Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Robert Fowler, Temporary Judge, Super.Ct.Nos. J210800, J210801 (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.
Elizabeth A. Wingate, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minors.
RICHLI, J.
A.R. (Mother) appeals from the juvenile court’s order terminating her parental rights as to almost 4-year-old B.R. and 23-month-old R.R. On appeal, Mother contends (1) the juvenile court erred in finding the beneficial parental bond exception did not apply to the termination of parental rights, and (2) the juvenile court erred in failing to comply with the notice provisions of the Indian Child Welfare Act (ICWA). Although there was an attempt to give notice, we will hold that the notice was not in substantial compliance with the ICWA. However, we find no other error. Accordingly, we will order a limited remand for the purpose of complying with the ICWA.
I
FACTUAL AND PROCEDURAL BACKGROUND
The children came to the attention of the San Bernardino County Department of Children’s Services (DCS) in October 2006, after R. was born drug positive. Mother, too, tested positive for methamphetamine and admitted to methamphetamine use a few days prior to giving birth. She confessed to having a chronic drug problem and asked for help in addressing this issue. Mother also admitted to having lost an older child (half sibling V.R.) after her failure to reunify with him. She further admitted to domestic violence in the home and stated that father of R. (M.R.), who was also a drug user and had a violent temper, had beat her and fractured her skull. M.R. had a lengthy and significant criminal history. Mother also had a criminal history and admitted to being entrenched in the gang lifestyle, “taking drugs, drinking, and gang banging.” The children were detained and placed in a confidential foster home.
On October 12, 2006, petitions were filed on behalf of the children pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The children were formally removed from parental custody at the October 13, 2006, detention hearing.
All future statutory references are to the Welfare and Institutions Code unless otherwise specified.
Mother stated on October 19, 2006, that she no longer used drugs and would “do anything to regain custody of her children”; however, she was arrested four days later for sales and possession of a controlled substance. DCS recommended no services for Mother, based on Mother’s failure to reunify with her oldest child; her longstanding and extensive criminal history, gang lifestyle, and substance abuse history; her poor insight and judgment; and her failure to address the issues that resulted in her oldest child’s removal.
Following a pretrial settlement conference, the parties reached an agreement. Mother waived her rights and pled no contest to the allegations raised in the petitions. The court found the allegations in the petitions true and declared the children dependents of the court. Reunification services were ordered for Mother and M.R. Supervised visitation was ordered one time per week, with authorization to liberalize.
The father of B. could not be located and therefore was not provided with services. Neither M.R. nor the father of B. is a party to this appeal.
Mother had been participating in services, and by the time of the six-month review hearing, DCS recommended continuing services for Mother. The social worker opined that though Mother had been regularly participating in her case plan, it appeared as though Mother had not benefitted from the programs.
Meanwhile, B. and R. were developing well in their foster home and appeared to be happy children. R., who had been placed in the home since birth, appeared to be attached to the foster parent and her three daughters. Mother had consistently visited with the children once a week, and the visits were appropriate. The social worker reported, “The children appear to respond to [M]other as if she were any visiting relative.” Though B. had initially cried after visits, he had since become acclimated to the routine of visitation, and neither child had difficulty with separating from Mother after the visits.
Services were continued for six more months. DCS was directed to provide Mother with unsupervised visitation after she completed two more domestic violence classes.
By the time of the 12-month review hearing, DCS recommended that Mother’s services be terminated and that a section 366.26 hearing be set. Though Mother had completed her case plan, she had reverted back to her old ways. She was residing with M.R., who had assaulted her in the past; she had continually missed her drug testing; and she had reported that she had relapsed. In addition, the social worker opined that Mother was merely “going through the motions required to complete” her case plan but had not truly accepted responsibility for her actions or benefitted from the programs offered.
