In re Charles B.

Filed 3/12/07 In re Charles B. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Appellant Leslie B. is the mother of seven-year-old Charles B., a dependent child of the juvenile court. Mother appeals from an order terminating her parental rights. (Welf. & Inst. Code,  366.26.) She contends that termination of her parental rights would substantially interfere with Charless relationships with his siblings, and that the juvenile court erred by denying her request for an updated adoption assessment. We disagree with these contentions for the reasons set forth below.

Mother also contends that respondent Contra Costa County Department of Children and Family Services (Department) and the juvenile court did not comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.). We agree with this contention and reverse. Based on the information in the record on appeal that was before the juvenile court at the time it reviewed the sufficiency of the ICWA notice, the court erred by finding the notice was sufficient. We order a limited remand, as we explain below.

I. FACTS

On December 11, 2003, respondent Department filed a dependency petition on behalf of Charles, who was then four years old. The Department alleged that Mother had failed to protect Charles within the meaning of Welfare and Institutions Code section 300, subdivision (b).^[1] The Department also filed dependency petitions on behalf of Charless siblings, Tyler B. and Mary B., who were then one and two years old, respectively, as well as Charless older half-sibling, Patience R., then six.

According to the allegations of the petition filed on Charless behalf, Mother left Charles in the care of an inappropriate caregiver in that she left Charles in the unsanitary home of his maternal grandmother, who only inconsistently took medication for her mental illness. Mother also failed to provide Charles with adequate clothing and medical and dental care; Charles had an untreated rash and tooth rot.

The petition also alleged that Mother had left Charles with no provision for support ( 300, subd. (g)), because Mother called the Department on December 10, 2003 and asked for [Charles] to be placed, stating I cant handle them. 

The Department had placed Charles in an emergency foster home on December 10, 2003. On January 6, 2004, Charles was removed from the emergency foster home and placed with his maternal aunt.

On January 27, 2004, the Department filed an amended petition on behalf of Charles, adding an allegation that Mother has used methamphetamine for several years and has a serious and chronic substance abuse problem, which significantly impairs her ability to provide adequate parenting. . . .^[2]

On February 19, 2004, Mother pleaded no contest to modified allegations that she was homeless and left [Charles] in the care of an inappropriate caregiver and has a history of substance abuse which impairs her ability to provide adequate parenting.

The March 11, 2004 dispositional report is not in our record. But that report was in the record before us in a prior proceeding involving Patience R. As we noted in our opinion in that proceeding, the March 11 dispositional report briefly described the ICWA notice given in this case. The report indicated that ICWA may apply. Mother states she believes she may have Cherokee ancestry . . . . (In re Patience R. (November 30, 2006, A114139 [nonpub. opn.]).)

We briefly describe the materials before the juvenile court at the time it reviewed the sufficiency of the ICWA notice. These materials are a packet of documents added to the record on appeal by a motion to augment. The parties refer to this packet as Augment A.

Augment A shows that on February 3, 2004, the Department sent to the Bureau of Indian Affairs (BIA) the two standard ICWA notices under prior law: SOC form 318, Request for Confirmation of Childs Status as Indian, and SOC form 319, Notice of Involuntary Child Custody Proceeding Involving an Indian Child.^[3] The Department also sent the forms to Mother. Augment A does not contain any ICWA notice forms sent to any Cherokee tribe.

The notices in Augment A contain virtually no information regarding Charless ancestry except the childs name, birth date and city of birth, Mothers name, birth date and city of birth, Mothers parents names and birthdates, and the name and date and place of birth of Charless father. The notices indicate that Charles might have Cherokee ancestry through Mother and through Charless maternal grandfather and maternal great-grandfather in Arkansas.

The notices did not list the birthplace of the maternal grandparents, i.e., Mothers parents, but listed the birthplaces as Unknown despite the fact that Mothers parents were born fairly recently, in 1950 and 1942, and made at least one court appearance in the dependency proceedings below. The notices provided no information regarding the paternal grandparents, listing every category as Unknown. And the notices did not list the name, date and place of birth of any of the four great-grandparents, with the exception of the maternal great-grandfather who was listed as having been born in Arkansas.

Augment A contains mail receipts showing that BIA received the ICWA notices on February 5, 2004. As of the time of the dispositional report, BIA had not responded to the notices.

