Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Nos. J177831, J177832, A. Rex Victor, Judge.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant M.J.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant C.H.
Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.
Amanda F. Benedict, under appointment by the Court of Appeal, for Minors.
OPINION
RICHLI, J.
Defendants and Appellants M.J. (Mother) and C.H. (Father) appeal from the termination of their parental rights under Welfare and Institutions Code section 366.26 as to their daughters, 7-year-old A.J. and 9-year-old D.J. On appeal, the parents contend (1) the juvenile court and the San Bernardino County Department of Children’s Services (DCS) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.); and (2) the matter should be remanded to allow the parents to fully litigate the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(B)(v). We agree that the notice provisions of ICWA were not adequately complied with and will remand the matter for that limited purpose. We reject the parents’ remaining contention.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background up to the termination of reunification services in taken from this court’s prior opinion in case No. E034576 unless otherwise noted.
The dependency proceedings began in August 2001. The triggering event was that Mother had left four of her children -- ranging in age from two to nine years -- alone at night to visit her boyfriend. This resulted in her arrest on outstanding petty theft charges as well as new charges of child endangerment. There had been several prior referrals of the family to the DCS, three of which, for general neglect, had been substantiated. A. had tested positive for methamphetamine at birth.
A. and D.’s three older siblings are not subjects of this appeal.
Following mediation, Mother agreed to offer “no contest” to allegations under section 300, subdivision (b)(1) (risk of harm due to substance abuse). DCS was willing to return the minors to Mother if she produced three weeks of negative drug tests; DCS also offered to provide family maintenance services. By December 2001, Mother had satisfied the conditions and obtained appropriate housing, and the minors were returned to her. Both parents were offered appropriate services.
In June 2002, DCS filed a petition for modification (§ 387), alleging that Mother had been evicted from her apartment for nonpayment of rent and then had also been evicted from a motel after running up the telephone bill. She had also failed to participate in parenting classes or drug testing. Most importantly, while Mother was asleep at her mother’s home, one of the children’s siblings, then aged 3, had set fire to the grandmother’s house with a barbecue lighter. By this time, Father had been arrested for drug and firearm violations and was incarcerated. The minors were removed and placed in foster care.
Reunification services were ultimately terminated, and a section 366.26 hearing was scheduled. Mother thereafter filed a writ petition challenging, among other things, the adequacy of services offered to her. This court denied Mother’s writ petition, rejecting Mother’s claims in case No. E034576.
Following numerous placements, A. and D. were placed in their prospective adoptive home in March 2007. Their older brother was eventually placed in a separate group home and was in agreement with his sisters being adopted. The girls’ caretaker was very receptive to allowing sibling visitation and contact. The girls’ behavioral issues had subsided since being placed in the home. The caregiver had expressed a strong commitment to providing for the girls and had also conveyed her desire to adopt them. She explained that she loved the girls like her “own babies.” Both the girls had also expressed their willingness to be adopted by their prospective adoptive mother.
Mother and Father had been inconsistent in visiting the children throughout the case. During most of the dependency proceedings, Father had been in prison and having telephone contact with the children.
The section 366.26 hearing was held on July 3, 2008. Mother’s counsel argued for guardianship to be the permanent plan for A. and D. Father’s counsel also objected to the permanent plan of adoption. The court found notice to be proper and that ICWA did not apply. The court also found the children to be adoptable and terminated parental rights.
II
DISCUSSION
A. ICWA
The parents contend ICWA notice was insufficient because the social worker and the court failed to inquire as to Indian heritage or acquire information regarding the children’s possible Indian heritage, and the notice forms were substantially incomplete.
The additional relevant factual background is as follows: As to status under ICWA, the social worker reported, and continued to report, that ICWA did not apply. However, once Father informed the social worker in August 2004, about three years after the children were initially removed from parental custody, that he had American Indian heritage, the social worker took steps to fulfill the noticing requirements of ICWA. Father was unable to provide the social worker with any family information relating to his assertion of American Indian ancestry.
At a section 387 jurisdictional/dispositional hearing on September 27, 2004, Father was not present, but Mother was. The court inquired of Mother whether she had American Indian heritage. Mother indicated that she had Cherokee and Choctaw heritage through her paternal grandmother. Mother gave her grandmother’s telephone number to assist in ICWA inquiry.
