauma. The injuries are consistent with multiple episodes of

non-accidental trauma.

The adjudication hearing commenced May 8, 2006. Jennifer C. testified Jose G.s ribs were fractured when she and the father were arguing, Jose G. was asleep, and the father was holding him. Jennifer C. was angry at the father, grabbed Jose G. with two hands, and pulled him twice toward her. As she was pulling him toward her Jose G. woke up and she heard a cracking noise. Jennifer C. admitted she had initially told a police detective that Jose G.s father had injured Joses ribs while she was in the shower, and later told the detective the injuries were sustained when she pulled and squeezed Jose G. during her argument with the father.

Jennifer C. further testified Jose G. broke his clavicle when he fell from a car seat onto the tile floor while she was in the kitchen. Jennifer C. heard Jose G. crying, and when she turned to look found Jose G. face down on the floor crying and with the car seat on top of him. Although Jennifer C. had not seen Jose G. wiggle out of his car seat before, she believed he could do so. After he fell, Jose G. would not calm down and his torso was red, so she took him to the hospital where she was told Jose G.s clavicle was broken. Two or three days later she returned with Jose G. to the hospital and the broken ribs were diagnosed. Jennifer C. did not know how Jose G. sustained the brain injuries, which were diagnosed later.

The fathers testimony regarding Jose G.s rib injuries was similar to Jennifer C.s testimony: He was having an argument with her; she tried to grab Jose G. away from him, and he told her to stop and moved away from her; Jennifer C. then grabbed Jose G. with two hands by the stomach and yanked him away; as she did so, the father heard a cracking sound on Jose G.s ribs.

The father further testified he was in the house when Jose fell out of a car seat a few days earlier. He and Jennifer C. took Jose G.s clothes off and did not see any injuries other than redness behind his head. Later, the father testified he and Jennifer C. did not take Jose G.s clothes off at the house, and it was when they took him to the clinic that the clothes were taken off.

The court appointed medical expert in physical child abuse testified in accord with the medical examination report that Jose G.s injuries were caused by nonaccidental trauma, were of different ages and at different stages of healing, and were consistent with Child Abuse Syndrome.

On May 9, 2006, after hearing argument, the court sustained the dependency petition, including the allegation of severe physical abuse under section 300, subdivision (e). The court found that the stories given by Jennifer C. and the father were not credible, as they were inconsistent with stories they had given earlier and with the nature and stages of healing of Jose G.s various injuries. Additionally, the clavicle injury could not have occurred from a fall from a car seat as described by Jennifer C., in view of Jose G.s inability to generate the movement required to cause the car seat to overturn. The court concluded: This is truly a case where you know it when you see it because even if I believed [the] story, I dont know how you would indicate that playing tug of war with a baby with a broken clavicle who is all of five weeks of age is anything but cruel. That was not negligence; that was not an accident. Those were purposeful acts. . . .

The court proceeded immediately to the dispositional stage. The court denied reunification services to Jennifer C. and the father, stating that services were not in the best interest of Jose G., who was so severely battered in his short life. The court also denied a request for a pre-release investigation of Jose G.s maternal grandmother for placement of Jose G. with her,^[6]explaining such placement would allow Jennifer C. and the father to have access to Jose G. and this would not be in his best interest. The court proceeded to set the matter for a selection and implementation hearing.^[7]

3. Jose G.s placement, progress and development in Foster Care

Jose G. was placed in a foster home in April 2006. Undated notes prepared by his foster mother indicated that when he was initially placed in the home the infant was active and alert, rigid, had jerky movements, was sensitive to loud sounds, suffered from reflux, butted his head frequently and needed constant entertainment.

A medical examination of Jose G. in early May of 2006 indicated that although the shunt in his head would remain in place for one year, Jose G. was healing well. The report further indicated that the infant is alert, no distress, tracks and moves extremities well. It further noted that his fractures would take time to heal and that the medication prescribed for Jose G.s reflux appeared to be working and that he was going to be seen by a gastrologist.