At the March 25, 2004 disposition hearing, the Department submitted the ICWA notices i.e., Augment A to the juvenile court. The court took a brief recess to allow counsel for Mother to examine the notices. After the recess, the court stated that it had reviewed the Augment A ICWA notices and found there is no evidence that Charles belong[ed] to any tribe. Charles did not presently fall under [ICWA]. Notice was proper.

The court ordered reunification services for Mother. The court also ordered twice-monthly sibling visits.

As we noted in our opinion In re Patience R., on May 15, 2004, BIA responded to the ICWA notices by informing the Department it had insufficient information to determine any eligibility in a federally recognized tribe. (In re Patience R. (November 30, 2006, A114139 [nonpub. opn.]).)

On August 18, 2004, the Department filed a supplemental petition alleging that Charless placement with his maternal aunt posed a risk to his health and safety. Charles was then placed in a Westwind Foster Family Agency foster home along with his sister Mary. It is clear from the record that Patience and Tyler had separate placements.

In October 2004, Charles and Mary were moved to another foster home placement. Because Charles acted out sexually and aggressively toward Mary and other foster children, he was removed from the placement in December 2004 and placed in an EMQ Foster Family Agency foster home. Mary was placed in a separate foster home.

The twice-monthly sibling visits had continued from March 25 to October 2004. With Charless and Marys change of placement in October 2004, sibling visits were suspended briefly, and then further delayed by the need to remove Charles from his placement in December 2004, and Charless and Marys needs to transition into their new foster homes. A sibling visit took place on January 24, 2005.

In February 2005, the Department reported that Charles had settled into his new . . . foster placement quite well, and recommended that the court find that he was not adoptable and that he remain in the current foster placement with the permanent plan of long-term foster care. The Department recommended that Mary and Tyler were adoptable. The Department noted that the foster parents of all four of Mothers children were supportive of sibling visits.

The Department also noted that Mother was homeless, probably continuing her substance abuse, and had not been able to follow through on participation in reunification services.

In August 2005, the Department recommended that Charles be found to be adoptable, and asked the juvenile court to set a hearing under section 366.26 (.26 hearing) and impose a permanent plan of adoption. The Department identified the prospective adoptive parents, Terry H. and Sui W., a couple in their fifties who have been in a committed relationship for over fifteen years. The two women share[] a loving connection with Charles, for whom they had been caring since December 2004. The prospective adoptive parents wanted to provide Charles with a permanent home, and were planning to move to Georgia. The Department was in the process of completing an Adoptive Home Study.

The court set a .26 hearing for January 18, 2006. In its report prepared for that hearing, the Department noted that Charles had adjusted very well to the move to Georgia. Unfortunately, one of the prospective adoptive parents died of cancer in mid-November 2005. But the surviving prospective adoptive parent wished to continue to care for Charles and to adopt him. The surviving parent had an approved Adoptive Home Study. The Department recommended that the court terminate Mothers parental rights and finalize Charless adoption.

Tyler and Mary had been adopted in June 2005. A sibling visit was planned for early 2006. According to the report prepared for the .26 hearing, Exchange of cards, letters, gifts and photos between the children and their respective caregivers will be encouraged.

At the .26 hearing, Mother presented no evidence. Her counsel briefly argued against the Departments recommendations. Counsel complained that the Adoptive Home Study was done at a time when there were two [prospective adoptive parents] and not for the one that remains but counsel did not specifically request a new Study.

The juvenile court observed that [r]arely are there cases that are this clear-cut, and this is obvious that it would be in the best interests to terminate parental rights. The court found by clear and convincing evidence that Charles was likely to be adopted and termination of parental rights would be in his best interests. The court terminated Mothers parental rights.

II. DISCUSSION

1.

Mother contends that termination of her parental rights would substantially interfere with Charless relationships with his siblings, and that the juvenile court erred by denying her request for an updated adoption assessment. We reject these contentions for the following reasons.

Mother contends the juvenile court should have found an exception to adoption based on interference with Charless relationships with his siblings. ( 366.26, subd. (c)(1)(E).) But Mother did not raise this issue below, and the juvenile court has no sua sponte duty to determine whether the sibling relationships exception to adoption applies. (In re Daisy D. (2006) 144 Cal.App.4th 287, 291-292.)

