Filed 8/11/15
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re I.B.,
a Person Coming Under the Juvenile Court Law. B259021 (Los Angeles County Super. Ct. No. CK76502)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.
W.H.,
Defendant and Appellant.

APPEAL from an order of the Superior Court for Los Angeles County, Timothy Saito , Judge. Reve rsed and remanded.
M e rrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.
Mark J. Saladino , County Counsel, Dawyn R. Harrison , Assistant County
Counse l, and Tracey F. Dodds, Depu ty County Counsel, for Plaintiff and Resp ondent.2

Under the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and the related California statutes governing custody proceedings involving Indian children (Welf. & Inst. Code, § 224 et seq

. ), 1 when a juvenile court in depend ency proceedings knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, that child must notify the child‟s tribe of the pending proceedings and of the tribe‟s righ t of intervention . (25 U.S.C. § 1912(a); § 224.2, subd. (a).) That notice must include, among other things, the name s (including maiden, married, and former names or aliases)
, birthdates, places of birth and death, tribal enrollment numbers, and any ot he r identifying inf ormation, to the
extent it is known, of the Indian child‟s biological parents, grandparents, and great

grandparents. (25 C.F.R. § 23.11(a), (d)(3); § 224.2, subd. (a)(5).)
The issue presented in this case is whether there is a duty under the I CWA to
send updated notices to the relevant tribes when additional information regarding
the child‟s ancestors (such as previously omitted birthdates, aliase s, and/or alternate spellings) i s obtained after the original ICWA notices were sent. We

con clude there is such a duty. Because the Los Angeles County Department of Children and Family Services (the Department) in this case failed to send update d
notices after it obtained additional information, we reverse the order terminating the parental righ ts of appellant W. H. (mother) with regard to her daughter, I.B., 2

for the limite d purpose of compliance with the ICWA.

1 Further undesignated statutory references are to the California Welfare and Institutions Code.

2 The dependency petition filed in this case refers to the child as I.H., using mother‟s last name. The child‟s birth certificate, however, refers to her as I.B., using her alleged father‟s last name (although the spaces for the f ather‟s name were left blank). We refer to her as I.B., the name on her birth certificate.3 BACKGROUND Because compliance with the ICWA is the only issue raised in this appeal, our discussion of the facts and procedural backgr ound focuses on the facts relevant to compliance with the ICWA

. The Department filed a juvenile dependency petition on February 1, 2013, alleging that mother “has a history of mental and emotional problems, including a diagnosis of Schizophrenia, Bipolar Disorder, Major Depressive Disorder, Recurrent, Severe, with Psychotic Features, auditory hallucinations, visual hallucinations, delusions and homicidal ideation, which render the mother unable to provide regular care for [I.B.].” The petition also allege d that I.B.‟s sibling, T.B. was a dependent of the juvenile court due to these same mental and emotional problems. 3 Attached to the petition was an “Indian Child Inquiry Attachme nt” indicating that a social worker from the Department questioned mother abo ut I.B.‟s possible American Indian heritage, and mother stated that she and her child had no such heritage. At the detention hearing held on February 1, 2013, the juvenile court ordered I.B. detained, and found William B. to be I.B.‟s alleged father. 4 At that same hearing , mother signed a form (Parental Notification of Indian Status) stating that she may have Indian heritage, and referred to the “Blackfoot” tribe. 5

3 These allegations were made under section 300, subdivision (b) (count b

- 1) and section 300, subdivision (j) (count j

- 1).

4 The Department subsequently attempted to interview William B.; although he admitted he had sexual relations with mother, he was unsure if he was I.B.‟s father. He declined to be interviewed further until his paternity was established through a DNA test. He did not participate in any of the dependency proceedings.

5 The correct name for the tribe is Blackfeet.4

In the jurisdiction/disposition report filed on March 18, 2013, the Department reporte d that on March 8, mother told the social worker assigned to the case (the CSW) that she was Cherokee and that her father was of Blackfeet, Cherokee, and other Indian heritage. The Department stated that a dependency investigator (the DI) was following up on mother‟s American Indian ancestry and would provide an additional report at the next scheduled court date , the jurisdiction hearing

. That report, filed on April 2, 2013, stated that the DI had made attempts
to contact mother to obtain further informat ion for ICWA purposes, but had been
unable to reach her. The juvenile court sustained the petition as alleged at the jurisdiction hearing, at which mother appeared, and continued the matter to May 6 , 2013 for the disposition hearing. On April 26, 2013, the Department sent notice of the disposition hearing (using form ICWA

