Filed 8/29/18 In re V.M. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary L. Moorhead, Judge. Conditionally reversed and remanded with directions.

Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant.

Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.

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Cynthia B. (mother) appeals from the juvenile court’s May 2018 dispositional judgment removing her two daughters from her physical custody. (Welf. & Inst. Code, §§ 360, 361; all statutory references are to this code.) She contends, and the Orange County Social Services Agency (SSA) concedes, SSA did not adequately investigate the children’s heritage under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) For the reasons expressed below, we agree and will conditionally reverse the judgment.

I

Factual and Procedural Background

In early December 2017, SSA took mother’s two daughters (ages 14 and 11) into protective custody based on allegations of mother’s intoxication, physical abuse of the girls, domestic violence between mother and her boyfriend, and general neglect. An instructional aid expressed concerns about the hygiene of the older child, who had Down Syndrome, came to school dirty, wearing the same clothes for weeks, and had a fever and foot fungus. Mother frequently left the children without food or knowing how to cook. Mother had a criminal history, and the father’s whereabouts were unknown.

SSA filed a petition (§ 300, subds. (b)(1) & (g)), and placed the girls with the maternal grandfather, who previously had cared for the children after mother had a stroke. At the jurisdiction hearing, mother pleaded no contest to the amended petition. At the disposition hearing, the court released the children to mother under a CRISP (conditional release intensive supervision) agreement requiring substance abuse testing and a substance abuse counseling program, among other conditions. The CRISP prohibited her from leaving the girls alone with the boyfriend.

SSA filed a subsequent petition (§§ 342; 300, subds. (b)(1), (d), (j)) in April 2018 alleging on an unspecified date in March 2018 the boyfriend sexually abused the older child by touching her vaginal area, buttocks, and penetrating her vagina with his penis. Mother yelled and spanked the child, and accused her of lying. At the contested jurisdiction and disposition hearing on May 9, 2018, the court found the allegations of the petition true and removed the girls from mother’s custody.

II

Discussion

ICWA

Mother contends SSA’s notices to the Bureau of Indian Affairs (BIA) and the Blackfeet tribe were defective, and the juvenile court erred in finding ICWA did not apply. Mother reported she had Native American ancestry, and was registered or eligible to enroll with the Blackfeet Tribe in Montana. Mother advised the social worker her brother, who had a Native American name, lived on a reservation in Browning, Montana. Mother asserts the notices SSA sent to the BIA and the Blackfeet tribe contained insufficient information about mother’s paternal relatives, and the record does not reflect SSA attempted to contact mother’s brother. Mother argues “given [her] admittedly faulty memory due to her stroke,” the social worker had an affirmative responsibility to make further inquiry regarding the possible Indian status of the children. (See In re A.G. (2012) 204 Cal.App.4th 1390, 1396, 1401 [agency must interview parents and extended family members to gather information; notice must include available information about 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 and other identifying data].)

SSA concedes it did not adequately investigate relatives who might have relevant information concerning Indian heritage, and the juvenile court erred in finding ICWA did not apply. SSA “urges a conditional affirmance and remand for compliance with the notice and inquiry provisions of ICWA.” We agree with mother the weight of authority requires reversal in ICWA noncompliance cases. (See In re Cody B. (2007) 153 Cal.App.4th 1004, 1013-1014 [reversing jurisdictional and dispositional order and remanding to the juvenile court with directions to make proper ICWA inquiry]; see Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268-269 [reversing order terminating reunification services and remanding to permit ICWA compliance]; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784-785 [“failure to give ICWA notice means that the orders” terminating reunification services cannot stand]; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1268 [disposition order reversed and remanded with directions to provide tribes with proper notice.)

III

Disposition

The May 9, 2018 disposition judgment is conditionally reversed. The case is remanded to the juvenile court with directions to order SSA to comply with ICWA’s inquiry and notice provisions. If after proper notice the juvenile court determines the children are Indian children, the court shall proceed as required by ICWA. If the juvenile court determines the children are not Indian children, then it shall reinstate the judgment.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

THOMPSON, J.