By late May 2006, the foster mother noted that Jose G. was very active and alert, wanted to be held a lot, needed continuous entertainment, rolled over, took frequent 10-15 minute naps, sat up with assistance, and enjoyed soft music. She also indicated that he continued to suffer from reflux, but that the symptoms were being addressed by various feeding and positioning techniques. The foster parents had also initially expressed an interest in adopting the minor. The adoption assessment report prepared in late May 2006 indicated that Jose G. was medically fragile based on his initial diagnosis of multiple factures, reflux and the need for a shunt. The social worker also stated that Jose G. appeared healthy, and very alert, that he seemed attached to his foster parents, but that according to the foster mother he had a tendency to head butt when he was upset. The May 2006 assessment concluded that Jose G. was likely to be adopted and identified the foster parents as the prospective adoptive parents.

In June of 2006, the court ordered the DCFS to initiate a home study for the foster parents. However, in late July 2006, the foster parents, who had three other school age children of their own, informed the DCFS that they were no longer interested in adopting Jose G.^[8] In August 2006 the court ordered the DCFS to find an adoptive home for the infant and Jose G. was referred to the Placement and Recruitment Unit.

In mid-August the nine-month-old Jose G. was evaluated by the Harbor Regional Center because of his medical history and because the foster mother had expressed a concern over his head butting and occasional tremors. The evaluation revealed that Jose G. had normal and age appropriate cognitive, language (receptive and expressive), motor and social skills. The evaluator observed mild tremors in his upper extremities, but also noted that he exhibited adequate motor control. Jose G. also appeared to have normal and appropriate developmental ranges in all areas including his reflexesthat his balance was good and that he was sitting and creeping on all fours. The report stated Jose G. appeared to be a happy, responsive and social baby who was attached to his foster mother. The report concluded that he appears to be doing well in all areas of development and there is no need for intervention. The evaluator did recommend, however, Jose G. be seen for developmental monitoring in three months and a follow-up evaluation in six months.

A DCFS addendum report prepared in September of 2006, indicated that Jose G. had adjusted well and was thriving in his placement, that he had established relationships with his foster family, that he was happy and playful and enjoyed a lot of interaction, including playing with toys and other children. In addition the social worker indicated that Jose G. was crawling and able to hold himself up. The report also noted, however, that according to the foster mother Jose G. was beginning to have tantrums several times a day.

As for the status on finding an adoptive family, the report noted that Jose G. had been taken to an adoption fair for medically fragile children and that several families were interested. In October 2006, a prospective adoptive mother, Ms. S. had been located in Colorado and was being evaluated by the DCFS.^[9]

As of mid-October 2006, the social worker reported that Jose G. continued to do well in the foster home; he was attempting to walk, sleeping well and his reflux was improving (his reflux medication had been increased).

A December 2006 DCFS report indicated that the prospective adoptive parent, Ms. S. appeared to be a match and that she had an approved home study (from July 2006) on file.^[10] The report also indicated that a visit had been scheduled between the prospective parent and Jose G. for early December and because the prospective parent resides out of state an ICPC home study was to be initiated. As of December 2006, Jose G. was, according to his foster parents, progressing well. He was walking and was smiling more and being more social.

The regional center developmental monitoring consultation occurred in November 2006. The consultation report indicated that Jose G. had continued to develop normallyin an age appropriate manner in all areas.

The DCFS report prepared for the February 2007, section 366.26 hearing noted that Jose G. was receiving early intervention services, including group speech therapy, to address his tantrums and behavior issues. According to the report it was believed that his tantrums could be due to his frustration with not being able to communicate effectively, and it was believed that speech therapy would address those issues. The report further noted that his shunt was working properly, he was taking four medications, and he continued to suffer from reflux and might be lactose intolerant. It further indicated that the toddler was walking and holding a cup. He was babbling, and able to follow simple commands. The report also noted the foster mothers concern that Jose G. might have difficulty transitioning into a daycare or school setting because he has attachment issues (i.e., that he cries and wanted to be held by the foster mother often and cries when she was not within his sight). The foster mother also opined Jose G. is very hyperactive.