On October 27, 2004, notices were mailed to the Bureau of Indian Affairs (BIA), Eastern Band of Cherokee Indians, Choctaw Nation of Oklahoma, the Jena Band of Choctaw Indians, the Cherokee Nation, the Mississippi Band of Choctaw Indians, and the United Keetoowah Band. The notice provided the tribes with Mother’s and Father’s names and dates of birth, Father’s address, and the parents’ tribal affiliations; the maternal grandparents’ names; the paternal grandparents’ names; the paternal grandmother’s date and place of birth; the maternal great-grandparents’ names and places of birth; the maternal great-grandmother’s date of birth and current address; the paternal great-grandmother’s name and date of birth; and the paternal great-grandfather’s name. Six of the seven tribes and the BIA responded that the children were not eligible for tribal membership. The United Keetoowah Band had not responded as of the date of the December 10, 2004, report. The receipts of notices and responsive letters are included in the record.
The parents claim the notices were inadequate because they failed to include Mother’s present or past addresses, Mother’s aliases or married names, or the parents’ places of birth and included only scant information concerning the paternal and maternal grandparents and great-grandparents.
Under ICWA, when a child subject to a dependency proceeding is or might be an Indian child, as that term is defined in the act, each tribe of which the child might be a member or eligible for membership must be notified of the dependency proceeding and of the tribe’s right to intervene in the proceeding. If the identity of the tribe cannot be determined, notice must be sent to the Secretary of the Interior through the BIA. (25 U.S.C. § 1912; Cal. Rules of Court, former rule 1439(f).) If proper notice under ICWA is not given, the child, the parent, or the tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914; Cal. Rules of Court, former rule 1439(n).)
The rules of court applicable to ICWA are now found in California Rules of Court, rule 5.481 et seq. The notices contested here were governed by the rules of court in effect in 2004.
The purposes of ICWA are to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) The court and DCS have an affirmative duty to inquire whether a dependent child is or may be an Indian child. (Cal. Rules of Court, former rule 1439(d).) Moreover, it is up to the party seeking to terminate parental rights to notify the BIA or the tribe in order to determine the child’s ICWA eligibility. (In re Marinna J. (2001) 90 Cal.App.4th 731, 734-735.) The Indian status of the child does not need to be certain for the notice provisions to apply. (Kahlen W., at p. 1422; In re Jonathan D. (2001) 92 Cal.App.4th 105, 110.)
The duty to give notice initially arises only “where the court knows or has reason to know that an Indian child is involved” in the proceeding. (25 U.S.C. § 1912(a); see also Cal. Rules of Court, former rule 1439(e).) As defined in ICWA, an “Indian child” is a child who is either “(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . . .” (25 U.S.C. § 1903(4); Cal. Rules of Court, former rule 1439(a)(1)(A) & (B).) Interpreted to mean only “federally recognized tribes,” the term “Indian tribe” is defined as “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians . . . .” (25 U.S.C. § 1903(8).)
Under former rule 1439 of the California Rules of Court, directed at ensuring compliance with ICWA, a court has reason to know a child might be an Indian child if, among other things, “[a] party . . . informs the court or the welfare agency or provides information suggesting that the child is an Indian child. . . .” (Cal. Rules of Court, former rule 1439(d)(2)(A).) Simply stated, the duty to give notice under ICWA arises when there is information suggesting the child is either a member of a tribe or eligible for membership and is the child of a tribe member. (25 U.S .C. § 1912(a); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.)
Among other things, ICWA requires proper notice before the juvenile court may terminate parental rights to an Indian child. The courts of this state have declared this notice requirement to be a “key component” of ICWA. The purposes of ICWA cannot be fulfilled unless proper notice is given to either the identified Indian tribe or the BIA. (In re C.D. (2003) 110 Cal.App.4th 214, 224.) Notice, as prescribed by ICWA, ensures that “the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.) Furthermore, ICWA “unequivocally” requires that notice to the Indian child’s tribe include both actual notice of the juvenile dependency proceedings, and notice to the tribe of its right to intervene. (Id. at p. 1422.) A tribe’s mere “awareness” of the existence of a dependency proceeding is not sufficient notice under ICWA. (Ibid.)
