In re Julius L.

Filed 6/26/07 In re Julius L. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellants Devon L. and Crystal C. appeal from an order of the juvenile court terminating their parental rights to their two-year-old son Julius L. (Welf. & Inst. Code, 366.26, 395). They contend the juvenile court failed to provide proper notice as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.).

Statement of the Facts and Case

In December 2004, Julius L., then four-months-old, became the subject of a juvenile dependency petition along with his five-year-old half-brother Eric. O. At the time the childrens mother, Crystal C. was arrested for child endangerment because she inflicted physical abuse on Juliuss father, Devon L.

On the day the Santa Clara County Department of Family and Childrens Services (Department) filed juvenile petitions on both Julius and Eric, Crystal and Devon each signed a Declaration of Parent re: Indian Ancestry. Crystal stated that she has no known Native American ancestry. Devon also stated he had no known Native American ancestry, and that his parents came from Central America.

At the initial hearing in this case on December 22, 2004, the court ordered Julius detained, and found that no notice under ICWA was required because ICWA did not apply.

The report prepared for the jurisdiction hearing stated that ICWA did not apply and that both Crystal and Devon had completed declarations denying any Native American heritage.

At the combined jurisdiction and disposition hearing on January 19, 2005, the court ordered Julius a dependent of the court, and appellants were offered reunification services.

On February 7, 2005, the Department sent notice under ICWA to three federally recognized Cherokee tribes and the Bureau of Indian Affairs. The notice was sent because Juliuss maternal grandmother appeared at a deposition hearing regarding Juliuss half brother, Eric on January 31, 2005, and said that there was Cherokee heritage in the maternal family.[1]

On September 2, 2005, the court terminated Devons reunification services, but continued Crystals services to the 12-month hearing.

At the 12-month review hearing in January 2006, the court terminated Crystals reunification services and set a hearing pursuant to Welfare & Institutions Code, section 366.26.[2] The section 366.26 report recommended a permanent plan of adoption. The report included a finding that ICWA did not apply.

In April 2006, the court heard the contested section 366.26 hearing. At the time of trial, both Crystal and Devon were incarcerated. At the conclusion of trial, the court terminated parental rights. Both parents now challenge the termination of their rights based on their assertion that the ICWA notice was insufficient.

Discussion

Appellants contend the juvenile court failed to provide proper notice as required by the ICWA.

The ICWA is designed to protect the interests of Indian children, and to promote the stability and security of Indian tribes and families. It sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) For purposes of the ICWA, an Indian child is defined as an unmarried person under the age of 18 who is: (1) a member of an Indian tribe; or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. 1903(4); Cal. Rules of Court, rule 1439(a)(1)(A) & (B).)

Under the ICWA, where a state court knows or has reason to know that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C. 1912, subd. (a).) The court and the social services agency have an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child. [Citation.] (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264 (Samuel P.).) Because the determination of a childs Indian status is a matter for the tribe, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. [Citation.] (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)

In Samuel P., this court explained: [A]fter a petition has been filed in a section 300 proceeding, if the court knows or has reason to know that the child is or may be an Indian child, the childs tribe must be notified of the pending petition and the right of the tribe to intervene in the proceedings. [Citation.] (Samuel P., supra, 99 Cal.App.4th at p. 1265.) If the information in the record shows there may be Indian ancestry, even though the child may not be an Indian child within the meaning of the ICWA, the court is required only to send notice of the proceedings to the identified tribe or tribes or to the Bureau of Indian Affairs (BIA), and to make further inquiry regarding the possible Indian status of the child. [Citation.] (Ibid.) The notice must include the names of the childs ancestors and other identifying information, if known, and be sent registered mail, return receipt requested. [Citation.] When proper notice is not given, the dependency courts order is voidable. [Citations.] (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.) The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (Samuel P., supra, 99 Cal.App.4th at p. 1265.)

In this case, the Department sent notices to the federally recognized Cherokee tribes, as well as the Bureau of Indian Affairs when Juliuss maternal grandmother appeared at a deposition hearing for Juliuss half-brother Eric, and told the court that she was of Cherokee heritage. The Notice of Involuntary Child Custody Proceedings for an Indian Child (SOC 820) was sent in February 2005, and subsequently filed with the juvenile court; however, the certified mail receipts and responses from the tribes were never filed with the court. When the filing omission was discovered during the pendency of this appeal, the Department submitted the documents to the juvenile court for review. The documents stated that the Bureau of Indian Affairs and the three recognized Cherokee tribes received notice under ICWA, and the Cherokee Nation as well as the Eastern Band of Cherokee Indians responded that Julius is not an Indian child for the purpose of their tribes.

The augmented record establishes that the Department sent notice to the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United Keetoowah Band of the Cherokee Indians as well as to the Bureau of Indian Affairs on the appropriate forms. This record also establishes that neither tribe indicated that Julius or his relatives were eligible for tribal enrollment.