The record shows that Charless adoption did not interfere with his relationships with his siblings. The siblings had been in separate long-term placements for some time, and their relationships with Charles had not been substantial. The juvenile court did assure that the siblings relationships with Charles were maintained by sibling visits and by the exchange of cards, letters, gifts, and photographs. We see no error.

Mother also contends the court erred by denying her request for an updated adoption assessment in light of the death of one of Charless prospective adoptive parents and the move to Georgia. But as we have seen, Mother did not actually request an updated assessment. In any case, one was not warranted. The death of the adoptive parent and the move to Georgia were discussed in the report prepared for the .26 hearing. The Department concluded Charles was coping with the death, was doing well with the surviving parent, with whom he had lived for over a year, and should be adopted. In short, the Department evaluated the information Mother now claims should have led to an updated assessment and reported the information to the court.

2.

Mother contends that the Department and the juvenile court failed to give adequate notice of the dependency proceeding as required by ICWA. Specifically, Mother contends that the Department and the juvenile court failed to provide sufficient information regarding Charless family to BIA. We agree that ICWA notices contained in Augment A were insufficient because the Department and the juvenile court failed to provide sufficient information to BIA.

(a).

Congress enacted ICWA in 1978 to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . . (25 U.S.C.  1902.) ICWA applies to child custody proceedings, including proceedings to terminate parental rights. (25 U.S.C.  1903(1).)

ICWA requires that notice be given to the appropriate Indian tribe in a child custody proceeding when the court knows, or has reason to know, the child is an Indian child. (25 U.S.C.  1912(a); see In re Suzanna L. (2002) 104 Cal.App.4th 223, 231 (Suzanna L.).) An Indian child is a child who is either (a) a member of an Indian tribe or (b) . . . eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . . . (25 U.S.C.  1903(4).)

In terms of triggering the ICWA notice requirement, the concept of knows or has reason to know has been given expansive interpretation. The BIA Guidelines for State Courts (44 Fed.Reg. 67584 (Nov. 26, 1979)), which are designed to implement ICWA, state that a court would have reason to believe a child is an Indian child if a public agency has discovered information suggesting that status, or if an officer of the court in the proceeding has knowledge that the child may be an Indian child. (Id. at pp. 67584, 67586.)

Similarly, rule 5.664, which implements ICWA in California courts, imposes an affirmative and continuing duty on the social services agency and the juvenile court to inquire whether a child [in a dependency proceeding] is or may be an Indian child. (Rule 5.564(d).) The rule requires notice to all tribes of which the child may be a member, whenever there is reason to believe the child may be an Indian child . . . . (Rule 5.664(f)(3) & (5).)

Notice under ICWA must be sent to the Indian childs tribe by registered mail with return receipt requested, providing notice of the pending proceedings and of the tribes right of intervention. (25 U.S.C.  1912(a); rule 5.664(f); see In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 (Kahlen W.).) By federal regulation, such notice must include, if known, the following information: (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) all known names and addresses of the Indian childs parents, grandparents, and certain other relatives and custodians, as well as their birth dates, places of birth and death, enrollment numbers, and/or other identifying information; and (4) a copy of the petition or other document by which the proceeding was initiated. (25 C.F.R.  23.11(d) (2006).)

If the identity or location of the . . . tribe cannot be determined, ICWA notice must be sent to BIA. (Rule 5.664(f)(4).)

ICWAs notice provisions are strictly construed with regard to the form of the notice and the evidence of notice that must be presented to the juvenile court.  Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies. [Citation.] (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.)

The notice requirement of ICWA is mandatory. (Suzanna L., supra, 104 Cal.App.4th at p. 231; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.) Noncompliance with the notice requirement may invalidate the actions of the juvenile court, including an order terminating parental rights. (25 U.S.C.  1914.)^[4]

(b).

As noted, we now review the sufficiency of the ICWA notices in Augment A. We first conclude that it would have been better practice for the Augment A notices to include notices to the Cherokee tribes as well as BIA. (See Justice Scotlands directive in Nicole K., supra, 146 Cal.App.4th 779).

Mother told the Department that she, and therefore Charles, may be of Cherokee ancestry. Her statement that Charles may have such ancestry is sufficient to trigger ICWA notice. (See In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1406-1408.) This is not a case where the parents information regarding Indian ancestry was so vague and speculative that it did not trigger notice. (See, e.g., In re O.K. (2003) 106 Cal.App.4th 152, 157 [grandmother said that father  may have Indian in him ].)

