Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. JV39168, Roger Picquet, Judge
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
James B. Lindholm, Jr., County Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent.
PERREN, J.
E.M. (mother) appeals an order of the juvenile court terminating her parental rights to her daughter, L.M., and son, M.M. (Welf. & Inst. Code, § 366.26.) Mother contends the San Luis Obispo County Department of Social Services (DSS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We reverse and remand for the limited determination of whether the ICWA applies.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
On October 20, 2005, DSS filed a dependency petition as to L.M. and M.M. alleging serious physical harm, failure to protect, and no provision for support. (§ 300, subds. (a), (b), & (g).) DSS reported that on October 17, 2005, mother brought 16-month-old L.M. to the hospital seeking treatment for injuries to the child's head and face. L.M. had a swollen lip, a bruise behind her left ear, a bump on her forehead, and a small bruise on her back. The child also had a rash on her face and neck. Mother initially stated that two-year-old M.M. had caused the injuries, but later claimed L.M. had fallen out of bed. DSS also reported that L.M. and M.M. had been homeless their entire lives, and were staying in a shelter with mother at the time of the incident. The staff at the shelter reported that mother repeatedly left L.M. alone in a stroller for hours with a dirty diaper, while M.M. wandered around the parking lot by himself. Due to the lack of adult interaction, L.M.'s motor and speech development was delayed. Mother's parental rights to an older child were previously terminated as the result of her failure to comply with treatment for her mental illness.
L.M.'s presumed father, Chris N. (father), appeared at the initial detention hearing on October 21, 2005. Mother was also present. At the outset of the hearing, county counsel inquired whether L.M. had Native American ancestry. Father responded that he had Cherokee heritage through his maternal grandmother, although he did not know whether she was an enrolled tribe member. On October 27, 2005, father's mother, Debbie N., signed a parental notification of Indian status (Judicial Council form JV-130) identifying herself as L.M.'s paternal grandmother and stating that she may have Indian ancestry and that the child may be a member of, or eligible for membership in, a Cherokee tribe. On November 4, 2005, DSS mailed a "Notice of Involuntary Child Custody Proceedings For An Indian Child" (Judicial Council form JV-135) to the three federally recognized Cherokee tribes (the United Keetoowah Band, the Eastern Band, and the Cherokee Nation) and the Bureau of Indian Affairs (BIA), referencing the jurisdiction hearing scheduled for November 22, 2005. The notices contained the names, birth dates, place of birth, and addresses for mother and father. Debbie N. was identified as the paternal grandmother, along with her date and place of birth, but no current or former addresses were provided. No information was provided regarding father's maternal grandmother or any other ancestors.
Chris N. and M.M.'s father Seth J. are not parties to this appeal.
On November 8, 2005, the BIA returned the notice to DSS, stating that it had insufficient information to substantiate any federally recognized tribe. The three Cherokee tribes responded that L.M. was not a member or eligible for membership. All four responses were filed with the court.
On May 2, 2006, the court held a special ICWA compliance hearing. Neither parent was present. No ICWA notices were sent for any of these hearings. County counsel made an offer of proof that father had stated at the detention hearing "that the paternal grandmother was of Indian heritage." Based on this offer of proof and the tribal responses, the court found that the ICWA did not apply.
At the six-month review hearing on August 4, 2006, the court continued reunification services to the 12-month review date on DSS's recommendation. DSS reported that mother was still homeless and that L.M. and M.M. were living together in a foster home. The social worker also reported that the siblings had a "special" bond that had grown during their foster care placement.
At the 12-month review hearing on March 20, 2007, DSS recommended that reunification services be terminated. Mother submitted on DSS's recommendation. CASA also issued a report supporting the termination of services. The court terminated reunification services, referred L.M. and M.M. for an adoptability assessment, and set the matter for a section 366.26 hearing on July 10, 2007. The court also granted the prospective adoptive parents' request for de facto parent status.
Mother gave birth to another child, A.M., in January 2007. DSS filed a non-detained petition as to A.M. on January 27, 2007. At the time of the section 366.26 hearing, A.M. was living with her father in family maintenance while mother was living at the homeless shelter.
The section 366.26 hearing was ultimately held on August 1, 2007. DSS issued a report finding that L.M. and M.M. were adoptable and recommending that parental rights be terminated. DSS reported that the children had "claimed their place within the prospective adoptive family." At the conclusion of the hearing, the court found by clear and convincing evidence that the children were adoptable and that none of the exceptions to adoption applied. Accordingly, parental rights were terminated.
DISCUSSION
L.M. -- ICWA
Mother contends the juvenile court and DSS failed to comply with the ICWA notice requirements as to father's claim that L.M. had Indian heritage through his maternal grandmother. We agree.
