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In Re E. J. et al., Persons Coming Under the Juvenile Court v. A. J

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


September 27, 2011

IN RE E. J. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
A. J., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 09JVSQ2785601, 11JVSQ2825001)

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

In re E.J. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A. J., mother of the minors appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 395.) Appellant contends the Shasta County Health and Human Services Agency (agency) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C § 1901, et seq.) The agency acknowledges there may be notice errors and that it was unable to reach a stipulation for reversal with appellant's counsel. We reverse and remand to permit the juvenile court to comply with the notice requirements of the ICWA.

FACTS

The one-year-old minor, A. J., was removed from parental custody in January 2009 due to allegations of neglect stemming from parental substance abuse, anger control problems, and mental health issues. The court ordered services for both parents. In November 2009, the mother gave birth to E. J., who was also detained. In April 2010, the court terminated the parents' services as to A. J., denied services for the parents as to E. J. and set a section 366.26 hearing as to both minors. At the section 366.26 hearing in February 2011, the court terminated parental rights as to both minors, selecting adoption as a permanent plan.

Initially the mother claimed Indian heritage in the Blackfeet and Cherokee tribes. The father claimed heritage in the Paiute tribe, stating his mother lived on the reservation. He did not identify the particular Paiute group. The father also claimed heritage in the Blackfeet and Cherokee tribes. Subsequently, both parents completed form ICWA 020 (parental notification of Indian status) and both claimed Paiute and Pueblo heritage.

The first ICWA notice was sent to over 50 individual tribes in January 2009. The notice did not state that the mother claimed Paiute and Pueblo heritage or on which Paiute reservation paternal grandmother lived. No birth certificate was attached to the notice, the father's parentage was not acknowledged and there were several errors in addresses and lapses in ancestor information. The notices to the tribes generally were addressed to the ICWA representative for each tribe. Three responses (Moapa Band of Paiutes, Utu Utu Gwaitu Paiute tribe and the Kaibab Band of Paiute Indians) were received in February and appear in the record but were not formally filed.

A second notice was sent to 21 tribes in April 2009 which perpetuated the problems of the first notice. An ICWA addendum report filed in April 2009 provided responses to the first notice from 32 tribes and stated there was no response from 19 tribes. The report failed to include the responses separately received and placed in the record from the Utu Utu Gwaitu Paiute tribe and the Kaibab Band of Paiute Indians stating A. J. was not eligible for enrollment.

In May 2009, appellant told the social worker that the minor did not have Cherokee, Blackfeet, Paiute or Pueblo heritage through his father and now claimed only Navajo heritage. A third notice was sent to the Navajo tribes, again continuing the errors in the earlier notices. Ruling on the applicability of the ICWA was deferred. An addendum in July 2009 stated notices had been sent to all tribes for which Indian heritage had been claimed and asked that the court find that the ICWA did not apply. The court made the requested finding on July 20, 2009.

Following the filing of the petition to detain E. J. in November 2009, appellant completed a form ICWA 020 (parental notification of Indian status) which stated she claimed no Indian heritage. Nonetheless, notice of the new proceeding was mailed to all 53 tribes which had been noticed when A. J. was detained. Once more, no birth certificate was available and there was no statement regarding the minor's paternity or the name of the reservation where the paternal grandmother had reportedly lived. Also, most of the notices were addressed to the ICWA representative of each tribe. The jurisdiction report stated the paternal grandmother currently lived in an elder care home in Sacramento; however, this address was not in the notice. A second notice was sent in February 2010 to tribes who had not yet responded, however, the prior concerns had not been remedied.

An ICWA addendum in March 2010 stated that notices had been sent to all relevant tribes. All but 18 tribes had responded that the minor was not eligible for enrollment. The social worker requested the court find that ICWA did not apply to E. J.. In April 2010, the court made the requested finding.

DISCUSSION

Appellant contends as to both minors that the court erred in finding the ICWA did not apply because the record shows the inquiry was inadequate and there were fatal errors in the notices which were sent. Respondent concedes there may be errors. We agree with respondent that there may be some errors and address some of appellant's claims to provide clarity on remand.

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 agency 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 Bureau of Indian Affairs if the tribal affiliation is not known. (25 U.S.C. § 1912; § 224.2; Cal. Rules of Court, rule 5.481(b).) Failure to provide adequate notice 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) (2005); 44 Fed.Reg. 67588 (Nov. 26, 1979) B.5.) If known, the agency should provide information including name and date of birth of the child; the birth certificate; 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) (2005); 44 Fed.Reg. 67588 (Nov. 26, 1979) B.5; In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.) All this information may not be available even with inquiry of available relatives, but the agency has a duty to provide as much as possible to aid the tribe in its determination.

Appellant contends that the agency failed to inquire about Indian heritage from several paternal relatives including the paternal grandparents, cousins and siblings, some of whom were in court in April 2009. Appellant argues that had the inquiry been complete, additional information about the father's Indian heritage might have come to light.*fn2

The claim of inquiry error is somewhat speculative both as to precisely which tribe the father claims and as to genealogical information which is relevant to the claim. The record does not disclose whether anyone, beyond the parents, was asked about the father's Indian heritage. Certainly the inquiry which was made produced information about no less than six paternal ancestors and three maternal ancestors. To the extent that relatives were available to the agency, additional inquiry should have been made. This is not to say that the agency had a duty to search out relatives who did not come forward or were not readily available. If inquiry, successful or not, was made of relatives, the agency should have documented the fact for the court as part of its request to find that the ICWA did not apply.

As to claimed errors in the contents of the notice, the birth certificates should have been attached to the notices. (§ 224.2(a)(5)(E).) Even if the birth certificates were initially unavailable, by the time of later notices, they should have been provided or the continuing unavailability should have been explained. Correct names and addresses of ancestors which were known should have been provided in the notices. Accurate information on paternity of both minors was available and should have been included. Information on the whereabouts of the paternal grandmother was unclear but the notices for both children did indicate she had lived on a reservation in Arizona. If further information was available, it also should have been provided.

Appellant cites several errors in the addresses to which notices were sent. 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 (see, e.g., 74 Fed.Reg. 19326 et seq. (Apr. 28, 2009)) we conclude the error was harmless as to the addresses which were directed to the ICWA representative and for which signed return receipts exist because they clearly informed the tribe of the intended addressee. (See In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) As to those addresses which may be incorrect, new notice with a corrected address is required. The correct addresses are contained in the Federal Register and current addresses should be used (76 Fed.Reg. 30438 et seq., (May 25, 2011)) as experience teaches that not only the tribal agents but the addresses and the tribal affiliations change over time.

Appellant asserts that the agency failed to clarify the response from the Utu Utu Gwaitu Paiute tribe as to E. J.. We have examined the response and agree that clarification is required since it appears to say that the minor both is and is not eligible for tribal membership.

After full review of the record and the claimed errors, we fail to understand why counsel for appellant was unable to reach a stipulation for reversal with counsel for respondent.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of permitting the agency to comply with the inquiry and notice provisions of the ICWA as set forth above and for the juvenile court to determine whether the ICWA applies in this case. If, after demonstration of agency compliance, the juvenile court determines that notice was required and 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, however, 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: RAYE , P. J. MAURO , J.


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