Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HJ07006829
SIMONS, Acting P.J.
Petitioner Sasha M. (Mother) seeks writ review of an order setting a permanency planning hearing under Welfare and Institutions Code section 366.26 (hereafter the .26 hearing) in the dependency case of her daughter (Minor), born in February 2007. (Cal. Rules of Court, rule 8.452.) Mother contends that real party in interest Alameda County Social Services Agency (Agency) failed to comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.; former rule 5.664) because notice was not given to the Bureau of Indian Affairs (BIA) as to her and Minor’s alleged father, Dominique P.
All further rule references are to the California Rules of Court.
Rule 5.664 was repealed effective January 1, 2008. However, as amended January 1, 2007, certain Welfare and Institutions Code sections became part of the ICWA notice framework, most notably section 224.2.
Dominique P. has not sought writ review under rule 8.452.
Background
On May 2, 2007, Minor was placed in protective custody by the Agency. On May 4, 2007, a dependency petition was filed alleging Mother’s failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and no provision for support (§ 300, subd. (g).) Dominique P. was named in the petition as the alleged father. The Agency’s May 7 detention report stated that the ICWA “does or may apply.” The detention report noted that, on May 4, Mother and Dominique P. answered “yes” when asked if they had any Native American or Eskimo heritage.
All undesignated section references are to the Welfare and Institutions Code.
On May 7, 2007, Mother filed a Judicial Council form JV-130 (Parental Notification of Indian Status) stating that she may have Indian ancestry and Minor is or may be a member of or eligible for membership in an Indian tribe. The form listed the name of the tribe as “unknown at this time.” At the detention hearing that day, Mother’s counsel stated that Mother said Minor’s maternal grandfather claimed potential Indian heritage in his family. Mother’s counsel said information relevant thereto would be communicated to the Agency social worker, and the court directed Mother to communicate such information to the social worker. Also at the detention hearing, Mother identified Dominique P. as Minor’s father and the court ordered paternity testing for him. Although Dominique P. had notice of the detention hearing, he did not appear.
The Agency’s May 21, 2007 jurisdiction/disposition report recommended that Minor be made a dependent child of the court and Dominique P. be offered reunification services if his paternity was established. The report noted that Minor’s family had not provided the Agency social worker any additional information about their Native American heritage. Dominique P. was given personal notice of the jurisdiction hearing and of a paternity test scheduled for him. Dominique P. did not appear at the May 21 uncontested jurisdiction hearing. At the hearing, the court found the jurisdictional allegations true and again stated that Mother and Dominique P. be asked to provide further information necessary to complete the investigation into the applicability of the ICWA.
At an August 20, 2007 review hearing, Mother said she knew she and her grandfather were part Indian, but could not identify the particular tribe. She also said she had no contact with her father or grandfather. The court encouraged her to try to identify a tribe. Minor’s maternal grandmother testified that there was Native American heritage on her side of the family but had never heard of any specific tribe mentioned. The maternal grandmother said she knew nothing about Indian heritage on Mother’s father’s side of the family. The maternal grandmother agreed to inform the Agency social worker if she was able to identify a tribe. The court then changed the originally scheduled date of the six-month report and review hearing from November 5 to November 1.
Agency’s Six-Month Review Report
The Agency’s status review report for the November 1, 2007 six-month review hearing recommended termination of reunification services to Mother and the setting of a .26 hearing. The report stated that Dominique P. never availed himself of paternity testing, had made no contact with the Agency, Mother did not know his whereabouts and was adamant that he was not Minor’s father. The Agency was also unaware of Dominique P.’s whereabouts. The report also stated that the ICWA did not apply. It stated that, in June 2007, Mother said she had no information about her Native American or Eskimo heritage and said she did not think she was Native American.
The hearing was continued to December 11, 2007.
An addendum report by the Agency again recommended termination of reunification services to Mother and the setting of a .26 hearing, and stated that the ICWA did not apply.
Six-Month Review Hearing
At the December 11, 2007 contested six-month review hearing, Mother’s counsel argued that because the BIA had never been given the requisite notice under the ICWA and section 224.2, the proceeding should not go forward. Mother’s counsel also argued that under section 224.3, the Agency failed to make the required inquiry of other members of Mother’s family for information regarding Indian ancestry. The Agency’s counsel stated that Mother’s June 2007 statement that she did not think she was Native American superseded her JV 130 form and, therefore, there was no further duty of inquiry and no need for postponement of the proceeding. Minor’s counsel stated that given Minor’s need for permanency, the proceeding should continue, but requested the Agency to notify the BIA.
Minor’s maternal great aunt said there was Indian heritage on Mother’s side, but did not know which tribe.
The court stated: “So what the court will do in this situation is, as Minor’s counsel suggests, and that is to proceed with today’s hearing with direction to the Agency to notify the [BIA] forthwith of any future [hearing] dates that are set today. If it turns out that the [BIA] is able to establish that [Minor] is or might be eligible to be a member of a Native American tribe, then I think [Mother’s counsel’s] objections would be valid and we might have to redo some of the steps that were taken to date. But if it turns out that the response from the BIA is that they cannot make such an identification, we will proceed and we will not have lost any time in meeting that first goal of coming quickly to a permanent plan.”
