Riverside Cnty. Dep't of Pub. Soc. Servs. v. E.K. (In re K.R.)

McKINSTER Acting P. J.

Limited Remand for ICWA Compliance Is Necessary.

Mother's contention as to the adequacy of the investigation and of the resulting notices to the Cherokee tribes is also well taken.

Welfare and Institutions Code section 224.3, subdivision (c), provides that if the court or social worker knows or has reason to know that an Indian child is involved in dependency proceedings, the social worker must make

Mother is correct that it is likely that the paternal grandfather would have had some information about his father's Indian heritage, and that he could possibly have put DPSS in touch with his father, i.e., the children's paternal great-grandfather, or provided information as to the date and place of his father's birth, as well as further biographical information concerning himself. Yet, there is no information in the record that DPSS wrote to the paternal grandfather at his last known address to seek that information or that it made any other effort to contact him. Nor is there any evidence that DPSS

Nor can the juvenile court assume that because some information was obtained and relayed to the relevant tribes, the social services agency necessarily complied fully with its obligations. On the contrary, once there is sufficient information to believe that the children might be Indian children within the meaning of ICWA and the California statutes, "responsibility for compliance" with those statutes "falls squarely and affirmatively" on both the social services agency and the court. ( Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406 , 1410, 81 Cal.Rptr.3d 884 .) Accordingly, the court has a responsibility to ascertain that the agency has conducted an adequate investigation and cannot simply sign off on the notices as legally adequate without doing so. Here, the court did not inquire as to what efforts DPSS had made to contact the paternal grandfather or the paternal great-grandparents, and accordingly failed in its duty to ensure compliance with ICWA.

For these reasons, we will remand the matter for the limited purpose of compliance with the directives of ICWA and of Welfare and Institutions Code sections 224.2 and 224.3.

DISPOSITION

The order terminating parental rights is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of ICWA and of Welfare and Institutions Code sections 224.2 and 224.3, consistent with this opinion. If, after receiving notice as required by those statutes, the relevant tribes do not respond or respond that the children are not Indian children within the meaning of ICWA, the order terminating parental rights shall immediately be reinstated and further

BACKGROUND

Because we address only an ICWA claim, a brief synopsis of the factual and procedural history will suffice.

A petition pursuant to Welfare and Institutions Code section 300 was filed on May 23, 2016, as to the three minors, then age three years, two years, and 20 months, respectively. The children's father, R.R., died of a heroin overdose on April 24, 2016. The petition alleged that mother was unable to provide adequate care for the children and endangered them as a result of her abuse of controlled substances and her untreated mental health issues.

The petition was sustained on June 15, 2016, and reunification services were ordered. Mother had overdosed on heroin several times before the

Mother filed a timely notice of appeal on October 5, 2017.

LEGAL ANALYSIS

Mother informed the court that neither she nor the children had Indian ancestry, and at the jurisdiction and disposition hearing, the court found that ICWA does not apply. Later, in response to information that the children might have Cherokee heritage though their father, respondent Riverside County Department of Public Social Services (DPSS) gave notice of the

Here, the notices sent to the three Cherokee tribes included the name of the children's father, R.R., his dates of birth and death, and his birthplace, as well as the names of the tribes he might have been affiliated with. The notices identified R.R.'s father, Alfred John R., as possibly affiliated with the same tribes, and gave his last known address, birth date and birthplace. The notices further identified R.R.'s paternal grandfather, John "Unknown" R., as possibly affiliated with the same tribes, but listed all other information about him as "unknown" or "no information available." (In each instance, the "R." stands for the same surname.)

Mother contends that this information demonstrates that DPSS did not comply with its duty to interview extended family members to gather pertinent information. She points out that both the paternal grandmother and the paternal aunt were readily available and might have been able to provide additional information. She also points out that DPSS had a last known address for the paternal grandfather, Alfred, and asserts that if DPSS had contacted him, Alfred "certainly" "could have supplied some of the biographical information for his father John [i.e., the paternal great-grandfather], the other relative with purported Cherokee heritage." She asserts that DPSS "clearly" performed no such investigation because the paternal great-grandfather's biographical information is

DPSS contends that because the record is silent as to its investigative efforts, mother's contention that it should have done more is unsupported by the record and her contention that the paternal grandmother, paternal aunt and paternal great-grandfather most likely could have provided additional information is mere speculation. It contends that there is no requirement for the social services agency to document its efforts to contact relatives, and that the absence of information on the subject precludes mother from meeting her burden on appeal, i.e., to demonstrate error based on the record. DPSS relies on In re Gerardo A. (2004) 119 Cal.App.4th 988 , 14 Cal.Rptr.3d 798 and In re Charlotte V. (2016) 6 Cal.App.5th 51 , 210 Cal.Rptr.3d 650 .

DPSS is correct that, in general, an appellant has the burden of producing an adequate record that demonstrates reversible error. ( Aguilar v. Avis Rent A Car System , Inc . (1999) 21 Cal.4th 121 , 132, 87 Cal.Rptr.2d 132 , 980 P.2d 846 .) However, ICWA compliance presents a unique situation, in that, as we have just discussed, although the parent has no burden to object to deficiencies in ICWA compliance in the juvenile court, the parent may nevertheless raise the issue on appeal. ( Isaiah W. , supra , 1 Cal.5th at pp. 6, 9, 14-15, 203 Cal.Rptr.3d 633 , 373 P.3d 444 .) The purpose of ICWA and the California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child and whether it wishes to intervene in the proceedings. ( Isaiah W. , at pp. 8-9, 15, 203 Cal.Rptr.3d 633 , 373 P.3d 444 .) The parent is in effect acting as a surrogate for the tribe in raising compliance issues on appeal. Appellate review of procedures and rulings that are preserved for review irrespective of any action or inaction on the part of the parent should not be derailed simply because the parent is unable to produce an adequate record.

We concur:

MILLER J.

SLOUGH J.