Opinion
A132130
01-26-2012
In re H.L., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. J.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. HJ10015404-01)
J. M. (Mother) appeals from the order of April 20, 2011, terminating her parental rights over her daughter H.L. (Minor) after a hearing under Welfare and Institutions Code section 366.26. Mother does not challenge the merits of the order but claims reversible error in failure to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et. seq.) She seeks conditional reversal of the order terminating parental rights and remand of the matter for proper notice and compliance with ICWA. The Alameda County Social Services Agency (Agency), joined by counsel for Minor, concedes reversible ICWA notice error and also requests a conditional reversal and limited remand. We find that reversible ICWA notice error did occur and conditionally reverse, remanding the matter to the juvenile court for compliance with ICWA.
All unstated section references are to the Welfare and Institutions Code.
BACKGROUND
Minor was born in August 2010, and a postnatal test for amphetamines was positive. Mother also tested positive for amphetamines, marijuana, and opiates at Minor's birth. On August 17, 2010, Minor was diagnosed as suffering hypertonia and withdrawal symptoms and was detained by the Agency. Two days later, the Agency filed a petition and Minor was eventually declared a dependent child of the court. The petition stated section 300, subdivision (b) (failure to protect) allegations, based on Minor's medical condition and Mother's substance abuse and mental health issues, and section 300, subdivision (g) (no provision for support) allegations, based on the father's unknown identity, whereabouts, interest, and ability to care for Minor.
A detention report recites an earlier date, not August 17, as the date Minor was detained by the Agency. This is the cited source of the August 12 detention date stated in respondent's brief. However, the August 17 date is recited later in the detention report in two locations.
Included with the Agency's petition was an Indian Child Inquiry Attachment indicating that Minor might have Native American ancestry, based on Mother's statement that Minor's maternal grandmother had told her that Mother is a registered member of the Choctaw tribe, although Mother had never seen papers in confirmation. On August 19, 2010, the same day the Agency's petition was filed, the Agency filed a Notice of Child Custody Proceeding for Indian Child, giving notice to the tribes and the Bureau of Indian Affairs (Bureau) of the detention, jurisdiction, and disposition hearings. A copy of the petition was attached to the notice, which identified the Choctaw tribes as the tribes to which Minor might be eligible for membership. The notice identified Mother by her legal name and aliases, provided her current and former addresses, and her date of birth. No information on a father, grandparent, or great-grandparent was provided.
Mother stated that she did not know the identity of Minor's father. Although Mother named several alleged fathers during the proceedings, none was identified as Minor's actual father.
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On or about August 23, 2010, maternal grandmother reported that the maternal great-great-grandmother, Bella D., was Choctaw Indian and that she had tried to register Mother's children in the past, but that she did not have Bella D.'s birth certificate. A later Agency report, dated September 13, 2010, states that maternal grandmother specified Bella D. as a paternal great-great-grandmother. Because Minor's father remains unidentified, both appellant and respondent agree that the reference to a paternal great-great-grandmother refers to an ancestor on Mother's paternal side. According to the September 13, 2010 Agency report, ICWA notice to the Choctaw tribes and the Bureau was again provided on September 3, 2010. However, these notice documents were not filed in the court below and are not in the appellate record.
The Agency filed an Addendum Due Diligence report on November 2, 2010, stating: "The Indian Child Welfare Act does not apply. The mother is African-American; her mother is Irish and German. Her father is African-American and she thinks might have Native American ancestry, but has no specific knowledge from her mother." On December 22, 2010, the Agency filed a 366.26 WIC report which stated that as of December 15, 2010, no replies to the ICWA notices had been received from the Choctaw tribes. The report requested "a non-ICWA finding" based on the absence of tribal response.
On January 5, 2011, Mother filed a section 388 petition requesting that the court order family reunification services. On March 14, 2011, the parties agreed to have the section 388 petition hearing and the section 366.26 hearing at the same time. These hearings began that day and proceeded on six later dates, ending on April 20, 2011. On April 20, 2011, the court denied the section 388 petition and ordered that Mother's parental rights be terminated. The court, without elaboration, also found that Minor "is not an Indian child and the Indian Child Welfare Act does not apply." Because the merits of the order terminating parental rights are not challenged in this appeal, there is no need to detail the evidence.
DISCUSSION
Mother's claim of ICWA notice error, her sole issue on appeal, is based on a lack of adequate notice to the tribes on the face of the record. The Agency concedes that its failure to file the second set of ICWA notice documents resulted in a lack of sufficient evidence to support the court's finding that Minor is not an Indian child.
