Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J07-00488
Ruvolo, P.J.
I. INTRODUCTION
Appellant Carl M., the father of the dependent child, A.M., appeals from the juvenile court’s order terminating his parental rights and selecting adoption as the permanent plan for the child. (Welf. & Inst. Code, § 366.26.) The sole issue raised on appeal is whether the Contra Costa County Children and Family Services Bureau (the Bureau) failed to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., hereafter the ICWA). Appellant argues that although his child was reportedly eligible for membership in the Blackfeet, Navajo, or Apache tribes, the Agency mailed notices only to the Blackfeet and Navajo tribes. No notice was sent to any of the Apache tribes. The Bureau concedes that the failure to notice the Apache tribes was error. We therefore remand the matter to the juvenile court for the limited purpose of noticing the Apache tribes and thereby achieving ICWA compliance.
All statutory references are to the Welfare and Institutions Code.
II. FACTS AND PROCEDURAL HISTORY
Apart from the ICWA notice contention, appellant does not challenge the evidentiary basis or procedures used to terminate his parental rights. (§ 366.26.) Therefore, we give an abbreviated account of the proceedings, focusing upon the facts regarding ICWA compliance. On January 5, 2007, the Bureau received a referral that A.M., who was almost two years old, was at substantial risk of harm due to drug abuse and domestic violence in the home. After the referral was substantiated, A.M. was removed from the home. On April 27, 2007, a jurisdictional hearing was held. Appellant pled no contest to an amended petition which stated that he “has had a substance abuse problem which impairs his ability to care for the child and places the child at risk.”
On March 8, 2007, appellant signed a Judicial Council JV-130 form. On that form, appellant indicated that he may be a member of or eligible for membership in the Navajo tribe of New Mexico, or one of the Apache tribes, “state unknown.” On May 17, 2007, the Bureau mailed notices of the proceedings to the Bureau of Indian Affairs (BIA) and the Blackfeet tribe. The record indicates a second mailing was sent to the BIA, Blackfeet tribe, and “Navajo Nation Designees.” Copies of signed return receipts and letters from tribes and the BIA indicate that notice was received by the BIA, the Blackfeet tribe of Montana, the Navajo Nation, the Colorado River Indian Tribes, and the Ramah Navajo School Board; and that those entities had indicated that A.M. was not affiliated with any of those tribes. Nowhere in the record does there appear any evidence of any communication to or from any Apache tribe. On July 13, 2007, the court found that the ICWA did not apply because “[t]here is no indication that this child is an Indian child.”
Form JV-130 is no longer in use. Under newly renumbered California Rules of Court, rule 5.481(a)(2), the court must now order the parents to complete Form ICWA-020, Parental Notification of Indian Status.
Throughout A.M.’s dependency, appellant failed to comply with his court-ordered reunification plan nor did he visit A.M. consistently. Therefore, on February 29, 2008, the court terminated reunification services. On June 4, 2008, the court terminated appellant’s parental rights after finding by clear and convincing evidence that it is likely A.M. will be adopted by her current caregivers. Appellant has filed this appeal.
III. DISCUSSION
Appellant contends that the juvenile court’s failure to comply with the ICWA’s notice requirements compels reversal of the judgment. He argues that “the agency clearly had sufficient information from appellant’s own statement on his JV-130 form as to require notice to the listed Apache tribes because appellant wrote the words, ‘Apache, state unknown’ on the form, and he did so at the very beginning of the proceedings.” (Fn. omitted.)
The notice requirements of the ICWA are well delineated. “ ‘[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ (25 U.S.C. § 1912(a).) If the identity of the tribe cannot be determined, notice must be given to the Bureau of Indian Affairs. [Citations.]” (In re Robert A. (2007) 147 Cal.App.4th 982, 988; see also In re Santos Y. (2001) 92 Cal.App.4th 1274, 1300.)
Notice, as prescribed by the ICWA, ensures that “the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Because the failure to give proper notice forecloses participation by interested Indian tribes, ICWA notice requirements are strictly construed and strict compliance is required. (In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475.) When any of the notice or inquiry provisions are “violated, an Indian child, parent, Indian custodian, or the Indian child’s tribe may petition the court to invalidate the proceeding. [Citation.]” (In re Marinna J. (2001) 90 Cal.App.4th 731, 735.) Even after parental rights are terminated, any interested tribe has the right to intervene and the right to object to those court orders taken in violation of the ICWA notice requirements. (In re Desiree F., supra, 83 Cal.App.4th at pp. 474-475.)
We agree with appellant that once he stated on his JV-130 form that he might have tribal affiliation with “Apache, state unknown,” the juvenile court’s duty of inquiry was triggered. (In re Aaron R. (2005) 130 Cal.App.4th 697, 707-708; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.) The Bureau has filed a letter brief conceding that the failure to notice the Apache tribes is error requiring a limited reversal and remand to the juvenile court.
Therefore, as a consequence of the failure to give the statutorily required notice, the order terminating parental rights must be conditionally reversed. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342.) A limited reversal “is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 704.) Therefore, we must remand the matter to the juvenile court for the limited purpose of allowing the Bureau to provide the requisite notice under the ICWA to the Apache tribes. If it is ultimately determined on remand that no tribe indicates that A.M. is an Indian child as described in the ICWA, “the matter ordinarily should end at that point, allowing the child to achieve stability and permanency in the least protracted fashion the law permits.” (Id. at p. 708.)
IV. DISPOSITION
The order of the juvenile court terminating appellant’s parental rights is conditionally reversed and the matter is remanded to the juvenile court with directions to order the Bureau to provide proper notice of the proceedings under the ICWA. If, after receiving sufficient notice, no tribe indicates that the child falls within the meaning of ICWA, then the juvenile court shall reinstate the order terminating parental rights.
We concur: Reardon, J., Sepulveda, J.