On October 10, 2006, the juvenile court reviewed the newly filed notice documents and made a finding that ICWA did not apply to this case.[3]

Devon and Crystal make three basic claims of deficiencies in the notices sent: (1) the juvenile court did not adequately fulfill its duty of inquiry into whether Julius had Indian ancestry; (2) the forms sent were missing information, such as the names and birthdates of the paternal grandfather and great grandfather; and (3) the notice was sent to an incorrect address for the United Keetoowah Band of Cherokee Indians.

With regard to the parents first assertion that the juvenile court failed to adequately fulfill its duty of inquiry into Juliuss Indian ancestry, we find that both the Department and the court fulfilled their duties. California Rules of Court, rule 5.664(d) provide that the court and the Department have an affirmative and continuing duty to inquire into whether a child has Indian heritage. In addition, the rule requires that at the initial hearing, a form JV-130 form, wherein the parents declare their knowledge of any Indian ancestry must be completed. Here, both Devon and Crystal were presented with and completed the form, both denying Indian ancestry. After the parents completed the form, the court properly made an initial finding that ICWA did not apply.

The parents second contention is that the notices themselves contained insufficient information under ICWA. Certainly, [n]otice under the ICWA must, . . . contain enough information to constitute meaningful notice. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) However, the most important information to be provided is the information that is known about the family member with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Here, there is no information or suggestion that Devon or any paternal ancestors had Indian heritage. The alleged Indian heritage is through the maternal grandmother and great grandmother, and their names, birth dates and birth places are provided on the form.

As to the missing information (section on tribal affiliation and Tribal Rolls), the only information that can be included is the information that is given the social worker by the knowledgeable party. This is true of information about deaths and aliases or tribal rolls. (See In re Karla C., supra, 113 Cal.App.4th at p. 175.) Moreover, we note that neither Devon nor Crystal has provided any additional information now.

Finally, with regard to the notice sent to the United Keetoowah Band of the Cherokee Indians, the parties dispute whether the Department sent notice to the proper address. The augmented record indicates the notice was sent to P. O. Box 189, Park Hill, OK 74451. A return receipt with the date 2/10/05 and the signature A. Stapp is also included in the augmented record; however, there is no letter from the United Keetoowah Band of the Cherokee Indians indicating whether in fact Julius or his relatives are eligible for membership in the tribe.

Devon asserts the notice was sent to the wrong address; that the proper address for the United Keetoowah Band of the Cherokee Indians should have been sent to United Keetoowah Band of Cherokee Indians, Dallas Proctor, Chief, PO Box 746, Tahlequah, OK 74465. The new address is from the Federal Register dated December 8, 2003, more than a year before notice was sent in this case. (70 Fed. Reg. 13518, 13527; 68 Fed. Reg. 68408, 68415.)

The record contains no conclusive evidence that the United Keetoowah Band received actual notice of the proceedings. When this case was heard in the juvenile court, the name of the designated agent for service of ICWA notice for the United Keetoowah Band was Dallas Proctor, Chief. (70 Fed. Reg. 13518, 13527 (Mar. 21, 2005).) However, a person named A. Stapp signed the return receipt from the notice sent to that tribe. Because A. Stapp was not the designated agent for service of ICWA for the United Keetoowah Band, his or her signature on the return receipt is not a sufficient basis for concluding that actual notice was received by the tribe.

Accordingly, this matter must be remanded for proper ICWA notice to the United Keetoowah Band.

Disposition

The judgment is reversed. The juvenile court is directed to (1) vacate its order terminating appellants parental rights ( 366.26, 395), and (2) order the Department to provide ICWA notice to the designated agent for the United Keetoowah Band at the address listed in the most recent Federal Register. If, following such notice, the United Keetoowah Band determines that the minor is an Indian child, or if other information is presented showing the minor is an Indian child as defined by ICWA, the juvenile court shall conduct a new review hearing in conformity with all the provisions of ICWA. If, however, the United Keetoowah Band determines that the minor is not an Indian child, or if no response is received indicating the minor is an Indian child, the juvenile court shall reinstate the vacated orders. ______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.

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[1] The Department sent notice under ICWA, but did not submit all of the notice documents or responses to the court prior to the termination of parental rights. During this appeal, the Department submitted the notice documents to the trial court for review. On October 10, 2006, the juvenile court considered the newly submitted notice documents and made a finding that ICWA did not apply to this case. We granted the Departments request to take judicial notice of the documents submitted to the trial court. (In re Christopher I. (2003) 106 Cal.App.4th 533, 562-563.)

[2] All further unspecified statutory references are to the Welfare & Institutions Code.

[3] We took judicial notice of the documents per the Departments request. (See, e.g., In re Christopher I., supra, 106 Cal.App.4th at pp. 562-563.)