MOORE, Acting P. J., Dissenting. The juvenile court was put on notice that Antoinette “[might] be of Indian ancestry,” when the dependency petition containing that statement was filed. Subsequently, the father appeared on the scene and said his maternal grandparents had Indian ancestry. In an addendum report filed the day of the termination hearing, Orange County Social Services Agency (SSA) informed the court of the father’s [1415]claimed Indian heritage. The report also reflected that just one day before the termination hearing, SSA had sent correspondence to the Bureau of Indian Affairs (BIA) regarding Antoinette’s possible Indian ancestry. The court accepted the report into evidence. Inexplicably, the court chose to ignore the information concerning the possible Indian heritage of Antoinette. The court made no findings as to the applicability of the Indian Child Welfare Act (ICWA) and failed to ensure compliance with the ICWA notice requirements.
Having been informed about Antoinette’s possible Indian heritage twice, the court certainly was on notice that she might be an Indian child. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255 [126 Cal.Rptr.2d 639] (Dwayne P.) [court has reason to believe child is Indian when public or state-licensed agency involved in child protection services has obtained information so suggesting].) As to this much, my colleagues agree. (Maj. opn., ante, at p. 1408.) “When the court has reason to know Indian children are involved in dependency proceedings, as here, it has the duty to give the requisite notice itself or ensure the social services agency’s compliance with the notice requirement. [Citations.] In our view, the court’s duty is sua sponte .... [Citation.]” (Dwayne P., supra, 103 Cal.App.4th at p. 261.)
As the majority opinion acknowledges (maj. opn., ante, at p. 1406), 25 United States Code section 1912(a) provides as follows: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child, is involved, the party seeking the . . . termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, ... of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner . . . . No . . . termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . ...” In an instance such as this, then, the notice that would otherwise be given to the tribe must be given to the Secretary of the Interior, since the tribe is not known. (25 U.S.C. § 1912(a); In re H. A. (2002) 103 Cal.App.4th 1206, 1211 [128 Cal.Rptr.2d 12]; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422 [285 Cal.Rptr. 507] (Kahlen W.).) The prescribed notice must pertain to the pending proceedings and the right of intervention.
“The Guidelines for State Courts; Indian Child Custody Proceedings (hereafter Guidelines) (44 Fed.Reg. 67584-67595 (Nov. 26, 1979)) promulgated under the statute for aid in interpreting its provisions identify in some detail the responsibilities muring to the Secretary under the notice provisions [1416]of [Title 25 United States Code] section 1912. First, ... the Guidelines provide notice to the Secretary should include the following information: HO (1) Name of Indian child, birthdate, birthplace, [f| (2) Indian child’s tribal affiliation, [|] (3) Names of Indian child’s parents or Indian custodians, including birthdate, birthplace, and mother’s maiden name, and [|] (4) A copy of the petition, complaint or other document by which the proceeding was initiated. (25 C.F.R. § 23.11.)” (Kahlen W., supra, 233 Cal.App.3d at pp. 1422-1423, fn. omitted.)
In addition, the notice to the BIA shall include statements: (1) regarding the right of the Indian parents, Indian custodians and tribe to intervene in the proceedings; (2) to the effect that counsel will be appointed for Indian parents or Indian custodians who are indigent; (3) regarding the right of the Indian parents, Indian custodians and tribe to obtain an additional 20 days to prepare for the proceedings; (4) providing the location, address and telephone number of the court; (5) regarding the right of the Indian parents, Indian custodians and tribe to petition the court for a transfer of the proceedings to a tribal court; (6) regarding the potential legal consequences of an adjudication on future parental and custodial rights; and (7) to the effect that the recipients of the notice must keep all information contained therein confidential. (25 C.F.R. § 23.11(e) (2002); In re H. A., supra, 103 Cal.App.4th at p. 1212.)
In this case, as the father points out in his opening brief, there was no evidence before the juvenile court that SSA had provided the required information. SSA said in its addendum report that it had “submitted letters” to the BIA and the State Department of Social Services “regarding the possibility of Indian ancestry within Antoinette’s birth family.” The father argues there is no proof the content of these letters provided the requisite information concerning the proceedings and the right of intervention. He is right.
