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In Re N.C., A Person Coming Under the Juvenile Court Law. v. Thomas C

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


January 3, 2011

IN RE N.C., A PERSON COMING UNDER THE JUVENILE COURT LAW. PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
THOMAS C., DEFENDANT AND APPELLANT.

(Super. Ct. No. 53-002819)

The opinion of the court was delivered by: Butz, J.

In re N.C. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Thomas C., father of the minor, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 Father contends the notices to the tribes pursuant to the Indian Child Welfare Act of 1978 (the ICWA) (25 U.S.C. 1901 et seq.) were inadequate. The county concedes error and requests remand to the juvenile court for further proceedings on the ICWA notice compliance. We accept the concession, in part, and shall reverse.

FACTUAL BACKGROUND

The 21-month-old minor was removed from parental custody in May 2009 due to parental domestic violence and substance abuse. The minor was placed with the maternal great-grandmother. At the detention hearing, father told the court he had been told his father was an American Indian, but he did not recall which tribe. Father also completed a Parental Notification of Indian Status form (ICWA-020), which contained the same information.

The report for the jurisdictional/dispositional hearing stated the social worker followed up father's claim of Indian heritage with the paternal grandmother, who provided the paternal grandfather's approximate age and information on where the paternal grandfather grew up. The paternal grandmother had no other information about him or how to contact him. Without explanation for its choice of tribe, the Placer County Department of Health and Human Services (the Department) sent notices of the proceeding pursuant to the ICWA to the three Cherokee tribes as well as to the Bureau of Indian Affairs (BIA) and the Department of the Interior. The notice included information on the parents and only the paternal grandfather's name.

The jurisdictional/dispositional hearing set for June 4, 2009, was continued for three weeks. The social worker filed return receipts from the service of notice showing the tribes had received notice on or before May 30, 2009.*fn2 The social worker also filed responses from all three of the Cherokee tribes that indicated the minor was not an Indian child. The BIA sent the Department a form letter which indicated that tribal responses were final for the ICWA determination when tribes have been noticed. The letter also indicated the family was required to provide historical information back to 1900 to help establish a biological link to a tribe.

The mother and the maternal great-grandmother appeared at the continued hearing. The maternal great-grandmother stated that one of her biological great-grandmothers (a maternal great-great-great-grandmother) was Shawnee, although she herself had been adopted.

New notices were sent in July 2009 as a result of the mother's claim of Shawnee heritage. However, the new notices stated the mother claimed Cherokee, not Shawnee, heritage and were sent only to the Cherokee tribes. Further, while the social worker was in contact with the maternal grandmother and the maternal great-grandmother, virtually no information about either one was provided in the notice and no information at all on the maternal great-grandmother's ancestors who, it was claimed, were Shawnee. Once again, return receipts from mailing the notices and negative responses from the tribes were filed with the court.

Neither parent appeared at the jurisdictional/dispositional hearing. The juvenile court sustained the petition and adopted a reunification plan for the parents.

The report for the review hearing stated that the ICWA notice had been given. No positive response from any tribe was documented. The report recommended termination of services. At the review hearing in January 2010, the court terminated father's services, accepted a waiver of services from the mother, and set a section 366.26 hearing. The court did not rule on the applicability of the ICWA.

At the section 366.26 hearing, the court terminated parental rights, freeing the minor for adoption.

DISCUSSION

Father contends, and the Department concedes, the notice requirements of the ICWA were not met.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe or the BIA if the tribal affiliation is not known. (25 U.S.C. § 1912(a); § 224.2; Cal. Rules of Court, rule 5.481(b)(1).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)

State statutes, federal regulations, and the federal guidelines on Indian child custody proceedings all specify the contents of the notice to be sent to the tribe in order to inform the tribe of the proceedings and assist the tribe in determining if the child is a member or eligible for membership. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67588 (Nov. 26, 1979) B.5, Notice Requirements.) If known, the agency should provide the name and date of birth of the child; the tribe in which membership is claimed; the names, birth dates, and places of birth and death, current addresses and tribal enrollment numbers of the parents, grandparents, and great-grandparents as this information will assist the tribe in making its determination of whether the child is eligible for membership and whether to intervene. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. 67588 (Nov. 26, 1979) B.5, Notice Requirements; In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.)

I. Father's Claim of Indian Heritage

Father argues that the notices sent to the Cherokee tribes in response to his claim of Indian heritage were defective because the social worker failed to provide all known information about the paternal grandfather, specifically, his approximate age and where he grew up. We disagree.

Neither federal nor state authority requires the social worker to seek out or to provide such vague information. We fail to see how either "fact" could have been of any assistance to the tribes in ascertaining whether the minor was an Indian child. Information such as date and place of birth, names, addresses and enrollment numbers are all facts that are likely to be a part of the information a tribe would maintain in its membership records and thus are of assistance in determining whether a particular descendant qualifies for membership in the tribe. General information about where a person "grew up" is virtually useless for this purpose. There was no error in failing to include the paternal grandfather's approximate age and the state where he was believed to have lived as a child.

Father identified no specific tribe and the notices were sent to the BIA with the information available. While the BIA noted that if a tribe was identified, its response was final, even if the notices had correctly identified no tribe, the dearth of historical information provided by the family would have made a tribal identification virtually impossible. No error appears.

II. The Mother's Claim of Indian Heritage

The most apparent error in notice regarding the mother's claim of Indian heritage is that notices were not sent to the tribes she identified and indeed the notice itself did not include those tribes in her information; however, additional problems with the notice are evident.

In In re D.T., supra,113 Cal.App.4th 1449, reversal was required because the social worker had information which should have been provided to tribes and was not. Here, the social worker included the names of the maternal grandmother and maternal great-grandmother, which were available to her, but did not include any vital statistics or addresses. Moreover, the social worker was in contact with, but evidently did not interview, either grandmother to gain information, such as names of ancestors who were identified as tribal members. That information would certainly have been of assistance to the tribes in their determination of eligibility. (Cal. Rules of Court, rule 5.481(a)(4)(A).) We do not suggest that the social worker had a duty to track down extended family members for questioning. However, when the social worker is in ongoing contact with the family member who claimed Indian heritage and is likely to have relevant information, the burden of inquiring about that information is slight and should be done.

Notice to the tribes claimed by the mother was inadequate. We accept the Department's concession only as to this notice. For the reasons discussed, reversal is required.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of complying with the notice provisions of the ICWA by sending complete and accurate notices of the proceedings to the Shawnee tribes and of determining whether the ICWA applies in this case. If, after proper notice, the juvenile court determines that there either was no response or the tribes determined that the minor is not an Indian child, the orders shall be reinstated. However, if a tribe determines the minor is an Indian child or if information is presented to the juvenile court that affirmatively indicates the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new section 366.26 hearing in conformance with all provisions of the ICWA.

We concur: RAYE, P. J. NICHOLSON, J.


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