Opinion
NOT TO BE PUBLISHED
Appeals from Sonoma County Super. Ct. No. 2165.
Richman, J.
Dorothy F. (Dorothy), now over three years old, was a 10-month-old infant when her mother turned her over to a Santa Rosa police officer because she was unable to care for her. Appellant Steven L. (Steven), later confirmed to be Dorothy’s biological father, was incarcerated at the time. Dorothy has since lived in foster care, including the last one and a half years with a prospective adoptive family with whom, in the words of respondent Sonoma County Human Services Department (the Department), she has a “loving and close relationship” and “substantial emotional ties.” The Department also recognizes that Dorothy “would benefit from the establishment of a permanent parent/child relationship through adoption.”
Nevertheless, the permanency Dorothy deserves, and the prospective adoptive family no doubt desires, will regrettably have to wait due to the Department’s failure to comply with the spirit and the letter of its obligations under the Indian Child Welfare Act (ICWA)—specifically, its failure to provide proper notice of Dorothy’s Indian ancestry as mandated by the ICWA. Accordingly, we reverse the dispositional order terminating Steven’s parental rights and remand to afford the Department an opportunity to remedy its errors.
I. Background
On August 9, 2005, the Department filed a petition alleging that M.C., who had a history of substance abuse, was unable to provide care and protection for Dorothy, thereby putting her at risk of serious physical harm or illness within the meaning of Welfare and Institutions Code section 300, subdivision (b). As alleged in the petition and further detailed in the supporting investigative report, on August 5, 2005, M.C. advised a Santa Rosa police officer that she was afraid for her baby’s safety because unknown people were following her. She asked the officer to take Dorothy, claiming she could not care for her. In response to the officer’s inquiries, M.C. admitted to having smoked marijuana and consumed alcohol earlier in the day. In the midst of the conversation, M.C. ran off and was later found hiding in a nearby business. Another officer who was tending to Dorothy noticed that her diaper was extremely soiled and had not been changed in a while. The office went to M.C.’s car, where she and Dorothy had been living in a state of disarray, but could not locate any diapers, finding instead only a bottle of stale baby formula. Dorothy was immediately taken into protective custody and placed in emergency foster care, while M.C. was arrested for public intoxication.
As to Dorothy’s father, the petition identified Steven as the alleged father, and he acknowledged paternity. However, because M.C. was married to another man when Dorothy was born, Steven was not eligible for presumed father status. At the time Dorothy was taken into protective custody, Steven was imprisoned on a domestic violence charge but was scheduled for imminent release.
On August 10, 2005, the court held a detention hearing, which both M.C. and Steven (having just been released from prison) attended. During the hearing, the following exchange occurred:
“THE COURT: Ms. C., does Dorothy have any Indian heritage on your side of the family?
“[M.C.]: Not that I know of, but her father is Cherokee Indian.
“THE COURT: All right. And while we’re on that subject, who’s the father?
“[M.C.]: Steven [L.] [¶] . . . [¶]
“THE COURT: I don’t know if I asked Mr. L. Indian heritage on your side of the family?
“STEVEN: Yes.
“THE COURT: Which tribe, if you know?
“STEVEN: Cherokee.
“THE COURT: Are you actually a registered member of a particular tribe?
“STEVEN: No.
“THE COURT: Do you claim affiliation with a particular tribe? That is, are you connected? Do you participate in tribal activities? Is there a particular tribe that you identify with as
“STEVEN: Cherokee.
“THE COURT: Okay. Well, there’s a number of different Cherokee tribes.
“STEVEN: No.
“[M.C.]: We are trying to chase his heritage if I can ever get a computer.
While the reporter’s transcript identifies M.C. as the speaker of this statement, we suspect she was misidentified, since it seems unlikely she would be looking for a computer given her circumstances as a homeless substance abuser whose infant daughter had just been taken into protective custody.
“MS. HARVEY [counsel for the Department]: Does Mr. L. know at least a state in which the Cherokee tribe [sic]? Was it Oklahoma?
“STEVEN: I don’t know. Ms. F. knows.
Ms. F., Dorothy’s paternal great aunt, was at the hearing.
“MR. LOWENTHAL [counsel for Steven]: Your Honor, she indicates it is Cherokee, but they have not done any of the work to determine which.
“THE COURT: All right.
“STEVEN: Arkansas.”
The issue was not discussed any further, and the hearing resulted in Dorothy’s detention and a court-ordered paternity test for Steven.
That same day, both M.C. and Steven filed a parental notification of Indian status. M.C. indicated that Dorothy may be a member of, or eligible for membership in, a federally recognized Indian tribe, writing “Cherokee on [father’s] side” for the name of the tribe. Similarly, Steven indicated that he may have Indian ancestry and was a member of, or eligible for membership in “Cherokee—Arkansas.” The form bears the following notation: “NOTE: This form is not intended to constitute a complete inquiry into Indian heritage. Further inquiry may be required by the Indian Child Welfare Act.”
On or about August 19, 2005, the Department sent a “Notice Of Involuntary Child Custody Proceedings For An Indian Child” (form SOC 820) to the Bureau of Indian Affairs (BIA) and the Eastern Band of Cherokee Indians. The notice identified Dorothy as a child with possible Indian ancestry, listing her date and place of birth and identifying “Cherokee of Arkansas” as the tribe or band in which she may be eligible for membership. It listed M.C. as Dorothy’s mother and provided her mailing address. As to Steven, the notice provided his name and two alternative addresses, and stated “Cherokee of Arkansas (not registered)” where the form requested the “tribe, band and location.” No other information concerning Steven, such as his birth date and place, was provided.
The proof of service states the notice was mailed on August 17, 2005, but the certified mail receipts indicate it was mailed on August 19, 2005.