But Mother designated only specific Indian heritage, Cherokee, without identifying a specific tribe. There are three federally recognized Cherokee tribes listed in the Federal Register. (See In re C.D. (2003) 110 Cal.App.4th 214, 226 (C.D.).) Although Mother did not identify a specific Cherokee tribe, the better practice would be for the Department to notify the tribes as well as the BIA. (See, e.g., Nicole K., supra, 146 Cal.App.4th at pp. 782-784; In re Louis S. (2004) 117 Cal.App.4th 622, 632-633; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257, 261; see also C.D., supra, at pp. 226-227 & fn. 26; In re Edward H. (2002) 100 Cal.App.4th 1, 4-5.)^[5]

In any case the ICWA notice in Augment A is deficient for failing to provide sufficient information to BIA as BIA so acknowledged. The Department has a duty to inquire about and obtain, if possible, all of the information about a childs family history included on form SOC 319 and in 25 Code of Federal Regulations part 23.11(d)(3). (C.D., supra, 110 Cal.App.4th at p. 225.) Based on our review of Augment A, the Department did not satisfy that duty. The SOC 318 and 319 forms contain only skeletal information about Charless family history, and do not contain the information set forth in the federal regulation. The Department had a duty to inquire for this information from both Mother and Charless father, and clearly failed to do so.

Indeed, the Department submitted the ICWA notice packet to the juvenile court, and the juvenile court approved the notice, without even giving BIA a chance to respond to the quantity and quality of the information provided. When BIA did respond, it indicated the information was insufficient.

Because the Augment A ICWA notice was insufficient, we must reverse the order terminating Mothers parental rights and order a limited remand. (See Nikki R., supra, 106 Cal.App.4th at pp. 855-856.)^[6]We note that there is another packet of ICWA notice forms and mail receipts, designated by the parties as Augment B, which the parties agree is not part of the record on appeal because it was not considered by the juvenile court at the time it reviewed the sufficiency of ICWA notice. On remand, we assume the juvenile court can consider the later-received information in Augment B in determining the sufficiency of notice.

III. DISPOSITION

The order terminating Mothers parental rights is reversed and the matter is remanded to the juvenile court with directions that the juvenile court determine, based on all the information before it, whether there has been proper ICWA notice. The juvenile court may make that determination or find ICWA notice insufficient and direct the Department to comply with the notice provisions of ICWA. After proper ICWA notice, if Charles is found not to be an Indian child and ICWA does not apply, the order terminating Mothers parental rights shall be reinstated. If after proper ICWA notice Charles is found to be an Indian child and ICWA does apply to these proceedings, the juvenile court shall proceed accordingly.

_________________________

Marchiano, P.J.

We concur:

_________________________

Stein, J.

_________________________

Swager, J.

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^[1]Subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated. Rule references are to the California Rules of Court.

[2] The petition and amended petition also included allegations against Charless father, who is not a party to this appeal.

^[3]We note that rule 5.664 now requires Judicial Council forms to be used for ICWA notice.

[4] Some cases have held that substantial compliance with the ICWA notice provisions is sufficient so long as the tribe has actual notice of the proceedings and of its right to intervene. (See Kahlen W., supra, 233 Cal.App.3d at pp. 1421-1422.)

We note that a split of authority has emerged regarding whether an ICWA notice violation is jurisdictional error requiring reversal, or mere error requiring a limited remand to cure deficiencies in the notice. But there is consensus that an order terminating parental rights is subject to reversal for violation of the ICWA notice provisions. (See In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385; In re Nikki R. (2003) 106 Cal.App.4th 844, 855-856 (Nikki R.); see also Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784-785 (Nicole K.).)

^[5]We note that the Federal Register publishes exhaustive lists of the names, addresses, telephone and FAX numbers of designated tribal agents for services of ICWA notice on the Nations Indian tribes. (See, e.g., Indian Child Welfare Act, Receipt of Designated Tribal Agents for Service of Notice, 64 Fed.Reg. 11490 (Mar. 9, 1999).)

^[6]There is no issue here of untimeliness or waiver. Case law is clear that the issue of ICWA notice is not waived by the parents failure to first raise it in the trial court. [Citation.] And two recent cases have concluded it is not waived by the parents failure to appeal the claimed error at the earliest opportunity. [Citations.] (Nikki R., supra, 106 Cal.App.4th at p. 849.)