Opinion
H029734
12-6-2006
In re MICHAEL O., et al., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. NICANDRO O., Defendant and Appellant.
Nicandro O. appeals from the order terminating his parental rights to his children Michael O. and Noah O. and placing them for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) On appeal, he claims the juvenile court erred in failing to ensure that the Indian Child Welfare Act (ICWA) (25 U.S.C.A. § 1901 et seq.) notice requirements were met. We agree.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
On March 5, 2004, the five children of Jennifer W.-A. (mother) were taken into protective custody when the police arrived at their home and arrested mother. The police found the home filthy and unsafe. Knives were scattered around the house within reach of the children, who ranged in age from seven months to nine years old. The children were dirty and disheveled, and mother was found hiding under a bed in an upstairs bedroom. Four-year-old Michael O. and his two-year-old brother Noah O. are the subject of this appeal by their father Nicandro O.
The children are half-siblings: Juan, Christopher, Michael O., Noah O. and Star E.
Mother has not filed an appeal from the judgment terminating her parental rights, and is not a party to this appeal.
The Santa Clara County Department of Family and Childrens Services (Department) filed a petition pursuant to section 300, subdivision (b), alleging the facts set forth above, as well as the facts that the family had at least six prior child welfare referrals, that one of the half-siblings had been exposed to domestic violence between his father and mother, that this half-sibling had been slapped by mother, and that the whereabouts of Nicandro O., the father of Michael and Noah (hereafter father), was unknown.
At the hearing on March 11, 2004, the children were detained. The juvenile court found that the ICWA might apply and ordered the Department to give appropriate notice. Father had been located at the California Correctional Center in Susanville, and the court ordered him transported for the jurisdiction hearing on March 30, 2004.
Mother was interviewed the next day. She told the social worker that her father [maternal grandfather] had Apache and Yaqui heritage and that the maternal grandmother had Cherokee heritage. The social worker also reported that father was incarcerated out of county and therefore was not available to be interviewed about possible American Indian heritage.
On March 17, 2004, the Department served a set of documents to comply with the requirements of the ICWA on the Bureau of Indian Affairs (BIA), 10 Apache tribes, the Yaqui tribe and three Cherokee tribes. The documents included: (1) Request for Confirmation of Childs Status as Indian (SOC 318); (2) Notice of Involuntary Child Custody Proceeding Involving an Indian Child (SOC 319), and (3) juvenile dependency petitions. The documents were sent by certified U.S. mail with return receipt requested.
On March 30, 2004, counsel was appointed to represent father. Father waived his right to be present at the hearing and authorized counsel to represent him. The jurisdiction hearing was continued to April 23, 2004, to allow father to be transported and to allow time to receive ICWA responses.
The report prepared for the jurisdiction hearing included attachments regarding ICWA compliance. These included responses from most of the tribes stating that the children were not eligible for membership. (These responses are discussed more fully below.)
On April 23, 2004, jurisdiction was sustained over Michael and Noah under section 300, subdivision (b). Father was not present, but wrote to the social worker stating that he would be incarcerated until November 11, 2005. Disposition was continued to May 27, 2004.
In an addendum filed prior to the hearing, the social worker attached a copy of the declaration of mailing ICWA notice documents and copies of the two forms (SOC 318, SOC 319) sent on behalf of each child. The forms indicate that fathers tribal affiliation is Apache.
Father was present at the hearing on May 27, 2004. The children were declared dependents of the juvenile court and reunification services were ordered for mother. No services were offered to father. He was found to be the natural father but not a presumed father, and the court found the children would not benefit from giving him reunification services.
On July 7, 2004, an interim-case plan review hearing was held. In her report, the social worker noted that she was in the process of assessing the paternal family for American Indian heritage. The six-month review hearing was set for November 3, 2004.
The report prepared by the social worker for the six-month review hearing described her efforts to determine Indian heritage on fathers side of the family: "On 7/15/04, this Social Worker received a letter from [father] indicating that `the only person that would know anything about any American Indian tribe would be my mother, but of my knowledge there is none. At the Interim Review hearing on 7/7/04, this Social Worker asked paternal grandmother, Mrs. Elisa O[.] regarding American Indian heritage. Mrs. O[.] stated that to her knowledge there is none and that her mother would know. However, she stated that her mother has Alzheimers disease and would not be able to recall American Indian heritage, but to her knowledge there is none."