Moreover, “[n]otice is meaningless if no information or insufficient information is presented to the tribe to make that determination. [Citation.]” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) The notice must include all required information, including the child’s name, date of birth, and place of birth and the names and addresses of the child’s parents, grandparents, and great-grandparents, along with dates of birth or death and/or other identifying information. A copy of the dependency petition must also be provided. (Ibid.) It is the agency’s responsibility to obtain as much information as possible about the child’s potential Indian background and to provide that information to the relevant tribe or, if the name of the tribe is not known, to the BIA. (Ibid.; see also In re S.M. (2004) 118 Cal.App.4th 1108, 1116.)
Failure to provide notice in a manner consistent with ICWA mandates reversal. (Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 416; In re Junious M. (1983) 144 Cal.App.3d 786, 796.) “Notice is mandatory, regardless of how late in the proceedings a child’s possible Indian heritage is uncovered. [Citations.]” (In re Kahlen W., supra, 233 Cal.App.3d at p. 1424.) “The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings.” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) However, the tribe’s right to intervene in the proceedings is meaningless if the tribe has not received notice of the pending action. (Ibid.)
As previously noted, DCS did give notice in this case. However, it appears the notices were insufficient under the circumstances of this case. As pointed out by Mother, the notices failed to include Mother’s name, “including maiden, married and former or aliases” as required by form SOC 820, even though the record shows Mother’s name was spelled many different ways. In fact, DCS’s own September 27, 2004, declaration of due diligence includes five different spellings of Mother’s name and/or aliases. In addition, the notices identified Mother’s “current and former” address as “unknown,” even though DCS had four possible addresses for Mother. The notices also failed to sufficiently identify the paternal grandparents and great-grandparents, even though the social worker was in contact with the paternal relatives and had an opportunity to interview them. The social worker who was in contact with the paternal relatives therefore could have obtained information regarding the paternal grandfather’s birthplace and the birth date and birth date of the paternal great-grandfather. This information might have aided the tribes in tracking the children’s lineal heritage; it was available, and the social worker’s failure to obtain it was a dereliction of the social worker’s duty to inquire about all information concerning a child’s family history. (In re S.M., supra, 118 Cal.App.4th at p. 1116.) Though the tribes responded, the letters from most of the tribes specifically stated that the determination of Indian status was based on the information supplied to them, and any missing or inaccurate information could invalidate the determination.
DCS argues any error was harmless. “Deficiencies in an ICWA notice are generally prejudicial, but may be deemed harmless under some circumstances.” (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 577 [Fourth Dist., Div. Two].) Here, however, we cannot find the error to be harmless, as the tribes did not have a meaningful opportunity to search the tribal registry. (See, e.g., In re S.M., supra, 118 Cal.App.4th at pp. 1116-1117 [because notice contained no information about child’s purported Indian grandmother and great-grandmother, tribes could not conduct a meaningful search]; In re Louis S., supra, 117 Cal.App.4th at p. 631 [due to misspellings and omissions in notice, “the tribe could not conduct a meaningful search to determine [the child’s] tribal heritage”].)
In Louis S., the court found the tribe could not conduct a meaningful search to determine the child’s tribal heritage because the SOC 318 form, among other errors, did not provide birthdates for the maternal grandmother or maternal great-grandmother. The court noted the maternal grandmother’s birth date was available because the children were in foster care with her. The court also found fault with the omission of the maternal great-grandmother’s full name and birth date because there was no evidence the social worker was unable to get this “critically important” information about the person with the alleged Indian heritage. (In re Louis S., supra, 177 Cal.App.4th at p. 631.) “Notice is meaningless if . . . insufficient information is presented to the tribe” asked to determine if a child is an Indian child. (Id. at p. 630.)
Without knowing whether and to what extent DCS, with reasonable diligence, could have obtained and provided additional family history information described in 25 Code of Federal Regulations part 23.11(d)(3), we are unable to discern whether there is a reasonable probability the relevant tribes would still have been unable to determine that the children were Indian children.
In short, DCS did not comply with ICWA’s notice requirements because it did not supply the Indian tribes with all available information. (In re Louis S., supra, 117 Cal.App.4th at p. 630.) On this record, we cannot find DPSS substantially complied with ICWA’s notice requirements, and we will remand the matter. (In re Rayna N. (2008) 163 Cal.App.4th 262, 268.)
