IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
November 30, 2010
IN RE R.N. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
R.N., DEFENDANT AND APPELLANT.
APPEAL from an order of the Superior Court of Fresno County. Jane Cardoza, Judge. (Super. Ct. No. 09CEJ300310-1)
The opinion of the court was delivered by: Levy, Acting P.J.
In re R.N. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant R.N. is the biological father of two minors who are the subject of a juvenile dependency proceeding. (Welf. & Inst. Code, § 300.)*fn1 Father appeals from a dispositional order finding the Indian Child Welfare Act (ICWA) does not apply, declaring the minors to be dependents of the court and removing them from parental custody.
Father argues the dispositional order must be reversed because respondent Fresno County Department of Children and Family Services (Department) failed to satisfy ICWA's notice requirements. We agree.
In early December 2009, the minors lived with father. The Department took the minors into protective custody after receiving reports from neighbors that father was acting strangely. Drug paraphernalia was found at the house. One of the minors reported witnessing father smoke methamphetamine.
On December 9, 2009, the Department filed a dependency petition. A detention order was filed the next day. It provided that because the court had reason to know the minors are Indian children as defined in ICWA, both parents were to complete and file with the court an ICWA-020 form and meet with the Department to disclose all information they possess about the minors' possible Indian heritage and all information responsive to questions 5 through 9 on the notice of child custody proceeding for Indian child form (ICWA-030 form).
On December 10, 2010, mother filed a parental notification of Indian status form (ICWA-020 form). She reported that she may have Indian ancestry. The only other information she provided was the phrase, "New Mexico."
On December 30, 2009, the Department mailed a completed ICWA-030 form and a copy of the juvenile dependency petition to the Bureau of Indian Affairs (BIA). The ICWA-030 form contained mother's current address, her birth date, birthplace and the names, current addresses, birth dates and birthplaces of her parents. It also contained the names, birth dates and birthplaces of one of her grandmothers and one of her grandfathers. The grandfather was deceased, but the grandmother was alive and her current address was provided. In the section of the ICWA-030 form requesting "Tribe or band, and location," for each individual, the phrase "Bureau of Indian Affairs" was typed for mother, both of mother's parents and the identified grandparents. The form stated that the tribal membership or enrollment number for all of these people was "Unknown." Information about mother's other grandparents was not available.
The ICWA-030 form stated that father was "Not Indian." It listed father's current address, birth date and birthplace. It also provided the current addresses, birth dates and birthplaces of father's parents. Father's mother was identified as B.A. It stated that both of father's parents were "Not Indian." It stated that information was not available about any of father's grandparents.
A notice from BIA dated January 8, 2010, acknowledged receipt of ICWA notice and stated that it returned the notice to the Department because "[t]he family has provided insufficient information substantiating any federally recognized tribe."
The settlement hearing
A settlement conference hearing was held on March 9, 2010.
Father's counsel stated father had recently learned he might possess Indian heritage through his biological mother, who is not B.A.
The court asked father if he would "elaborate on [his] American Indian ancestry."
Father replied, "Well, I'm not really aware of the tribe or whatsoever, but from I talked to my uncles and they said there is some form of Indian heritage on my grandfather and grandmother's side."
The court responded, "Such as?"
Father answered, "I really don't know. I didn't really get a chance to speak with him furthermore because it was [a] long-distance call from Texas. He got aware of it and he was supposed to send me the information about it because he knows more in detail about it, but the only thing I was trying to have amended was that the name they put down for biological mother is incorrect ...."
Father's counsel stated, "So Your Honor, at this point I'm going to submit he may have [N]ative American history. He says the tribe is possibly somewhere in Texas, but more specific information today he does not have."
The court asked for the correct name of father's mother.
Father's counsel replied that father's mother is named V.C. and her maiden name was V.G.
In response to this information, the court ordered father to "go speak to the current caseworker." Also, counsel for the Department was ordered to email the social worker. Then the court said, "And typically I hear the ICWA motions at the time of disposition, so I think there is sufficient time to fax the information or e-mail the information to the BIA."
Counsel for the County of Fresno (County Counsel) said, "That's fine. We need a new copy of the [ICWA-020] to be filed today."
Father's counsel replied, "I'm preparing that."
Counsel for the minors asked if V.G.'s birth date was known and father provided this information.
County Counsel said, "So all of the information previously given of [B.A.] is incorrect. That's not his mother. All this should be stricken?"
Counsel for father replied, "Yes."
Then the court confirmed the jurisdictional hearing for March 18, 2010.
On March 9, 2010, father filed an ICWA-020 form. Father reported that he may have Indian ancestry through his mother, V.G., and that his tribal affiliation was unknown.
The jurisdictional hearing
An uncontested jurisdictional hearing was held on March 18, 2010. The allegations contained in the petition were sustained.
At this hearing, County Counsel stated that father had attempted to provide follow-up information to the social worker about his mother and his possible Indian ancestry as directed by the court. However, there was some confusion and the social worker did not understand that father was reporting possible Indian ancestry.
