In re S.B.

Filed 7/24/07 In re S.B. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Frederick B. (father) and Melissa B. (mother) (hereinafter collectively referred to as parents) appeal the juvenile court's order terminating their parental rights to S.B. and setting adoption as her permanent plan. (Welf. & Inst. Code^[1], 366.26, subd. (c)(1).) Their sole contention on appeal is that the court failed to ensure compliance with the notice requirements of the Indian Child Welfare Act ("ICWA") (25 U.S.C. 1901 et seq.) We agree, and accordingly reverse and remand with directions to the juvenile court to ensure proper ICWA notice. If there is no response to such notice indicating that S.B. is an Indian child, the order terminating parental rights shall be reinstated.

FACTS AND PROCEDURAL HISTORY

S.B. was born in April 2006. Four days later, Santa Barbara County Child Welfare Services (CWS) filed a dependency petition alleging failure to protect ( 300, subd. (b)) and abuse of siblings ( 300, subd. (j).) The petition alleged among other things that mother had a history of untreated mental illness, homelessness and domestic violence, and that father abused drugs and engaged in criminal activity. It was also alleged that mother had five other children, all of whom were removed from her custody in Ohio. Four were subsequently adopted, and the fifth lives with his maternal grandmother. Father is the parent of the youngest child, F.B., who went directly into foster care from the hospital after his birth.^[2]

Parents appeared at the detention hearing on April 27, 2006. Each were given form JV-130, which requests parental information regarding the detained child's Indian heritage. While mother indicated she was unaware of any Indian ancestry in her family, father reported that he may have Indian ancestry and that S.B. may be a member of, or eligible for membership in, the Blackfeet and Sioux tribes.

CWS social worker Dan McNamara thereafter prepared form JV- 135, entitled "Notice of Involuntary Child Custody Proceedings for an Indian Child," and mailed the notice to the Blackfeet tribe, the 16 federally registered Sioux tribes, and the Bureau of Indian Affairs (BIA). The form reported parents' names, birthdates, and current addresses, but nothing else. No information was given regarding father's place of birth or former addresses. In the section intended to provide information regarding the paternal grandfather, the social worker erroneously reported the father's name and birthdate. The sections for information regarding the paternal grandmother and great-grandparents were left blank. In the section requesting information regarding whether father was named on S.B.'s birth certificate or had acknowledged paternity, the social worker checked the "unknown" boxes. Moreover, none of the notices were addressed to the tribal chairperson or other party designated for service. (Cal. Rules of Court, rule 5.664(f).)

In the jurisdiction and disposition report filed on June 20, 2006, McNamara indicated that the ICWA "does or may apply." McNamara also reported that parents had not visited S.B., and he recommended that reunification services be denied. At the continued hearing on July 31, 2006, S.B. was declared a dependent and parents were denied services. Parents did not appear at that hearing.

In the section 366.26 report, CWS indicated that 11 of the tribes had sent responses to the notice stating that S.B. was not a member or eligible for membership.^[3] None of those responses was filed with the court.

Parents appeared at the section 366.26 hearing on November 13, 2006. At that hearing, CWS noted that the court's April 27, 2006, minute order stated that S.B. was an Indian child. The court responded, "[t]hat's incorrect" and corrected the minute order nunc pro tunc to state that S.B. "may be" an Indian child. The court thereafter stated: "I do find all the notices have been given on I.C.W.A. There has been no return. The child is not an Indian child. []  Either there has been a response to indicate the child is not or no responses with the time passing to respond." The court thereafter terminated parental rights to S.B. and ordered her placed for adoption.

DISCUSSION

Parents contend that CWS failed to comply with the stringent notice requirements of the ICWA. CWS responds that compliance with the ICWA is waived because it was not raised in the trial court. The law is otherwise. (See, e.g., In re Robert A. (2007) 147 Cal.App.4th 982, 989 ["The notice requirements of ICWA are mandatory and cannot be waived by the parties"]; In re Nikki R. (2003) 106 Cal.App.4th 844, 849; In re Jennifer A. (2002) 103 Cal.App.4th 692,706.) In re Pedro N. (1995) 35 Cal.App.4th 183, which CWS cites as support for the contrary position, is inapposite. That case merely establishes that a parent waives the right to challenge a finding that the ICWA does not apply after the statutory time for filing an appeal from that finding has passed. (Id., at pp. 188-190.) Because the mother could have raised the issue in an appeal from the dispositional order, the court concluded that she could not raise it almost two years later in her appeal from the termination order. (Ibid.) Here, the court waited until the permanency planning hearing to find that the ICWA did not apply, and parents have timely appealed from the order following that hearing.