On November 3, 2004, the juvenile court made a finding that the ICWA did not apply to these two children. The Departments recommendation was to terminate mothers reunification services; mother requested a contested hearing. Father had waived his appearance.
The contested hearing took place on December 27, 2004. Father was present. After hearing evidence, the juvenile court terminated mothers reunification services and set a hearing under section 366.26 to determine a permanent plan for the children. The hearing was set for April 22, 2005.
In April, mother filed a section 388 petition requesting that the children be returned to her under a family maintenance arrangement or that additional reunification services be ordered. She pointed out her changed circumstances in being actively involved in an in-patient recovery program and in having successful monthly visits with the children. On April 15, 2005, the court denied the motion without a hearing. An identical petition by mother was denied on May 16, 2005.
On June 24, 2005, father filed a motion for substitution of court-appointed counsel, alleging a breakdown and lack of communication between attorney and client and a failure to investigate and prepare a defense in the case. The court granted a request for father to meet with his attorney in a place other than the holding cell.
On August 9, 2005, father filed another motion for substitution of counsel and eventually was allowed to proceed in propria persona. After a further request and discussion, the court appointed a new lawyer for father on August 30, 2005.
The contested section 366.26 hearing finally took place on December 29, 2005. Father was present and represented by counsel. The juvenile court took judicial notice of all prior findings and orders in the case, heard testimony from the social workers, and considered all reports submitted into evidence. The court then terminated parental rights and confirmed adoption as the permanent plan for the children.
Father timely appeals.
DISCUSSION
On appeal, father claims that the Department failed to provide adequate notice to the various Indian tribes, thus preventing the tribes from making an accurate determination of whether in fact his children are Indian children for purposes of the ICWA.
I. Relevant Facts
At the detention hearing on March 11, 2004, the juvenile court noted that the ICWA may apply and directed the Department to send appropriate notice. The social worker interviewed mother the next day. Mother said that her father [the maternal grandfather] has Apache and Yaqui heritage and her mother [maternal grandmother] has Cherokee heritage. In her report, the social worker noted that father was incarcerated out of county and therefore was not available to be asked about possible American Indian heritage.
The Department then filled out the forms in use at the time on behalf of the children: (1) the Request for Confirmation of Childs Status as Indian (SOC 318); (2) Notice of Involuntary Child Custody Proceeding Involving an Indian Child (SOC 319); and (3) a copy of the juvenile dependency petitions filed under section 300, subdivision (b). These documents were sent by certified U.S. mail, return receipt requested, to the BIA, 10 Apache tribes, the Yaqui tribe and three Cherokee tribes. The forms included the names of mother and father, their dates of birth, their possible tribal affiliations, and the names of the maternal and paternal grandparents. The SOC 318 and 319 forms indicate that fathers tribal affiliation is Apache.
The Department submitted the certified mail receipts to the court, along with proof of receipt cards from the BIA, 8 out of 10 Apache tribes, the Yaqui tribe, and 2 out of 3 Cherokee tribes.
In the April 23, 2004 report prepared for the jurisdiction hearing, the social worker attached the following ICWA documents: (1) a letter from the BIA stating there was insufficient information substantiating the familys affiliation with any federally recognized tribe; (2) response letters from 7 out of 10 Apache tribes, the Yaqui tribe and 2 out of 3 Cherokee tribes indicating that the children were not members of nor eligible for membership in the tribe, and (3) return mailing receipts from the Cherokee Nation and two other Apache tribes.
At the review hearing on July 7, 2004, the social worker noted that she was investigating the childrens paternal family for Indian heritage. In a later report, the social worker stated that at the July hearing, she had asked fathers mother, Elisa O., if she had any Indian heritage. The paternal grandmother stated that to her knowledge there is none, and that her mother [the paternal great-grandmother] would know, but her mother suffered from Alzheimers and would not be able to recall any such information. On July 15, 2004, the social worker received a letter from father stating that "the only person that would know anything about any American Indian tribe would be my mother, but of my knowledge there is none."
