In re I.B.

Filed 10/30/07 In re I.B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Andrea O., mother of the minor, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, 366.26, 395 [further undesignated statutory references are to this code].) Appellant contends reversal is required because the notice requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C.  1901 et seq. were not met. We reverse.

FACTS

The Department of Health and Human Services (DHHS) removed the two-year-old minor from parental custody in March 2006, due to parental substance abuse and domestic violence. The parents failed to reunify with the minor and parental rights were terminated a year later.

At the outset of the dependency proceedings, a court services worker questioned the father about his Indian ancestry. He responded that the paternal great-grandmother had Indian heritage but he did not know which tribe and had no contact information to get more details from his relatives. Appellant stated she did not know if she had Indian heritage. The minimal family history in the reports states that the maternal grandfather adopted the appellant when she was a child.

In late March 2006, a declaration by a paralegal responsible for ICWA notice stated that the maternal grandmother said she had heard the family had a tribal affiliation with the Cherokee Indians and gave the paralegal her family history. The maternal grandmother said she would tell the father to call the paralegal to provide his family history. The father did not do so prior to the time the paralegal sent notice to the known tribes and the Bureau of Indian Affairs (BIA). The father was later in contact with social workers on a monthly basis from May to September 2006, and attended the six-month review hearing. However, no additional information on his ancestry appears in the record.

The JV-135 notice form sent to the tribes contained both parents names. The form stated appellant claimed Cherokee heritage and that the father did not claim any Indian heritage, provided no information about his heritage and had no information on tribal affiliation. The form did not include the name of the maternal grandmother but did have the name of a person designated as a paternal grandfather and minimal information about that persons mothers maiden name. This notice was sent to the three Cherokee tribes and the BIA.

By June 2006, the United Keetoowah Band of Cherokee Indians and the Cherokee Nation each responded to the notices stating that the minor was not eligible for enrollment in the tribe. In October 2006, the Eastern Band of Cherokee Indians also responded the minor was not eligible for enrollment. In January 2007, the juvenile court found the minor was not an Indian child within the meaning of the ICWA and concluded no further notices to the tribes was required.

DISCUSSION

Appellant contends reversal is required because respondent failed to make further inquiry about the fathers ancestry once it regained contact with him and because respondent failed to provide known information in the notice sent to the tribes and the BIA. Respondent asserts any error in notices was harmless, but if it was not, concedes remand is probably necessary to remedy the errors. Because we conclude the errors were not harmless, we accept respondents concession and remand for new inquiry and notice.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and DHHS have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d).) If, after the petition is filed, the court knows or has reason to know that an Indian child is involved, notice of the pending proceeding and the right to intervene must be sent to the tribe or the BIA if the tribal affiliation is not known. (25 U.S.C.

1912; Cal. Rules of Court, rule 5.664(f).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)

Federal Regulations and the federal guidelines on Indian child custody proceedings both specify the contents of the notice to be sent to the tribe in order to inform the tribe of the proceedings and assist the tribe in determining if the child is a member or eligible for membership. (25 C.F.R. 23.11(a), (d), (e); 44 Fed.Reg. 67588 (Nov. 26, 1979).) If known, the agency should provide the name of the child; the date and place of birth of the child; the tribe in which membership is claimed; the names, birthdates, and places of birth and death, current and former addresses and tribal enrollment numbers of the parents, grandparents and great grandparents as this information will assist the tribe in making its determination of whether the child is eligible for membership and whether to intervene. (25 C.F.R. 23.11(a), (d), (e); 44 Fed.Reg. 67588 (Nov. 26, 1979); In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.)

The duty of inquiry is continuing and the social worker is required to interview parents to accumulate information to be included in the notice which is sent to the tribe. ( 224.3, subd. (a) and (c).) Even after a determination by the court that the ICWA does not apply, if information which was not included in the original notices is subsequently received, new notices will be required. ( 224.3, subd. (f).)

The record here reflects information about appellants ancestry which is, at best, confusing and raises questions about what information is actually required on the JV-135 notice form. It is unclear whether appellant was adopted only by the maternal grandfather or by the maternal grandmother as well and whether there is any biological connection between them, since a biological connection is necessary for the ICWA to apply. (25 U.S.C.  1903(9).) The relationship of the ancestor, listed as a paternal grandfather, to either parent is not clear although it does not appear to be the same grandfather who adopted appellant. The notice is also unclear as to whether the father is claiming Indian heritage but does not know which tribe or is not claiming Indian heritage at all.

Notice to the tribes is useless unless it is apparent from the notice who the individuals are, what descent is claimed and whether one or both parents are claiming Indian ancestry. The purpose of the notice is to inform the tribe of the proceedings and claims of heritage, not to be an opening gambit in a guessing game. The record states that DHHS secured information on the family history from the maternal grandmother. Whatever information was imparted to DHHS did not appear in the notice form in any meaningful way.

Further, although DHHS had continuing contact with the father from May 2006 until at least September 2006, there is no indication that there was any attempt to inquire about his heritage or even ascertain his parents names even though the paralegals declaration made it clear that further inquiry was desirable. We recognize that for efficiency, matters relating to ICWA notice may be delegated to a specific person or unit. However, this compartmentalization does not relieve DHHS and its social workers, who have direct and ongoing contact with the parents, from both the continuing duty of inquiry and gathering all information available when preparing ICWA notices.

DHHS did not fulfill its continuing duty of inquiry and did not provide known information in a coherent fashion, rendering the notices sent to the tribes and the BIA useless. Reversal is required to remedy these problems.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of securing compliance with the notice provisions of the ICWA in accordance with federal law and the views expressed above. The juvenile court is directed to order DHHS to make a full inquiry and send properly completed notice forms as required by the provisions of the ICWA. Thereafter, if there is no response or if the tribe or the BIA determines the minor is not an Indian child, the orders shall be reinstated. However, if the tribe or the BIA determines the minor is an Indian child or if information is presented to the juvenile court that affirmatively indicates the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new selection and implementation hearing in conformance with all provisions of the ICWA.

NICHOLSON , J.

We concur:

BLEASE , Acting P.J.

DAVIS , J.

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