We agree with parents that the ICWA notice requirements were not met in this case. "In 1978, Congress enacted ICWA, which allows an Indian tribe to intervene in dependency proceedings, to 'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.' (25 U.S.C.  1902.)" (In re Francisco W. (2006) 139 Cal.App.4th 695, 702.) " '[W]here 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 child's tribe, by registered mail with return receipt requested, of the pending proceedings and their right of intervention.' (25 U.S.C.  1912(a).) Notice to the tribe provides it the opportunity to assert its rights. [Citation.] 'Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child.' ([Cal. Rules of Court, former r]ule 1439(f)(5) [now rule 5.664(f)(5)].) No proceeding to terminate parental rights may occur until 10 days after the tribe has received the notice. (25 U.S.C.  1912(a).) We may void a judgment terminating parental rights if notice to the tribes or BIA is not given in accordance with provisions of the ICWA. (25 U.S.C.  1914.)" (In re S.M. (2004) 118 Cal.App.4th 1108, 1115.) In reviewing whether sufficient information was supplied, the ICWA notice requirements are strictly construed. (In re Francisco W., supra, at p. 703.)

"Notice is meaningless if no information or insufficientinformation is presented to the tribe. [Citation.] The notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name; a statement of the right of the tribe to intervene in the proceeding; and information about the Indian child's biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information. [Citations.]" (In re S.M., supra, 118 Cal.App.4th at p. 1116, fn. omitted.) In addition, "[t]he social worker has 'a duty to inquire about and obtain, if possible, all of the information about a child's family history' required by 25 Code of Federal Regulations part 23.11(d)(3).^[[4]] [Citation.]" (In re S.M., supra, at p. 1116.)

Strict construction of the ICWA notice requirements compels the conclusion that the notice in this case was insufficient. The only relevant information given was father's name and date of birth and his claimed tribal affiliations. His place of birth was not included, even though that information was readily available. Nor was any information given regarding his former addresses, notwithstanding CWS 's knowledge that he had just moved to California from Ohio the previous year.^[5]

Parents appeared at hearings on June 1 and June 15, and at the section 366.26 hearing held on November 13, 2006. Nevertheless, neither the social worker nor the court made any attempt to obtain information from parents regarding S.B.'s family history. For example, no information at all is provided about S.B.'s grandparents. In the section of form JV-135 intended to provide information about S.B.'s paternal grandfather, the social worker reiterated father's name and birth date. Nor was any information provided regarding S.B.'s paternal grandmother, who may have been the source of S.B.'s claimed Indian ancestry.

Father identifies several other errors that also render the notices insufficient. Specifically, unless the tribe has designated another agent for service, the notice must be addressed to the tribal chairperson. (Cal. Rules of Court, rule 5.664(f)(2).) Moreover, notice must be sent for "every hearing . . . unless and until it is determined that the act does not apply to the case[.]" (Cal. Rules of Court, rule 5.664(f)(5).) None of the notices were addressed to the tribal chairperson, nor were any notices sent for the permanency planning hearing at which the court found that the ICWA did not apply. CWS also received 11 responses to the notice, but did not file any of them. Because the juvenile court did not review the responses, it could not sufficiently determine whether the ICWA applied. (In re Jennifer A., supra, 103 Cal.App.4th at p. 703; see also In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215 [warning that a party seeking termination of parental rights to a child who may be eligible for Indian child status will "face the strong likelihood of reversal on appeal" if return receipt of notice and any responses thereto are not filed with the juvenile court]; see also In re Mary G. (2007) 151 Cal.App.4th 184, 211 [recognizing that the responsible agency is "required" to submit all responses to the court].) The notice also erroneously stated it was "unknown" whether father had acknowledged paternity. As father correctly notes, an unwed parent such as himself who does not acknowledge paternity is not a "parent" within the meaning of the ICWA. (25 U.S.C. 1903; Cal. Rules of Court, rule 5.664(a)(4).) Father plainly acknowledged paternity by appearing in the matter as S.B.'s father, and by stating that he was her father on form JV-130.^[6]