The report also noted that the visit between Ms. S. and Jose G. had gone well and that another visit had been scheduled, and the prospective adoptive parent was aware of Jose G.s medical issues and continued to be committed to adopting him. The report stated that the ICPC home study had not yet been initiated because an adoptions social worker had not yet been assigned to the case and that the home study in Colorado could not be completed until parental rights had been terminated.

4. Section 366.26 Termination Proceedings

At the originally scheduled section 366.26 hearing in February 2007, the DCFS reported that Jennifer C. had been arrested and had a criminal court date. The dependency court ordered an ICPC for Ms. S. and continued the section 366.26 to March 2007 to allow for Jennifer C. to appear. In March, the court granted Jennifer C.s request for a contested section 366.26 hearing and continued the matter to April 12, 2007.

At the April 12, 2007 hearing, the DCFS indicated that an adoptions social worker had been assigned and was following up on the ICPC process. Jennifer C. testified and claimed for the first time that she had lied about paternity of Jose G., and also asked for a paternity test and a continuance. She further told the court she had taken drugs while she was pregnant with Jose G. and that the father had injured Jose G.

After the presentation of evidence the court found by clear and convincing evidence that Jose G. was adoptable and terminated parental rights.

Jennifer C. appeals.

DISCUSSION

On appeal, Jennifer C. asserts that the juvenile court erred in finding Jose G. was adoptable given his fragile medical condition, his behavioral problems, and the absence of a suitable prospective adoptive family. She also contends the DCFS failed to demonstrate compliance with the ICWA. We examine these contentions in turn.

1. Adoptability

Before a court may terminate parental rights it must find by clear and convincing evidence that it is likely the dependent minor child will be adopted. ( 366.26, subd. (c)(1).) In an appeal challenging a finding required to be made by clear and convincing evidence, we determine whether there is substantial evidence to support the finding. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) On appeal, we view the evidence in the light most favorable to the trial courts order, drawing every reasonable inference and resolving all conflicts in support of the judgment. An appellate court does not reweigh the evidence. Rather, we must determine whether there is substantial evidence from which a reasonable trier of fact could by clear and convincing evidence find a factual basis for the finding as to the childs adoptability. (Citations omitted.) (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)

Jennifer C. pays lip service to our standard of review because she focuses on evidence that she contends supports her position that Jose G. was not shown to be adoptable.

The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. [Citations.] [] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649‑1650, italics omitted; accord, In re Marina S. (2005) 132 Cal.App.4th 158, 165).

In the alternative to finding that a child is generally adoptable, evidence of a particular approved familys willingness to adopt the child can also be used to evaluate the likelihood of the childs adoption. (In re Asia L. (2003) 107 Cal.App.4th 498, 510; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225 [finding a likelihood of adoption where the social worker had identified one family within the foster care system and three families outside the system, in addition to a potential relative, who were all willing to adopt a child with potential neurological problems and all the attendant risks]; In re Sarah M., supra, 22 Cal.App.4th at p. 1650 [An inquiry may be made into whether there is any legal impediment to adoption when a child who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is found to be adoptable based solely on the existence of a prospective adoptive parent].)

The juvenile courts finding that Jose G. is adoptable is supported by substantial evidence. The evidence before the court indicated that during the year he had been detained from his mother, Jose G. had made great progress in recovery from the abuse he had suffered. His physical issues were not severe. His health condition had improvedhis shunt was working properly and his reflux was being addressed through medications. He appeared to be a happy, social and alert toddler, who had adjusted well and was thriving in his foster care. He was mobile and had consistently been found to be reaching the developmental milestones in all areas. Thus, it is clear that his age, disposition, and physical development are conducive to his being adopted.

