Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. J066762
Lee Gulliver, under appointment by the Court of Appeal, for Appellant L.H.
Janice A. Jenkins, under appointment by the Court of Appeal, for Appellant S.S.
Noel A. Klebaum, County Counsel, Linda L. Stevenson, Assistant County Counsel, for Respondent.
PERREN, J.
Mother and father appeal an order of the juvenile court terminating parental rights and finding their child adoptable. (Welf. & Inst. Code, § 366.26.) They contend the juvenile court failed to give the notice required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Respondent Ventura County Human Services Agency (Agency) filed a juvenile dependency petition on behalf of four-month-old C.S. on September 12, 2007. The petition alleged the child had suffered serious non-accidental physical harm inflicted by one or both of her parents. She had fractures in both arms and two ribs. The petition also alleged the child was at risk of harm due to her father's history of substance abuse.
Father completed form JV-130, "Parental Notification of Indian Status," indicating that he might have Cherokee ancestry. Father stated he believed that his Cherokee ancestry was through his mother's side of the family. Mother claimed no Indian heritage. The court found that ICWA may apply.
On September 21, 2007, the Agency sent Form JV-135, "Notice of Involuntary Child Custody Proceedings for an Indian Child," to three Cherokee tribes and the Bureau of Indian Affairs (BIA) noticing a jurisdictional/dispositional hearing. The only information provided on the JV-135 form was the names and addresses of father, mother and the paternal grandfather. No information was provided regarding the paternal grandmother. The Agency filed copies of executed return receipts from the three tribes and the BIA. Each tribe responded stating that C.S. was not a member and/or eligible for enrollment. The BIA stated it would be taking no action because the tribes had been noticed.
On January 30, 2008, at a continued jurisdictional/dispositional hearing, father stated that his Indian ancestry was through his mother. In response to a question from the Agency's counsel as to whether his mother was "connected to a tribe or a member of a tribe," father stated: "It would have been Cherokee, and it would be probably such a small percentage it would be insignificant." In response to a question from the court asking father why he believed his mother to be of Indian ancestry, father replied: "Because she told me. And my mom would be about one-sixteenth Cherokee." In response to the court's query regarding the percentage of Indian ancestry, father replied: "That's what my mom told me because it was her... grandfather, which would be my great-grandfather--his dad's somebody or another--it's complicated." The court then asked father whether he was a member of a tribe or eligible for membership in a tribe. Father responded: "I don't think so. Never inquired."
The Agency's counsel explained that "there was some information missing" from the JV-135 forms sent to the tribes. Nonetheless, the Agency requested that the court make a finding that the ICWA did not apply. The court found that the "information is not sufficient to lead one to believe, and there is no reason to believe that this is an Indian child; so further notice is not necessary."
While this appeal was pending, the Agency filed a motion to augment the record with corrected notices it had sent to the tribes setting forth information concerning the father's maternal ancestors. Each tribe responded that the child was not a member or eligible for membership in the tribe. This information was submitted to the juvenile court and the court found that ICWA did not apply.
DISCUSSION
Mother and father contend that termination of their parental rights must be reversed because the Agency did send corrected notices to the Cherokee tribes and BIA. Father consistently stated that he had Indian ancestry through his mother. This was sufficient information to trigger the notice requirements of the ICWA. The notice requirements are not satisfied when the Agency provides insufficient or incorrect information to the tribes.
ICWA protects the interests of Indian children and promotes the stability and security of 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.) For purposes of ICWA, an "Indian child" is one who is either a "member of an Indian tribe" or 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).) The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469-470.)
The object of tribal notice is to enable a review of tribal records to ascertain a child's status under ICWA. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) The notices "must contain enough information to be meaningful. [Citation.] The notice must include: if known, (1) the Indian child's name, birthplace, and birth date; (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." (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) "It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the one with the alleged Indian heritage. [Citation.] Notice... must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data." (Ibid.; In re C.D. (2003) 110 Cal.App.4th 214, 224-225.)
Here, the initial notices sent to the tribes did not contain any information about C.S.'s paternal grandmother, even though father stated on two occasions that he had Cherokee ancestry through his mother. The Agency had a duty to provide information about the paternal grandmother to the tribes. The record shows that the Agency knew where the paternal grandmother lived and had contacted her about relative placement. Thus, the Agency had a further duty to ask the paternal grandmother about her ancestors and provide that information to the tribes. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1201.)
The Agency asserts no further notice was required because father's statements indicated that Indian ancestry was "too remote." It may be that the child's lineage is "too remote." However, it is for the tribe, not the Agency or the court, to decide whether or not a particular child is eligible for membership in a tribe. (See, e.g., D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 207 ["'Each Indian tribe has sole authority to determine its membership criteria, and to decide who meets those criteria. ...'"]; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1300 [same]; In re Junious M. (1983) 144 Cal.App.3d 786, 793.)
It would be helpful for the Agency to obtain information from the tribes concerning the percentage of Indian ancestry needed to be considered an Indian child. If such information were available, appeals such as this may become unnecessary.
However, the parents' meritorious arguments have become moot because the Agency cured the notice problem by submitting new notices to the tribes containing information concerning father's maternal ancestors. (See, e.g., In re C.D., supra, 110 Cal.App.4th at p. 226 [compliance with ICWA notice requirements while appeal was pending].)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J., Tari L. Cody, Judge