In re Mike G
Filed 4/19/06 In re Mike G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re MIKE G., JR., a Person Coming Under the Juvenile Court Law. | |
| SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MIKE G., Defendant and Appellant. | D047307 (Super. Ct. No. J515460) |
APPEAL from a judgment of the Superior Court of San Diego County, Julia Kelety, Judge. Reversed with directions.
Mike G. appeals a judgment of the juvenile court terminating his parental rights to his minor son, Mike G., Jr. (the minor), under Welfare and Institutions Code[1] section 366.26. Mike contends the court and the San Diego County Health and Human Services Agency (Agency) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), requiring reversal and remand for proper notice. We agree and accordingly reverse the judgment with directions.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2004, Agency filed a petition in the juvenile court under section 300, subdivision (b), alleging that the minor's parents[2] had failed to protect him because they were arrested for possessing and using drugs in the minor's presence. Mike had an extensive criminal history, including escape from a prison camp, robbery and possession of drugs for sale. In Mike's response to the paternity inquiry, he alleged that he had Cherokee heritage. At a jurisdiction hearing, the court sustained the allegations of the petition and continued the matter as to the applicability of the ICWA.
An addendum report documented Agency's investigation regarding Mike's Indian heritage claims. The social worker spoke to the paternal great-grandfather, Antonio C., who said the paternal grandmother was Navajo. Agency then sent notices under the ICWA to the Navajo tribes. Attached to the social worker's report were copies of proof of certified mailings to the Colorado River Tribal Council, Navajo Nation of Arizona and the Bureau of Indian Affairs (BIA). The attachments included a Request for Confirmation of Child's Status as Indian (form SOC 318) and a Notice of Involuntary Child Custody Proceeding Involving an Indian Child (form SOC 319).[3]
At a disposition hearing, the court declared the minor a dependent, removed him from parental custody and placed him in foster care.[4] The court deferred making a finding under the ICWA until it received responses to the notices.
At a special hearing to address the applicability of the ICWA, the court questioned Mike about his Indian heritage. Although Mike had previously alleged that he had Cherokee heritage, he deferred to the paternal great-grandfather's claim of having Navajo heritage. The court again postponed making a finding under the ICWA and ordered the social worker to speak to the paternal grandmother, Virginia C.
The Navajo Nation and the Colorado River Indian Tribes responded that they were unable to verify the minor's eligibility for enrollment.
The social worker met with Virginia and Antonio at their home. According to the social worker's report, they told him: "We are Spanish Apache Navajo. We may not be registered but we do participate in most of the Tribes' activities here in California. We have just had a ceremony last month in Santa Clara. Yes we are Spanish Apache Navajo Tribe. Yes we have Indian [heritage]. We are Spanish Apache Navajo." Antonio also said that he had not registered the family with the tribe because he believed registration was automatic in this country, as it was in Mexico. Based on the information given by Virginia and Antonio, the social worker stated that this family appeared to have Indian heritage. In addition to sending notice to the BIA and the Navajo tribes, Agency sent notice to eight Apache tribes.
At another special hearing to address the ICWA's applicability, the court acknowledged the family's claim of Spanish Apache and Navajo heritage. The court found that notice had been sent to both the Apache and Navajo tribes, but deferred making its finding on the applicability of the ICWA until responses were received.
In an addendum report, the social worker noted that the family appeared to have Spanish Apache heritage in their native country, Mexico, but they were not officially registered in the United States. The social worker further stated that Antonio "was not sure if his family was registered in the Apache Navajo Tribe in the United States . . . ." Attached to the report were copies of the notices that were sent to the Apache tribes and the responses received from the Mescalero Apache Tribe and the Tonto Apache Tribe. Those tribes found that the minor did not meet the necessary requirements for enrollment. The San Carlos Apache Tribe and Jicarilla Apache Nation also responded that the minor was not enrolled, nor eligible for enrollment, in those tribes. The court deferred making a finding as to the applicability of the ICWA until the six-month review hearing.