Although it was reported Jose G. had begun to have behavior issues including head butting and tantrumsthose issues appeared, according to the regional center assessments, related to his frustration about being unable to communicate. A course of speech therapy had been identified to address those issues. There was no report by the caregivers that Jose G.s behavior was accompanied by a change in his happy disposition. Nothing in the record before this court suggests that Jose G.s behavior issues were so severe or pervasive that he was not likely to be adopted by someone. Further, the DCFSs adoption social worker determined Jose G. is likely to be adopted.

On appeal Jennifer C. places much significance upon the fact that Jose G.s foster parents decided not to pursue adoption, claiming that their decision was based on Jose G.s severe behavioral issues. However, there is nothing in the record to indicate why the foster parents, who already had three school age children of their own, had decided not to pursue adoption. In addition, unlike Jennifer C., we do not put much stock in the foster mothers opinion that Jose G. was hyperactive and might have difficulty transitioning into day care. There is nothing in the record to support the foster mothers views. Jose G. was evaluated several times by the regional center and several other times by various medical professionals and all of the evaluations revealed that Jose G. was developing cognitively, emotionally, physically and socially within age-appropriate levels.

Finally, the juvenile dependency courts finding that Jose G. was generally adoptable is bolstered by the fact that a prospective adoptive parent, Ms. S. had been identified. The record indicates that Ms. S. had been apprised of Jose G.s medical condition, was aware of the behavioral concerns and that she had an approved home study.^[11]

In view of the foregoing we conclude the court had sufficient evidence to find that Jose G. was adoptable.

2. ICWA Notice

On appeal, Jennifer C. asserts the juvenile court erred by finding the ICWA did not apply without properly determining that the appropriate notices were sent to the identified tribes on behalf of Jose G. DCFS correctly concedes this was reversible error.

A. Factual Background on ICWA Notice

At the detention hearing, Jennifer C. stated that she was uncertain whether she had American Indian heritage.^[12] The maternal grandmother stated that the family had Cherokee Indian heritage and was registered, but she did not have the registration card. The court ordered the DCFS to conduct an investigation and the relatives were given the Judicial Council Form JV-135 (JV-135) to complete. The court ordered the DCFS to send a notice to the Bureau of Indian Affairs (BIA) and Cherokee Nation.

In a subsequent ICWA report for the February 21, 2006 hearing, the DCFS indicated that it had sent notices to the Cherokee Nation, the Eastern Band of Cherokee, the United Keetoowah Band of Cherokee, the BIA and the Secretary of the Interior. The report also indicated that the maternal grandmother had indicated that the great-grandmother Rosela May F.R. born in May 1950 was a Cherokee and that the great-grandmother had married a John C. who was Jubueno Mission Indian. The report also indicated that the social worker was unable to locate the Jubueno Mission tribe on the Federal Register or the Department of Interior website.

At the February 21, 2006 hearing the court noted that the notices sent for that hearing to the tribes, BIA and Interior did not include relevant indentifying information for the relatives including birthdates. The court ordered the DCFS to re-notice with complete information and to continue its efforts to contact the great-grandmother. In March 2006, the United Keetoowah Band of Cherokee Indians stated that based on the information provided there was no evidence that Jose G. was a member of the tribe.

In March 2006, the DCFS reported that it had contacted the maternal great-grandmother, identified as Lupe G.R., who indicated that Jose G. could be of Cherokee Yaqui Indian heritage; Lupe G.R. stated that John C. was from the Yaqui tribe in San Juan Capistrano. She also provided DCFS with the location and date of his birth. The DCFS sent new notices to the Yaqui and Cherokee tribes. The notices, however, failed to disclose the Yaqui tribe connection and listed Rosela May F.R. as the name of the great-great-grandmother. The notices did not include Lupe G.R.s name. At the March 13, 2006 hearing the court found the notices to be incomplete and ordered the DCFS to re-notice the tribes.

