In re Justin S

Filed 4/7/06 In re Justin S. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

S.L. appeals from orders of the juvenile court terminating her parental rights to Justin S. and Tyler S. under Welfare and Institutions Code section 366.26.[1] She contends that the notices given under the Indian Child Welfare Act gave insufficient information for the tribes to determine whether Justin and Tyler were Indian children and thus the juvenile court erroneously concluded that the Indian Child Welfare Act did not apply to the proceedings. We agree.

Background

In March 2004, the Santa Clara County Department of Family and Children's Services (Department) filed a petition under Welfare and Institutions Code section 300 concerning four-year-old Justin S. and nine-month-old Tyler S. Tyler and Justin were removed from S.'s care and placed in protective custody because of the condition of their home, the condition of the children, and S.'s arrest on drug related charges and warrants. The Department had received prior referrals concerning the children and the family had been offered voluntary services. S. had a substance abuse history and criminal record and Maurice had struggled with an addiction to methamphetamine. In May 2004, Maurice and S. submitted on jurisdiction and the court sustained the petition. The court ordered reunification services for S. and Maurice.

The children's maternal grandmother told the social worker that her family had heritage in the Blackfeet tribe from Oklahoma or Idaho. Their paternal grandmother told the social worker that "her grandfather used to say they had Cherokee heritage." A few days later, the social worker sent notice pursuant to the Indian Child Welfare Act (ICWA) to four tribes and the Bureau of Indian Affairs. Responses were received from the Bureau of Indian Affairs, the United Keetoowah Band of Cherokee Indians, Eastern Cherokee and Blackfeet all indicating that the children were not enrolled tribe members and were not eligible for membership.

When the Cherokee Nation of Oklahoma did not respond to the notice, the social worker resent notice in October 2004. The report prepared for the six-month review hearing said that the whereabouts of both S. and Maurice were unknown. At the hearing in November 2004, counsel for the Department asked the court to make a finding that the ICWA did not apply. The court said, "Yes, I'm prepared to make that finding that we've reviewed the records of this response and find that based upon the documents which have been filed the Indian Child Welfare Act doesn't apply." The juvenile court terminated reunification services and set a section 366.26 hearing.

By the time of the section 366.26 hearing in May 2005, Justin and Tyler were living with their paternal grandmother and step-grandfather who wanted to adopt them. S. had filed a section 388 petition describing her efforts to treat her drug problem and requesting additional family reunification services. The court held a hearing on the section 388 petition just before the section 366.26 hearing. The juvenile court denied the section 388 petition. The court found that termination of parental rights would not be detrimental to the children, terminated the parental rights of S. and Maurice and freed Justin and Tyler for adoption.

ICWA Notice

Appellant contends that the juvenile court failed to provide proper notice as required by the ICWA. Specifically, appellant argues that the notices failed to include the date of birth of the children's paternal grandmother. Respondent argues that substantial evidence supports the court's finding that the ICWA did not apply in this case and that the Department submitted sufficient information to the Indian tribes, including the paternal grandmother's name and birthplace, to allow the tribes to determine whether the children were Indian children.[2]

"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.) 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.A. § 1903(4); Cal. Rules of Court, rule 1439(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.) Because the determination of a child's 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., we 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 child's tribe 'must be notified of the pending petition and the right of the tribe to intervene in the proceedings.' [Citation.]" (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.) "If the information in the record shows there may be Indian ancestry, even though the child may not be an Indian child within the meaning of the ICWA, the court is required only to send notice of the proceedings to the identified tribe or tribes or to the Bureau of Indian Affairs (BIA), and to make further inquiry regarding the possible Indian status of the child. [Citation.]" (Ibid.) "The notice must include the names of the child's ancestors and other identifying information, if known, and be sent registered mail, return receipt requested. [Citation.] When proper notice is not given, the dependency court's order is voidable. [Citations.]" (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.) The 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. (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.)

It is now widely accepted that in order "[t]o satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [the Department] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. ([Cal. Rules of Court, r]ule 1439(f).) Second, [the Department] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to [the] BIA." (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 178.)

