IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
August 2, 2011
IN RE T. S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. PLACER COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
J.S. , DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 53-002888, 53-002889, 53-002890 & 53-002891)
The opinion of the court was delivered by: Blease , Acting P. J.
In re T.S.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
J.S., father of the minors, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends reversal is required for failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA) 25 U.S.C. section 1901 et seq. and for failure to apply the substantive provisions of the ICWA. We reverse for non-compliance with the ICWA.
Four minors, ranging in age from two to seven years, were removed from parental custody in Solano County in May 2009 due to allegations of appellant's alcohol abuse and related domestic violence. At that time, appellant claimed heritage in the Cherokee tribe. Later, appellant told the social worker his mother was registered with either the Cherokee or Choctaw tribe but stated she was no longer affiliated with the tribe. The social worker had obtained contact information for the paternal grandmother and intended to make further inquiry into the tribal ancestry claim. The first notice sent to the tribes in June 2009 lacked any genealogical information. That notice was superseded by a second notice of the proceedings sent to the ICWA representative of the three Cherokee tribes and the three Choctaw tribes in July 2009.*fn1 In August 2009, the juvenile court sustained the petition as amended and transferred the case to Placer County, where the parents then resided. The court found that efforts to comply with ICWA were ongoing.
The Placer County juvenile court accepted the transfer and set a dispositional hearing. At the transfer-in hearing, the court inquired whether the parents claimed Indian heritage. The mother stated she had none. Appellant and the court discussed the issue:
Appellant: "I have some, but it's -- they've already gone through all of that in Solano. It was found that they're --"
Court: "They were not eligible? The children?"
Court: "At this time I find no reason to believe the Indian Child Welfare Act applies."
The disposition report stated that the parents denied Indian heritage at the transfer-in hearing and the court found the ICWA did not apply. The report recommended reunification services. The court adopted the recommendation in October 2009.
Appellant and the mother failed to participate in services and reunify with the minors. Both parents were arrested in December 2009 and appellant remained in custody throughout the remainder of the proceedings. The juvenile court terminated services and set a selection and implementation hearing.
The report for the selection and implementation hearing concluded the minors were likely to be adopted and were doing well in their respective placements. The court found the minors were likely to be adopted and terminated parental rights in December 2010.
Appellant contends there was inadequate compliance with the ICWA notice provisions because some of the addresses used were not those designated for service of process to the tribes, no return receipts or responses from the tribes are in the record and the information in the notice was incomplete.*fn2
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.) The juvenile court and the social worker have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) 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; § 224.2; Cal. Rules of Court, rule 5.481(b).)
The initial ICWA inquiry was conducted in Solano County, information was gathered and notices were sent to the Cherokee and Choctaw tribes. When the case was transferred, notice was incomplete. The notices were included in the transmitted record, but neither the return receipts nor any responses from the tribes were included in the record or forwarded to Placer County until after briefing in this appeal had commenced. The judge in Placer County asked both parents about Indian heritage. The mother denied any such heritage. Appellant continued to claim Indian heritage but expressed the belief that the matter was decided adversely to him in Solano County. Based solely upon appellant's incorrect belief, the judge found no current reason to believe the ICWA applied.
This is precisely the kind of problem that California Rules of Court, rule 5.482(a)(2)(B), which requires filing of the proof of notice, is designed to avoid. Proof of notice must include the notice form, return receipts and any responses received so that the court may evaluate the evidence or lack thereof in determining whether the ICWA applies. (Cal. Rules of Court, rule 5.482(b).) It is not enough for the court to rely on the unsupported belief of one of the parents that the minors have been determined not to be Indian children where the transfer order itself clearly states that compliance with the notice requirements of ICWA is not complete.
Appellant cites various errors in the addresses and claims that the errors fatally infect the notices. To the extent that notices included the wrong name or no name for the Designated Tribal Agents for Service of Process as listed in the Federal Register (74 Fed.Reg. 19335 (Apr. 28, 2009)) we conclude the error was harmless because each tribe's address was directed to the ICWA representative and therefore clearly informed the tribe of the intended addressee. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) Notice to the Mississippi Band of Choctaw Indians was sent to a post office box number which was used for ICWA notices until the new number was designated a few months before notices were sent. (71 Fed.Reg. 43798 (Aug. 2, 2006); 74 Fed.Reg. 19335 (Apr. 28, 2009).) On this record we cannot conclude whether or not the error in the address was harmless. (See fn. 2, supra.) However, additional problems with the court's conclusion that the ICWA did not apply are evident.
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); 44 Fed.Reg. 67588 (Nov. 26, 1979).) If known, the agency should provide name and date of birth of the child; the tribe in which membership is claimed; the names, birthdates, 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); In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.)
Commonly, much of this information will not be available due to loss of contact with family members or lapse of memory. However, the record shows that as of May 2009 the social worker in Solano County intended to make further inquiry of appellant's mother in an attempt to collect as much information as possible. Nonetheless, the first notice sent in June 2009 had no genealogical information whatsoever. The second notice, sent in July, had much more information and could have been considered complete were it not for the court's finding at the August jurisdictional and transfer-out hearing that compliance with the notice requirements was incomplete. We are unable to determine from the record the nature of the deficiencies in notice, i.e. incorrect addresses, availability of additional genealogical information or simply lack of responses to the July notices.
While errors relating to ICWA notice are subject to harmless error review, (In re Alexis H., supra, 132 Cal.App.4th at p. 16) on this record we cannot conclude the errors are harmless. (In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
Respondent contends the minor T.S. is not subject to ICWA notice because her father is N.K., not J.S. However, the mother is listed in the notices as having Cherokee heritage and, in the interest of accuracy, proper notices as to all the minors is required.
Appellant also argues the court should have applied the substantive provisions of the ICWA. We disagree.
"Aside from its notice provisions, the ICWA applies only to Indian Children. [Citations.] Only when information before the juvenile court is sufficient to show that the child is a member of a tribe, or is eligible for membership and is the child of a member, does [California Rules of Court,] rule 1439(e) [now rule 5.482(d)(2)] require compliance with all of the provisions of the ICWA." (In re L.B. (2003) 110 Cal.App.4th 1420, 1427.)
There was no evidence either in Solano County or in Placer County that the minors were Indian children or eligible to be registered as Indian children because that issue had yet to be determined. Accordingly, neither the heightened evidentiary standards of the ICWA nor the requirement of active efforts to prevent the break up of an Indian family were applicable. (25 U.S.C. § 1912(d), (e), (f); Cal. Rules of Court, rules 5.484, 5.485.) The court did not err in failing to apply the substantive provisions of the ICWA to the case.
The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of determining whether adequate notice of the proceedings was sent to the Cherokee and Choctaw tribes and whether ICWA applies in this case. If the juvenile court determines that the tribes were properly noticed and there either was no response or the tribes determined that the minors are not Indian children, the orders shall be reinstated. If notice was inadequate, the juvenile court shall order new notices to be sent to the tribes in compliance with the ICWA. Thereafter, if there is no response or if the tribes determine the minors are not Indian children, the orders shall be reinstated. However, if a tribe determines the minors are Indian children and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new selection and implementation hearing in conformance with all provisions of the ICWA.
We concur: NICHOLSON , J. DUARTE , J.