The children, however, were doing well in their foster home. B. was a happy well-adjusted toddler who was bonded to his caretaker and his mother. R. was also happy, well adjusted, and bonded to his caretaker. Mother had continued to consistently visit with the children twice per week, and the visits were generally appropriate. It appeared that both children enjoyed the visits, but neither child had difficulty separating from Mother after the visits. Mother had been having unsupervised visits; however, after M.R. was released from prison and commenced visits with Mother, the visits with the children were reverted back to supervised visitation.
Following a contested 12-month review hearing, the court found that there was not a substantial probability that either parent would reunify with either child within the statutory time frame, ordered services terminated, and set a section 366.26 hearing.
On March 11, 2008, the children’s older half brother, V., filed a section 388 petition requesting that the court make an order that would allow him to stay in his brothers’ lives based on their sibling relationship and if possible for his brothers to reside at his grandmother’s house. The request was denied as the facts did not support the request and there was no showing of changed circumstances.
In an adoption assessment report, the social worker noted the children were appropriate for adoption based on their ages of one and three years and their caretaker’s willingness to pursue adoption. The children had been placed in their caretaker’s home since October 10, 2006, and appeared to be very attached to their foster mother and her children. The children called their foster mother “mom,” and their relationship with her was described as very good. The foster mother indicated that she loved the children, that they loved her, and that she was very bonded to them and wanted to give them a permanent home. The foster mother was not open to maintaining a relationship with Mother or M.R., as she felt the children would be confused, but she was willing to send letters and pictures. She was willing to maintain a sibling relationship with V. as long as it was appropriate.
On April 14, 2008, Mother filed a section 388 petition, seeking reinstatement of services and liberalization of visits. The request was summarily denied.
Mother and M.R. continued to have twice weekly visits with the children, and the visits went well. However, there were occasions when the parents’ actions were not appropriate. For example, at one visit, Mother approached the foster mother in the presence of the children and asked why B. did not call Mother “mom” anymore. The social worker intervened and stated that that was not a question the foster mother could answer. B. focused on the floor during the exchange and made no eye contact with anyone. Following the visit, B. was unusually quiet the rest of the day; the following day, he had defecated in his pants at school and had been unusually withdrawn.
Additionally, at some of the visits, Mother and M.R. had become agitated with each other due to disagreements, and Mother had made derogatory statements about M.R. in front of the children. Moreover, Mother had referred to R. as a “sissy la la” when he cried. Also, Mother had brought her girlfriend Brandy to visits, and although Brandy was not allowed to participate in the visits, Mother would ask B. to call Brandy “daddy.” Since March 16, 2008, R. had had fits of crying which turned into screaming at the commencement of visits. R. would do better when his father M.R. was present; M.R. was able to get R. calmed down and to remain calm during the visit. The social worker opined that R.’s reaction was the result of separation anxiety from his foster mother, showing that he had formed a healthy bond with her, rather than any negative feelings towards his parents. The social worker noted that R. had lived with the foster mother his entire life and that he shared a strong bond with her. R. sought comfort, love, and attention from his foster mother. B. had lived with the foster mother since age two and also identified her as his parent, even though he had stated in the past that he had two mommies.
The contested section 366.26 hearing was held on June 2, 2008. The social worker’s reports were admitted into evidence without objection. Following testimony of Mother and argument from counsel, the court found the children adoptable and terminated parental rights.
II
DISCUSSION
A. Beneficial Relationship Exception
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one of seven statutory exceptions. (Welf. & Inst. Code, § 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(c)(1)(B)(vi).)
Mother claims that the juvenile court erred in not finding applicable the section 366.26, subdivision (c)(1)(B)(i) exception to termination of parental rights, as she had maintained regular contact with the children, and the children would benefit from the continued contact with her.
The parental benefit or beneficial relationship exception is set forth in section 366.26, subdivision (c)(1)(B)(i). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The exception applies where “‘[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.’” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of proving that the exception applies. (Id. at p. 826.) “The parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life.” (Id. at p. 827.)
