In re S.G.

Filed 1/29/07 In re S.G. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I.

Introduction

R.H., mother of S. G., appeals from the juvenile courts order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] Appellant claims that because the juvenile court and respondent Sonoma County Human Services Department (the Department) failed to comply with the notice provisions of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C.  1901 et seq.), the order terminating her parental rights must be reversed.

We agree with appellant that the Department failed to provide to the juvenile court information on which the court could base a decision as to whether proper notice had been given to the Indian tribes. We therefore reverse and remand for such a determination.

II.

Facts and Procedural History

The relevant facts are as follows: On December 10, 2004, the Department filed a section 300 petition alleging there was a substantial risk newborn S. G. would suffer serious physical harm or illness because of the inability of his parents to provide for his care. The petition contained factsalleged to support this allegation, including that (1) in December 2004, two days after S. G.s birth, he tested positive for amphetamines, which speaks to mothers heavy drug use just prior to the newborns birth; (2) appellant failed to obtain proper prenatal care; (3) S. G.s father, who had a history of substance abuse, perpetrated numerous acts of domestic violence against appellant while she was pregnant; and (4) both parents were incarcerated.

The court detained S. G., and found that the ICWA may apply. The Departments report prepared for the jurisdictional hearing indicated that S. G. may be an Indian child with the Cherokee and or Blackfeet tribes. The Departments report, in turn, indicated [n]otices were sent with the information furnished by the family. However, the report goes on to indicate that appellants statement that she has Cherokee and Blackfeet heritage is not corroborated by either maternal grandmother . . . or great grandmother . . . .

The record reflects that on January 3, 2005, the Department sent copies of a Notice of Involuntary Child Custody Proceedings for an Indian Child, along with copies of the section 300 petition, to the Bureau of Indian Affairs, the Cherokee Nation of Oklahoma, the United Keetowah Band of Cherokee, the Eastern Band of Cherokee Indians, and the Blackfeet Tribal Business Council.

Two days later, on January 5, 2005, the court assumed jurisdiction over the child, removed the child from parental custody, and ordered reunification services for the parents. The juvenile court further stated that it had read and considered the documents submitted by the Department including notice sent to the applicable tribes and the Bureau of Indian Affairs. The court ruled that the ICWA doesnt apply in this case. The ICWA is not mentioned further in the record aside from the Departments statements, in subsequent reports, that the ICWA was inapplicable.

Appellant did not participate in reunification services or maintain contact with the social worker during the reunification period. She failed to appear for all scheduled visits. Appellant also did not appear for the six-month review hearing held on September 2, 2005. The court terminated reunification services and set the matter for a hearing pursuant to section 366.26.

The contested section 366.26 hearing was held on March 10, 2006. Appellant attended the hearing and testified, but left early because she was not feeling well. On March 22, 2006, the court terminated appellants parental rights and freed S. G. for adoption. Appellant timely appealed on April 6, 2006.

III.

Discussion

In 1978, Congress enacted the ICWA 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.) The ICWA allows a tribe to intervene in dependency proceedings because the law presumes it is in the childs best interests to retain tribal ties and heritage, and that it is in the tribes interest to preserve future generations. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469 (Desiree F.).)

The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings. (25 U.S.C.  1911(c); Desiree F., supra, 83 Cal.App.4th at p. 473.) Of course, the tribes right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending. [Citation.] (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)

When the juvenile court has reason to believe a child is an Indian child within the meaning of the ICWA, notice on a prescribed form must be given to the proper tribe or to the Bureau of Indian Affairs, and the notice must be sent by registered mail, return receipt requested. (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906 (Elizabeth W.); accord, 25 U.S.C.  1912(a).) [T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; see, e.g., Desiree F., supra, 83 Cal.App.4th at p. 471 [notice requirement triggered by allegation in dependency petition that the ICWA possibly applied].) No foster care placement or termination of parental rights proceedings shall be held until at least ten days after receipt of notice by the . . . tribe or the [Bureau]. (25 U.S.C.  1912(a).)