At the hearing on November 3, 2004, when the above report was submitted, the juvenile court made a finding that the ICWA did not apply to these two children.
II. ICWA Principles
"The ICWA is designed to protect the interests of Indian children, and to promote the stability and security of Indian tribes and families. It sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody." (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) For purposes of the ICWA, an Indian child is defined as an unmarried person under the age of 18 who is: (1) a member of an Indian tribe; or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C.A. § 1903(4); Cal. Rules of Court, rule 1439(a)(1)(A) & (B).)
"Under the ICWA, where a state court `knows or has reason to know that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C.A. § 1912(a).) The court and the social services agency have `an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child. [Citation.]" (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) Because the determination of a childs Indian status is a matter for the tribe, "the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. [Citation.]" (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
In Samuel P., we explained: "[A]fter a petition has been filed in a section 300 proceeding, if the court knows or has reason to know that the child is or may be an Indian child, the childs tribe `must be notified of the pending petition and the right of the tribe to intervene in the proceedings. [Citation.]" (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.) "If the information in the record shows there may be Indian ancestry, even though the child may not be an Indian child within the meaning of the ICWA, the court is required only to send notice of the proceedings to the identified tribe or tribes or to the [BIA], and to make further inquiry regarding the possible Indian status of the child. [Citation.]" (Ibid.) "The notice must include the names of the childs ancestors and other identifying information, if known, and be sent registered mail, return receipt requested. [Citation.] When proper notice is not given, the dependency courts order is voidable. [Citations.]" (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.)
We further emphasized in Samuel P.: " `Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures 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.) The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (Id. at p. 1422; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.)" (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.)
It is now widely accepted that in order "[t]o satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate court, [the Department] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. ([Cal. Rules of Court, r]ule 1439(f).) Second, [the Department] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA." (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 178.)
Often, in the case of children under the jurisdiction of the juvenile court, official tribal affiliation for the child or the parents is not known. What is known is anecdotal, incomplete information about family history. To assist in gathering appropriate information and establishing possible tribal affiliation, "[t]wo forms have been issued by the State of California Health and Welfare Agency and the Department of Social Services to comply with the ICWA. They are entitled `Request for Confirmation of Childs Status as Indian (form `SOC 318) and `Notice of Involuntary Child Custody Proceedings Involving an Indian Child (form `SOC 319)." (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1108.)
As of January 1, 2005, California Rules of Court, rule 1439(d)(3) provides that "At the first appearance by a parent or guardian in any dependency case, . . . the parent or guardian must be ordered to complete form JV-130, Parental Notification of Indian Status." Form JV-135 Notice of Involuntary Child Custody Proceedings for an Indian Child, (Juvenile Court) then must be sent to the tribe or the BIA with the same procedures as before. (Cal. Rules of Court, rule 1439(f).)
Recently, reviewing courts have insisted that social service agencies obtain, if possible, more complete information. The court in In re C.D. (2003) 110 Cal.App.4th 214, held that "notice to a tribe under the ICWA must include not only the information provided in connection with form SOC 319, but also the information set forth in the BIA Guidelines at 25 Code of Federal Regulations part 23.11(d)(3), if such information is known, including the name of a childs grandparents. Therefore, form SOC 319 fails to provide sufficient notice of dependency proceedings to a tribe under the ICWA when an agency knows additional information about a childs family history, such as the names of the grandparents. The agency (DCFS in this case) has a duty to inquire about and obtain, if possible, all of the information about a childs family history included on form SOC 319 and in 25 Code of Federal Regulations part 23.11(d)(3)." (In re C.D., supra, 110 Cal.App.4th at p. 225, fn. omitted.) The court suggested that the agency should also send form SOC 318, which includes spaces for some of the information required in the Code of Federal Regulations. (Id. at pp. 225-226.)
As explained by the court in Karla C., in order " `[t]o establish tribal identity, it is necessary to provide as much information as is known on the Indian childs direct lineal ancestors. (25 C.F.R. § 23.11(b) (2003).)" (Karla C., supra, 113 Cal.App.4th at p. 175.) The federal regulations require ICWA notice to include, if known, (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the childs parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (25 C.F.R. § 23.11(d)(3) (2003); In re Karla C., supra, at p. 175.) The other identifying information may include: maiden, married and former names or aliases, birth dates, places of birth and death, current and former addresses, and tribal enrollment numbers. (See In re S.M. (2004) 118 Cal.App.4th 1108, 1116; 25 C.F.R. § 23.11(a), (d).)