Accordingly, it is unnecessary for us to address the parents’ remaining assignment of error, namely whether the court and social worker were derelict in continuing their duty of inquiry, regarding ICWA. On remand, we trust DCS will fulfill all of the notice requirements of ICWA and case law interpreting the statute and thus allow the juvenile court to give the matter a meaningful review to ensure compliance with ICWA.
B. Limited Reversal
Mother contends, and Father joins, that this court should not order a limited reversal for compliance with ICWA because the sibling relationship exception to termination of parental rights was not fully litigated at the section 366.26 hearing and that the children’s best interests might be served if the court considered their present circumstances. We disagree.
The standard appellate remedy for an ICWA notice violation is a conditional reversal, followed by a limited remand. We should direct the juvenile court to correct the notice violation; however, we should also direct it, if it finds that the child is not an Indian child within the meaning of ICWA, to reinstate the order appealed from. (In re Suzanna L. (2002) 104 Cal.App.4th 223, 237 [Fourth Dist., Div. Two]; In re Marinna J., supra, 90 Cal.App.4th at p. 740.)
This “approach is well adapted to dependency cases involving termination of parental rights in which we find the only error is defective ICWA notice. [It] allows the juvenile court to regain jurisdiction over the dependent child and determine the one remaining issue. The parties already have litigated all other issues at the section 366.26 hearing, and it is not necessary to have a complete retrial. Thus, the child is afforded the protection of the juvenile court, and, at the same time, his or her case is processed to cure the ICWA error, which is more expeditious than a full rehearing of all section 366.26 issues. Indeed, a new section 366.26 hearing would be subject to another appeal; by not following our practice we could easily age a child out of adoptability into long-term foster care, which is the least favored permanent plan.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 705.)
In Francisco W., the appellant challenged the propriety of a limited remand, arguing that it prevents the juvenile court from considering interim changes in the child's adoptability that could result in the child becoming a “legal orphan.” (In re Francisco W., supra, 139 Cal.App.4th 695 at pp. 699, 704, 707, 710.) The appellate court disagreed, for two reasons.
First, it explained, “[c]ounsel has not raised any adverse consequence to Francisco by reinstating an otherwise valid order . . . . Francisco was placed with his maternal grandmother, who wants to adopt him, and there is no indication the relevant circumstances have or will change. We see no justification in requiring the juvenile court to revisit the issue of his adoptability when it was not questioned at trial or on appeal.” (In re Francisco W., supra, 139 Cal.App.4th at p. 708.)
Second, it stated, “We acknowledge there very well might be exceptional cases -- those in which significant circumstances have changed during the pendency of the appeal and have adversely affected the likelihood of the child being adopted, and for which an alternate disposition would be in order to avoid a result adverse to the child upon remand. However, . . . we find the law accommodates [such an] extraordinary case . . . .” (In re Francisco W., supra, 139 Cal.App.4th at pp. 708-709.) It cited section 366.26, subdivision (i)(2), which “allows a child who has not been adopted after three years to petition the juvenile court to reinstate parental rights, thereby allowing a different permanent plan to be chosen. [Citation.] The provision also allows a child to file the petition earlier than three years if the child welfare agency stipulates the child is no longer likely to be adopted. [Citation.]” (Francisco W., at p. 709.)
Section 366.26, subdivision (i)(2), as pertinent here, provides: “A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388. The child may file the petition prior to the expiration of this three-year period if the State Department of Social Services or licensed adoption agency that is responsible for custody and supervision of the child . . . and the child stipulate that the child is no longer likely to be adopted. . . . The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child's best interest.”
The court concluded: “In our view, section 366.26, subdivision (i)(2) provides the juvenile court with adequate opportunity to restore parental rights if the circumstances demand it. The three-year period . . . does not seem to us to be an insurmountable barrier to a just result. A large part of the three-year threshold period will have passed by the time the case has been reviewed by the appellate court, remanded to cure the notice error, had the judgment reinstated (if the child is found not to be an Indian child) and the case again reviewed on appeal. Furthermore, if the changed circumstances are of such magnitude as those hypothesized by Francisco’s appellate counsel in this case, we see no reason why the relevant parties . . . would not agree to stipulate that the likelihood of adoption no longer exists, thereby allowing the child to petition the court for reinstatement of the parental rights prior to the expiration of the three-year period . . . .” (In re Francisco W., supra, 139 Cal.App.4th at pp. 709-710.)
