In re K.M.

Filed 10/11/06 In re K.M. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Reversed and remanded with directions.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel for Respondent Los Angeles County Department of Children and Family Services.

_______________________

Martin M.’s parental rights with respect to his daughter K.M. were terminated pursuant to section 366.26 of the Welfare and Institutions Code.[1] Martin appeals on the ground that the Department of Children and Family Services failed to give adequate tribal notice under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.). We reverse and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND

As Martin’s appeal pertains solely to the adequacy of ICWA notice, only facts relevant to that issue are included in this recitation.

K., born in January 2000, became the subject of juvenile dependency proceedings in 2003. Martin appeared at a pretrial resolution conference in the dependency case in 2003 and advised the court that he had Native American ancestry through his father. He denied knowing his father’s birth date, his grandmother’s name, or how to contact his father. Martin did, however, believe that his mother would know how to reach his father.

DCFS subsequently spoke with Martin and his mother. Both denied specific knowledge of Martin’s father’s Native American ancestry and said that DCFS should speak with Martin’s father to find out more information. Martin’s mother provided DCFS with a telephone number and address for Martin’s father. The social worker telephoned Martin’s father on numerous occasions but received no answer, and there was no answering machine. He wrote a letter to Martin’s father, but there was no response. He drove to the address given to him for Martin’s father, but found no one at home and left a message with his business card.

On January 4, 2004, DCFS sent notices to the Bureau of Indian Affairs and the Office of Tribal Services. In these notices, both the child’s name and her mother’s name were misspelled: K. as “[C.]” and her mother Erika C. as “Ericka.” Names, birthplaces, and birth dates were provided for K., her mother, her father, her maternal grandparents, and her paternal grandmother. Names and birthplaces were listed for two of K.’s maternal great-grandparents. Only her paternal grandfather’s name was listed, with his birth date and birthplace listed as “Unknown.” All information about K.’s paternal great-grandparents was listed as “Unknown.” No return receipts for the notices were included in the record. BIA responded that it had insufficient information to identify a federally recognized tribe. The court found the ICWA notices proper and that the ICWA did not apply.

K. was declared to be a dependent child pursuant to section 300, subdivision (b). The parental rights of both Martin and Erika were ultimately terminated. Martin appeals the termination order.

DISCUSSION

The juvenile court and DCFS have an affirmative duty to inquire whether the child named in the dependency petition is or may be an Indian child (In re Desiree F. (2000) 83 Cal.App.4th 460, 470; Cal. Rules of Court, rule 1439(d)), and to give notice by registered mail, return receipt requested, to the tribe of both the proceedings and the right to intervene. (25 U.S.C. § 1912(a).) If the tribe is not known, notice must be given to the BIA. (Ibid.) The notice must include the petition and following information, if known: the child’s name, birth date and birthplace; the name of the tribe in which the child is enrolled or may be eligible to enroll in; the names of the child’s mother, father, grandparents, great-grandparents, and any Indian custodians; those individuals’ maiden, married, and former names as applicable, their birth dates, places of birth and death, tribal enrollment numbers, and current and former addresses. (25 C.F.R. § 23.11(a) & (d).) Martin complains that notice under ICWA was deficient in three respects: the child’s name was misspelled as “[C.]” and her mother’s name misspelled as “Ericka”; the birth date of K.’s paternal grandfather was not included; and the return receipts were not included with the record.

The missing return receipts are not meaningful under the facts and law applicable to this case. Presently, California Rules of Court, rule 1439(f) requires return receipts to be filed with the juvenile court. At the time that the ICWA notice was given in this case, however, neither ICWA nor the California Rules of Court required return receipts to be filed, although the practice was recommended by appellate courts and considered mandatory by some. (See In re H.A. (2002) 103 Cal.App.4th 1206, 1215 [requiring filing of return receipts].) The entire purpose of filing return receipts is to establish in the record that ICWA notices were actually received by the tribe or agency in question. Here, actual receipt is established by the fact that BIA responded to the ICWA notice. Under these circumstances, any error in failing to file the return receipts with the juvenile court was harmless.

The same cannot be said for the absence of a number of pieces of information about K.’s paternal family.[2] There is no question that DCFS had an obligation to attempt to obtain this and all other information designated in the regulations as pertinent to the determination of whether K. was in fact an Indian child. “The burden is on the Agency to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 630; see also In re C.D. (2003) 110 Cal.App.4th 214, 225 [“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 [the pertinent forms] and in 25 Code of Federal Regulations part 23.11(d)(3). [Footnote]”].) While the record does indicate investigation by DCFS, it does not show that DCFS attempted to obtain specific items of information from all readily available sources. “[T]he social worker’s affirmative duty to inquire whether the minors might be Indian children mandated, at a minimum, that she make some inquiry regarding the additional information required to be included in the ICWA notice. [Citation.]” (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.)

As K.’s Native American heritage was alleged to have come through her paternal grandfather, Martin’s father’s place and date of birth (as well as information about his parents) were highly significant in determining whether K. was in fact an Indian child. The limited facts in the record, however, do not reveal that DCFS actually inquired into and attempted to obtain this specific information required to be submitted to the BIA. The only information in the record about Martin’s father’s birth date is that when asked by the court, Martin said he did not know it. Martin similarly denied knowing his paternal grandmother’s name. The record makes clear that DCFS spoke to both Martin and his mother, who knew no details of the father’s Native American ancestry and directed them to Martin’s father for more information. Martin’s mother gave DCFS Martin’s father’s telephone number and address. Efforts to contact Martin’s father were unavailing.

