In re Tiffany Q.

Filed 10/25/07 In re Tiffany Q. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A.Q. and Jaime Q. appeal an order terminating parental rights to their daughter Tiffany Q. and placing her for adoption. (Welf. & Inst. Code, 366.26, 395.)[1] On appeal, they claim the juvenile court erred in failing to ensure that the Indian Child Welfare Act (ICWA) (25 U.S.C.A. 1901 et seq.) notice requirements were met.

Statement of the Facts and Case

Tiffany was born on February 11, 2005, and was taken into protective custody on February 20, 2005, due to her parents inability to provide adequate care for her. A section 300 petition was filed based on Tiffanys parents failure to protect and the abuse of a sibling. Mother and father had been unsuccessful in meeting reunification requirements for Tiffanys siblings in a previous case that is not the subject of this appeal. In addition, mother and father both struggled with drug use, and mother had a history of mental illness.

The court ordered Tiffany detained on February 28, 2005, found that the ICWA might apply, because the paternal grandfather, James Q. stated that he had Native American heritage through his mother, and that the tribal affiliation was Cherokee.

The Santa Clara County Department of Family and Childrens Services (Department) contacted the paternal grandmother, Sandra Q., who confirmed that her husband and his mother, Patricia C. had connections to the Cherokee tribe. Sandra Q. gave the Departments representative a telephone number for Patricia C., and also said that Patricia suffered from dementia and was being cared for by her husband, Victor C.

The Department mailed the Notice of Involuntary Child Custody Proceedings for an Indian Child to three Cherokee tribes, the Bureau of Indian Affairs (BIA) and the parents on March 15, 2005.

At an interim hearing held on July 13, 2005, the juvenile court found that the ICWA did not apply based on letters received from three Cherokee tribes.

Both father and mother received eighteen months of reunification services, and did well in their court-ordered case plans. However, although both parents made progress toward their case plans, visited Tiffany, and cleaned their cluttered home, they still did not understand the importance of maintaining a safe and healthy environment for their daughter, according to the Department. Following a contested 18-month review hearing, the juvenile court terminated family reunification services to both parents, and set a section 366.26 hearing.

At an uncontested section 366.24 hearing on January 8, 2007, the juvenile court terminated parental rights, and they filed a timely notice of appeal.

Discussion

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 (Elizabeth W.).) 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 5.664(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(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.) 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.) Further, 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. [Citations.] (Samuel P., supra, 99 Cal.App.4th at p. 1265.)

Recently, reviewing courts have insisted that social service agencies obtain, if possible, more complete information. The court in In re C.D. (2003) 110 Cal.App.4th 214, held that notice to a tribe under the ICWA must include not only the information provided in connection with form SOC 319, but also the information set forth in the BIA Guidelines at 25 Code of Federal Regulations part 23.11(d)(3), if such information is known, including the name of a childs grandparents. Therefore, form SOC 319 fails to provide sufficient notice of dependency proceedings to a tribe under the ICWA when an agency knows additional information about a childs family history, such as the names of the grandparents. The agency (DCFS in this case) has a duty to inquire about and obtain, if possible, all of the information about a childs family history included on form SOC 319 and in 25 Code of Federal Regulations part 23.11(d)(3). (Id. at p. 225, fn. omitted.) The court suggested that the agency should also send form SOC 318, which includes spaces for some of the information required in the Code of Federal Regulations. (Id. at pp. 225-226.)

As explained by the court in In reKarla C. (2003) 113 Cal.App.4th 166, in order [t]o establish tribal identity, it is necessary to provide as much information as is known on the Indian childs direct lineal ancestors. (25 C.F.R. 23.11(b) (2003).) (Id. at p. 175.) The federal regulations require ICWA notice to include, if known, (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the childs parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (25 C.F.R. 23.11(d)(3) (2003); In re Karla C., supra, at p. 175.) The other identifying information may include: maiden, married and former names or aliases, birth dates, places of birth and death, current and former addresses, and tribal enrollment numbers. (See In re S.M. (2004) 118 Cal.App.4th 1108, 1116; 25 C.F.R. 23.11(a), (d).)

Father and mother point to numerous errors in the notices sent by the Department. First, the information provided to the BIA and to the tribes misspelled fathers name; instead of the correct spelling of Jaime, the name Jaine, was used. In a revised notice, the Department again erred by using the spelling Jamie, instead of the correct spelling of fathers name. Both errors are gender confusing. In addition, the notice listed the paternal great-grandmother as Patricia C., when there is other information in the record stating her name is Patricia T. In addition, the great-grandmothers name was placed in the space meant for the grandmother, and her current address and birth place were missing from the form, although her date of birth was included.

In addition to the numerous errors and inconsistencies, the notices also lacked important identifying information about the paternal great-grandmother, Patricia C. that was potentially available through her husband and caregiver, Victor C. However, although the Department had the name and telephone number of Patricia and Victor C., the record does not demonstrate that anyone from the Department ever contacted Victor to follow up on the information. The social worker was required to investigate whether this information was available [citation], or report no family member knew the information required by 25 Code of Federal Regulations part 23.11. (In re S.M., supra, 118 Cal.App.4th at p. 1117.)

The Department asserts that any deficiency in the notices was harmless, because the tribes had sufficient information to determine whether Tiffany was eligible for tribal membership. However, it is important to note that two of the three letters from the Cherokee tribes, declaring Tiffany was not an Indian child carried disclaimers that the determination was based strictly on the information provided and any omitted family documentation could invalidate the determination. Notice is meaningless if no information is provided to assist the tribes and the BIA in making this determination. With only the names, birth dates and birthplaces of the minors and the parents, it is little wonder the responses received were that the information was insufficient to make a determination or that the minors were not registered or eligible to register. . . . [T]he tribes and the BIA were deprived of any meaningful opportunity to determine whether the minors were Indian children . . . . (Id. at p. 1455; see also In re Karla C., supra, 113 Cal.App.4th at p. 178.) Here, the Department should have been aware that ancestor information was critically important in ascertaining Indian heritage and the possible applicability of the ICWA.

In this particular case, we find that compliance with the notice requirements of the ICWA was incomplete and we cannot conclude that the deficiencies were not prejudicial. Neither the tribes nor the BIA could be expected to accurately determine the possible tribal affiliation of Tiffany without all critical information available concerning the possible Indian ancestors.

Although we are reluctant to further delay the proceedings, we echo the sentiments of the court in Elizabeth W.: that compliance with the ICWA is not a mere technicality, and the deficiencies in notice mean the order terminating parental rights must be conditionally reversed, and proper notice given. Until that is done, there remains the possibility, however slight we may believe it to be, that there is a sufficient connection to warrant the Tribes intervention, . . . (Elizabeth W., supra, 120 Cal.App.4th at p. 908.)

It follows that the order terminating parental rights must be conditionally reversed, subject to automatic reinstatement if it is ultimately determined that Tiffany is not an Indian child within the meaning of the ICWA.

Disposition

The order terminating Jaimes and A.s parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions that the Department conduct further investigation and provide all known ancestral information to the identified tribes. The Department is directed to file proof of receipt of such notice by the tribes, along with a copy of the notice and any responses. If, after receiving notice as required by the ICWA, no tribe responds indicating that Tiffany is an Indian child, or the responses received indicate she is not an Indian child within the meaning of the ICWA, the order terminating parental rights shall be immediately reinstated. If any tribe determines that Tiffany is an Indian child within the meaning of the ICWA, the juvenile court shall conduct further proceedings applying the provisions of the ICWA, section 360.6, and rule 5.664 of the California Rules of Court.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] All further statutory references are to the Welfare and Institution Code.