Opinion
F042336.
7-22-2003
In re JOSEPH W., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. CLIFTON W., Defendant and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Appellant Clifton W., the biological father of Joseph W., contends the Indian Child Welfare Act (ICWA), title 25 United States Code section 1912 et seq. has not been complied with and therefore the order terminating parental rights must be reversed.
References to code sections are to title 25 of the United States Code unless otherwise specified.
We will reverse the order terminating Cliftons parental rights and remand for further proceedings consistent with this opinion.
STATEMENT OF THE CASE AND FACTS
On March 29, 2002, a petition pursuant to Welfare and Institutions Code section 300 was filed on behalf of Baby Boy L. The petition listed Ryan L. as the presumed father and Clifton as an alleged father. It was alleged in the petition that the childs mother, the presumed father and Clifton were in custody and unable to make arrangements for the care of the child.
At the time of the detention hearing on April 2, 2002, Clifton was in custody and awaiting sentencing on a residential burglary conviction. Clifton had submitted a declaration of paternity asking that he be adjudged the childs father. The juvenile court ordered DNA testing to determine if Clifton was the biological father. During that hearing, Cliftons mother was proposed as a potential placement, and the Kern County Department of Human Services (the Department) was directed to evaluate her home for possible placement.
At some point, the Department is informed that Clifton claims Cherokee ancestry. On April 8, 2002, ICWA notices were sent to the Eastern Band of Cherokee Indians, the United Keetoowah Band, the Cherokee Nation of Oklahoma and the Bureau of Indian Affairs (BIA). The only identifying information set forth in form "SOC 319," entitled "NOTICE OF INVOLUNTARY CHILD CUSTODY PROCEEDING INVOLVING AN INDIAN CHILD," was the childs name (Baby Boy L.) and birthdate and Cliftons name and birthdate. The remainder of the form is blank. It also appears from the record that no copy of the Welfare and Institutions Code section 300 petition was served along with form SOC 319. The record does not contain any responses that may have been received as a result of this notice.
On May 2, 2002 the Department again served ICWA notices on the Cherokee Nation of Oklahoma and the United Keetoowah Band. These notices contain no more information than what was contained in the April 2002 notices.
On May 22, 2002, Clifton was declared the biological father of Baby Boy L. The child was named Joseph E.L.W.
The social study dated September 10, 2002, which was prepared for the Welfare and Institutions Code section 366.26 hearing (. 26 hearing), states that the Eastern Band of Cherokee Indians and the United Keetoowah Band have stated that the child, Joseph, is not eligible for membership. Any responses received from these tribes as a result of either the April or May 2002 notices are not contained in the record.
On December 10, 2002, the Department again served ICWA notices on the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United Keetoowah Band and the BIA. The information blocks set forth in these notices are not filled in completely, however the December notices do contain more information than is set forth in either the April or May 2002 notices.
Responses were received from the Cherokee Nation of Oklahoma and the Eastern Band of Cherokee Indians. Both letters indicate that Joseph is not eligible for membership in the tribe. That determination, however, is specifically stated to be based upon the exact information provided in the notices. The letters indicate that if any information is incorrect or omitted, the present determination could be invalid.
The .26 hearing was eventually held on January 10, 2003. At that hearing, Cliftons counsel objected to the adequacy of the ICWA notice. The juvenile court found that the ICWA notice requirements had been complied with and proceeded to terminate Cliftons parental rights.
The order terminating Cliftons parental rights was entered on January 21, 2003. Clifton filed a notice of appeal on January 21, 2003.
On April 4, 2003, the Department moved to augment the record on appeal with three documents attached to the motion as exhibits A, B and C. By order dated April 21, 2003, this court ordered the record augmented with exhibit B, the reporters transcript for a December 10, 2002, hearing in this case. Augmentation of the record with exhibits A and C was denied, as they were not before the juvenile court when it issued its order of January 21, 2003.
This court did indicate, however, that it would consider taking judicial notice of exhibits A and C on its own motion. Both parties submitted briefs on whether the documents could, or should, be judicially noticed. By order dated May 2, 2003, this court deferred ruling on the matter pending consideration of the appeal on the merits.
DISCUSSION
Clifton challenges the notices dated December 10, 2002, sent to the Cherokee Nation of Oklahoma, the United Keetoowah Band, the Eastern Band of Cherokee Indians and the BIA. The notices are identical except for the names and addresses of the tribes and the BIA. First, he maintains that the notice should have been served upon him, as well as the tribes and the BIA. Second, Clifton contends that the December notices were defective in that they failed to contain required information regarding paternal ancestors and contain conflicting information.
ICWA Notice Requirements
Once the Department was aware that Joseph may be an Indian child, it was obligated to comply with section 1912(a) and notify the tribe or, if the tribe was unknown, the Secretary of the Interior, of the pending proceedings. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469-470 (Desiree F.) The Indian status of the child need not be certain to invoke the notice requirements of the ICWA. (Id. at p. 471.)