The record, however, nowhere demonstrates that DCFS asked Martin’s mother for Martin’s father’s birth date or for information regarding Martin’s father’s parents (K.’s paternal great-grandparents); that DCFS asked Martin or his mother where Martin’s father was born; or that DCFS inquired whether they possessed any family records such as birth or marriage certificates that would reveal this information. Even a letter sent to Martin’s father requesting information did not specifically ask for Martin’s father’s birth date or birthplace, or his parents’ names, birth dates, and birthplaces. The letter merely advised that DCFS was seeking information concerning “whether there is American Indian Ancestry in the father Martin M[.]’s side of the family.” This did not inform Martin’s father that the information sought by DCFS included information that he was likely to know even if he personally could not definitively establish a tribal connection, such as his own birthplace and birth date and the names, birth dates, and birthplaces of his parents. Investigators must seek not just information in general about Native American ancestry, but the specific information needed for ICWA notices. As the court explained in In re D.T., supra, 113 Cal.App.4th at page 1455, an investigation seeking “‘any and all information that you have or can reasonably give’ regarding Indian ancestry” is insufficient because “there is nothing in the record to indicate that the parents were ever told, specifically, what information was relevant to this inquiry.”

“‘[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child. [Citation.]’ [Citation.] Notice is meaningless if no information is provided to assist the tribes and the BIA in making this determination. With only the names, birth dates and birthplaces of the minors and the parents, it is little wonder the responses received were that the information was insufficient to make a determination or that the minors were not registered or eligible to register. Consequently, we conclude the notice provided was insufficient. As the tribes and the BIA were deprived of any meaningful opportunity to determine whether the minors were Indian children, the error was prejudicial.” (In re D.T., supra, 113 Cal.App.4th at p. 1455; see also In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424 [“The juvenile court’s failure to secure compliance with the notice provisions of the [ICWA] is prejudicial error”].) Here, although slightly more information was included on the notice than on the notice in In re D.T., the information was nonetheless too scant to permit a determination of whether K. was an Indian child, and there is no evidence in the record that the necessary information was actually sought but determined to be unavailable. Accordingly, we reverse and remand the order terminating parental rights, with directions to the trial court to permit DCFS to demonstrate that it did in fact seek all the specific items of information required for the ICWA notice. If DCFS shows that its investigation fulfilled its affirmative duty to investigate, the court should reinstate its section 366.26 orders.

If DCFS is unable to demonstrate that its investigation was adequate to satisfy its obligations, the court should order DCFS to perform an investigation consistent with the law and this decision. If as a result of that investigation new information is obtained that may assist the Bureau of Indian Affairs or a specific tribe or tribes in determining whether K. is an Indian child, the trial court shall order DCFS to provide the BIA and any appropriate tribe or tribes with proper notice incorporating that additional information. If adequate additional investigation is performed but yields no further information that could assist the Bureau of Indian Affairs or a specific tribe or tribes in determining whether K. is an Indian child, the trial court shall reinstate its section 366.26 orders.

In the event that new notice is ordered: If a tribe responds, indicates that K. is an Indian child, and seeks intervention, the juvenile court’s orders shall be vacated and proceedings consistent with ICWA conducted. If no tribe responds that K. is an Indian child, or if no tribe seeks to intervene, the court should then reinstate its section 366.26 orders.

As a final note, Martin M. notes that the mother and child’s first names were spelled differently on the ICWA notice documents than on K.’s birth certificate. These spelling errors would not alone be sufficient to require remand for new ICWA notices, for there was no indication that they could have impeded BIA in determining whether K. was an Indian child. On remand, should DCFS be ordered to give notice again under ICWA, it will have the opportunity to accurately spell K. and Erika’s names in that notice.

DISPOSITION

The order terminating parental rights under section 366.26 is reversed and the matter is remanded to the juvenile court with directions that within 10 days of the remittitur DCFS demonstrate the scope and adequacy of its investigation of K.’s potential Native American heritage, including but not limited to its inquiry into K.’s paternal grandfather’s birth date and birthplace; and the names, birth dates and birthplaces of the paternal grandfather’s parents (K.’s paternal great-grandparents). If the trial court determines that DCFS’s investigation satisfied its affirmative duty to inquire into the specific items of information required for ICWA notice, the court shall reinstate its 366.26 orders.

If the trial court concludes that DCFS’s investigation was insufficient, the trial court shall order, pursuant to ICWA and rule 1439 of the California Rules of Court, that within 30 days of the remittitur DCFS perform a thorough investigation of K.’s potential Native American heritage. If adequate additional investigation is performed but yields no further information that could assist the Bureau of Indian Affairs or a specific tribe or tribes in determining whether K. is an Indian child, the trial court shall then reinstate its section 366.26 orders. If as a result of that investigation new information has been obtained that may assist the Bureau of Indian Affairs or a specific tribe or tribes in determining whether K. is an Indian child, the trial court shall order DCFS to provide the appropriate tribe or tribes and the Bureau of Indian Affairs with proper notice of the pending proceedings, which should include all relevant family members’ names, birth dates, and places of birth, as well as the required forms and a copy of the petition; and that DCFS file copies of the notices sent, all return receipts, and all responses received with the juvenile court.

In the event that new notice is given, if, after notice is properly given, no tribe responds indicating K. is an Indian child within the meaning of ICWA, or if no tribe seeks to intervene, the court shall reinstate its orders. If a tribe determines K. is an Indian child and seeks to intervene in the juvenile court proceedings, the juvenile court shall vacate its prior orders and conduct all proceedings in accordance with ICWA, section 360.6 and rule 1439 of the California Rules of Court.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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

[2] Martin complains only about the absence of his father’s birth date, but we observe that the record reflects no inquiry at all into the place of his father’s birth, and insufficient inquiry into the names, birth dates, and birthplaces of his father’s parents.