The ICWA protects the interests of Indian children and 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 ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)
The juvenile court and social services agencies have an "affirmative and continuing duty to inquire" whether a minor subject to dependency proceedings is, or may be, an Indian child. (Cal. Rules of Court, former rule 5.664(d), now rule 5.481; In re J.N. (2006) 138 Cal.App.4th 450, 461.) The "social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors" and "[a]t the first appearance by a parent . . . in any dependency case, . . . the parent . . . must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130)." (Cal. Rules of Court, former rules 5.664(d)(2) & (d)(3).)
The duty to provide notice under the ICWA arises whenever "the court knows or has reason to know that an Indian child is involved," and it is preferable to err on the side of giving notice. (25 U.S.C. § 1912(a); see Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257.) Once the ICWA notice provisions are triggered, notice must be sent to any tribe of which the child may be a member or may be eligible for membership and, if the tribe is unknown, to the Bureau of Indian Affairs. (25 U.S.C. § 1912(a); Cal. Rules of Court, former rule 5.664(f).) "'Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child.' ([Cal. Rules of Court, former r]ule 1439(f)(5) [now rule 5.664(f)(5)].) No proceeding to terminate parental rights may occur until 10 days after the tribe has received the notice. (25 U.S.C. § 1912(a).) We may void a judgment terminating parental rights if notice to the tribes or BIA is not given in accordance with provisions of the ICWA. (25 U.S.C. § 1914.)" (In re S.M. (2004) 118 Cal.App.4th 1108, 1115.) In reviewing whether sufficient information was supplied, the ICWA notice requirements are strictly construed. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
"Notice is meaningless if no information or insufficient information is presented to the tribe. [Citation.] The notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name; a statement of the right of the tribe to intervene in the proceeding; and information about the Indian child's biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information. [Citations.]" (In re S.M., supra, 118 Cal.App.4th at p. 1116, fn. omitted.) In addition, "[t]he social worker has 'a duty to inquire about and obtain, if possible, all of the information about a child's family history' required by 25 Code of Federal Regulations part 23.11(d)(3). [Citation.]" (In re S.M., supra, at p. 1116.)
Strict construction of the ICWA notice requirements compels the conclusion that the notice in this case was insufficient. L.M.'s claimed Indian ancestor was her father's maternal grandmother, yet no information was given about her, not even her name. Father was present at the initial detention hearing, and his mother subsequently filed notice on his behalf. The court, county counsel, and the social worker apparently made no attempt to obtain information from either of them regarding father's maternal grandmother. Merely providing the name of her daughter was insufficient. The notice also erroneously stated it was "unknown" whether father had acknowledged paternity. An unwed parent who does not acknowledge paternity is not a "parent" within the meaning of the ICWA. (25 U.S.C. § 1903; Cal. Rules of Court, former rule 5.664(a)(4).) Father acknowledged paternity by appearing in the matter as L.M.'s father.
DSS asserts that any failure to provide sufficient information does not compel reversal because "[i]t was incumbent upon [father] to provide the necessary information to support his claim." We disagree. Parents are not expected to know what information is necessary to establish Indian heritage. Although never mentioned in DSS's brief, the reporter's transcript of the initial detention hearing plainly provides that father claimed Cherokee ancestry through his maternal grandmother. This triggered the social worker's duty to inquire further. (In re S.M., supra, 118 Cal.App.4th at p. 1116.) DSS also purports to rely on the fact that "the tribes made a definitive determination that [L.M.] was not an Indian child," but that determination was based on the information DSS had provided. Indeed, the Cherokee Nation's letter expressly stated in bold letters that "[a]ny incorrect or omitted family documentation could invalidate this determination."
M.M. – Sibling Relationship Exception To Adoption
Mother contends that the termination of her parental rights as to M.M. must also be reversed because it is possible that L.M. could be removed from the prospective adoptive home if she is found to be an Indian, and M.M.'s adoption could therefore substantially interfere with the sibling relationship, as contemplated by former section 366.26, subdivision (c)(1)(E) (now § 366.26, subd. (c)(1)(B)(v)). We agree with DSS that this possibility is simply too speculative to warrant interference with M.M.'s compelling interest in obtaining legal permanence through adoption without further delay. (See In re Celine R. (2003) 31 Cal.4th 45, 61 ["[T]he 'sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption . . .'"].)
DISPOSITION
The order terminating parental rights is reversed as to L.M., and affirmed as to M.M. The juvenile court is directed to ensure that proper notice is given under the ICWA as to L.M. DSS shall file all required documentation for the court's inspection, including all responses to the notice. If, after proper notice, a tribe claims L.M. is an Indian child, the court shall proceed under the provisions of the ICWA. If no tribe intervenes, the order terminating parental rights as to L.M. shall be reinstated. (In re Francisco W., supra, 139 Cal.App.4th at p. 711.)
We concur: GILBERT, P.J. COFFEE, J.