The parent must also show that his or her relationship with the child “‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’” (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
“‘The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.’” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350, quoting In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
“‘Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.’ [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) One court has observed, “The ‘benefit exception’ found in section 366. 26, subdivision (c)(1)(A) may be the most unsuccessfully litigated issue in the history of law.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
Effective January 1, 2008, section 366.26, subd. (c)(1)(A) was renumbered as section 366.26, subdivision (c)(1)(B)(i).
There must be a “‘compelling reason’” for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a “quintessentially discretionary determination.” Thus, we review the juvenile court’s determination for an abuse of discretion. (Id. at p. 1351.) Nevertheless, “‘[e]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . . ”’ [Citations.]” (Ibid.)
We note that courts have reached different conclusions as to the standard of review that applies to a juvenile court’s ruling on exceptions to adoptability under section 366.26, subdivision (c)(1). In In re Autumn H., supra, 27 Cal.App.4th 567, the court held that a finding that no exceptional circumstances exist to prevent the termination of parental rights is reviewed under the substantial evidence test. (Id. at pp. 575-576.) In contrast, in In re Jasmine D., supra, 78 Cal.App.4th 1339, the court applied the abuse of discretion standard of review. (Id. at pp. 1351-1352.) For purposes of the present case, it makes no difference which standard applies because, as discussed below, we conclude that the juvenile court did not err under either test.
Here, although Mother could satisfactorily demonstrate that she had maintained regular contact with the children and that the visits went well, she had failed to show that the children would benefit from continuing the relationship. As stated above, “the parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
There was insufficient evidence that the children would benefit more from continuing their parent-child relationship with Mother than from adoption. B. was merely 22-months-old when he was removed from Mother’s custody. By the time parental rights were terminated on June 2, 2008, he had lived with his foster mother for 20 months, just two months shy of the length of time he had spent with Mother. In addition, although B. had initially cried at the end of visits, as time progressed he became acclimated to the process and had no difficulty separating from Mother.
R. was about three days old when he was placed with his foster parent. He had lived his entire life outside of Mother’s care and in the home of his foster/adoptive mother. There is no indication in the record that R. had trouble separating from Mother after visits; in fact, by the time of the section 366.26 hearing, R. had emotional issues due to being separated from his foster mother.
The children had lived with their foster/prospective adoptive mother for close to two years; she had provided the children with permanency and stability. There was no evidence to show that the children would be greatly harmed by terminating parental rights. The social worker noted that the children were doing well in their prospective adoptive home and that their prospective adoptive mother was willing to adopt them and give them a permanent home. On the other hand, the record indicates that issues began to arise with visitation by the time of the section 366.26 hearing.
Contrary to Mother’s suggestion, the present case bears no resemblance to the situation in In re Jerome D., supra, 84 Cal.App.4th 1200 (Jerome D.). There the court reversed a finding of adoptability that was apparently based solely on the caretaker’s willingness to adopt. The agency had not begun a home study and had not performed background checks on the caretaker, who was the mother’s former boyfriend. (Id. at pp. 1203, 1205.) In addition, the assessment did not address the caretaker’s three criminal convictions for assaulting the child’s mother and child protective services history for neglect and child abuse. (Id. at p. 1205) Nor did the assessment consider either the 8-year-old child’s close relationship with his mother or his prosthetic eye, which required care and treatment. (Ibid.) In light of these deficiencies, the appellate court found that the evidence of adoptability did not meet the high standard of clear and convincing evidence. (Id. at pp. 1205-1206.)
