In re T.G.
Filed 10/12/07 In re T.G. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
In re T.G., a Person Coming Under the Juvenile Court Law. _____________________________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MELODY G., Defendant and Appellant. | B197149 (Los Angeles County Super. Ct. No. CK59202) |
APPEAL from an order of the Superior Court of Los Angeles County,
S. Patricia Spear, Judge. Reversed and remanded with directions.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Melody G. (mother) appeals an order terminating her parental rights with respect to T.G. We reject mothers claim the Department of Children and Family Services (DCFS) gave inadequate notice under the Indian Child Welfare Act (ICWA) and find the notices given were adequate to convey the information known to DCFS. However, we agree with mothers claim that, on the facts presented here, DCFS had an obligation to inquire of maternal aunt Kimberly F. with respect to T.G.s Indian heritage prior to giving notice under the ICWA. Consequently, we conditionally reverse the order terminating parental rights and remand for the limited purpose of permitting DCFS to interview Kimberly F. with respect to mothers assertion T.G. has Indian heritage. If Kimberly F. is unable to provide additional information, or if no Indian tribe asserts jurisdiction as to T.G. after DCFS gives notice that includes any additional information Kimberly F. might provide, the juvenile court shall reinstate the order terminating parental rights.
FACTS AND PROCEDURAL BACKGROUND
Mother and T.G. came to the attention of DCFS when T.G. was born with a positive toxicological screen for methamphetamine. At the detention hearing on May 26, 2005, mother indicated there was Cherokee heritage on both sides of her family. Mother stated two of T.G.s great grandfathers, Samuel F. and John G. were Cherokee. Samuel F. was deceased but formerly lived in San Bernardino. Mother stated there was no one else alive that would have more information on these two individuals. The juvenile court noted the F. surname potentially was an Indian name and ordered DCFS to give notice to the Cherokee tribes using the names of Samuel F. and John G.
On June 2, 2005, the CSW interviewed mother who indicated she had stated all the information at her disposal with respect to her Indian ancestry in court. On June 3, 2005, the CSW interviewed maternal great grandparents, John and Martha G., ages 85 and 82, respectively. Both indicated there was no Indian ancestry in the family.
DCFS did not interview maternal grandmother Marlene F., who was deceased; DCFS also did not interview maternal aunt Kimberly F. who had custody of T.G.s eight-year-old sibling, L.G., when T.G. was detained.
DCFS thereafter gave the Cherokee tribes and the Bureau of Indian Affairs (BIA) notice of the dependency action on forms provided for that purpose on August 25, 2005 and again on August 30, 2005. The forms listed mother, maternal grandmother Marlene F., and maternal great grandfather Samuel F. Each of the Cherokee tribes thereafter indicated by letter that T.G. was not an Indian child within the meaning of the ICWA.[1]
On October 28, 2005, based on the above letters received from the tribes, the juvenile court found the ICWA did not apply. On March 5, 2007, the juvenile court terminated parental rights as to T.G.
CONTENTIONS
Mother contends the ICWA notices were defective in numerous respects and that DCFS failed to comply with its duty to interview maternal aunt Kimberly F. about T.G.s Indian ancestry.
DISCUSSION
1. The notices adequately conveyed the information possessed by DCFS.
Mother contends the ICWA notices of August 25 and 30, 2005, were defective in that they: (1) omitted mothers city of birth; (2) failed to identify maternal grandmother Marlene F.s surname as her maiden name, married name, former name or alias; (3) omitted Marlene F.s city of birth; (4) left spaces on the form blank rather than indicating whether the information requested was unknown or inapplicable as specified by the instructions on the form; (5) the Certificate of Mailing for each notice was attested to on August 25, 2002; and, (6) the Certificate of Mailing related to the notice of August 30, 2005, is not identified as a correction. Mother concludes these defects in the ICWA notices require reversal of the order terminating parental rights.
The ICWA provides that 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 Indiancustodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. [Citation.] If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs [BIA] as the agent for the Secretary of the Interior. [Citations.] (In re Daniel M. (2003) 110 Cal.App.4th 703, 707.)
Notice under the ICWA must 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) the names and addresses of the childs parents, grandparents, great grandparents, and other identifying information; and (4) a copy of the dependency petition. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) To enable the juvenile court to review whether sufficient information was supplied, DCFS must file with the court the ICWA notice, return receipts, and responses received from the BIA and the tribes. (Id. at pp. 175-176; In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; but see In re L.B. (2003) 110 Cal.App.4th 1420, 1425, fn. 3 [filing requirements not mandated by ICWA or California Rules of Court but by BIA guidelines which have not been adopted in this state].)
Review of the record in this case reveals the notices dated August 25 and 30, 2005, adequately related all the information then known to DCFS with respect to mother, maternal grandmother Marlene F., and maternal great grandfather Samuel F. John G. properly was not included in the notice because he personally disavowed Indian heritage.