The affirmative duty of the Department and the juvenile court to inquire whether the children may be Indian children additionally is set forth in California Rules of Court, rule 1439(d). The Department of the Interior Guidelines and rule 1439 provide that the notice given to the Secretary of the Interior shall be given to the BIA. (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979); rule 1439(e).)
References to rules are to the California Rules of Court unless otherwise specified.
Notice to Parent
Section 1912(a) provides that in any involuntary proceeding concerning a child that may be an Indian child, notice of the pending proceedings and the right to intervene shall be given to the parents of the child and the Indian tribes to which the child may belong. Clifton apparently interprets this language as requiring that he be served with all notices served upon the tribes in order to ascertain what information is provided to the tribal entities and whether that information is flawed. This interpretation has been rejected by one court. (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1009.) As in the Jeffrey A. case, Clifton was notified of the proceedings and participated in the proceedings. Counsel was appointed to represent Clifton. Thereafter counsel and sometimes Clifton were present for all of the proceedings.
There is some authority for Cliftons position. (Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584, 67588 (Nov. 26, 1979)) Guidelines).) The Guidelines specify that in any involuntary child custody proceeding, the ICWA notice shall be sent to the tribes and to the parents. (Ibid.) The commentary to this provision of the Guidelines states that ICWA requires notice to the parents of their rights under the ICWA so that they can exercise their rights in a timely manner. (Id. at p. 67589.) Although the Guidelines are not binding on this court, they are entitled to great weight. (Desiree F., supra, 83 Cal.App.4th at p. 474.) The better practice would be to serve the ICWA notice on the parents, as well as the tribes.
December ICWA Notices
As Clifton notes in his opening brief, the attempts in April and May of 2002 to provide the three Cherokee tribes and the BIA with notice pursuant to the ICWA were wholly inadequate. Because Clifton requests a reversal of all actions taken in reliance on the December notices and not the earlier notices, we address only the December notices in this opinion.
The record reflects that on December 10, 2002, the social worker prepared and served form SOC 319 on the three registered Cherokee tribes. The proof of service specifies only that a notice of the January 10, 2003, hearing was sent to the tribes. The notice referred to is apparently form SOC 319. The box denoting service of a copy of the Welfare and Institutions Code section 300 petition is not checked. To satisfy the notice requirements under the ICWA, form SOC 319 must be completed and served on the tribes, along with a copy of the Welfare and Institutions Code section 300 petition. (In re H.A. (2002) 103 Cal.App.4th 1206, 1211.) The Guidelines specify that the proof of service of the notice, copies of the notice, and of any other document served on the tribe, as well as return receipts, shall be filed with the court. (Guidelines, p. 67588.) This court has held in a published opinion that the proof of service, documents served, and return receipts must be filed with the court. (In re H.A., supra, 103 Cal.App.4th at p. 1215.)
Because of the placement in the clerks transcript of copies of form SOC 318 dated April 4, 2002, the Welfare and Institutions Code section 300 petition and the detention social study immediately after the proofs of service and forms SOC 319 served on each of the three tribes, these additional documents may have accompanied the SOC 319 forms. The record is unclear on this point. We cannot presume service of these documents on the tribes when the proofs of service have specific boxes to check indicating that the Welfare and Institutions Code section 300 petition or other documents are being served, neither the box denoting the petition or other documents is checked, and no listing of documents served was set forth in the proof of service.
We do note in passing that the inclusion of the detention report may be confusing in that it identifies a presumed father other than Clifton and identifies Clifton as an alleged father, not a biological father.
The Code of Federal Regulations sets forth specific information that is to be provided to the tribes in order to enable them to determine if a child is an Indian child. (25 C.F.R. § 23.11.) Among the information that must be provided to tribes, if available, is the childs name, birthdate, and birthplace (city and state); all names known and current and former addresses of the childs biological mother, biological father, maternal and paternal grandparents and great-grandparents, including maiden, married or former names and aliases, birthdates and places of birth or death; and any other identifying information. (25 C.F.R. § 23.11(d).) An effort must be made to provide the tribes with this information. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 705.)
Form SOC 318 is the form for setting forth all the information regarding a childs ancestry that is required by the Code of Federal Regulations and that must be provided to tribes, if available, in order to assist them in making a determination as to whether a child is an Indian child. (25 C.F.R. § 23.11(d).) That form specifically states that if any requested information is unknown or not applicable, the form should so specify for each item of information requested.
The form SOC 318 prepared in this case leaves numerous items blank but does not state that the information is unknown or inapplicable. Certain information regarding the childs maternal relatives is missing, at least some of which the record reflects was available. A diligent search was conducted in an attempt to locate the mother and maternal grandparents. Despite these efforts, neither the mother nor maternal grandfather could be located. The maternal grandmother, however, was located at least as of September 2002. Yet, the information obtained on the maternal grandmother, such as her address, is not included on form SOC 318 or in any other document that may have been sent to the tribes.