- 030) to the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, the
Sacramento Area Director of th e Bureau of Indian Affairs , the United State s Department of the Interior, and the Blackfeet Tribe of Montana. The form identified the child as I.H. (see f n. 2, ante ), provided her date of birth and place of
birth , and stated that she is or may be eligible for membership in Blackfeet and
Cherokee tr ibes

. In addition, the notice provided the following information regarding I.B.‟s relatives:

● Biological mother : name (W.H.), current address (former address was unknown)
, birthdate , birth place, and tribe or band (Blackfeet Tribe, Cherokee Nation, East ern Band of Cherokee Indians, United Keetoowah Band of Cherokee). 6 It noted that all information was provi ded by mother, and that mother was given

6 The tribal membership or enrollment number on all of I.B.‟s relatives was marked “Unknown.”5

additional time to obtain more information, but she did not provide any additional
information.

● Biologi cal father : name (William B.), current addr ess (former address was unknown) , and birthdate . His birth place and t ribe or band were marked
“U nknown.”

● Mother‟s biological mother (child‟s maternal grandmother) : name (Lillian H.), current address (forme r address was unknown)
, birthdate , birth place, and tribe or band ( “ Cherokee Indian Tribe ” ).

● Mother‟s biological father (child‟s maternal grandfather) : name (Willie Ray H.), former address (current address was unknown), birthdate
, birth place, and trib e or band ( “ Blackfoot and Cherokee Indian Tribe ” ).

● Father‟s biological mother (child‟s paternal grandmother) : name (Elanor V alasquez 7 ). The remaining boxes were marked “Unknown.”

● Father‟s biological father (child‟s paternal grandfather) : all box es were marked “Unknown.” 8

● Mother‟s biological grand mother (child‟s maternal great

grandmother) : name (Tabatha Morgan ), birthdate (“09/18 or 19, 19??”),
birth place
, tribe or band (“Cherokee Indian Tribe”) , and place of death (date of
death was unknow n) ; her current and former addresses were marked “Unknown.”

● Mother‟s biological grandfather (child‟s maternal great

- grandfather) : name (Lee White ), birthplace (just the State), and tribe or band (“Cherokee Indian

7 Although we generally do not use relatives‟ l ast names in child dependency cases, under the circumstances here we find that use of last names with regard to some of the relatives is necessary to adequately discuss the issue presented.

8 All the boxes on all of the remaining paternal relatives were marked “Unknown.”6

Tribe”); his current and former addres ses , birthdate , and date and place of death were marked “Unknown.”

● Mother‟s biological grandmother (child‟s maternal great

grandmother) : name (D.W. [first initial only]) and tribe or band ( “ Blackfeet Indian Tribe”); her current and former addresses, b irthdate
, birthplace , and date and place
of death were marked “Unknown.”

● Mother‟s b iological grandfa ther (child‟s maternal great

- grandfa ther) :

name (Ollie H.), birthdate (“5 or 6/28, 19??”), birthplace, tribe or band (Blackfeet
and Cherokee Indian Tr ibes), and year and place of death; his current and former addresses were marked “Unknown.” On May 6, 2013, the juvenile court conducted the disposition hearing, signed the case plan, and ordered reunification services for mother. The court also
ordered the Department to report on July 1, 2013 on the progress of the ICWA
notices. In its July 1, 2013 report, the Department provided receipts showing that all of the addressees received the notices sent in April. The Department reported that
the CSW rece ived a letter (which was attached to the report) from Cherokee Nation Indian Child Welfare noting that the information the Department sent in the ICWA notice was not complete and asking for maternal great

- grandfather Lee White ‟s
middle name and date of bir th, and maternal great

- grandmother D.W.‟s middle name, maiden name, and date of birth. The CSW f axed a letter (also attached to the report) in response to the request on June 6, 2013, stating that mother had provided the following information:

● Tabatha Morgan (the child‟s maternal great

- grandmother) “should be
filed under Tabitha Coleman and her birthdate is 9/18/1909.”7

● Lee W hite (the child‟s maternal great

- grandfather) “should be filed
under Lee Thomas 9/16/1909.” 9

● Ollie H.‟s birthda te “is 6/28/1919 and is the child‟s paternal great grandfather.” 10

● Mother did not have any additio nal information regarding D.W., who the CSW referred to as “the child‟s paternal great grandmother.” 11