Mothers assertion the notices omitted her city of birth, San Bernardino, does not persuade us the notices are defective. Mothers state of birth was on the form and any tribal affiliation did not flow from mother but from Samuel F., T.G.s maternal great grandfather. Thus, omission of mothers city of birth must be seen as harmless.
Although the forms did not indicate whether F. was maternal grandmother Marlene F.s maiden or married name, the notice included all other information known about maternal grandmother, including her place of birth and date of birth. Further, because Marlene F. was identified on the notice by the F. surname, which name formed the basis of mothers claim that T.G. was of Indian heritage, the failure to designate this name as a maiden or married name cannot be seen as having frustrated a search of tribal records.
Regarding mothers observation the Certificates of Mailing uniformly are dated in the signature area as having been mailed on August 25, 2002, this clearly is a typographical error.
With respect to the assertion the notices mailed on August 25, 2005, had blanks on numerous of the spaces on the forms, the notice mailed August 30, 2005, uniformly indicated unknown or that mother was interviewed and was unable to provide additional information. The only discernable difference between the forms mailed on August 25, 2005, and the one mailed on August 30, 2005, is that the latter had unknown indicated in the blank spaces.
Mother concedes the notice mailed on August 30, 2005, did not contain blank spaces. Mother nonetheless argues all the other cited deficiencies were repeated in the second notice. Mother further asserts that because two versions of the notices were mailed within five days of each other, and the record contains no signed delivery receipts, it cannot be determined whether the determinations of Indian status were based on the first notice or the second corrected notice mailed five days later.
However, the responses received by DCFS and filed with the juvenile court necessarily related to either the first or the second notice. Because both the first and the second notices were sufficient to convey the information DCFS had gathered to that point, the absence of return receipts does not prevent a finding the tribes responded to the notices given by DCFS. (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906-908.)
In sum, we conclude DCFS complied with its obligation to give the relevant tribes and the BIA notice of all information it knew about T.G.s potential Indian background.
2. The matter must be remanded to permit DCFS to inquire of Kimberly F.
Mother contends DCFS should have inquired of Kimberly F., who was interviewed for possible relative placement but not with respect to her Indian ancestry.
It appears mothers contention is well taken. The juvenile court and DCFS have an affirmative and continuing duty to inquire whether a child for whom a petition has been filed under Welfare and Institutions Code section 300 is or may be an Indian child. (In re Cody B. (2007) 153 Cal.App.4th 1004, 1013; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Louis S. (2004) 117 Cal.App.4th 622, 630; Cal. Rules of Court, rule 5.664(d).) The affirmative duty to inquire mandates, at a minimum, that DCFS make some inquiry regarding the information required in the ICWA notice besides name, birth date and birthplace of the childs parents. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.)
On the facts presented here, we cannot find there is substantial evidence that DCFS fulfilled its duty of inquiry. The juvenile court noted the F. name sounded like a Cherokee name. Although DCFS interviewed John G., it did not interview Kimberly F., T.G.s maternal aunt who had custody of T.G.s sibling at the outset of the dependency proceedings. Because Kimberly F. had the F. surname, she reasonably might have additional information with respect to T.G.s Indian heritage. In these circumstances, DCFS should have interviewed maternal aunt, Kimberly F. Had DCFS been able to interview maternal grandmother, Marlene F., we might reach a different result. However, maternal grandmother was deceased. Thus, it was appropriate in this case for DCFS to seek information related to mothers claim of Indian heritage from maternal aunt, Kimberly F.
It follows that the order terminating parental rights must be conditionally reversed subject to automatic reinstatement if it is ultimately determined that Kimberly F. has no information to add to that already included in the ICWA notices of August 25 and 30, 2005, or, if new ICWA notices including any information provided by Kimberly F. do not result in any tribe asserting jurisdiction over T.G. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 704-710.)
DISPOSITION
The order terminating parental rights as to T.G. is conditionally reversed and the matter is remanded to the juvenile court with directions to ensure that DCFS interviews Kimberly F. with respect to T.G.s Indian heritage. If Kimberly F. reveals additional information relevant to the ICWA determination, the juvenile court shall ensure that new ICWA notices are given. If Kimberly F. has no new information to offer, or if no tribe or the BIA intervenes after DCFS gives notice that includes the additional information, the juvenile court shall reinstate the order terminating parental rights.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
CROSKEY, J.
ALDRICH, J.
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[1] On September 16, 2005, the Cherokee Nation wrote a letter to DCFS stating that, based on the information given, L.G., T.G.s sibling, was not an Indian child. On October 20, 2005, the Cherokee Nation wrote a second letter to DCFS stating that, based on the information given, neither L.G. nor T.G. was an Indian child. In two letters, both dated August 20, 2005, the Eastern Band of Cherokee Indians stated L.G. and T.G. were not eligible for registration with the tribe. (The dates of these letters are incorrect. DCFS mailed notices to the tribe on August 25 and 30, 2005.) In letters dated September 12, 2005 and September 23, 2005, the United Keetowah Band of Cherokee Indians in Oklahoma and the Blackfeet Tribe, respectively, stated L.G. and T.G. were not eligible for enrollment.