In its six-month review report, Agency recommended that the court terminate reunification services and set the matter for a section 366.26 selection and implementation hearing. Mike was incarcerated with a release date sometime in 2006. He had not participated in his case plan and had not contacted the minor.
Attachments to the six-month review report included return mail receipts of notices sent to the tribes, responses from several other Apache tribes, and a response from the BIA. The responding tribes declined to intervene on the basis that the minor was ineligible for enrollment. According to the BIA, the ICWA was not applicable because the identified tribe, the "Spanish Apache Tribe of Mexico" is not a federally recognized tribe and the family had provided insufficient information to substantiate membership in any federally recognized tribe.
At the six-month review hearing, the court found that the ICWA did not apply and continued the matter at Mike's request. At the continued six-month review hearing, the court found that the parents had failed to make substantive progress with their case plans. The court terminated reunification services and set a selection and implementation hearing under section 366.26.
The social worker recommended that the court terminate parental rights and order adoption as the minor's permanent plan. The minor was assessed as generally adoptable. There were 21 families willing and able to adopt him, and the minor's current caregivers expressed an interest in adopting him.
The court continued the selection and implementation hearing and revisited its finding that the ICWA did not apply. The court stated that it was missing the return receipts from the Colorado Tribal Council and the Navajo Nation, as well as form SOC 318 for the Jicarilla Apache Tribe and form SOC 319 for the Fort Sill Apache Tribe. It deferred making an ICWA finding until the social worker provided the missing documentation.
In an addendum report, the social worker produced the missing return receipts but not the form SOC 318 for the Jicarilla Tribe or the form SOC 319 for the Fort Sill Apache Tribe. The court stated that it had reviewed the addendum report that contained the missing documentation. The court found that notice had been properly given and that the ICWA did not apply.
At a contested selection and implementation hearing, the court found that the minor was adoptable and that none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude termination of parental rights. The court terminated parental rights and referred the minor for adoptive placement.
DISCUSSION
I
The Notice Provisions of the ICWA
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) The ICWA defines an Indian child as any unmarried person who is under age 18 and is either: (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).)
When a court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, a duty arises under the ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene or obtain jurisdiction over the proceedings by transfer to the tribal court. (25 U.S.C. § 1912(a); Cal. Rules of Court,[5] rule 1439(f)(5); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941; In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.) If the tribe's identity is unknown, notice must be given to the BIA as agent for the Secretary of the Interior. (25 U.S.C. § 1912(a).) The Secretary of the Interior then has the burden of identifying and providing notice to the proper tribe. (In re Kahlen W., supra, at p. 1422.) "'Of course, the tribe's 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.] '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.' [Citation.]" (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) The tribe determines whether the child is an Indian child within the meaning of the ICWA, and its determination is conclusive. (Id. at p. 255.)
Notice under the ICWA must contain enough information to constitute meaningful notice. "The Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979)) (Guidelines), which are designed to implement the ICWA, require that the notice include . . . the name of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name and address of the petitioner's attorney; and a statement of the right of the tribe to intervene in the proceeding. (Guidelines, at p. 67588.)" (In re Karla C., supra, 113 Cal.App.4th at p. 175.) Notice must be sent by registered mail, with return receipt requested. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.) An original or a copy of each ICWA notice must be filed with the juvenile court along with any return receipts (Guidelines, supra, 44 Fed.Reg. at p. 67588) "so there will be a complete record of efforts to comply with the [ICWA]." (Id. at p. 67589.)
Notice under the ICWA must also 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); 59 Fed.Reg. 2248 (eff. Feb. 14, 1994).) '[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).)" (In re Karla C., supra, 113 Cal.App.4th at p. 175.)
The burden is on the Agency "to inquire about and obtain, if possible, all of the information about a child's family history" (In re C.D. (2003) 110 Cal.App.4th 214, 225), and the juvenile court has an affirmative duty to assure the Agency has complied. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) "[Because] the failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, notice requirements are strictly construed." (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) When proper notice under the ICWA is not given, the court's order is voidable. (25 U.S.C. § 1914; In re Karla C., supra, 113 Cal.App.4th at p. 174.)