As of May 2006, the notices had yet to be completed and the court ordered the DCFS to conduct a full investigation, obtain more information from the great-grandmother and re-notice the tribes. The great grandmother stated that the family was affiliated with the Yaqui tribe from San Juan Capistrano and the Cherokee Tribe from Shanendoa, Iowa.

The DCFS sent new notices in early June 2006 which identified Lupe R. as the great-great grandmother, but did not contain her date of birth. The notice indicated that Lupe R. was a Cherokee. On June 27, 2006, the court indicated that notices had been sent and that the United Keetoowah Band of Cherokee Indians stated that based on the information provided there was no evidence that Jose G. was a member of the tribe.

At the September 2006 hearing the court noted that it had not yet made ICWA findings because it was still waiting for responses from several tribes. The court ordered the DCFS to conduct a review of the file and to submit relevant documents.

At the November 1, 2006 hearing the court indicated that it had been over 60 days since the notices had been received by the tribes and given the lack of response, the court concluded that Jose G. did not fall under ICWA.

At the section 366.26 hearing scheduled for February 20, 2007, the maternal great grandmother appeared and informed the court that the maternal great-grandfathers information had been overlooked. She further stated an aunt who had passed away several months before, had all of the relevant documents, which were tied up in probate. She stated she was going to locate certain numbers and had planned to go to the BIA office in Los Angeles; she claimed that not all of the information had been provided. She identified a Jovita C. as a relative registered at the San Juan Capistrano Mission in 1924. The court ordered the DCFS to interview the maternal great-grandmother.

When interviewed the great-grandmother stated that she would provide the tribal enrollment numbers, but according to the social worker the great-grandmother did not provide any other new information. Nonetheless, the new JV-135 form had the Roll of 1924 checked off and identified the name of Marcelina M. as a relative.

In a report for the April 12, 2007 hearing, the social worker noted that the maternal grandmother had provided new information on March 29, 2007, which concerned relatives (maternal great-grandmothers great uncle and other uncles) which the worker believed were not blood-related to Jose G.

On March 30, 2007, new notices (for the April 12, 2007 hearing) were sent to the Cherokee and Yaqui tribes, the BIA and the Secretary of the Interior. The notices now checked-off boxes indicating relatives who: (1) attended Indian School; (2) received medical treatment at Indian health clinics or U.S. Public Health Service hospitals; (3) lived on federal trust land, a reservation or rancheria or an allotment; and (4) Roll of 1924. The notices also listed the names or relatives Marcelina M., Martin M., and John R. The notices indicated that these relatives lived on reservations in Oklahoma and were registered. Return receipts for the notices were submitted to the court, but none had been signed.

At the conclusion of the April 12, 2007, section 366.26 hearing, the court stated its belief that Jennifer C. and the maternal great-grandmother had been using the Indian heritage issue to delay and impede the proceedings. The court refused to hear from the maternal great grandmother any further on the issues, and found that proper notice had been provided and return receipts and letters had been received indicating Jose G. did not have Indian heritage.

B. Notice Requirements Under ICWA

Under the ICWA, an Indian tribe is entitled to intervene in a state court proceeding brought to remove an Indian child from a parental home and place the child in foster care. (25 U.S.C., 1911, subd. (c).) Because the right to intervene is meaningless unless the tribe receives notification, the ICWA specifies notice requirements and those notice requirements are strictly construed. (In reSamuel P. (2002) 99 Cal.App.4th 1259, 1267.) When the juvenile court knows or has reason to know the proceeding involves an Indian child, the DCFS is required to notify the childs tribe or, if the tribes identity or location cannot be ascertained, the BIA of the pending proceeding and the right to intervene. (25 U.S.C., 1912, subd. (a).)