More troubling is the omission of maiden names and birthplaces for the childs paternal family members, who claim Cherokee ancestry, because both the Department and the juvenile court have an affirmative duty to inquire whether a child is or may be an Indian child (rule 1439(d)) and this information is required to be provided to the tribes if available. (25 C.F.R. § 23.11(d).) No birthplaces are listed for the paternal grandmother or grandfather, nor is the paternal grandmothers maiden name listed. In addition, the maiden name of the paternal great-great-grandmother, who most likely is an enrolled member of one of the Cherokee tribes, is omitted, as is her place of birth.
The form SOC 318 is dated April 4, 2002, indicating it was not updated between April and December 2002. The paternal grandmother appeared at several of the court hearings and the home of the paternal grandparents was evaluated for possible placement of the child. Yet, there is no indication in the record, either in the social study or the reporters transcripts, that the paternal grandmother was asked to provide the information necessary to complete forms SOC 318 and 319 or whether the Department had the information and simply failed to include it, as with the maternal grandmother.
In addition, forms SOC 319 and SOC 318 are internally inconsistent. A review of the two documents reflects that although form SOC 319 omits information regarding Cliftons place of birth, that information is contained on form SOC 318. Form SOC 319 incorrectly states Josephs birthplace, whereas form SOC 318 correctly states the childs birthplace. Form SOC 319 fails to note Cliftons tribal affiliation, whereas form SOC 318 sets forth his tribal affiliation with the Cherokee.
Although we acknowledge and applaud the Departments efforts in attempting to comply with the ICWA, those efforts fell short of compliance. Any error with regard to the notice was not harmless. Unless a tribe has participated in or expressly indicated no interest in the proceedings, the failure to comply with section 1912(a) is prejudicial error. (Desiree F., supra, 83 Cal.App.4th at p. 472.) The juvenile court was obligated to stay all proceedings for a minimum of 10 days after receipt of proper notice by the tribe or the BIA. (25 U.S.C. § 1912(a).) Given the absence of proper notice, the juvenile court erroneously proceeded to terminate Cliftons parental rights. The failure to provide proper notice requires this court to invalidate actions taken in violation of the ICWA and remand the case. (Desiree F., supra, 83 Cal.App.4th at pp. 471-472.)
The December 2002 notices do not comply with the ICWA. Any responses received to inadequate ICWA notices cannot be determinative of the childs Indian status, as the letters from the tribes themselves state. At a minimum, an effort must be made to obtain the omitted information needed to complete forms SOC 318 and SOC 319. (In re Jennifer A., supra, 103 Cal.App.4th at p. 705.) If that information is unknown after inquiry is made, the forms should so state. The proofs of service should identify the documents that are served in conjunction with form SOC 319. As before, the proofs of service and all documents served, as well as the return receipts and any responses, must be filed with the juvenile court. (In re H.A., supra, 103 Cal.App.4th at p. 1215.)
On remand, the juvenile court must direct the Department to serve completed form SOC 319, with all required attachments and information specified in the Code of Federal Regulations, by way of registered mail, with a return receipt requested. (Desiree F., supra, 83 Cal.App.4th at pp. 475-476; In re H.A., supra, 103 Cal.App.4th at p. 1215.) All proceedings must be stayed for a minimum of 10 court days after receipt of proper notice and for an additional 20 days if so requested by the tribes, the BIA or the parent. (In re H.A., supra, 103 Cal.App.4th at p. 1213; Guidelines, p. 67588.)
After proper notice is given, if any tribe or the BIA comes forward and asserts that Joseph is an Indian child, the juvenile courts judgment terminating Cliftons parental rights is deemed vacated for failure to comply with the ICWA. (25 U.S.C. §§ 1912(a), 1914.)
If after proper notice is given to the tribes and the BIA, and the requisite time period has expired, neither an Indian tribe nor the BIA has come forward and identified Joseph as an Indian child or requested an extension of time, or sought to intervene in these proceedings, we are not compelled to invalidate the judgment terminating Cliftons parental rights. (In re Desiree F., supra, 83 Cal.App.4th at pp. 471-472.)
DISPOSITION
The order dated January 21, 2003, terminating parental rights is reversed as to Clifton. Judicial notice of exhibits A and C to the Departments "Motion to Augment the Record" filed on April 4, 2003, is denied.
On remand, the juvenile court first is to insure that proper notice has been given under the ICWA. The juvenile court then is to determine whether any tribe has concluded that Joseph is eligible for membership in 17 the tribe. Provided proper notice has been given as detailed herein, and no tribe has concluded Joseph is eligible for membership, the juvenile court shall reinstate its order as to Clifton. Alternatively, the juvenile court shall proceed according to the dictates of the ICWA.