My colleagues impliedly acknowledge that the record before the juvenile court was inadequate to determine whether the ICWA notice provisions had been followed. (Maj. opn., ante, at p. 1412.) Rather than remand the case for a determination of the pertinent factual issues, they choose to take additional evidence on appeal. We declined to follow this course of action in In re Jennifer A. (2002) 103 Cal.App.4th 692, 703 [127 Cal.Rptr.2d 54] (Jennifer A.), where we stated that “[m]aking the appellate court the trier of fact is not the solution.” We further explained: “[I]t is up to the juvenile court to review the information concerning the notice given, the timing of the notice, and the response of the tribe, so that it may make a determination as to the applicability of the ICWA, and thereafter comply with all of its provisions, if [1417]applicable.” (Id. at p. 705.) In my view, that statement remains correct. “[T]he Guidelines provide that a juvenile court has an affirmative duty to inquire about a child’s Indian status. [Citation.]” (Kahlen W., supra, 233 Cal.App.3d at p. 1425.) “The juvenile court’s failure to secure compliance with the notice provisions of the Act is prejudicial error.” (Id. at p. 1424.)
In at least five opinions published in the last two months, appellate courts have admonished juvenile courts and social services agencies for giving the ICWA notice provisions short shrift. (See In re Suzanna L. (2002) 104 Cal.App.4th 223 [127 Cal.Rptr.2d 860] [order terminating parental rights reversed when no notice was given to BIA and trial court was not provided with copies of notices, return receipts or responses from tribes]; In re H. A., supra, 103 Cal.App.4th 1206 [party seeking termination of parental rights or foster care placement of possible Indian child must serve proper notice, with copy of dependency petition, and file with superior court copies of proof of registered or certified mail plus return receipts, notices served, and any responses received]; In re Jeffrey A. (2002) 103 Cal.App.4th 1103 [127 Cal.Rptr.2d 314] (Jeffrey A.) [order terminating parental rights vacated when record failed to show whether notice given complied with ICWA’s requirements and was sent to Secretary of Interior and BIA Area Director]; Jennifer A., supra, 103 Cal.App.4th 692 [no evidence regarding notice, receipt of notice, or any responses from tribes or BIA provided to juvenile court, which erred in failing to determine whether notice given in compliance with ICWA]; Dwayne P., supra, 103 Cal.App.4th 247 [court has sua sponte obligation to ensure compliance with notice requirements even when parents make vague statements that they may have Cherokee Indian heritage but provide no evidentiary showing].) In each of those cases, either the matter was remanded for, or writ petitions were granted directing, further proceedings in compliance with the ICWA.
As the majority indicates (maj. opn., ante, at pp. 1413-1414), the juvenile court should have made a determination as to whether the ICWA applies, but it did not do so. While the majority does not hesitate to make that determination on appeal, I view the issue as one best left for the juvenile court to resolve. (Jennifer A., supra, 103 Cal.App.4th at p. 705.) The matter should be remanded for that determination.
That aside, once the majority has taken SSA’s evidence on appeal, it turns out what was given was no notice at all—only a request for information with respect to Antoinette. What SSA sent the BIA was a form entitled “Request for Confirmation of Child’s Status as Indian.” It provided no information whatsoever regarding the pending proceedings.
As observed in In re Samuel P. (2002) 99 Cal.App.4th 1259 [121 Cal.Rptr.2d 820], the request for confirmation form provides no court case [1418]number or other information with respect to the dependency proceedings, no notice of any hearings and no information regarding the tribe’s right to intervene. (Id. at p. 1266.) The deficiency of this form for use in lieu of a notice was discussed further in both Jeffrey A., supra, 103 Cal.App.4th 1103 and In re H. A., supra, 103 Cal.App.4th 1206. As stated in Jeffrey A., supra, 103 Cal.App.4th 1103, “Two forms have been issued by the State of California Health and Welfare Agency and the Department of Social Services to comply with the ICWA. They are entitled ‘Request for Confirmation of Child’s Status as Indian’ (form ‘SOC 318’) and ‘Notice of Involuntary Child Custody Proceedings Involving an Indian Child’ (form ‘SOC 319’). Only the latter form contains notice of the proceedings and of the right to intervene.” (Id. at p. 1108.)
In re H. A., supra, 103 Cal.App.4th 1206, in agreement, rejected the use of a request for confirmation form (SOC 318) for the provision of notice and distinguished that form from the standard notice form (SOC 319). “The request for confirmation ... is another form promulgated by the State of California, Health and Welfare Agency. However, it serves a purpose other than notice. The request for confirmation includes blanks for detailing the dependent child’s family history as an aid to a tribe in determining whether the particular dependent child qualifies for Indian child status.” (Id., at p. 1212.) The court in In re H. A., supra, 103 Cal.App.4th at page 1211 further stated that compliance with the ICWA notice requirements necessitates only completion of form SOC 319 and the attachment of a copy of the dependency petition. Form SOC 319 is intended to satisfy the Guidelines notice requirements. (Ibid.)
