Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. CK52449 Sherri Sobel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
Alejandra L. (Mother) appeals from an order terminating her parental rights to her two children. She argues that the court failed to comply with the requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Her appeal is uncontested by the Department of Children and Family Services (DCFS). We reverse for the purpose of giving proper notice to the Indian tribes.
FACTS
In June 2003, DCFS filed a petition regarding Mother’s children, V. (born in 2003) and A. (born in 2000). The petition alleged that Mother has a nine-year history of substance abuse and is a frequent user of methamphetamines and marijuana, which renders her incapable of caring for the children. Mother had a positive toxicology screen at the time of V.’s birth. Mother admitted to using methamphetamines during her pregnancy. Her drug use began with heroin at age 14.
In its detention report, DCFS noted that Mother “stated that she had Cherokee and Apache Indian Heritage.” The petition indicates that the “ICWA does or may apply.” V.’s name is misspelled in the petition. The father of A. is listed as being Mr. Espinoza, and the father of V. as Mr. Arellano. At the detention hearing, the court found a primafacie case for detaining the children. It ordered DCFS to investigate Mother’s Native American background; provide notice to the appropriate Indian tribes; and show proof of service at the next hearing.
In July 2003, DCFS sent notices to Apache and Cherokee Indian tribal bands in Arizona, New Mexico, Oklahoma and North Carolina. The notices misspelled A.’s and V.’s names; they did not indicate the city where the children were born; they did not list A.’s father, Mr. Espinoza; and they did not list any the names of any grandparents. The responses from the tribes echoed the misspellings of the children’s names. On August 25, 2003, the court found that “notice has been given as required by law” and concluded that the ICWA does not apply. Eventually, in June 2005, the court terminated its dependency jurisdiction pursuant to a family law order.
Genetic testing later established that Mr. Espinoza (not Mr. Arellano) is the father of V.
In April 2006, DCFS received a new referral regarding Mother. Mother was using drugs again and left the children with their stepfather, who took them out late at night searching for Mother. Mother admitted to drug use and declined the caseworker’s request to take a drug test because she knew the test would “come up dirty for marijuana.”
A dependency petition was filed alleging that Mother has a 12-year history of substance abuse and continues to abuse drugs, which renders her incapable of providing the children with regular care. Further, Mother abandoned the children without making a plan for the children’s ongoing care and supervision or the basic necessities of life. The petition alleges that Mr. Espinoza has a criminal history of making terrorist threats and assault. Based on its findings in the prior dependency proceeding, the court concluded that this is not an ICWA case.
Mother failed to appear at a contested review hearing in December 2006. The court terminated Mother’s reunification services after finding that her visits were sporadic and she “hasn’t done anything on her case plan.” The court acknowledged that Mother was diagnosed with multiple sclerosis. In May 2007, the court terminated Mother’s parental rights because she failed to complete the case plan and her visits with the children were detrimental. The court found that the children are adoptable. Mother’s appeal is timely.
DISCUSSION
“The ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families.” (In re Alicia S. (1998) 65 Cal.App.4th 79, 81.) The law requires that notice be given to any affected Indian tribes, even if the child’s Indian status is uncertain. (25 U.S.C. § 1912; In re Suzanna L. (2002) 104 Cal.App.4th 223, 231.) The notice requirements of the ICWA are intended to protect the interests of the Indian tribes and Indian children, and cannot be waived, no matter how late in the proceeding the issue arises. (In re Suzanna L., supra, 104 Cal.App.4th at pp. 231-232.)
For proper notice to be given under the ICWA, the notice to the tribes must include the Indian child’s name, birth date and birthplace; the name of the tribe; the names of the child’s biological parents, grandparents, and great-grandparents, a well as their current and former addresses, birth dates, places of birth and death, tribal enrollment numbers, and any other identifying information; a copy of the dependency petition; and a copy of the child’s birth certificate. (25 C.F.R. § 23.11(d); Welf. & Inst. Code, § 224.2, subd. (a)(5)(A)-(E); In re Louis S. (2004) 117 Cal.App.4th 622, 630.)
The tribal notices in this case were deficient. The children’s names were misspelled. No birthplace was given. The wrong father’s name was provided. No grandparents were listed. The responses from the tribes repeated the misspellings of the children’s names. Notices that contain misspelled names and incomplete information prevent the Indian tribes from conducting a meaningful search to determine tribal heritage. (In re Louis S., supra, 117 Cal.App.4th at p. 631.)
In a letter brief, DCFS concedes that proper notice was not given under the ICWA. It is error for the dependency court to terminate parental rights without substantial compliance with the notice requirements of the ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 702-704.) In this situation a limited reversal is required. (Id. at pp. 704-708; In re Justin S. (2007) 150 Cal.App.4th 1426, 1432-1433.) The dependency court must now “see to it that proper notice is given. If, after giving proper notice, it finds insufficient evidence that [the child] is, in fact, an Indian child, it must reinstate its order terminating [ ] parental rights.” (In re Suzanna L., supra, 104 Cal.App.4th at p. 237.) Limiting the scope of the remand protects the Indian tribes and at the same time promotes the children’s best interests and public policy emphasizing the expeditious implementation of a permanent plan for the children. (In re Francisco W., supra, 139 Cal.App.4th at p. 708.)
DISPOSITION
The order terminating appellant’s parental rights is conditionally reversed. On remand, the trial court is directed to require DCFS to give proper notice in accordance with the ICWA and its implementing regulations. The court must hold a hearing, at which appellant is represented by counsel, to determine whether the ICWA applies. If there is no timely response from the properly noticed tribes, or if the response raises no substantial question as to whether the children are Indian children, the trial court is directed to immediately reinstate its original order terminating parental rights. If, however, the tribal response raises a substantial question as to whether the children are Indian children, the trial court is directed to hold further proceedings applying the ICWA, the Welfare and Institutions Code, and the California Rules of Court.
We concur: DOI TODD, J., CHAVEZ, J.