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In Re Jo.C. et al., Persons Coming Under the Juvenile Court v. K.J. et al

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


November 30, 2011

IN RE JO.C. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
K.J. ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. Nos. J04816, J04999)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

K.J. (mother) and J.C. (father) appeal from the juvenile court's orders terminating their parental rights to minors Jo.C. and Ja.C. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to this code.) They contend the orders must be reversed because the San Joaquin County Human Services Agency (HSA) and the juvenile court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act. (ICWA; 25 U.S.C. § 1901 et seq.) We shall remand for ICWA compliance.

BACKGROUND

Minor Jo.C. and two of his siblings (who are not subjects of this appeal) were detained in January 2008. The family had been referred to HSA on five previous occasions. A section 300 petition was filed on behalf of Jo.C. and the two siblings because of the filthy and hazardous state of mother's residence and the parents' drug use.

The juvenile court sustained the petition and, at an April 23, 2008, disposition hearing, adjudged Jo.C. and the two siblings dependent children of the court. At the hearing, the HSA represented that it was looking for further information regarding mother's Indian ancestry, explaining that "[f]irst time in court mother stated she had Native American Heritage. Later on she signed a paper that stated she did not have Native American Heritage." Mother's counsel then indicated that mother was not enrolled or a member of a tribe. The court noted that she may have lineage, and HSA's counsel stated the agency would need to have a form JV-010 completed. Mother's counsel then indicated mother was willing to "waive that" if it were to be an "in-home dependency," which was HSA's recommended disposition. The court ordered Jo.C. released to mother with family maintenance services and ordered family reunification services for father. There is no completed form JV-010 in the record.

On October 8, 2008, HSA filed a section 387 petition on behalf of Jo.C. and the two siblings because of the filthy and hazardous state of mother's residence and mother's violation of court orders in allowing father to live in the home. The following day, HSA filed a section 300 petition on behalf of Jo.C.'s newborn sibling, Ja.C., based on the unsuitable state of the home, mother's drug and alcohol use, mother's violation of court orders in allowing father to live in the home, domestic violence, and neglect and abuse of the older siblings.

On October 30, 2008, HSA sent ICWA notices (form ICWA-030) to the Bureau of Indian Affairs (BIA) and the three federally recognized Cherokee tribes (the United Keetoowah Band of Cherokee Indians, the Cherokee Nation of Oklahoma, and the Eastern Band of Cherokee Indians) that indicated minor Ja.C. may be eligible for membership. The notices included minor Ja.C.'s name, birth date, and birthplace, mother's "Legal" name, a single address as both the current and former addresses for mother, mother's date of birth, the maternal grandmother's name, the maternal great-grandmother's name, and "Luisiana" as the maternal great-grandmother's current address. The notice did not include mother's birthplace, the maternal grandmother's current or former addresses, or the maternal grandmother's birthplace or birth date. Instead, the notice indicates "No information available" in those boxes. The notice also indicates "No information available" for the maternal great-grandmother's tribe or band (although the three Cherokee tribes are listed for mother and maternal grandmother). HSA filed certificates of mailing and return receipts for the BIA and three Cherokee tribes.

On December 3, 2008, the juvenile court sustained the section 387 and 300 petitions as to Jo.C. and Ja.C. On January 16, 2009, HSA sent a second form ICWA-030 for minor Ja.C. to the Eastern Band of Cherokee Indians. The notice included essentially the same information for the minor, mother, and maternal great-grandmother as the first notice but listed only a former address for mother. The notice, however, listed the maternal grandmother's name and added a current address of "Isleton, CA" but erroneously listed her as a maternal great-grandmother and, again, did not include a birth date or birthplace. HSA filed the certificate with the court.

On February 4, 2009, the juvenile court adjudged Ja.C., who had been detained since October 7, 2008, a dependent child of the court and ordered him placed in foster care. At that hearing, mother indicated she had Indian heritage through her grandmother but that her grandmother refused to acknowledge it or register with the tribe, rendering mother unable to register herself. The juvenile court found the ICWA did not apply to Ja.C.

On May 6, 2009, the juvenile court found Jo.C. would be at substantial risk of harm if returned to mother and ordered Jo.C., who had been detained since October 7, 2008, placed in foster care. The court terminated reunification services as to Jo.C. and set the matter for a section 366.26 hearing.

On July 19, 2010, the juvenile court found Ja.C. would be at substantial risk of harm if returned to mother, terminated reunification services as to Ja.C., and set the matter for a section 366.26 hearing.

On April 25, 2011, the juvenile court held a section 366.26 hearing as to both Jo.C. and Ja.C., who had been placed together in a potential adoptive home since October 2008. The court found the minors likely to be adopted, found no exception to adoption applied, and terminated parental rights.

DISCUSSION I

Appellants contend reversal is required because HSA failed to interview the maternal grandmother about the children's Indian ancestry and failed to give the tribes notice of the maternal grandmother's address and other identifying information. We agree. We shall reverse and remand the matter with directions that the juvenile court vacate its orders terminating parental rights and reconsider the issue of ICWA notice compliance after HSA has properly performed its duties under the ICWA.

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 to the BIA if the tribal affiliation is not known. (25 U.S.C. § 1912; see Welf. & Inst. Code, § 224.2; see also 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.)

The ICWA notice must "contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership." (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) 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. (Welf. & Inst. Code, § 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 must provide information including the name and date of birth of the child; the child's birth certificate, if available; the tribe in which membership is claimed; and 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. (Welf. & Inst. Code, § 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 information as possible to aid the tribe in its determination. Once the court or social worker knows or has reason to know that an Indian child is involved, the social worker is "required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, 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 . . . ." (Welf. & Inst. Code, § 224.3, subd. (c), italics added; see also Cal. Rules of Court, rule 5.481(a)(4)(A).) It is essential for the agency to provide the Indian tribe with as much information as is known about the child's ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631 (Louis S.).)