The Agency social worker testified that Dominique P. could not be noticed for the hearing. Mother testified that Dominique P. was not Minor’s father because he told her he was not the father and “had the papers to prove it.” Thereafter, the court performed a computer search and located an August 31, 2007 judgment of Dominique P.’s paternity over Minor in another case regarding her. The court noted the paternity judgment appeared to be a default judgment, and there appeared to be a stipulation, and acknowledged that the issue of Dominique P.’s paternity of Minor was “unclear.” The Agency stated it would give Dominique P. notice of the .26 hearing. Given that the detention report indicated that Dominique P. stated he had Native American or Eskimo heritage, the court instructed the Agency to notify the BIA as to Dominique P.
The record before us does not reveal whether the BIA was so notified.
A .26 hearing was set for April 3, 2008, and a due diligence hearing was scheduled for February 7.
Discussion
Mother contends that the juvenile court failed to comply with the notice requirements of the ICWA by failing to notify the BIA as to both her and Dominique P.
When the social services department has reason to know the proceeding involves an Indian child, the department must notify the Indian child’s tribe, or the BIA (if the tribe’s identity cannot be determined) of the pending proceedings, and of the right to intervene. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.) The department’s duty is to inquire into the possibility of the child’s Indian ancestry and to act upon the information the family provides. The department is not required to conduct an extensive independent investigation or to “cast about, attempting to learn the names of possible tribal units to which to send notices[.]” (In re Levi U. (2000) 78 Cal.App.4th 191, 199.)
Section 224.2, subdivision (a), provides in relevant part: “If the court, a social worker or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall be sent to . . . the minor’s tribe . . . .” Section 224.2, subdivision (a)(3), provides that notice must be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child’s tribe. (See also In re Louis S. (2004) 117 Cal.App.4th 622, 632-633.) The notice must include the names of the child’s ancestors and other identifying information, if known, and be sent registered or certified mail, return receipt requested. (In re Karla C. (2003) 113 Cal.App.4th 166, 175-176; see § 224.2, subds. (a)(1) & (5).) The agency providing notice is required to file with the court “a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4; In re Karla C., supra, 113 Cal.App.4th at pp. 175-176.)
ICWA notice requirements are strictly construed. (In re Karla C., supra, 113 Cal.App.4th at p. 174.) “Deficient notice under the ICWA is usually prejudicial [citation] but not invariably so. [Citation.]” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411.) “When proper notice is not given under the ICWA, the court’s order is voidable. [Citations.]” (In re Karla C., at p. 174.)
Mother argues that the court’s failure to notice the BIA as to her and Dominique P. requires reversal per se. She cites In re Jenelle C. (1987) 197 Cal.App.3d 813 for the proposition that she has the right to assert Dominique P.’s BIA notice rights. However, Jenelle C. does not support Mother’s argument. Instead, it held that a mother did not have standing to argue that service of notice to the minor’s father was defective “[s]ince she was not injured by the alleged error” as to the father. (Id. at p. 818.) Here, Mother fails to state any facts supporting the proposition that she has been or will be injured by the lack of notice to the BIA regarding Dominique P.’s heritage. Consequently, she has not demonstrated standing to assert Dominique P.’s BIA notice rights.
The Agency appears to concede that notice to the BIA as to Mother and Minor was required, but argues that any error is harmless because the court ordered that notice of the April 2008 .26 hearing be sent to the BIA. Citing the ICWA notice periods pursuant to 25 United States Code section 1912(a), the Agency argues that the BIA would have ample time in the more than 100 days between the December 11, 2007 review hearing and the April 3, 2008 .26 hearing for any tribe to receive notice and intervene prior to the .26 hearing.
In reliance on In re Veronica G. (2007) 157 Cal.App.4th 179, Minor’s counsel argues that in a case such as this, where parental rights have not yet been terminated, the appropriate remedy for failure to comply with ICWA notice requirements as to Mother and Minor is to remand the matter for ICWA compliance. However, Minor’s counsel argues that remand is not necessary because compliance with the ICWA has already been ordered by the court.
The parties are correct that failure to provide notice to the BIA violated the ICWA requirements. Because notice to the BIA may result in a determination that Minor is an Indian child, ICWA compliance is necessary. And based on the record before us, we cannot be sure that the court’s oral pronouncement at the December 2007 review hearing resulted in notice being sent to the BIA. The record before us contains no copy of any notice to the BIA and the court’s minute order from the December 2007 hearing is silent as to notice to the BIA. Mindful that ICWA notice requirements are strictly construed, we conclude the appropriate remedy is to vacate the order setting the .26 hearing and direct the court to ensure that proper ICWA notice is sent to the BIA if it has not already done so.
Disposition
The petition is conditionally granted. Let a writ issue directing the juvenile court to ensure that proper notice is sent to the BIA, if it has not already done so. If, after proper notice no tribe intervenes, the juvenile court shall reinstate its order confirming the current date for the .26 hearing, or, if necessary to comply with statutory notice requirements, setting a new date for that proceeding. (See In re Justin S. (2007) 150 Cal.App.4th 1426, 1437-1438.) If, upon proper notice, a tribe determines that the minor is an Indian child as defined by the ICWA, the juvenile court shall conduct all further proceedings in conformity with all provisions of the ICWA.
This opinion is final immediately as to this court. (Rule 8.264(b)(3).)
We concur. NEEDHAM, J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.