In the present case, the evidence shows that R. and B. were bonded to their foster mother, and that she had cared for R. practically his entire life and B. for half of his life. The foster mother was also committed to adopting the children, and the foster mother and the children had a very strong bond. The major uncertainties regarding the potential adoptive parent in Jerome D. are not present in this case. In addition, it was quite evident that the 8-year-old child in Jerome D. had a close relationship to his mother. This case is distinguishable from Jerome D., in which the child was unlikely to be adopted; the mother was having unsupervised overnight visits with him in her home; there was expert evidence that the two shared a strong and well developed parent-child relationship; and the boy, who had lived with the mother for the first six years of his life, wanted to live with her again. (Jerome D., supra, 84 Cal.App.4that pp. 1205-1207.) In contrast, there was no dispute that R. and B. were likely to be adopted; Mother’s visitation remained supervised (albeit she had had some unsupervised visits); there was no expert evidence that there was a parent-child relationship; and, although R. and B. were too young to understand the proceedings and voice a preference, they viewed the foster parent as their primary caregiver.
Application of the beneficial relationship exception requires the parent to show “more than that the relationship is ‘beneficial.’” (In re Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) The parent must demonstrate the relationship “‘promote[s] the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents.’” (Ibid.; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [parent must occupy more than a “pleasant place” in the child’s life for the beneficial relationship exception to apply]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [beneficial relationship exception did not apply; loss of mere “frequent and loving” contact with parent was insufficient to show detriment from termination of parental rights].)
As noted previously, to determine whether the beneficial relationship exception applies, “the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The beneficial relationship exception is “difficult to make in the situation, such as the one here, where the parents have [not] advanced beyond supervised visitation.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
In her reply brief, Mother relies on the recent opinion in In re S.B. (2008) 164 Cal.App.4th 289 and asserts that her situation is similar. In S.B., the father had been the child’s primary caregiver for three years. (Id. at p. 298.) A bonding study indicated that “because the bond between [the father] and [the child] was fairly strong, there was a potential for harm to [the child] were she to lose the parent-child relationship.” (Id. at p. 296.) The social worker even admitted that there would be “some detriment” to the child if parental rights were terminated. (Id. at p. 295.) The juvenile court found that the father and the child had “‘an emotionally significant relationship’ . . . .” (Id. at p. 298.) In addition, because the prospective adoptive parents in S.B. were relatives, the father there did not have to demonstrate termination would greatly harm his daughter (id. at p. 300, fn. 10, citing § 366.26, subd. (c)(1)(A)), but he nevertheless did so, and the juvenile court’s contrary conclusion was unfounded. (S.B., at p. 300.)
There is no analogous evidence in this case. Here, in contrast, as discussed, ante, substantial evidence supports the juvenile court’s conclusion the parents failed to demonstrate termination would greatly harm the children. Absent a showing of great harm, there is no basis to question the juvenile court’s conclusion that the benefits of adoption outweighed any detriment ensuing from termination. (See Autumn H., supra, 27 Cal.App.4th at p. 575 [well-being derived from continuing parent-child relationship must always be measured against Legislative preference for adoption].)
We conclude the juvenile court reasonably found there was insufficient evidence that R. and B. would benefit more from continuing their relationship with Mother than from adoption. The children were doing well in their prospective adoptive family’s home. There is no evidence that the children would be harmed -- much less “greatly harmed” (see In re L. Y. L., supra, 101 Cal.App.4th at p. 953) -- by severing the parent-child relationship with Mother. The juvenile court thus properly found that the beneficial parental relationship exception to terminating parental rights did not apply.
B. ICWA
Mother contends the juvenile court failed to comply with the notice provisions of ICWA, and therefore reversal is required. Specifically, she claims DCS had a duty of inquiry and erred in failing to include information on maternal relatives, which were known to the social worker, in the notice. She also argues that there was no information in the record that the social worker made any attempt to learn M.R.’s information to include it on the notices.
1. Additional Factual and Procedural Background
At the detention hearing, the court asked Mother whether she had any American Indian ancestry. Mother replied, “I have no idea. It’s possible, but I don’t know.” The court then asked Mother if she had heard of anything, to which she responded, “No.” When the same question was asked of M.R., he indicated that he had Choctaw heritage but did not know how far back the heritage was in his family.