"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. When the dependency court has reason to believe a child is an Indian child within the meaning of [ICWA], notice on a prescribed form must be given to the proper tribe or to the [Bureau], and the notice must be sent by registered mail, return receipt requested." (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.)
" '[T]o satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [a social service agency] should follow a two-step procedure' of sending proper notice to all possible tribal affiliations and filing with the court copies of the notices, the return receipts and any correspondence from the tribes." (In re L.B. (2003) 110 Cal.App.4th 1420, 1425, fn. 3, quoting In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.) This judicial guideline is now a requirement of California law: "Proof of the notice, including copies of notices sent and all return receipts and responses received shall be filed with the court in advance of the hearing . . . ." (§ 224.2, subd. (c).)
"Notice under the ICWA must, of course, contain enough information to constitute meaningful notice." (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) "[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors." (25 C.F.R. § 23.11(b).) Moreover, an ICWA notice must 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 child's parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (25 C.F.R. § 23.11(d); see also Welf. & Inst. Code, § 224.2, subd. (a) [specifying these and additional requirements].) California Rules of Court, rule 5.481(a)(4) imposes an affirmative duty on social service agencies to interview the extended family to ascertain the required information. If the ICWA notice fails to provide information available to a social service agency that is necessary for the tribe to make a determination that a minor is an Indian child, the notice does not satisfy ICWA requirements. (In re Louis S. (2004) 117 Cal.App.4th 622, 630 ["Notice is meaningless if no information or insufficient information is presented to the tribe to make that determination."].)
In this case, the initial ICWA notice, filed with the court on August 19, 2010, provided information only about Mother. There is no evidence in the record that the Agency fulfilled its duty under California Rules of Court, rule 5.481(a)(4) by attempting to interview Mother and other available members of her family to obtain the information that is required of an ICWA notice by section 224.2, subdivision (a) and 25 Code of Federal Regulations part 23.11. Additional information was readily available to the Agency because only four days later maternal grandmother communicated with the Agency and informed them of a great-great-grandmother who was a member of the Choctaw tribe, identifying her by name. With only information about Mother, and no information about Minor's other ancestors, a tribe would have limited ability to determine that Minor was an Indian child. Because the ICWA notice omitted essential information that could have been easily obtained by the Agency, the initial ICWA notice was deficient. (See In re Louis S., supra, 117 Cal.App.4th at pp. 630-631 [finding deficient an ICWA notice that contained numerous errors and omissions].)
The Agency did not cure the ICWA notice deficiency with its second notice to the tribes and Bureau on September 3, 2010, because this notice was never filed with the court and is absent from the appellate record, a violation of section 224.2, subdivision (c). There was no way for the court below, or for this court, to determine that the second notice, unlike the first, actually conformed to the requirements of section 224.2, subdivision (a) and 25 Code of Federal Regulations part 23.11, providing meaningful notice to the tribes. Because the initial notice was deficient and the second notice is absent from the record, we conclude that ICWA notice error occurred in the court below and there is insufficient evidence in the record to support the court's finding that Minor is not an Indian child.
"[F]ailure to provide proper notice is prejudicial error requiring reversal and remand." (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267; see also In re Marinna J., supra, 90 Cal.App.4th at p. 739; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; but see In re Z.N. (2009) 181 Cal.App.4th 282, 296-302 [taking judicial notice of facts that rendered ICWA notice error harmless].) In cases that involve only defects in ICWA notice, Courts of Appeal typically conditionally reverse, with a limited remand directing remediation of the defective ICWA notice. (See In re Elizabeth W., supra, 120 Cal.App.4th at p. 909; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343; In re Samuel P., at pp. 1268-1269.) Conditional reversal with a limited remand is the remedy sought by both appellant and respondent; and it is appropriate in this case.
DISPOSITION
The order terminating Mother's parental rights is conditionally reversed, and the cause is remanded with directions to conduct such further proceedings as are necessary to establish full compliance with the notice requirements of the ICWA. If, after receiving notice as required by the ICWA, no response is received from the Choctaw tribes indicating that Minor is an Indian child, or if the responses received indicate Minor is not an Indian child within the meaning of the Act, the order terminating parental rights shall be reinstated and such further proceedings as are appropriate shall be conducted. If the Choctaw tribes determine that Minor is an Indian child within the meaning of the Act, the dependency court shall proceed accordingly. In all other respects, the orders are affirmed.
Lambden, J.
We concur:
Haerle, Acting P.J.
Richman, J.