The record of the juvenile court proceedings in the case before us and the additional evidence taken on appeal show a complete failure to give notice of the dependency proceedings. The BIA was not provided with a copy of the dependency petition, a court case number, a location and address for the juvenile court, or the other information required by 25 Code of Federal Regulations part 23.11(e) (2002). The majority opinion overlooks this issue. It implies the only problem was the court’s failure to wait 10 days after the BIA’s receipt of information from SSA before proceeding with the termination hearing. (Maj. opn., ante, at pp. 1408-1409.) It omits to address whether the information SSA provided to the BIA was what was required under the ICWA.
Rather, my colleagues opine that “the purpose of notice to the Secretary is so that she may ‘provide the requisite notice to the parent or Indian custodian and the tribe.’ ([25 U.S.C.] § 1912(a).)” (Maj. opn., ante, at p. 1414, fn. 4.) Yet other cases have explained more fully that “[t]he requisite notice to [1419]the tribe or BIA serves a twofold purpose. First, it enables the tribe or BIA to investigate and determine whether the minor is an ‘Indian child.’ . . . [Citations.] Secondly, it advises the tribe or BIA of the proceedings and the tribe’s right to exercise its jurisdiction in the matter or at least intervene in the proceedings. [Citations.]” (In re Pedro N. (1995) 35 Cal.App.4th 183, 186-187 [41 Cal.Rptr.2d 819], fn. omitted.) While the ultimate goal of notice to the tribe is the same under either characterization, we cannot be certain that the BIA’s response to SSA in this case would have been identical if it had been notified of the dependency proceedings.
The majority opinion observes that “where SSA has determined that the ICWA may apply but no tribe has been identified, ‘notice of the proceedings to the Bureau of Indian Affairs and further inquiry regarding the possible Indian status of the child are the only requirements.’ (Cal. Rules of Court, rule 1439(e).)” (Maj. opn., ante, at p. 1409.) But when analyzing California Rules of Court, rule 1439(e), the majority opinion addresses only the requirement regarding further inquiry and omits to discuss the requirement of notice of the proceedings. The type of notice required is key. The majority says that “SSA sent notice regarding Antoinette’s possible Indian heritage to the appropriate regional Bureau of Indian Affairs (BIA) office . . . the day before the termination hearing.” (Maj. opn., ante, at p. 1405.) Notice of Antoinette’s possible Indian heritage was not what was required. Notice of the dependency proceedings was required, per both California Rules of Court, rule 1439(e) and 25 United States Code section 1912(a).
My colleagues overlook this failing, apparently because of the minimal information available about Antoinette’s possible Indian heritage and the BIA’s tepid response to the request for confirmation form. While it is tempting to toss aside the application of the ICWA because of the father’s failure to provide information one might expect him to know, it is improper to do so. As stated in Dwayne P., supra, 103 Cal.App.4th at page 258, “The Agency complains that the parents made no evidentiary showing. The Agency notes parents can ‘contact their family and any tribe they think they may have heritage with, and seek to obtain further evidence of their Indian ancestry that would show their child is or may be an Indian child,’ ‘take steps to become enrolled members themselves, or to enroll their children, if they truly have Indian heritage and are eligible’ and ‘bring that new information to the court and seek to modify the previous orders, require notice to the tribe, and compel the application of the ICWA.’ The ICWA, however, is designed to protect Indian children and tribes notwithstanding the parents’ inaction. [Citations.]” (Italics added.) Notice of the dependency proceedings was required in this case irrespective of the fact the father had provided but a threadbare snippet of information concerning the Indian heritage of his child.
[1420]The majority gives an unintended, albeit risky mixed message—that it is sometimes acceptable for juvenile courts to completely ignore indications that a child may be of Indian ancestry. I cannot agree. We must “liberally construe the ICWA for the benefit of Indians. [Citations.]” (In re Pedro N., supra, 35 Cal.App.4th at p. 190.) Moreover, unless courts assure proper statutory notice is given to the BIA, adoptive parents of a child with Indian heritage will never be sure that a tribe claiming a violation of the ICWA notice provisions will not be knocking at their door in years to come. (25 U.S.C. § 1914 [tribe may petition to invalidate action on showing of violation of 25 U.S.C. § 1912]; In re Desiree F. (2000) 83 Cal.App.4th 460 [99 Cal.Rptr.2d 688] [trial court orders invalidated because notice not given in compliance with ICWA]; Cal. Rules of Court, rule 1439(n) [final decree of adoption may be set aside].) In my opinion, the judgment should be reversed and the matter remanded for the juvenile court to ensure that notice is given in compliance with the ICWA.
Appellant’s petition for review by the Supreme Court was denied April 23, 2003.