At the time of the detention hearing, Mother was living with M.R. and the maternal grandmother. Mother also reported that she had kept in contact with her older sister, who raised her. Mother’s older child, V., had been placed with maternal relatives over the past 14 years but was currently in a group home.
On October 13, 2006, M.R. filed a Parental Notification of Indian Status form indicating that he might have Choctaw heritage. Mother submitted the same form, checking the box stating that she might have Indian ancestry. The name of the tribe was entered next to the box but was scribbled out.
At the November 3, 2006, hearing, the court inquired a second time as to M.R.’s Indian heritage, to which he replied that he believed it was Choctaw. When asked about her Indian heritage, Mother responded she did not have any that she knew of, but it was possible.
On November 29, 2006, an ICWA declaration of due diligence (the Declaration) was submitted indicating that service had been sent to the Bureau of Indian Affairs (BIA), the Choctaw Nation of Oklahoma, the Mississippi Band of Choctaw Indians, the Jena Band of Choctaw Indians, and the Blackfeet Tribal Council. Included with the Declaration were signed return receipts indicating notice had been sent via certified mail and received by all five entities, but as of that date no confirmation of membership had been received.
The JV-135 forms attached to the Declaration included Mother’s legal name, her past address, birth date, and birth place. It listed the maternal grandfather as Miguel Rodriguez but contained no other information about him. It did not contain any information about the maternal grandmother or the maternal great-grandparents. The notice merely listed that information as unknown.
As to M.R., the form listed his name, date of birth, place of birth, and current address. It listed his mother (the paternal grandmother) as “Ms[.] Frazier.” It did not contain any information about the paternal grandfather or the paternal great-grandparents, listing that information as unknown.
On November 29, 2006, the Blackfeet Tribal Council wrote a letter to DCS indicating the children were not Indian children as defined by ICWA. A letter from the Choctaw Nation of Oklahoma dated January 5, 2007, also indicated that ICWA did not apply as to R. based on the information provided. On May 7, 2007, the Jena Band of Choctaw Indians wrote a letter to DCS noting that neither R., B., nor their relatives were eligible for membership with the tribe.
A second ICWA declaration of due diligence was filed on May 24, 2007, indicating that letters were received from the Mississippi Band of Choctaw Indians, the Blackfeet Tribal Council, and the Jena Band of Choctaw Indians. These letters noted the children were not eligible for membership.
The court found that ICWA notice had been satisfied at the jurisdictional/ dispositional hearing. At the six-month review hearing, the court found that ICWA did not apply.
2. Analysis
“[O]ne of the purposes of ICWA notice is to enable the tribe or BIA to investigate and determine whether the minor is an ‘Indian child.’ [Citation.]” (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.) “‘“[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.” [Citation.]’ [Citation.]” (In re K.W. (2006) 144 Cal.App.4th 1349, 1358, quoting In re Karla C. (2003) 113 Cal.App.4th 166, 175, quoting 25 C.F.R. § 23.11(b).) Thus, the notice must include the following information, “if known”: “names . . . and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great grandparents . . ., 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. 23.11(d)(3).)
“Substantial compliance with the notice requirements of ICWA is sufficient. [Citation.]” (In re Christopher I. (2003) 106 Cal.App.4th 533, 566; accord, In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421-1422; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 237 [Fourth Dist., Div. Two].) However, “[t]he notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. [Citation.]” (In re K.W., supra, 144 Cal.App.4th at p. 1356.) Accordingly, substantial compliance requires the notice to include sufficient information -- at least to the extent that it is both available and otherwise required by law -- to give the tribe “a meaningful opportunity to evaluate whether the dependent minor is an Indian child within the meaning of the ICWA. [Citation.]” (In re Louis S. (2004) 117 Cal.App.4th 622, 629; accord, In re Karla C., supra, 113 Cal.App.4th at p. 178.)