Notice under the ICWA must, of course, contain enough information to constitute meaningful notice. (In re Karla C. (2003) 113 Cal.App.4th 166, 175; In re Louis S. (2004) 117 Cal.App.4th 622, 630.) It is essential to provide the Indian tribe with all available information about the childs ancestors, especially the one with the alleged Indian heritage. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) In C.D., this court held notice to a tribe under the ICWA must include the information set forth in the BIA Guidelines at 25 Code of Federal Regulations part 23.11(d)(3), if such information is known. (In re C.D. (2003) 110 Cal.App.4th 214, 225; see also In re Louis S., supra, 117 Cal.App.4th at p. 630; In re Francisco W., supra, 139 Cal.App.4th at p. 703.) This provision of the Code of Federal Regulations states notice to a tribe shall include the following information, if known: All names known, and current and former addresses of the Indian childs biological mother, biological father, maternal and paternal grandparents, and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information. (25 C.F.R., part 23.11(d)(3).)

This notice provision applies even if the Indian status of the child is uncertain. (In reKahlen W. (1991) 233 Cal.App.3d 1414, 1422.) Moreover, the parents cannot waive the notice requirements. (In reMarinna J. (2001) 90 Cal.App.4th 731, 735-736; In reSamuel P., supra, 99 Cal.App.4th at p. 1267 [The notice requirements serve the interests of the Indian tribes irrespective of the position of the parents and cannot be waived by the parent].)

To satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [a social service agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status. (In re Asia L., supra, 107 Cal.App.4th at p. 507.)

On appeal, Jennifer C. claims the court erred in terminating her parental rights based on an erroneous finding that ICWA notice had been properly given. She argues that the notices were defective in that they failed to include the proper aliases or names used by the maternal great grandmother, failed to properly identify certain maternal relatives, and failed to include a San Juan Capistrano Mission Indian Tribe^[13]as a potential tribe (or provide notice to that tribe). She also maintains the defective notices were not timely sent prior to the April 12, 2007 hearing and that properly signed return receipts were not in the record before the juvenile court at that time of the hearing.

Before this court the DCFS concedes that the ICWA notices were not timely sent to the tribes and concedes that the record does not contain proof of receipt prior to the hearing.

When the sole error on appeal is failure to comply with ICWA notice requirements, the appropriate response is a limited reversal in which we order the judgment to be reinstated if no tribe intervenes after proper notice is given. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704; In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385 [lack of proper ICWA notice is not jurisdictional, and only the order requiring reversal is termination of parental rights unless and until the child is determined to be an Indian child under ICWA]; but see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779 [disagreeing with In re Brooke C.].) A limited reversal is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice. (In re Francisco W., supra, 139 Cal.App.4th at p. 704.) This approach allows the juvenile court to retain jurisdiction over the dependent children and determine the one remaining issue given that the parties already have litigated all other issues at the section 366.26 hearing. (Id. at p. 705.) The children retain the protection of the juvenile court while the case is simultaneously processed to cure the ICWA error, a procedure more expeditious than a full rehearing of section 366.26 issues. (Ibid.)

On the record before this court it is clear that the ICWA notices were not timely served prior to the April 12, 2007 hearing and that the record did not contain the proof of service. On this basis alone the courts order terminating parental rights cannot stand. The record is less clear as to whether the notices themselves were defective because they omitted relevant information about the great-grandmothers alias, the identities of other relatives and/or relevant tribes. Nonetheless, because this matter must be remanded to ensure proper ICWA compliance, the DCFS should re-interview the maternal great-grandmother to ascertain whether the DCFS has all of the relevant and accurate information purportedly omitted from prior notices (i.e., the great-grandmothers alias, the identities of other relatives and/or relevant tribes) and to determine whether the maternal great-grandmother has any additional information concerning Indian heritage. The DCFS should thereafter prepare new ICWA notices.

