In re Elizabeth E.

Filed 6/14/06 In re Elizabeth E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appellant challenges that order of the juvenile court terminating his parental rights to Elizabeth E. He contends that the Indian Child Welfare Act (ICWA) "was not complied with because the notices omitted required information that was known, contained inaccurate information and omitted other required information that the agency likely could have obtained." We agree.

Background

Elizabeth E. became a dependent of the court in June 2004 at age nine months because her mother, Ms. E., had failed to keep regular and necessary medical appointments for her. The jurisdiction/disposition report states, "The Agency is unable to make any efforts to locate Elizabeth's father, given that Ms. E[.] does not know any information about him." Ms. E. told the social worker that "she was sexually involved with several men during the time when she conceived her child." She specifically denied that appellant was Elizabeth's father.

The report stated that the ICWA applied because Ms. E. "stated that she may have Indian Heritage and named the Choctaw tribe." Attached to the report were copies of the notices sent to the three Choctaw tribes and the Bureau of Indian Affairs. The notices include Elizabeth's maternal grandfather's name, address, and Choctaw tribe, but indicate that his birth place, birthdate and place of death are unknown. No information is provided about the paternal grandparents and the forms list the names of both sets of great-grandparents as unknown. The forms list the name of Elizabeth's birth father as unknown but boxes are checked that "Birth father is named on birth certificate" and "Birth father has acknowledged paternity."

The forms gave no information about Elizabeth's maternal grandmother except to list her place of death as unknown although the jurisdiction/disposition report named the maternal grandmother and stated that Ms.E. was staying with her.

In October 2004, Elizabeth was placed in foster care. By November 2004, Ms. E. had had another child, Blaze. In January 2005, the court appointed counsel for two alleged fathers, including appellant, and ordered paternity tests. The report for the October 2005 Welfare and Institutions Code section 366.26 hearing said that the paternity tests showed that appellant was Elizabeth's biological father.

At the section 366.26 hearing in November 2005, counsel for Ms. E. said that Ms. E. was "happy with the minor's current placement and is grateful to the current care provider." The court reviewed the earlier reports and orders and said, "ICWA notice is attached to the social worker's 387 petition, denial by all three tribes, so that would indicate that as to Elizabeth, ICWA does not apply." The court summarized the same responses as to Elizabeth's half-sibling and said, "so ICWA does not apply."

Counsel for appellant said that appellant was "feeling a bit blind-sided by these proceedings. It took quite a time for the biological testing to confirm paternity, and he is really not willing to go forward today and would like some kind of hearing." Counsel said that appellant was "in an impossible situation trying to defend parental rights yet not having an opportunity to participate and to be involved." Counsel acknowledged that appellant was incarcerated and that counsel had no information that would bring appellant within the statutory exceptions to termination. The juvenile court adopted the findings and recommendations in the section 366.26 report and terminated appellant's' parental rights to Elizabeth.

ICWA NOTICE

Appellant contends that the Agency failed to give proper notice as required under the ICWA because it "omitted required information it possessed, provided incorrect information, and failed to make a reasonable effort to obtain other required information."[1]

"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.)[2]

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).)

Appellant argues, "the agency had information as to the name of the maternal grandmother, which was stated in the jurisdiction/disposition report for the June, 2004, hearing. Yet, no information concerning the maternal grandmother was included in the ICWA notices, including her name. The same report states where the mother was born, yet the information is not included in the ICWA notices." Respondent acknowledges these omissions but argues, "There is no indication that the maternal grandmother was the family member with Choctaw heritage; the notices do, however, state that the maternal grandfather is Choctaw, and his name and address were provided."

There may be cases in which family information known to the Agency but omitted from the notices is clearly irrelevant to a determination of tribal membership. This is not one of those cases. Although the forms here indicate that the maternal grandfather did have Indian heritage, it does not necessarily follow that this means that the maternal grandmother did not. This is particularly true here, where the forms contained other inaccuracies and omissions. Appellant notes that the ICWA notices listed Elizabeth's birthdate as a September date that was later corrected to a date four days earlier. The forms list the name of Elizabeth's birth father as unknown but boxes are checked on the form that "Birth father is named on birth certificate" and "Birth father has acknowledged paternity." These other discrepancies cause concern about the care with which the forms were completed.

Considering that the notices provided no information about the maternal grandmother except to say that her date of death was unknown, when the jurisdiction/disposition report named the woman and stated that she has "continuously communicated concerns for her granddaughter's health and safety" to the Agency, we conclude that respondent, by failing to include known family information in the notices, has not complied with the requirements of the ICWA.

Respondent argues, "appellant has not shown that any result other than what occurred would have likely followed upon any additional notices: no fact indicating that a tribe would have responded differently than it did, and no indication that termination of parental rights would not be the court's order." If the noticing deficiencies here were procedural, such as a failure to comply with rules about the timing of the notices, the error might not be prejudicial. However, when the Agency fails to provide as much information as is known on the child's ancestors, and the record does not show that the omitted information concerned family members who had no Indian heritage, we have no basis for determining that the notice error was harmless. The order terminating parental rights must be conditionally reversed, subject to reinstatement if it is ultimately determined that Elizabeth is not an Indian child within the meaning of the ICWA.

Disposition

The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions that the Santa Cruz County Human Resources Agency provide proper notice to all three Choctaw tribes and the Bureau of Indian Affairs. The Agency 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 Elizabeth is an Indian child, or the responses received indicate that 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 Elizabeth is an Indian child 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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PREMO, J.

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[1] Respondent acknowledges that appellant may raise this error, despite silence on the issue in the trial court and despite the fact that appellant "has never visited the minor nor does he have Indian heritage."

[2] 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."