Here, the maternal grandmother’s name was hardly unavailable. In fact, this information would have been readily available to DCS had DCS made appropriate inquiry. Mother and B. had been residing with the maternal grandmother when B. was removed from Mother’s custody. It is apparent that DCS had information concerning the maternal grandmother and where she resided. There can be no excuse for completely omitting her name.
In re O.K. (2003) 106 Cal.App.4th 152, relied upon by DCS, is distinguishable from the instant case. In that case, the court held that vague information about possible Indian heritage from a nonparty paternal grandmother in a section 366.26 hearing did not trigger ICWA notice requirements. (O.K., at pp. 155-157.) Here Mother, a party, provided the possibility of Indian heritage, and DCS had a continuing duty of inquiry in light of the fact that information was available from the maternal grandmother.
Omitting the maternal relative’s information in the notice might arguably have been harmless, if DCS had inquired of the maternal grandmother or Mother’s sister of whether the family had any Indian heritage. Since Mother here indicated that it was “possible” that she had Indian heritage, the social worker should have followed up with the maternal relatives to attempt to ascertain whether or not Mother in fact had Indian heritage.
Moreover, even if Mother’s vague responses did not trigger a duty to inquiry of the maternal relatives, it is a mystery why the social worker did not include any information in the notice concerning the paternal grandparents except for the last name of the paternal grandmother. In December 2006, M.R., who had claimed Indian ancestry through the Choctaw tribe, had written at least two letters to the court, one of which was apparently copied to the social worker and DCS, informing the court that “no one [had] tryed [sic] to get in contect [sic] with my relatives.” In those letter, M.R. gave the full name, address, and telephone numbers of his mother, father, and sister. However, the notice concerning the paternal relatives only included the name of “Ms. Frazier” as the paternal grandmother and failed to include the name of the paternal grandfather.
DCS argues that the notice substantially complied with ICWA and was therefore adequate. However, DCS does not cite any cases holding that the failure to include required information on an ICWA notice form, which information is known to the department and which information is directly relevant to determining the minor’s lineage, constitutes substantial compliance.
Based on the law and the record in this case, we therefore conclude that the notice given was not in even substantial compliance with ICWA. Because we have not found any other error, the appropriate disposition is a limited remand for the purpose of complying with the ICWA. (In re Terrance B. (2006) 144 Cal.App.4th 965, 971-975; In re Francisco W. (2006) 139 Cal.App.4th 695, 704-710; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343 [Fourth Dist., Div. Two].)
III
DISPOSITION
The order terminating parental rights is reversed. As we did in In re Jonathon S., supra, 129 Cal.App.4th 334, 342-343, we order a limited remand as follows.
The juvenile court is directed to order DCS to make a reasonable inquiry regarding the children’s Indian ancestry in order to give notice in compliance with ICWA and related federal and state law. (Cal. Rules of Court, rule 5.481(4)(A).) Once the juvenile court finds that DCS has given such notice, it shall make a finding with respect to whether R. and B. are Indian children. (See Cal. Rules of Court, rules 5.481(b)(1), (4), 5.482(d)(1), (2).)
In order to avoid a silent record on the duty of inquiry, we note that a better practice for DCS is to include in the notice whether an inquiry was made, of whom the inquiry was made, and whether any information concerning Indian ancestry was available.
If at any time within 60 days after notice has been given there is a determinative response that R. or B. is or is not an Indian child, the juvenile court shall find in accordance with the response. (Cal. Rules of Court, rule 5.482(d)(1), (2).) As to either child, if there is no such response, the juvenile court shall find that that child is not an Indian child. (Cal. Rules of Court, rule 5.482(d)(1).)
If the juvenile court finds that either R. or B. is not an Indian child, it shall reinstate the original order terminating parental rights as to that child.
If the juvenile court finds that either R. or B. is an Indian child, it shall set a new section 366.26 hearing as to that child, and it shall conduct all further proceedings in compliance with the ICWA and all related federal and state law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: RAMIREZ, P.J., MILLER, J.