● Mother did not have any additional information r egarding Elanor Valasquez, but she stated that “Elanor Valaquez is the child‟s paternal grandmother.” (It is unclear whether the CSW intended to provide a different spelling of the grandmother‟s last name by this reference.) With regard to the other trib es and entities that received the ICWA notice,

t he Department reported that it received response s (which were attached to the report) from the Eastern Band of Cherokee Indians, and the Department of the Interior, Bureau of Indian Affairs. The Eastern Band of Cherokee Indians responded that I.B. was not registered or eligible for membership in that tribe. The Department of the Interior stated that the Bureau of Indian Affairs does not determine tribal eligibility or maintain a comprehensive list of persons possessing Indian blood, and directed the Department to notify the tribes directly. T he Department did not receive any response from the Blackfeet Tribe of Montana or

9 Cherokee Nation Indian Child Welfare had asked for Lee White‟s middle name and date of birth. Thus, it is not entirely clear whether Thomas is Lee White‟s middle name, or whether Thomas should replace White as Lee‟s last name.

10 It is likely that the CSW was mistaken in stating that Ollie H. is the child‟s paternal great

- grandfather, because he has the same last name as mother and mother‟s father. Rather, it appears that Ollie H. is mother’s paternal grandfather, and thus is the child‟s maternal great

- grandfather.

11 Once again, it appears that D.W. is mother’s paternal grandmother, and thus is the child‟s maternal great

- grand mother

.8

the United Keetoowah Band of Cherokee, and followed up by calli ng and/or emailing those tribes to ask them to respond

. The juvenile court ordered the Department to continue to follow up on the ICWA notices, and to report on its progress at the next hearing . In its subsequent report, filed on November 4, 2 013, the Department purported to r ecap th e responses it received from the April 2013 ICWA notices. It indicated that the Cherokee Nation, the Eastern Band of Cherokee Indian s , and the United Keetoowah Band of Cherokee had all responded and stated that I.B. was not registered and/or eligib le for membership in the respective tribe. We note, however, that in its July 1, 2013 report, the Department had stated that it had not received a response from the Cherokee Nation or the United Keetoowah Band of Cherokee regarding whether I.B. was regist ered or eligible for membership in
those tribes. 12 Neither report attaches any document from the Cherokee Nation or the United Keetoowah Band of Cherokee stating that I.B. is not registered or eligible for membership in those tribes. The November report a lso reported on the Department‟s efforts since July
2013 to determine whether I.B. was an Indian child. It stated that the CSW sent
additional letters to the Bureau of Indian Affairs, the United States Department of the Interior, and the Blackfeet Tribe o f Montana, asking if I. B. had American Indian Heritage, and attached to the report a form showing that on September 30, 2013, the Department sent four pieces of mail by registered mail, return receipt requested, to the Bureau of Indian Affairs, the United States Department of the

12 Inexplicably, the November 2013 report indicated that the Department received a response on May 3, 2013 from the United Keetoowah Band of Cherokee stating that I.B. was not a descend a nt of anyone on the Keetoowah Roll, but in its July 2013 report the Department reported that, as part of its follow up on tribes that had not yet responded, the CSW cal led the United Keetoowah Band of Cherokee on June 20, 2013 and was told that the tribe had not received the April 2013 notice and letter.9

Interior, United Keetoowah Band of Cherokee Indian, and Blackfeet Tribe of Montana. It also attached an ICWA notice, with a certificate of mailing stating
that it was mailed to United Keetoowah Band of Cherokee and Blackfeet Tribe of Montana on September 30, 2013. The information contained in the notice (which notified the tribes of the hearing on November 4, 2013) was exactly the same as the information in the previous notice sent in April 2013, without any of the
corrections or additional information that the CSW had provided to the Cherokee
Nation in June 2013. It appears that the CSW did not receive any response from either tribe, despite her attempt to call the Blackfeet Tribe of Montana.
At the six

- month review hearing on November 4, 2013, the juvenile court found that the ICWA did not apply. At the next hearing, held on January 29, 2014, the court again found that the ICWA did not apply and terminated reunification services for mother. The section 366.26 permanent plan h earing was set for May 28, 2014. The hearing was continued several times, and on September 5, 2014, the juvenile court terminated mother‟s parental rights. Mother timely filed a notice of appeal from the order terminating her parental rights.

