IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
June 11, 2012
IN RE N.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. SUTTER COUNTY DEPARTMENT OF HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
A.S., DEFENDANT AND APPELLANT.
(Super. Ct. No. DP-SQ-11-0006693)
The opinion of the court was delivered by: Nicholson , J.
In re N.M.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.S. (mother) appeals from the juvenile court's order terminating her parental rights. (Welf. & Inst. Code, § 366.26.)*fn1 Mother contends the order must be reversed because of noncompliance with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). Respondent Sutter County Department of Human Services (the Department) concedes that ICWA inquiry and notice were inadequate. We vacate the juvenile court's orders and remand for further proceedings under ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the sole issue raised on appeal, we give the facts in summary form. Those relevant to ICWA will be set out more fully in the Discussion.
The Department filed a section 300 petition as to the newborn minor, N.M., in April 2011, alleging: The minor was born in state prison, where mother was confined and likely to face three or more years of incarceration. Mother had previously given birth to a child in prison, of whom she no longer had custody. Mother had been incarcerated in Sutter County Jail 14 times since August 2004. Her parole agent described her as a "sociopath" whose criminal conduct was "predatory." Mother had named two alleged fathers.*fn2
On April 22, 2011, mother filled out an ICWA-020 form, stating that she might have "Cherkee" (sic) heritage. The Department's jurisdiction report, dated June 7, 2011, stated that the social worker would give notice to "the Cherokee tribe" after attempting to obtain further information from mother's family.
At the contested jurisdictional hearing on June 9, 2011, the juvenile court sustained the allegations of the section 300 petition.
The Department's disposition report, dated June 23, 2011, recommended denying reunification services to mother under section 361.5, subdivision (e)(1) (parent incarcerated and services would be detrimental to minor).
On June 24, 2011, the Department gave ICWA notice to the three federally recognized Cherokee tribes.
At the contested dispositional hearing on August 16, 2011, the juvenile court denied reunification services to mother and scheduled a section 366.26 hearing.
The Department's section 366.26 report, dated December 6, 2011, recommended terminating parental rights and ordering a permanent plan of adoption. The report stated that ICWA did not apply because the Cherokee tribes had responded that the minor was not a member or eligible for membership.*fn3
On January 5, 2012, the juvenile court held a contested section 366.26 hearing. The court terminated mother's parental rights and ordered adoption as the permanent plan for the minor.
Mother contends that the ICWA notice sent to the tribes was marred by "substantial omissions" and that the Department failed to satisfy its duty of inquiry to obtain the missing information. The Department concedes the issue. As we explain, the Department's concession is proper.
When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) Notice requirements are construed strictly. (In re Robert A., supra, at p. 989.) Where notice has been given, any error in notice is subject to harmless error review. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)
Section 224.3, subdivision (a), imposes "an affirmative and continuing duty to inquire" whether a child is or may be an Indian child.
Notice must include all of the following information, if known: the child's name, birthplace, and birthdate; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses (including former addresses) of the child's parents, grandparents, great-grandparents, and other identifying information; and a copy of the dependency petition. (25 C.F.R. § 23.11(d)(1)-(4); § 224.2, subd. (a)(5)(A)-(D); In re D.W. (2011) 193 Cal.App.4th 413, 417; In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
Because ICWA's primary purpose is to protect and preserve Indian tribes, a parent does not forfeit a claim of ICWA notice violation by failing to raise it in the juvenile court. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 783, fn. 1; In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739.)
The ICWA notice, given by the social worker who had previously written the disposition report, contained the following errors: (1) it omitted mother's current address (the state prison at Chowchilla, as shown in the disposition report) and wrongly stated "No information available"; (2) it listed mother's former addresses as "Unknown"; (3) it gave no former addresses for the maternal grandmother and stated "No information available"; (4) it gave only the maternal grandfather's name and birth date, claiming all other information was unknown or that no further information was available; and (5) it gave no information at all as to the maternal great-grandparents.
Of course, we cannot say how much of the missing information could have been obtained with diligent inquiry. The record shows, however, that by the time of filing the disposition report the social worker had contacted mother, the maternal grandmother, and the maternal aunt. Both of the latter relatives were apparently forthcoming and willing to speak freely with the social worker about any topic raised. Thus, they would have been appropriate persons from whom to seek the missing information, and the record does not explain why the social worker did not do so. On this record, it appears that the Department did not properly carry out its duty of inquiry.
Because the ICWA inquiry and notice were materially deficient, we cannot uphold the juvenile court's finding that ICWA did not apply. Therefore, we vacate the court's orders terminating parental rights and ordering a permanent plan of adoption, and remand the matter for further ICWA proceedings.
The matter is remanded to the juvenile court with directions to vacate its orders terminating parental rights and ordering a permanent plan of adoption, and to renotice the tribes with any further information the Department may obtain through a properly diligent inquiry. If the court finds, after the new notice has been given, that ICWA has been complied with and does not apply, the court shall reinstate its orders terminating parental rights and ordering a permanent plan of adoption. If the court finds that ICWA applies, it shall proceed in accordance with ICWA.
We concur: RAYE , P. J. DUARTE , J.