Often, in the case of children under the jurisdiction of the juvenile court, official tribal affiliation for the child or the parents is not known. What is known is anecdotal, incomplete information about family history. To assist in gathering appropriate information and establishing possible tribal affiliation, "[t]wo forms have been issued by the State of California Health and Welfare Agency and the Department of Social Services to comply with the ICWA. They are entitled 'Request for Confirmation of Child's Status as Indian' (form 'SOC 318') and 'Notice of Involuntary Child Custody Proceedings Involving an Indian Child' (form 'SOC 319')." (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1108.)[3]

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 child's 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 child's 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 child's family history included on form SOC 319 and in 25 Code of Federal Regulations part 23.11(d)(3)." (In re C.D., supra, 110 Cal.App.4th 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 Karla C., supra, 113 Cal.App.4th at page 175, in order " '[t]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors.' (25 C.F.R. § 23.11(b) (2003).)" 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 child's 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).) (Ibid.) 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).)

Here, the forms sent to the tribes contained a great deal of identifying information about S. and Maurice and several other relatives. However, although the paternal grandmother is the one who informed the social worker of the family's Cherokee heritage shortly before the notices were sent out, the SOC forms listed the paternal grandmother's date of birth as unknown. The paternal grandmother attended a Team Decision meeting in July 2004, yet the notices that were resent in October 2004 still listed the paternal grandmother's date of birth as unknown.

Respondent argues that although the SOC 318 forms that were sent out did omit the paternal grandmother's date of birth, "this did not prevent the Cherokee tribes from determining whether the children were Indian children." By so arguing, respondent invites us to speculate that the tribes would have determined that Justin and Tyler were not Indian children even if the tribes had been given this important information about the paternal grandmother. California Rules of Court, rule 1439(g) states, "Determination of tribal membership or eligibility for membership is made exclusively by the tribe." Thus, however skeptical we may be about whether Justin and Tyler will ultimately be determined to be Indian children, it is not this court's role to say that this easily available identifying information about the paternal grandmother could not have helped tribal identification. The letters from the Cherokee Center for Family Services said that the determination that Justin and Tyler were not Indian children was "based on the information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination." The letter from the Bureau of Indian Affairs said that it had received "insufficient information" and cited the importance of "names, birth dates and/or birthplaces" in determining eligibility. It does appear, though, that the notices were deficient only as to information about Cherokee ancestry on the paternal side and that they included as much information about Blackfeet heritage from the maternal side as was available.

The order terminating parental rights must be conditionally reversed, subject to reinstatement if it is ultimately determined that Justin and Tyler are not Indian children within the meaning of the ICWA. We feel compelled, however, to acknowledge that this disposition will be received by some with exasperation in that, at the time of the section 366.26 hearing, both children were living in the prospective adoptive home of their paternal grandmother and step-grandfather. Thus, assuming that the problems that led to this dependency persist, even if the provisions of the ICWA are applied in future proceedings the children's placement may very well satisfy the ICWA's purpose of preserving the tribe's cultural heritage.[4]

Disposition

The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions that the Department of Family and Children's Services provide proper notice to all three Cherokee tribes and the Bureau of Indian Affairs. The Department is directed to file proof of receipt of such notice by the tribes and the Bureau of Indian Affairs, along with a copy of the notice and any responses. If, after receiving notice as required by the ICWA, no response indicates that Justin and Tyler are Indian children, or the responses received indicate that they are not Indian children within the meaning of the ICWA, the order terminating parental rights shall be immediately reinstated. If any tribe determines that Justin and Tyler are Indian children within the meaning of the ICWA, the juvenile court shall conduct further proceedings applying the provisions of the ICWA, Welfare and Institutions Code section 360.6, and rule 1439 of the California Rules of Court.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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MIHARA, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Respondent does not dispute that, based on the information the social worker received from the family, the juvenile court was required to give ICWA notice.

[3] As of January 1, 2005, California Rules of Court, rule 1439(d)(3) provides that "At the first appearance by a parent or guardian in any dependency case, . . . the parent or guardian must be ordered to complete form JV-130, Parental Notification of Indian Status."

[4] The ICWA provides, "In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with -- [¶] (i) a member of the Indian child's extended family . . . . " (25 U.S.C. § 1915(b).) The ICWA defines "extended family member" according to "the law or custom of the Indian child's tribe or, in the absence of such law or custom, [as] a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2).)