DISCUSSIO N The only issue mother raises on appeal is compliance with the notice provisions of the ICWA. She contends the juvenile court erred in finding that the ICWA did not apply, because the ICWA notices the Department sent in September
2013 were not sent to a ll of the relevant tribes and were not complete because they did not include all of the information the Department had obtained. The Department contends that any error in the September 2013 notices was harmless because the Department provided proper notic e in April 2013. Mother responds that once the Department received additional information regarding mother‟s10

relatives in June 2013, it was required to send a new set of notices to all of the
tribes. Mother is correct

. The ICWA was enacted by Congress “ to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (25 U.S.C. § 1902.) It “confers on tribes the right to intervene at any point in state court dependency proceedings. [Citations.] „Of course, the tribe‟s right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending.‟ [Citation.] „Notice ensures the tribe will be afforded the opportunity to assert its ri ghts under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.‟ [Citation.]” ( Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) The duty to give notice is triggered whenever the court knows or has r eason to know that an Indian child is involved in a proceeding in which a party is seeking the foster care placement of, or termination of parental rights to, the child. (25 U.S.C. § 1912(a); § 224.2, subd. (a).) Under California law, the juvenile court and child welfare agency “have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child in all dependency proceedings.” (§ 224.3, subd. (a) , italics added .) If the court or social worker for the child welfare agenc y knows or has reason to know that an Indian child is involved, the socia l worker must provide notice in accordance with the ICWA. (§ 224.3, subd. (d).) “[O]ne of the primary purposes of giving notice to the tribe is to enable the
tribe to determine whet her the child involved in the proceedings is an Indian
child. ” ( In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) Therefore, the notice given under the ICWA “must . . . contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child‟s eligibility for membership. [Citations.]” ( In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) To that end, federal regu lations and California statutes provide that the notice must11

include, to the extent known, the names (including maiden, married, and former names or aliases), current and former addresses, birthdates, places of birth and death, and tribal enrollment numbers and/or other identifying information for the Indian child‟s biological parents, grandparents, and great

- grandparents. (25 C.F.R. § 23.11(a), (d)(3); § 224.2, subd. (a)(5)(C).) The social worker in a child dependency case is statutorily required to
interview the child‟s parents and extended family members to gather the information required for the I CWA notice. (§ 224.3, subd. (c).) 13 The notice must be sent by registered mail, with return rec eipt requested, to any tribe in which the child may be a member or eligible for membership, and no proceeding may be held until at least 10 days after receipt o f the notice by the tribe or tribes. (25 U.S.C. § 1912(a); § 224.2, subd. ( a)(1), (a)(3), (d).) In California, “[p]roof of the notice, including copies of notices sent and all return receipts and responses received,” must be filed before every hearing, e xcept the detention hearing, unless the juvenile court determines that the ICWA does not apply to the case. (§ 224.2, subd. (b), (c).) Finally, and most importantly for this case, even if there has been a determination that the ICWA does not apply, “if t he 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

13 Subdivision (c) of section 224.3 provides: “If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer 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, contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact inform ation of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child‟s membership status or eligibility.”12

issued under S ection 224.2, the social worker . . . [must] provide the additional information to any tribes entitled to notice under paragraph (3) of subdivision (a) of Section 224.2 and the Bureau of Indian Affairs.” (§ 224.3, subd. (f).) In this case, once the CSW received the additional information regarding the maternal great

- grandmother Tabatha Morgan‟s name and birthdate , maternal great

grandfather Lee White‟s name and birthdate , and maternal great

- grandfather Ollie
H.‟s birthdate

-- all of which were required to be included in the notice under
section 224. 2, subdivision (a)(5)(C)

-- she was required under section 224.3, subdivision (f), to provide that information to all of the tribes that were sent the April 2013 notice. Her failure to do so was not, as the Department contends,
harmless error. ( In re Che yanne F. , supra , 164 Cal.App.4th at p. 576 [“errors or omissions in the notice are reviewed under the harmless error standard”].) As demonstrated by the Cherokee Nation‟s request for the birthdates and other names of I.B.‟s great

- grandparents, all of whom were alleged to have Indian heritage, that information is critical for tribes to determine whether I.B. may be eligible for membership. (See In re Francisco W. (2006) 139 Cal.App.4th 695
, 703 [“It is essential to provide the Indian tribe with all availab le information about the child‟s ancestors, especially the one with the alleged Indian heritage”].) Because the Department failed to comply with its duty to provide the relevant tribes with all of the information it obtained regarding I.B.‟s relatives, the order terminating mother‟s parental rights to I.B. must be reversed , and the matter
remanded to the juvenile cour t for the limited purpose of providing proper notice
under the ICWA.13 DISPOSITION The order terminating parental rights is reversed. T he case is remanded to the juvenile court with directions to order the Department to provide an updated notice , to all of the tribes that previously were provided notice, that includes all of the corrections and information the Department obtained from

mot her or any of mother‟s relatives , in accordance with the ICWA. If after proper notice the juvenile court finds the child is an Indian child, the court shall proceed in conformity with the ICWA. If after proper notice the juvenile court finds the
child is not an Indian child, the order terminating parental rights shall be reinstated.

CERTIFIED FOR PUBLICATION

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.