To implement the ICWAs notice requirement, California Rules of Court, rule 5.664(d) (former rule 1439)^[2]imposes on the court an affirmative duty to inquire whether a child for whom a petition under section 300 . . . has been . . . filed is or may be an Indian child. (Italics added.) Further, under rule 5.664(d)(4)(A) [t]he circumstances that may provide probable cause for the court to believe the child is an Indian child include the receipt of information from a party or other source suggesting that the child is an Indian child. (Italics added.) Rule 5.664(f)(6) provides: If, after a reasonable time following the sending of notice under this rulebut in no event less than 60 daysno determinative response to the notice is received, the court may determine that the [ICWA] does not apply to the case unless further evidence of the applicability of the [ICWA] is later received . . . . The juvenile court is responsible for reviewing 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 ICWA, and, if applicable, comply with all of its provisions. (In re Karla C. (2003) 113 Cal.App.4th 166, 178.)

The ICWAs notice requirements are mandatory, strictly construed, and cannot be waived by the parties. (In re K.W. (2006) 144 Cal.App.4th 1349, 1355 (K.W.); In re Karla C., supra, 113 Cal.App.4th at p. 174; In re Jennifer A. (2002) 103 Cal.App.4th 692, 707.) The notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. (K.W., supra, at p. 1356.) To enable the juvenile court to review whether sufficient information was supplied, the social services agency must file with the court the ICWA notice, return receipts and responses received from the BIA and tribes. (Ibid.) When proper notice is not given under the ICWA, the courts orders are voidable. (25 U.S.C.  1914.)

According to appellant, the notice requirements of the ICWA were not met. Because the Departments jurisdictional report informed the court that appellant claimed to have Indian heritage, the court had reason to believe that an Indian child was involved, and was therefore required to ensure compliance with the ICWA notice requirements. (Elizabeth W., supra, 120 Cal.App.4th at p. 906; accord, 25 U.S.C.  1912(a).) Despite this, appellant points out, no copies of the notices purportedly sent to the BIA and to the Cherokee and Blackfeet tribes are contained in the record. There is no proof, she says, that notices were sent by registered mail, return receipt requested, or that they contained the information required by the ICWA. She argues the juvenile court erred in going forward with the dependency proceedings only two days after the notices were mailed, in violation of rule 5.664(f)(6),which requires a 60-day waiting period, when no responses from the tribes or the BIA had been filed with the court. Finally, appellant claims the Department failed to send the notices to the proper addresses as listed in both the Federal Register and also on the California Department of Social Services website.

Here, because there is no evidence that the notice requirements under the ICWA were complied with, we agree with appellant that the order terminating her parental rights must be reversed and the case must be remanded to provide notice as required by law.^[3] Under these circumstances, we must order a limited remand. This procedure is commonly used in ICWA cases involving deficient notice, and is thoroughly discussed in In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385. After such a remand and proper notice under the ICWA, if it is determined that the child is not an Indian child or ICWA is inapplicableusually by the noticed tribes nonresponseprior defective notice becomes harmless error. [Citation.] (Id. at p. 385.)

III.

Disposition

The judgment terminating parental rights is reversed, and the matter is remanded to the juvenile court with directions to order the Department to comply with the notice provisions of the ICWA, the relevant case law interpreting the ICWA, and the views expressed in this opinion. If, after proper inquiry and notice, a tribe claims S. G. is an Indian child, the juvenile court shall proceed in conformity with all provisions of the ICWA. If, on the other hand, no response is received or no tribe claims that S. G. is an Indian child, the judgment terminating appellants parental rights shall be reinstated.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Sepulveda, J.

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^[1] All undesignated statutory references are to the Welfare and Institutions Code.

^[2] All undesignated rule references are to the California Rules of Court.

^[3] On appeal, the Department requests that this court take judicial notice of records contained in S. G.s maternal half-brothers separate dependency case, indicating that the half-brother was found not to be an Indian child. We decline to do so. The finding in S. G.s half-siblings case cannot be reasonably relied upon to determine S. G.s Indian status. (Accord, Desiree F., supra, 83 Cal.App.4th at p. 470.)