Opinion
D041588.
7-16-2003
In re D. L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ALBERTO L., Defendant and Appellant.
Alberto L. appeals from an order entered under Welfare and Institutions Code section 366.26 terminating his parental rights and selecting adoption as the permanent plan for his daughter D. L. (All statutory references are to the Welfare and Institutions Code unless otherwise specified.) His sole contention on appeal is that the court committed reversible error by failing to comply with the notice requirements of the federal Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Three days after D. L.s birth in May 2002, the San Diego County Health and Human Services Agency (the Agency) filed a petition on her behalf under section 300 subdivision (b), alleging the mother was incapable of providing regular care for her due to mental illness and Alberto was unable to protect and supervise her because he did not believe the mother was mentally ill. The petition also alleged the parents had three other children in the dependency system "with whom they have not reunified who have permanent plans pending and the parents failed to participate in, and make progress in reunification services, including psychotherapy."
The Agencys detention report stated that the ICWA did not apply and that a letter in the case files from the Eastern Band of Cherokee Indians indicated, "the family is not registered nor eligible to register as members of the tribe." The same day the Agency filed the petition and detention report, Alberto filed a paternity questionnaire and checked the box marked "maybe" in response to the question, "Do you have any American Indian heritage?" Albert wrote "Comanchee" in response to the question, "If yes or maybe, what tribe and band?" At the detention hearing the court found the ICWA might apply.
In the jurisdiction/disposition report, the social worker stated that an "Indian Notice Packet" had been mailed to Alberto with a request that he complete the paperwork so the social worker could mail it to the Bureau of Indian Affairs (BIA). Alberto did not respond to that request. The social worker involved in D. L.s siblings case was informed that Albertos Indian background was Cherokee. She contacted the Eastern Band of Cherokee Indians and the Cherokee Keetoowah Band, and both bands responded that Albertos children would not be considered members of their bands for ICWA purposes.
At a hearing in June 2002, the court took judicial notice of the petitions the Agency filed on behalf of D. L.s siblings. Each of those petitions stated the child did not come under the ICWA. The court found the ICWA did not apply. Despite that finding, the social worker stated in an addendum report filed on July 10 that she had contacted the BIA by certified mail but had not yet received a response. At a hearing on July 15 the court again found the ICWA did not apply. At the contested disposition hearing, the court removed D. L. from the parents custody, denied the parents reunification services and set a section 366.26 hearing.
In October 2002, the Agency sent the BIA notice of the section 366.26 hearing. The Agency also sent the BIA a "NOTICE OF INVOLUNTARY CUSTODY PROCEEDING INVOLVING AN INDIAN CHILD." The notice stated Albertos tribal affiliation was "Comanchee" and set forth the rights of the parents, Indian custodians and tribe under the ICWA, including the right to intervene. The BIA received that notice on October 28.
At the contested section 366.26 hearing in January 2003, the court terminated parental rights. The court did not address the ICWA at the section 366.26 hearing.
DISCUSSION
Alberto contends the court committed jurisdictional error by failing to ensure that the Agency complied with the notice requirements of the ICWA. He argues those notice requirements were not satisfied because the Agency did not give notice of the dependency proceedings to the Comanche tribe and each of the three Cherokee tribes listed in the Federal Register. We conclude the notice the Agency provided to the BIA satisfied the requirements of the ICWA.
Congress enacted the ICWA to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) It allows a tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)) because the "ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) "Where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings, and their right of intervention." (25 U.S.C. § 1912(a).) No proceeding to terminate parental rights may occur until 10 days after the tribe has received the notice. (Ibid.) If the identity or location of the tribe cannot be determined, notice must be given to the BIA. (Ibid.)
The notice requirements of the ICWA are implemented in California through California Rules of Court, rule 1439. (All rule references are to the California Rules of Court.) Rule 1439(f) provides that after the filing of a section 300 petition, if the court knows or has reason to know that the child is or may be an Indian child "the parent and Indian custodian of an Indian child, and the Indian childs tribe, must be notified of the pending petition and the right of the tribe to intervene in the proceedings." "Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child." (Rule 1439(f)(5).) "The court and the county welfare department have an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child." (Rule 1439(d).) Circumstances that may give the court probable cause to believe that a child is an Indian child include when a party "informs the court or the welfare agency or provides information suggesting that the child is an Indian child." (Rule 1439(d)(2)(A).) If the court has reason to know the child may be an Indian child it shall proceed as if he or she is an Indian child and proceed with dependency proceedings observing Welfare and Institution Code timelines requirements while at the same time complying with the ICWA and rule 1439. (Rule 1439(e).) If the child may be of Indian ancestry, but not eligible for membership in a federally recognized tribe, "notice of the proceedings to the Bureau of Indian Affairs and further inquiry regarding the possible Indian status of the child are the only requirements." (Rule 1439(e).)
Substantial compliance with the ICWA notice requirements is sufficient. (In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1421-1422, 285 Cal. Rptr. 507.) As noted, ICWA notice is properly given to the BIA when the identity the tribe cannot be determined. (25 U.S.C. § 1912(a).) In re Edward H. (2002) 100 Cal.App.4th 1, 4, held that notice to some, but not all Indian tribes of which a child may be a member satisfies the ICWA requirements as long as the BIA also receives notice. In re Kahlen W., supra, 233 Cal. App. 3d at page 1423, noted that a social services agencys inability to identify the correct band of a specified tribe did not relieve it of its obligation to send ICWA notice to the BIA. In In re Suzanna L. (2003) 104 Cal.App.4th 223, 232, the Court of Appeal concluded notice under the ICWA should have been given to the BIA where the childs maternal grandparents tribal affiliation was uncertain. The principle we derive from these cases is that when the Agency becomes aware of a childs possible Indian heritage but the particular tribe or band is uncertain, notice under the ICWA to the BIA is sufficient.
We conclude notice under the ICWA to the BIA was appropriate here because there was uncertainty regarding Albertos tribal affiliation. In D. L.s siblings case the possibility of Cherokee heritage was raised and two Cherokee bands informed the Agency that Albertos children would not be considered members of their bands for ICWA purposes. In the present case, Alberto indicated he may have Indian heritage and specified "Comanchee" as the tribe. However, he did not mention possible Cherokee heritage and did not respond to the Agencys request that he fill out the "Indian Notice Packet" it mailed to him. The switch from Albertos possible Cherokee heritage in the sibling cases to possible Comanche heritage in the instant case, along with Albertos answer of "maybe" to the question of whether he had any Indian heritage at all, created sufficient uncertainty regarding Albertos tribal affiliation to warrant giving notice to the BIA. Because the Agencys notice to the BIA referred to Albertos possible Comanche affiliation (the only tribal affiliation raised by Alberto in this case), the burden shifted to the BIA to provide notice to the Comanche tribe. (In re Kahlen W., supra, 233 Cal. App. 3d at p. 1422.) The BIA presumably fulfilled that obligation, and presumably has the "resources and skill with which to ferret out the necessary information." (Ibid.) Under the circumstances of this case, there was substantial and therefore sufficient compliance with the notice requirements of the ICWA.
DISPOSITION
The order terminating parental rights is affirmed.
WE CONCUR: BENKE, Acting P. J., and HALLER, J.