II
The ICWA Notices Contained Insufficient Information
Agency was advised of possible Indian ancestry of Mike's relatives. Mike identified his mother as Virginia C. and said she was born in March 1965. He also identified his grandfather as Antonio C., a man in his 70s. The social worker had the address and telephone number of Virginia and Antonio and, pursuant to the court's order, interviewed them in their home. Virginia and Antonio told the social worker that they had Spanish Apache Navajo heritage. Based on this information, Agency sent notice to the Apache and Navajo tribes and to the BIA.
A. Navajo Notices
In the notices to the Navajo Nation, the Colorado River Tribal Council and the BIA regarding possible Navajo heritage, the social worker identified the minor's paternal grandmother as "Hermila Caopina" with a birth date of "1/20/?." The notices failed to identify Antonio as the minor's paternal great-grandfather. Despite having accurate information about the minor's direct lineal ancestors after having interviewed them, the social worker incorrectly identified the paternal grandmother and completely omitted the paternal great-grandfather in the notices to the Navajo Nation, the Colorado River Tribal Council and the BIA. (See In re Louis S. (2004) 117 Cal.App.4th 622, 631 [inaccurate and incomplete information on notices prevents tribe from conducting meaningful search to determine child's Indian heritage]; In re Brooke C., supra, 127 Cal.App.4th at p. 384 [record did not contain proof that known ancestors were properly identified].)
If the identity or location of the tribe cannot be determined, the burden of identifying and providing notice to the proper tribe generally shifts from the state court to the Secretary of the Interior, "who presumably has more resources and skill with which to ferret out the necessary information." (In re Kahlen W., supra, 233 Cal.App.3d at p. 1422; In re Edward H. (2002) 100 Cal.App.4th 1, 5.) Here, however, Agency had information about the minor's purported Navajo lineage that it failed to disclose in its notice to the BIA. The opportunity for a tribe or the BIA to investigate whether the minor is an "Indian child" means little if Agency "does not provide the available Indian heritage information it possesses." (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.) Given the deficient notice it received, the BIA could not properly determine whether the minor was an Indian child.
B. Apache Notices
Notices sent to the Apache tribes and the BIA in form SOC 318 regarding possible Apache heritage erroneously listed the maternal grandmother's name as Antonio C. Similar to the Navajo notices, these notices failed to identify Virginia C. as the maternal grandmother and they omitted Antonio as the paternal great-grandfather. Further, the notices provided no birth dates or addresses for Mike, Virginia or Antonio.[6] As we previously noted, the social worker interviewed Virginia and Antonio in their home, and presumably had, or should have had, the correct identifying information necessary to properly discharge its duty to give effective notice to the tribes.
III
Errors in Addressing Notices
Under rule 1439(f)(2), "[n]otice to the tribe must be to the tribal chairperson unless the tribe has designated another agent for service." Each tribe has a tribal agent, listed in the federal register, designated for service of process. (68 Fed.Reg. 68408 et seq. (Dec. 8, 2003) (tribal agents list); In re Louis S., supra, 117 Cal.App.4th at p. 633.)
A. Navajo Notices
The evidence here is insufficient to establish that notice was sent to all three tribal agents designated for service as listed in the federal register for the Navajo Nation. (68 Fed.Reg. 68408, 68417, 68421.) Even if Agency sent notice to the designated agents on the list promulgated by the California Department of Children and Family Services (see Cal. Dept. of Children & Fam. Services, Tribal Affiliation-Tribal Government -- Contacts for ICWA Purposes (Dec. 2005)
B. Apache Notices
The record shows that Agency correctly addressed notices to three of eight Apache tribes (the San Carlos Tribe, the Mescalero Tribe and the Tonto Tribe), each of which responded. Although the Jicarilla Apache Nation also responded, the record does not include the form SOC 318 that was sent to this tribe, despite the court's order that Agency submit that form. Without a review of the notice that was presumably sent, the court could not determine whether the tribe received accurate and complete notice. On the record before us, we cannot presume that the notice sent to the Jicarilla Apache Nation was proper. (See In re Karla C., supra, 113 Cal.App.4th at p. 178.)