CWS also contends that remand is unnecessary because the court has no "reason to know" that S.B. may be an Indian child, as contemplated by 25 United States Code section 1912(a). According to CWS, father's claim that S.B. has Blackfeet and Sioux heritage is insufficient to trigger the new notice requirements contained in section 224.3, subdivision (b), which was enacted in 2007 and will therefore be applied on remand. We disagree. The statute provides among other things that the court has reason to know that a child may be an Indian child when "(1) A person having an interest in the child . . . provides information suggesting the child is a member of a tribe or eligible for membership in a tribe . . . ." ( 224.3, subd. (b).) Regardless of whether this represents a change in the law as CWS claims, the information father provided on form JV-130 is plainly sufficient to "suggest" that S.B. is eligible for membership in an Indian tribe.

CONCLUSION

"Noncompliance with ICWA has been a continuing problem in juvenile dependency proceedings conducted in this state, and, by not adhering to this legal requirement, we do a disservice to those vulnerable minors whose welfare we are statutorily mandated to protect." (In re I.G. (2005) 133 Cal.App.4th 1246, 1254.) Unfortunately, the numerous prior published opinions on this subject have been ineffective in alleviating the "virtual epidemic" of reversals occasioned by the juvenile courts and social service agencies "'. . . giving the ICWA notice provisions short shrift. [Citations.]' [Citation.]" (Id., at pp. 1254-1255.) In November of 2005, our colleagues in the First District lamented that there had been "72unpublished cases statewide in [that] year alonereversing, in whole or in part, because of noncompliance with ICWA. [Citation.]" (Id., at p. 1255, fn. omitted.) Since then, more than 100 additional unpublished opinions have been issued. Hopefully the agencies involved in this matter will re-examine their protocols in order to prevent its recurrence.

DISPOSITION

The order terminating parental rights is reversed. The juvenile court is directed to ensure that proper notice is given under the ICWA. CWS shall file all required documentation for the court's inspection, including all responses to the notice.

If, after proper notice, a tribe claims S.B. is an Indian child, the court shall proceed under the provisions of the ICWA. If no tribe intervenes, the order terminating parental rights shall be reinstated. (In re Francisco W., supra, 139 Cal.App.4th at p. 711.)

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Janice A. Jenkins, under appointment by the Court of Appeal, for Appellant Fredrick B.

Maureen L. Keaney, under appointment by the Court of Appeal, for Appellant Melissa B.

Stephen Shane Stark, County Counsel, Toni Lorien, Deputy County Counsel, for Respondent.

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Analysis and review provided by La Mesa Property line attorney.

^[1] Unless otherwise noted, further statutory references are to the Welfare and Institutions Code.

^[2] The record belies CWS's assertion that father is also the father of mother's other four children.

^[3] Although CWS first states in its brief that no responses were received, it subsequently concedes that all but six of the tribes did respond.

^[4] That regulation provides that notice shall include the following information, if known, "(1) Name of the Indian child, the child's birthdate and birthplace. []  (2) Name of Indian tribe(s) in which the child is enrolled or may be eligible for enrollment. []  (3) All names known, and current and former addresses of the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information. []  (4) A copy of the petition, complaint or other document by which the proceeding was initiated." ( 25 C.F.R.  23.11(d) (2007).)

^[5] Father asserts that the Santa Barbara County Sheriff Department's reply to a criminal history request establishes that he had also lived in San Francisco. Although it appears that this assertion is incorrect, CWS did not address it in its brief.

^[6] CWS requests that we take judicial notice of records from the dependency proceedings involving S.B.'s sister, who was born in April 2007. Most notably, CWS refers us to the form JV-130 father filled out in that matter on April 18, 2007, in which he indicated "I have no Indian ancestry as far as I know." We deny the request because the documents do not assist us in resolving the appeal. Father's subsequent statement may have been premised on the juvenile court's finding in this matter that the ICWA did not apply to his other child. This court does not sit as a trier of fact. (See In re Jennifer A., supra, 103 Cal.App.4th at p. 703.) To the extent CWS asserts that we must take judicial notice of the proffered evidence pursuant to Evidence Code section 453, that statute merely dictates that the trial court must take notice of court records when requested to do so. As a reviewing court, we are only required to consider matters that were actually noticed in the trial court. (Evid. Code,  459, subd. (a).) The records were not noticed by the trial court, and CWS fails to demonstrate why we should receive new evidence on appeal. (In re Mary G., supra, 151 Cal.App.4th at p. 212.)