Appellants contend that HSA failed to inquire about Indian heritage from the maternal grandmother, D.B., through whom Indian ancestry is claimed. A reasonable construction of the record reveals that HSA failed to perform the inquiry required by section 224.3, subdivision (c), and therefore to provide the notice information mandated by section 224.2, subdivision (a)(5).

The ICWA notice HSA sent did not include the maternal grandmother's birth date or place, or provide current or former addresses. Nor does it give any information about the maternal great-grandmother other than her name and the birthplace of "Luisiana." It provides no information at all about the maternal grandfather or great-grandfather. The second ICWA notice provided to the Eastern Band of Cherokee Indians (presumably because that tribe had yet to respond to the first notice) erroneously listed the maternal grandmother's name as that of the maternal great-grandmother with an address in Isleton, California, and otherwise omitted the same information that it did in the previous notice. Yet, based on a review of the record, we must conclude that much of this information was available to HSA had it made an adequate inquiry.

The maternal grandmother, D.B., was accessible to the social worker throughout this case. She visited the minors on a weekly basis with the social worker present, and at least one social worker's report contains her telephone number. At the time of Jo.C.'s initial detention, HSA considered D.B. for relative placement, which suggests HSA likely had her address at that time. Furthermore, the record reflects that less than a year earlier, mother's three oldest children (including Jo.C.) were released by child protective services to mother's custody "on the condition that she moves into the home of the maternal grandmother, [D.B.]" Thus, HSA presumably had the maternal grandmother's address at that time as well. Although mother relayed that her maternal grandmother (the minors' maternal great-grandmother) refused to enroll or register with the tribe or otherwise acknowledge her Indian heritage, there is nothing in the record to suggest that her mother, D.B., was uncooperative or refused to provide necessary information to HSA. In fact, there is nothing in the record to establish that the maternal great-grandmother was uncooperative either. And in any event, as we have recounted, current and perhaps former addresses for the maternal grandmother were available to HSA.

A notice that does not include sufficient information, or that includes incorrect information, about the dependent child's ancestors is meaningless and does not satisfy the notice requirements of the ICWA. (Louis S., supra, 117 Cal.App.4th at p. 631.) Here, as an apparent result of an inadequate inquiry by failing to "interview[] the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2," the notice HSA provided to the BIA and the tribes was insufficient. (§ 224.3, subd. (c), italics added.) Accordingly, we conclude that a new ICWA notice, prepared after a proper inquiry, must be sent.

On remand, the juvenile court is directed to vacate its orders terminating parental rights and to reconsider the issue of ICWA notice compliance after HSA has interviewed the maternal grandmother (and any other appropriate relatives) about the children's alleged Indian ancestry and has given the tribes all the identifying information it obtains. If the court then finds that ICWA notice has been properly given and the tribes have determined the children are not Indian children, the court shall reinstate its orders terminating parental rights. If any tribe determines that the children are Indian children, the court shall proceed in accordance with the ICWA.

II

For guidance on remand, we address two additional issues. First, we address HSA's failure to file the responses it received, if any, from the BIA and the tribes.

Welfare and Institutions Code section 224.2, subdivision (c) provides that HSA must file copies of ICWA notices sent "and all return receipts and responses received[.]" California Rules of Court, rule 5.482(b), which implements this provision, states: "Proof of notice filed with the court must include Notice of Child Custody Proceeding for Indian Child (form ICWA-030), return receipts, and any responses received from the [BIA] and tribes." Thus, HSA must comply with this requirement on remand.

Second, we address HSA's failure to send ICWA notice for minor Jo.C.

In Jo.C.'s earlier-filed case, mother initially indicated she had no Indian ancestry. However, subsequently, and in the later-filed case for Ja.C., mother indicated she may have Cherokee heritage. It appears that because of this inconsistency and the fact that there were two separate case files with different social workers on each one, HSA sent ICWA notice for Ja.C. but not for Jo.C. HSA now asserts that ICWA notice was not required for Jo.C. because, after his initial detention, he was returned to mother's custody. HSA inexplicably makes this erroneous assertion despite the acknowledgement that Jo.C. was removed a second time six months later and placed in foster care.

Removal of a child from the home of a parent and placement in foster care is a "child custody proceeding" under the ICWA, triggering ICWA procedural and substantive requirements. (25 U.S.C. § 1903(1)(i).) Thus, notice was required for Jo.C. when he was removed from mother's custody the second time and placed in foster care. Accordingly, upon remand, after adequate inquiry into the minors' Indian heritage identifying information, HSA must send ICWA notice to the BIA and the tribes for both Jo.C. and Ja.C.

DISPOSITION

The matter is reversed and remanded to the juvenile court with directions that the court (1) vacate its orders terminating parental rights; (2) order HSA to interview the maternal grandmother, and any other appropriate relatives, as to the minors' Indian ancestry and to provide new ICWA notice for both minors that includes the maternal grandmother's name, addresses, and any other relevant information HSA obtains; and (3) order HSA to file with the court any and all responses received from the tribes in accordance with California Rules of Court, rule 5.482(b). If, after proper inquiry and notice, any of the tribes determine that the minors are Indian children as defined by the ICWA, the court shall conduct a new review hearing in conformity with all ICWA provisions. If, however, the tribes determine that the minors are not Indian children, or if no response is received indicating the minors are Indian children, the court shall reinstate the vacated orders.

We concur: HULL , J. DUARTE , J.

20111130

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