The court also ordered Agency to submit a copy of the form SOC 319 that was sent to the Fort Sill Apache Tribe. That form is not in the record, and thus we cannot conclude notice to the Fort Sill Apache Tribe was sufficient.
Several other errors appear in the addresses used to send notice. Notice to the White Mountain Apache Tribal Council was sent to Post Office Box 700 rather than Post Office Box 1870. (See 68 Fed.Reg. 68422.) Notice to the Yavapai-Apache Tribe was improperly sent to "Apache, Mohave Fort McDowell Fort McDowell Yavapai Tribal Council" in Fountain Hills, Arizona rather than to the Yavapai-Apache Tribe in Camp Verde, Arizona. (Ibid.) On remand, the court must assure that notice is sent to the proper tribal agents, at their proper addresses, as designated in the list of tribal agents.
IV
The ICWA Notice Errors Require Reversal
Agency concedes that the notice provided under the ICWA was defective. However, Agency argues, for the first time on appeal, that notice was not required in the first instance because the "Spanish Apache Navajo" tribe is not a federally recognized tribe and therefore, the ICWA does not apply.
The record shows that Mike's relatives claimed to have Spanish Apache Navajo heritage and said they had recently participated in a tribal ceremony. The paternal great-grandfather was born in Mexico and told the social worker that he was not sure if his family was registered in the tribe in the United States. Based on information that the family had "Navajo" heritage, "Apache Navajo" heritage and "Spanish Apache Navajo" heritage, all parties proceeded on the theory that notice had to be sent to the Apache and Navajo tribes, not the "Spanish Apache Navajo" tribe.[7] Those notices were deficient. Agency's belated position on appeal that no notice was required because the "Spanish Apache Navajo" tribe is not federally recognized cannot cure the error. (In re Desiree F., supra, 83 Cal.App.4th at p. 472 [unless tribe has participated in or expressly indicated no interest in the proceedings, failure to comply with ICWA notice requirements constitutes prejudicial error].)
The "ICWA protects the interests of Indian children" (In re Gerardo A., supra, 119 Cal.App.4th at p. 993) and Agency does dependent children a disservice when it treats "[c]ompliance with the ICWA [as] a mere technicality[.]" (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 908.) We cannot overemphasize the need for Agency to take seriously its responsibility to comply with the notice provisions of the ICWA. Failure to do so inevitably causes the type of delay that is inimical to the Legislature's stated intent to have dependency actions resolved expeditiously. (In re Jesusa V. (2004) 32 Cal.4th 588, 625.)
The record before us establishes that Agency did not provide the juvenile court with evidence that notice under the ICWA was proper. Because the evidence does not support the court's ruling that the ICWA is inapplicable, we reverse the judgment terminating parental rights, so that Agency and the court can comply with the ICWA's notice requirements. (In re Karla C., supra, 113 Cal.App.4th at pp. 178-179.)
DISPOSITION
The judgment terminating parental rights is reversed. The juvenile court is directed to comply with the notice provisions of the ICWA. If, after proper notice and inquiry, no tribe intervenes, the court shall reinstate the judgment. If a tribe intervenes, the court is directed to conduct a new selection and implementation hearing under section
366.26 in accordance with the ICWA. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 343; In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1452; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112.)
AARON, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.
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[1] Statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] The minor's mother, Nancy S., is not a party to this appeal.
[3] Effective January 1, 2005, the Judicial Council of California adopted a new form entitled "Notice of Involuntary Child Custody Proceedings for an Indian Child" (form JV-135) for use in ICWA cases.
[4] The minor was later placed with his maternal grandmother.
[5] All rule references are to the California Rules of Court.
[6] Not surprisingly, this misinformation and lack of information caused the BIA to respond that the "Spanish Apache Tribe of Mexico is not a [f]ederally recognized tribe."
[7] When the court revisited the issue of ICWA notice compliance because the social worker had not filed complete notices for the Jicarilla and Fort Sill Apache tribes, County Counsel did not object on the ground the court's only obligation was to determine whether the Spanish Apache Navajo Tribe was a federally recognized tribe.
