In re J.S.

Filed 4/30/07 In re J.S. CA1/5

Received for posting 5/7/07

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Valerie T. contends in this dependency appeal that the record does not show proper notice has been given under the provisions of the Indian Child Welfare Act (25 U.S.C.  1901 et seq.) (ICWA). The respondent San Mateo County Human Services Agency (Agency) concedes error in this regard, and suggests that the proper remedy is to remand the matter to the trial court for proper compliance with the ICWA notice requirements. We agree, and remand for the giving of proper notice.

I. FACTS AND PROCEDURAL HISTORY

The sole issue raised on this appeal does not relate to the facts alleged in the juvenile dependency petition. In brief, appellant is the mother of a young minor, J.S., who was born in 2003. Shortly after J.s birth, questions arose as to whether appellant was able to properly care for J., primarily because of her recurring substance abuse problems, which caused both appellant and J. to test positive for illegal drugs at the time of his birth.

A dependency petition was filed by the Agency, and J. was placed in foster care, with plans to eventually reunify him with appellant. J. was returned to appellants care for a few months, but appellant suffered another relapse, and the viability of those plans to reunify appellant and J. were placed in doubt.

The Agency suggested that the court should set the matter for a hearing under section 366.26 to determine whether to terminate appellants parental rights. A hearing to consider termination of appellants parental rights was set for May of 2006, but that hearing apparently did not take place because of the pendency of this appeal, and the record before us does not include any order to terminate appellants parental rights.

Significantly, appellant informed a social worker in January 2004 that J.s father was a person with Cherokee and Hawk or Choctaw ancestry. The social service reports to the court indicate this information was deemed sufficient to trigger a duty to comply with ICWA notice requirements and provide required notices to the Bureau of Indian Affairs (BIA) and any relevant tribes. However, the record before us does not include copies of the relevant ICWA notices.

II. DISCUSSION

The provisions of ICWA were designed to protect the interests of Indian children, and promote the stability and security of Indian tribes and families. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469 (Desiree F.).) ICWA contains an elaborate procedural scheme to afford this protection, and state courts must yield to the governing federal law. When a court knows that an Indian child is involved in a proceeding to remove the child from his or her parents, the party prosecuting the proceeding must notify the childs tribe of the pending proceedings and of the tribes right to intervene. If the identity of the tribe cannot be determined, notice is given to the federal government, which then has 15 days to notify the tribe or notify the court that it needs additional time. (Ibid.) Violation of ICWA notice provisions may be cause to invalidate the orders issued in the dependency proceeding. (25 U.S.C. 1914.)

The courts and county agencies have an affirmative duty to inquire whether a child who is the subject of a Welfare and Institutions Code section 300 (section 300) petition is or may be an Indian child, when the court has been informed by the agency that the child is an Indian child. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1253-1256 (I.G.).) If, after a section 300 petition has been filed, the court has reason to know that the child may be an Indian child, the childs tribe must be notified. (Ibid.) If the court has reason to know the child may be an Indian child, it shall proceed as if the child is an Indian child, and shall proceed with all dependency hearings, observing the dependency statutory timelines while complying with the ICWA. (Ibid.)

In passing the Act, Congress identified two important, and sometimes independent, policies. The first, to protect the interests of the Indian child. The second, to promote the stability and security of Indian tribes and families. [Citations.] The Act sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies. [Citation.] (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 (Kahlen W.).) Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. Specifically, the tribe has the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings. Without notice, these important rights granted by the Act would become meaningless. [Citation.] (Kahlen W.,supra, at p. 1421.) The Indian status of the child need not be certain. Notice is required whenever the court knows or has reason to believe the child is an Indian child. ([U.S.C.] 1912(a); In re Junious M., supra, [(1983)] 144 Cal.App.3d 786, 788 . . . .) (Kahlen W., supra, at p. 1422.)

ICWA entitles parents or the tribe to petition for the invalidation of dependency proceedings conducted without proper notice. (25 U.S.C. 1914.) Title 25 United States Code section 1912, subdivision (a), states the ICWA notice provisions, providing: 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 foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, 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, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceedings shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, that the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare [for the hearing]. (Italics omitted.)

Here, appellant reported that the minor J. was of Cherokee and Choctaw ancestry. Under current law, such a statement, although not definitive, is sufficient to provide the social services agency, and the court, with reason to know that J. may be an Indian child, triggering the elaborate notice requirements of the ICWA. Significantly, ICWA defines an Indian child as any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. 1903(4).) (See Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254 (Dwayne P.); In re Santos Y. (2001) 92 Cal.App.4th 1274, 1301 (Santos Y.).) It is therefore of little significance that J. apparently has had no contact with an Indian tribe, or that neither he nor his mother was previously enrolled as a member of an Indian tribe. Each Indian tribe has sole authority to determine its membership criteria, and to decide who meets those criteria. [Citation.] Formal membership requirements differ from tribe to tribe, as does each tribes method of keeping track of its own membership. [Citation.] (Santos Y., supra, at p. 1300.) Enrollment is not required . . . to be considered a member of a tribe; many tribes do not have written rolls. [Citations.] While enrollment can be one means of establishing membership, it is not the only means, nor is it determinative. [Citation.] . . . Recently enacted . . . [Welfare and Institutions Code] section 360.6 codifies the state Legislatures intent that the ICWA applies to children who are eligible for membership in an Indian tribe, even if not enrolled. . . . Moreover, a child may qualify as an Indian child within the meaning of the ICWA even if neither of the childs parents is enrolled in the tribe. [Citation.] (Dwayne P., supra, at p. 254, italics omitted.)

The respondent Agency concedes this issue of compliance with ICWA notice requirements is properly before us on appeal, despite the appellants failure to file a writ petition raising this issue, because appellant was not properly advised that she should file such a writ petition, rather than an appeal. (See In re Cathina W. (1998) 68 Cal.App.4th 716, 720-722.) The Agency also concedes the record on appeal does not show that proper notice was given under ICWA. In particular, there is no showing in the record before us that proper ICWA notices were sent to relevant tribes with return receipt requested, as ICWA requires. (See In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.)

The Agency suggests that a limited remand to the trial court would be appropriate, to allow the Agency to provide proof of the proper giving of ICWA notice, and allow the trial court to determine, based upon the Agencys proof, whether proper notice has in fact been given. Under the circumstances presented, this is the proper remedy. (See I.G., supra, 133 Cal.App.4th at pp. 1254-1256.)

III. DISPOSITION

This matter is remanded to the juvenile court, with instructions to determine whether there has been compliance and proper notice as required by ICWA and to conduct further proceedings consistent with the determination.

NEEDHAM, J.

We concur.

JONES, P. J.

GEMELLO, J.

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