Father's counsel stated that father said he told the social worker that his mother was named V.G. and she has Indian ancestry located in Texas and this ancestry "goes back a couple of generations."
The court confirmed from father that all the information father possessed was his mother's name and her birth date.
Counsel for father stated, "I asked [father] whether he knows the tribe and he says no, and any relatives that might have had that information are deceased."
The court stated, "All right. So it appears that notice will then just be sent to the [BIA]."
County Counsel replied, "Yes, Your Honor, I'll take care of it."
The facsimile cover letter
On March 22, 2010, the Department faxed the BIA a document entitled "facsimile cover letter" (capitalization, boldface & underline omitted) (the fax). The fax informed the BIA that the information contained in the "draft ICWA Notice" about the minors' paternal grandmother was incorrect. The fax stated the minors' paternal grandmother was named V.G. and it provided V.G.'s birth date. The fax did not inform the BIA that father reported that he might have Native American ancestry through V.G. or indicate that the possible Indian ancestry originated in Texas. The fax did not inform the BIA that the statements that father and his maternal relatives were "Not Indian" contained in the ICWA-030 form were incorrect and should be stricken.
On the following day, the Department filed proof of service by mail of a copy of the fax to the juvenile court and all counsel.
The BIA did not respond to the fax.
The dispositional hearing
The dispositional hearing was held on April 29, 2010. County Counsel informed the court that it sent the fax containing updated information about the paternal grandmother's identity and the BIA had not responded to it. It asked the court to find that ICWA was not applicable. Counsel for the father, the mother and the minors all submitted without comment. The court found the minors were not Indian children and ICWA did not apply.
Father argues that the fax did not satisfy ICWA's notice requirements. The Department argues the fax constituted legally adequate notice of the paternal grandmother's identity and the fact that father now claimed Indian ancestry though his mother was not required information. We agree with father. The proper remedy is conditional reversal and limited remand for ICWA compliance.
I. Standard of Review
The facts are undisputed and this issue involves a matter of statutory interpretation. Therefore, the standard of review is de novo. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)
II. The ICWA challenge was not forfeited.
As a preliminary matter, we reject the Department's contention that father's failure to raise this point in juvenile court precludes its consideration on appeal. "The generally accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal. [Citation.]" (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) "A parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court." (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.)
Department's reliance on In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.) is misplaced. Pedro N. held that a parent who fails to timely challenge a juvenile court's action regarding ICWA is foreclosed from raising ICWA notice issues in a subsequent appeal after the court's ruling is final. (Id. at p. 185.) In this case, father appealed from the dispositional order. The court's ruling has not been finalized. Therefore, Pedro N. is inapposite.
Accordingly, we conclude that because father's ICWA challenge was raised in a timely appeal from the dispositional order, and the superior court has a sua sponte duty to assure compliance with the notice requirements of the ICWA, father's ICWA challenge is cognizable. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213.)
III. The fax did not satisfy ICWA's notice requirements.
"'The ICWA, enacted by Congress in 1978, is intended to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." [Citation.] "The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource."' [Citation.] The ICWA defines an Indian child 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.' [Citation.]" (In re A.B. (2008) 164 Cal.App.4th 832, 838.)
In addition to federal law, "Our Legislature has adopted statutes and rules of court to implement the ICWA." (In re A.B., supra, 164 Cal.App.4th at p. 838.)
"Notice is 'absolutely critical' under the ICWA. [Citation.]" (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Failure to give proper notice of a dependency proceeding to a tribe forecloses its participation in the proceeding. Therefore, ICWA notice requirements are strictly construed. (Ibid.)
The duty under ICWA to inquire whether a dependent child is or may be an Indian child is affirmative and continuing throughout all dependency proceedings. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.48.)
In relevant part, subdivision (c) of section 224.3 provides that if the juvenile court "knows or has reason to know that an Indian child is involved," the social worker is required to make further inquiry by interviewing the parents, Indian custodian and extended family members to gather the information required in paragraph (5) of subdivision (a) of section 224.2.
Subdivision (d) of section 224.3 provides, "If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer shall provide notice in accordance with paragraph (5) of subdivision (a) of Section 224.2." (§ 224.3, subd. (d).)
We discern no error in the juvenile court's determination at the settlement conference hearing that father's disclosure of possible Indian heritage through his mother, V.G., was sufficient to trigger the inquiry requirement of section 224.3, subdivision (c). We also discern no error in its ruling at the jurisdictional hearing that sufficient new information had been acquired of the minors' possible Indian ancestry through their paternal grandmother, V.G., to require provision of notice to the BIA.
The Department did not argue at the jurisdictional hearing that ICWA notice was not required because father's information was not sufficiently specific to generate a "reason to know" that the minors were Indian children. When the juvenile court stated that notice needed to be provided to the BIA, County Counsel stated, "I'll take care of it." ICWA notice had been provided when the minors' mother provided essentially the same amount of information concerning her possible Indian heritage -- a claim of Indian ancestry on her mother's side of the family and a general location of New Mexico. (See, e.g, In re Antoinette S. (2003) 104 Cal.App.4th 1401, 1408.)