DISPOSITION

The order terminating parental rights is reversed and the matter is remanded to the juvenile court with directions to order DCFS to take additional actions as described herein to investigate potential Indian heritage and to comply with the notice provisions of ICWA, and to file all required documentation with the juvenile court for the courts inspection. If, after proper notice, a tribe claims a child is an Indian child, and seeks to intervene in the juvenile court proceedings, the juvenile court is directed to vacate its prior orders and conduct all proceedings in accordance with ICWA, section 360.6 and rule 5.664 of the California Rules of Court. On the other hand, if no tribe claims the child is Indian or seeks to intervene, the order terminating parental rights is to be reinstated. In all other respects, the orders appealed from are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P. J.

WILEY, J.*

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

________________________________________________________________________

*Judge of the Los AngelesCounty Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^[1] The facts and proceedings described in sections 1-2 of the Factual and Procedural Background have been taken from our prior opinion in this matter: In re Jose G. (B191196) filed December 6, 2006. For ease of reference the facts concerning the ICWA issue are set out in the Discussion section pertaining to the ICWA notice.

^[2]Jose G. later had surgery to drain the hematomas.

^[3]The doctor determined the fracture was from squeezing and not from a fall.

^[4] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[5]Section 300, subdivision (e) provides in part that a child under the age of five may be adjudged a court dependent if he has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child.

^[6]Section 361.3.

^[7] Jennifer C. filed a petition for a writ of mandate seeking relief from the juvenile courts order setting the section 366.26 hearing. In her petition she argued there was not sufficient evidence to support the courts jurisdictional finding Jose G. suffered severe physical abuse inflicted either by a parent or by person known by the parent if the parent knew or should have known of the abuse; (2) even if the jurisdictional finding was properly made, the court should have ordered reunification services; and (3) the court abused its discretion in failing to order an assessment of Jose G.s maternal grandmother for placement. In December 2006, this court in denying the petition concluded substantial evidence supported the juvenile courts jurisdictional finding of severe physical abuse and that reunification services were properly denied to Jennifer C. This court also concluded that we lacked jurisdiction to consider Jennifer C.s claim the juvenile court abused its discretion in failing to order an investigation of the maternal grandmother for placement of Jose G. with her.

^[8] The record does not disclose the reason the foster parents decided not to pursue adoption.

^[9] Ms. S. is a certified nursing assistant/home health care worker and also had been a social worker. She has an A.A. degree in mental health, B.A. degrees in behavioral sciences and social work, and a masters degree in guidance counseling. It appears from the record that in April of 2006 she had adopted a child with Down Syndrome and developmental delays.

^[10] Ms. S. had an approved home study in September of 2004 and July of 2006 home study update. The 2004 home study indicated that Ms. S. was willing to adopt children who have different behavioral issues as long as the behaviors are not severe, who have been victims of physical abuse and neglect and that she was willing to consider a child with mild to moderate physical limitations. The 2004 home study also noted however, that Ms. S. did not feel she could parent a child that had severe attachment issues, aggressive behavior, destructive behavior or sexual acting out. The 2006 home study update indicates that Ms. S. is very willing to accept more children between the ages of 0-10 years-old that have developmental and physical issues. She is very willing to accept children who have feeding tubes, oxygen, shunts, Spinal Bifida, Cerebral Palsy and Down Syndrome. The only limitation Ms. S. mentioned in the 2006 home study update was that she was not willing to consider a child who has developmental issues that would issue that they [sic] will never be able to be somewhat mobile.

^[11] Jennifer C. contends that Ms. S.s 2004 home study indicated that she could not parent children with severe attachment issues [or] aggressive behavior. We note that Ms. S.s reluctance to adopt children with attachment issues, aggression or destructive behavior is not mentioned in the subsequent July 2006 home study update. In any event, there is nothing in the record before us which would support the conclusion that Jose G. suffered from severe attachment issues or engaged in aggressive or destructive behaviors.

^[12] The father indicated that he did not have American Indian heritage.

^[13] The DCFS maintains that there is no San Juan Capistrano Mission Indian Tribe in the federal register and states that the maternal great grandmother had clarified that the family was affiliated with the Yaqui tribe from San Juan Capistrano.