Six months later, in In re Terrance B. (2006) 144 Cal.App.4th 965, the same appellate court reaffirmed these principles. In an earlier appeal, it had reversed, based on an ICWA notice violation, and ordered a limited remand. (Id. at p. 970.) On that remand, the mother filed a petition pursuant to section 388. She alleged that the child’s two older siblings, who had been placed with the child, had recently been returned to her custody. She also alleged that a bonding study had shown “a ‘highly significant and positive relationship between Terrance and his siblings.’” (Terrance B., at p. 970.) She therefore argued that the beneficial sibling relationship exception precluded the termination of parental rights. The juvenile court, relying on the limited nature of the remand, refused to consider the section 388 petition. (Terrance B., at p. 970; see also id. at pp. 968-969.)
The appellate court affirmed. It stated that the mother “was not entitled to a hearing on her section 388 petition regarding Terrance’s best interests or the applicability of the beneficial sibling relationship exception. [Citation.]” (In re Terrance B., supra, 144 Cal.App.4th at p. 975.) “[A]s we held in Francisco W., a party is not entitled to a second selection and implementation hearing when the sole reason for reversal is ICWA notice error. [Citation.]” (Id. at p. 973.)
The court also explained, “This is not the ‘extraordinary’ case contemplated by Francisco W. The facts do not in any way suggest Terrance is no longer adoptable or at risk of becoming a legal orphan. The evidence at the selection and implementation hearing showed Terrance was generally adoptable based on his age, physical condition and emotional state. [Citation.] Additionally, Terrance’s caregiver, with whom he had lived since he was two years old, was committed to adopting him. Those circumstances have not changed. . . . Thus, the alleged changed circumstances -- the siblings’ return to [the mother’s] custody -- did not adversely affect the likelihood Terrance would be adopted. [Citation.]” (In re Terrance B., supra, 144 Cal.App.4th at pp. 973-974, fn. omitted.)
Here, just as in Francisco W. and Terrance B., the sole basis shown for reversal is an ICWA notice violation. Accordingly, the parties simply are not entitled to a new section 366.26 hearing. Moreover, this is not an “extraordinary” case within the meaning of Francisco W. The prospective adoptive parent has not refused to adopt the children and, indeed, has committed to adopting the girls. The girls have responded extremely well to this caretaker (after having had about 10 different placements since 2001), and the caretaker loves the girls like her own and is willing to allow sibling visitation and contact. In fact, the girls’ older brother D. supports his sisters being adopted by the prospective adoptive parent. This case is far from extraordinary.
In any event, Francisco W. went on to hold that section 366.26, subdivision (i)(2) is adequate to accommodate even the extraordinary case. There is no need to order a new section 366.26 hearing, which in turn would be subject to another appeal. The girls are adoptable and will presumably be adopted. There is no evidence to suggest that the girls are facing legal orphanhood.
Mother requests us to remand for a new section 366.26 hearing so the juvenile court can consider whether the beneficial sibling relationship exception now applies. In Terrance B., however, the court held that postjudgment evidence that adoption would separate bonded siblings did not make the case “extraordinary” and did not require a full remand. That is particularly true here because the prospective adoptive parent was willing to allow sibling contact and visitation and there was no evidence to suggest that the girls had a bond with their two eldest brothers, with whom they had not lived for many years. Moreover, evidently the girls and their brothers are going to remain separated, regardless of whether they continue in long-term foster care or are placed for adoption. These facts simply do not present a compelling case for a full remand.
III
DISPOSITION
The order terminating parental rights is conditionally reversed, and a limited remand is hereby ordered, as follows.
As soon as reasonably practicable, DCS shall file a motion for findings as to whether it has complied substantially with the notice requirements of ICWA and related federal and state law and, if so, as to whether the children are Indian children. (See § 224.3, subd. (e).) DCS may choose to rely on any notice it has already given and/or to give new notice.
If the juvenile court finds that the children are Indian children, it shall set a new section 366.26 hearing and conduct all further proceedings in compliance with ICWA and related federal and state law. If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights.
We concur: HOLLENHORST, Acting P.J. McKINSTER, J.