Since father disclosed the information about the correct identity of his biological mother and possible Indian heritage through Indian ancestry originating in Texas before the juvenile court determined that ICWA did not apply, subdivision (d) of section 224.3 required notice to be provided "in accordance with paragraph (5) of subdivision (a) of Section 224.2." The fax did not satisfy this requirement.
Paragraph (5) of subdivision (a) of section 224.2 contains a lengthy list of information that must be obtained from various sources. This information must be compiled in a "notice" and mailed to the tribe[s] and/or BIA in conformity with paragraph (1) of this same subdivision of section 224.2. Judicial Council Form ICWA-030 contains spaces to record all of this information listed in paragraph (5) of subdivision (a) of section 224.2.
When the juvenile court determined at the jurisdictional hearing that ICWA notice must be provided to the BIA about the minors' possible Indian heritage through their paternal grandmother, V.G., the Department was required to gather the information set forth in section 224.2, subdivision (a)(5), prepare a new ICWA-030 form containing the information and transmit it by mail in compliance with section 224.2, subdivision (a)(1). The Department's failure to do so constitutes legal error.
The ICWA notice error in this case was not an empty technicality. Although the fax corrected the identity of the minors' paternal grandmother, it failed to inform the BIA that father was now claiming possible Indian ancestry through this newly identified individual. The fax did not notify the BIA that the statements contained in the ICWA-030 form that father was "Not Indian" and all his maternal ancestors were "Not Indian" were incorrect and needed to be amended. Since the fax did not inform the BIA that father was claiming Indian ancestry through V.G., the fax's notification of change in maternal identity from B.A. to V.G. lost all significance in terms of determining whether the minors were Indian children. Since the fax only provided the name and birth date of father's mother, and did not inform the BIA that father now claimed Indian ancestry through this newly identified woman, the fax did not give the BIA any indication that it was necessary to reassess whether the minors were Indian children through their paternal grandmother's lineage. Thus, the fax was materially deficient in two ways: (1) it failed to correct the statements contained in the ICWA-030 that the minors' father and maternal ancestors were "Not Indian;" and (2) it failed to notify the BIA that father believed V.G. had Indian ancestry originating in the State of Texas.
Department contends that the fax satisfied subdivision (f) of section 224.3. We are not convinced. This subdivision provides, "Notwithstanding a determination that the [ICWA] does not apply to the proceedings made in accordance with subdivision (e), if the court ... receives any information required under paragraph (5) of subdivision (a) of Section 224.2 that was not previously available or included in the notice issued under Section 224.2, the social worker ... shall provide the additional information to ... the [BIA]." We agree with father that the opening phrase in subdivision (f) of section 224.3, "[n]otwithstanding a determination that the [ICWA] does not apply to the proceedings made in accordance with subdivision (e)," is properly interpreted to mean that the subdivision applies when new information is discovered after a determination has been made that ICWA does not apply. When new information is discovered before this determination has been made, the notice provision contained in subdivision (d) of section 224.3 applies. Since father disclosed information about his possible Indian heritage through V.G. before the juvenile court determined ICWA did not apply to this dependency proceeding, subdivision (f) of section 224.3 is inapplicable. Furthermore, since the fax was incomplete and misleading, it did not satisfy the requirement contained in subdivision (f) that the "additional information" must be provided to the BIA.
IV. The ICWA notice error requires conditional reversal and remand.
Department argues the alleged ICWA notice error is harmless. We disagree. This is not a situation where there was a breach of the continuing inquiry duty and reversal is not warranted when the noncompliance is harmless. (In re A.B., supra, 164 Cal.App.4th at p. 839.)
In the case before us, the juvenile court ruled ICWA notice must be provided to the BIA and Department failed to provide legally adequate notice. ICWA noticing errors are inherently prejudicial. Proper notice is absolutely essential to ICWA and the notice requirement is mandatory. (See, e.g., In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.) As previously explained, the ICWA noticing error in this case was not a mere technicality. The fax sent to the BIA omitted material information.
"[T]he failure to provide proper notice is prejudicial error requiring reversal and remand." (In re Samuel P., supra, 99 Cal.App.4th at 1267.) The offending order must be vacated and the matter remanded for further proceedings consistent with ICWA.
The disposition order is reversed and the matter is remanded to the juvenile court with directions to order the Department to comply with the notice provisions of ICWA, and to file a copy of the ICWA notice, proof of receipt and any response received. If, after proper ICWA notice, the minors are found not to be Indian children and ICWA does not apply, the disposition order shall be reinstated. If, after proper ICWA notice, the minors are found to be Indian children and ICWA does apply to these proceedings, the juvenile court shall proceed accordingly.
WE CONCUR: Gomes, J. Dawson, J.