III. Analysis
Father points to three categories of error in the notices sent by the Department. First, there is no evidence that copies of the dependency petitions were attached to the forms sent, as required. Second, there are inconsistencies in the SOC 318 forms for the two children: on the form sent on behalf of Michael, mother is listed both as Jennifer W. and Jennifer F. On the form sent on behalf of Noah, mother is identified as Jennifer Marie W.-A. In addition, on Michaels form, the paternal grandmother is listed as Elisa O. and her date of birth is given. On Noahs form, the paternal grandmother is listed as Lisa O. and her date of birth is listed as unknown. Third, there is no information on the childrens great grandparents. Father asserts, "These known ancestors of the minors were the individuals who were the most likely to be identified as members of Indian tribes, so the failure to designate them in the notice to tribes rendered the federally-mandated process virtually meaningless." As to the maternal side, father points out that a report prepared by the social worker for the jurisdiction hearing actually lists the names of the maternal great grandparents in the section of the report reviewing prior child welfare history. As to the paternal side, father further asserts that numerous errors were made in collecting information about his Indian heritage: (1) he was not asked for information initially because he was incarcerated out of county, (2) no birth place was listed for him, (3) there was no information solicited about the paternal grandfather or great grandparents. Father claims that the Department should have been aware of cases published in 2003 advising social service departments to more fully investigate and record ancestor information. (See In re C.D., supra, 110 Cal.App.4th 214 [published July 2003]; In re D.T. (2003) 113 Cal.App.4th 1449 [published November 2003].)
The report describes a previous child welfare referral in 1997 when mother was 19, with two small children, and living in the home of her maternal great grandparents, Jesse and Stanley W.
We agree with fathers concerns in part and conclude that the notice sent here did not fully comply with the ICWA. First, our review of the record shows that copies of the notice documents submitted to the juvenile court did not contain a copy of the petition itself, which was required to be sent. (See In re C. D., supra, 110 Cal.App.4th at p. 225.) However, the proof of mailing filed in connection with all the notices sent states that the juvenile dependency petition was one of the documents attached. In the case of In re L.B. (2003) 110 Cal.App.4th 1420, the Third District concluded that where a social workers report states that ICWA notice was sent, without evidence to the contrary, a reviewing court may assume proper procedures were followed, and thus the required petition was sent. Were this the only problem with ICWA notice here, we might agree with this assumption.
But the record shows that the forms themselves were not filled out accurately or consistently even with the information known to the social worker. Mother was listed with three different names. The paternal grandmother was listed with two different names, and her birth date was listed as unknown on one form. There was no place of birth stated for this grandmother or for father himself. This reflects a lack of attention to detail, when the details are a critical factor in determining tribal eligibility.
The Department may be correct that although slightly different names were listed for mother and grandmother, this actually expanded the scope of inquiry by the tribes. However, the absence of specific information in the forms, such as fathers place of birth, is troubling. The Department had the duty to fully investigate and report accurately on the required information. (See In re S.M., supra, 118 Cal.App.4th at p. 1117.)
But of greatest significance is the missing information about the great grandparents, especially on the maternal side where Indian heritage was reported. "The social worker was required to investigate whether this information was available [citation], or report no family member knew the information required by 25 Code of Federal Regulations part 23.11." (In re S.M., supra, 118 Cal.App.4th at p. 1117; see also In re D.T., supra, 113 Cal.App.4th 1449.) As father explains, "[E]ach of the omitted names represented a potential crucial link in the ancestral lineage essential to ascertaining eligibility for membership in an Indian tribe."
The Department responds that any deficiency in the notices was harmless because the tribes did not ask for more information and because father has given no basis for concluding that the determinations the children were not Indian children were incorrect. But this is a circular argument. It is important to note that the letters from several tribes, including the Cherokee tribes, declaring the child was not an Indian child carried disclaimers that the determination was based strictly on the information provided and any omitted family documentation could invalidate the determination. The response received from the BIA flatly labeled the information as insufficient. "Notice is meaningless if no information is provided to assist the tribes and the BIA in making this determination. With only the names, birth dates and birthplaces of the minors and the parents, it is little wonder the responses received were that the information was insufficient to make a determination or that the minors were not registered or eligible to register. . . . [T]he tribes and the BIA were deprived of any meaningful opportunity to determine whether the minors were Indian children, . . ." (In re D.T., supra, 113 Cal.App.4th at p. 1455; see also In re Karla C., supra, 113 Cal.App.4th at p. 178.) Here, the Department should have been aware that ancestor information was critically important in ascertaining Indian heritage and the possible applicability of the ICWA. In fact, form SOC 318 specifically requests additional ancestor information for anyone claiming to be of Cherokee (and several other tribes) descent. Given that mother reported Cherokee heritage, the Department had a duty to pursue this inquiry.
The BIA returned the notice documents to the Department, with a form stating: "Insufficient information substantiating any federally recognized tribe. The family must provide a history back to the year 1900 with names, birth dates and/or birthplaces of ancestors to help in establishing a biological link with the original ancestral tribal member(s)." The United Keetoowah Band of Cherokee Indians in Oklahoma responded that no evidence of tribal heritage could be found "[w]ith the information you supplied us." The Eastern Band of Cherokee Indians responded that the minors were not eligible to register as members of the tribe "based on the information received from you" with the caveat "[t]his determination is based on the information exactly as provided by you . . . [a]ny incorrect or omitted family documentation could invalidate this determination." The Cherokee Nation of Oklahoma was mailed a notice, but no response was received or filed by the DFCS.
We agree with father that the conclusion of the tribes that the children are not Indian children is tainted by this incomplete information. The Department must investigate what facts are available about the maternal great grandparents, including names, birth dates and birthplaces, and available addresses, or explain why this information is unavailable. (See In re S.M., supra, 118 Cal.App.4th at p. 1117.)
As to further information on the paternal relatives, in light of the entire record, this is less critical, possibly even a harmless omission, because defendant himself has never claimed Indian heritage. This was verified with his mother. Of paramount importance to the investigating tribes is the information that is known about the family member with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 632.) Here, the family members with alleged Indian heritage are on the maternal side.
The notation on form SOC 319, that fathers tribal affiliation is Apache, has no support in the record and was probably entered in error. At the time the form was filled out, the social worker had not communicated with father.
In this particular case, we find that compliance with the notice requirements of the ICWA was incomplete and we cannot conclude that the deficiencies were not prejudicial. Neither the tribes nor the BIA could be expected to accurately determine the possible tribal affiliation of these children without all critical information available concerning the possible Indian ancestors.
Although we are reluctant to further delay the proceedings, we echo the sentiments of the court in In re Elizabeth W.: that compliance with the ICWA is not a mere technicality, and the deficiencies in notice mean the order terminating parental rights must be conditionally reversed, and proper notice given. "Until that is done, there remains the possibility, however slight we may believe it to be, that there is a sufficient connection to warrant the Tribes intervention, . . ." (In re Elizabeth W., supra, 120 Cal.App.4th at p. 908.)
It follows that the order terminating parental rights must be conditionally reversed, subject to automatic reinstatement if it is ultimately determined that Michael and Noah are not Indian children within the meaning of the ICWA.
DISPOSITION
The order terminating Jennifers and Nicandros parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions that the Department conduct further investigation and provide all known ancestral information to the identified tribes. The Department is directed to file proof of receipt of such notice by the tribes, along with a copy of the notice and any responses. If, after receiving notice as required by the ICWA, no tribe responds indicating that Michael and Noah are Indian children, or the responses received indicate they are not Indian children within the meaning of the ICWA, the order terminating parental rights shall be immediately reinstated. If any tribe determines that Michael and Noah are Indian children within the meaning of the ICWA, the juvenile court shall conduct further proceedings applying the provisions of the ICWA, Welfare and Institutions Code section 360.6, and rule 1439 of the California Rules of Court.
WE CONCUR:
Mihara, Acting, P.J.
McAdams, J.