As to Steven’s ancestors, the form indicated that the names of Dorothy’s paternal grandmother, grandfather, great-grandmother and great-grandfather were “Unknown.” No other information about Dorothy’s potential Indian ancestry was provided.
The proof of service of the notice stated that it was served by “registered or certified mail, return receipt requested.” Attached to the proof of service were two certified mail receipts, one addressed to “Bur. of Ind. Affairs” and the other to “Eastern Band/Cherokee Ind.” The receipts themselves do not contain any confirmation that return receipts were in fact requested, despite the representation in the proof of service that they were. While a copy of the notice and the certified mail receipts were filed with the court on September 1, 2005, signed return receipts evidencing that the notices were in fact received by the BIA and the Eastern Band of Cherokee Indians were never submitted to the court.
In a jurisdiction/disposition report dated August 26, 2005 and filed September 19, 2005, the Department stated the following with respect to the ICWA notice: “On August 19, 2005, the Department sent, via certified mail, the Notice of Involuntary Child Custody Proceedings for an Indian Child (Juvenile Court) form to the BIA and Eastern Band of Cherokee Indians. The forms were sent as a follow up from information provided at the Detention hearing on August 10, 2005 regarding possible Native American Heritage on the alleged father’s side of the family. Pending a response from the noticed agencies, and results from the Court ordered paternity test for the alleged father, Steven L., the undersigned does not request that the Court make any findings regarding ICWA at this time.”
On September 12, 2005, the Department received a letter from Cherokee Center for Family Services in Cherokee, North Carolina, indicating that it had “reviewed the Eastern Band of Cherokee Indians’ tribal registry and, based on the information received from [the Department], Dorothy is not registered nor eligible to register as a member of this tribe” and is “not considered an ‘Indian Child’ in relation to the Eastern Band of Cherokee Indians as defined in 25 U.S.C., Section 1903(4).” The letter concluded with the caveat that the “determination is based on the information exactly as provided by [the Department]. Any incorrect or omitted family documentation could invalidate this determination.”
By a September 16, 2005 addendum to the jurisdictional report, the Department requested a court finding that the ICWA does not apply in this case in light of the letter received from the Cherokee Center for Family Services.
At the September 19, 2005 jurisdictional hearing, the court recognized Steven as Dorothy’s legal father. The court also found that the ICWA “does not apply to this case.” The court then concluded that Dorothy came within the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g), and ordered reunification services for both M.C. and Steven.
On May 5, 2006, after failed efforts at reunification, the details of which are irrelevant to the issues before us in this appeal, the court terminated reunification services and visitation, and scheduled a permanency plan hearing pursuant to Welfare and Institutions Code section 366.26. The court also found once again that the ICWA did not apply to this case. Steven, who had been incarcerated for violating the terms of his parole by stalking M.C., was not present at the hearing in light of the court’s denial of his request to be transported from prison to attend the contested hearing.
Steven challenged this denial by a petition for extraordinary writ, which we denied on the merits.
On October 2, 2006, Steven filed a request to change court order pursuant to Welfare and Institutions Code section 388, asking the court to vacate the setting of the permanency planning hearing and to provide him with further reunification services and visitation. The court summarily denied his request.
On October 16, 2006, following a contested dispositional hearing, the court terminated parental rights.
Steven’s timely appeal followed.
II. Discussion
Steven contends that in sending the notice of involuntary child custody proceedings for an Indian child, the Department failed to comply with the requirements of the ICWA for two reasons, namely that the Department failed to serve the notice on all necessary tribes and that the notice itself lacked significant information and was therefore deficient. We agree with Steven that the notice was fatally defective.
The ICWA was enacted in 1978 in order 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.) Congress intended to secure this goal by presuming “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.) The ICWA thus establishes minimum federal standards, both procedural and substantive, governing the removal of children of Indian ancestry from their families. The ICWA has a preference for giving jurisdiction to the tribe, which has “the right to intervene at any point in state court dependency proceedings. (25 U.S.C. § 1911(c); [citation].) ‘Of course, the tribe’s right to assert jurisdiction over the proceeding or to intervene is meaningless if the tribe has no notice that the action is pending.’ [Citation.] ‘Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.’ [Citation.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)
To ensure these rights, the ICWA specifies the following notice to the tribe: “In any involuntary proceeding in a State court, 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 child’s tribe, by registered mail with return receipt requested.” (25 U.S.C. § 1912(a).) The notice must include the following “if known”: “All names known, and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birth dates; places of birth and death; tribal enrollment numbers, and/or other identifying information.” (25 C.F.R. § 23.11(d)(3).) Unless a tribe expressly indicates that it has no interest in the state court proceeding, failure to comply with this notice requirement constitutes reversible error. (In re I.G. (2005) 133 Cal.App.4th 1246, 1252; In re Desiree F., supra, 83 Cal.App.4th 460, 472.) California has adopted a detailed rule of court (Cal. Rules of Court, rule 5.664 (former rule 1439)) to implement the ICWA.
California Rules of Court, rule 5.664(f) authorizes service by certified mail as an alternative to registered mail.
The notice requirements have been described by many courts as a two-step process to be followed by the social service agency: “First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re H. A. (2002) 103 Cal.App.4th 1206, 1214-1215; In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703; In re Asia L. (2003) 107 Cal.App.4th 498, 507.) When proper notice is not given under the ICWA, the court’s orders are voidable. (25 U.S.C. § 1914.)
With this statutory framework in mind, we turn to an examination of the notice sent by the Department in the case before us, which reveals that the Department failed to comply with the notice requirements of the ICWA in several respects.
Most significantly, the manner in which the Department served the notice was improper. As noted above, the Department was required to send the notice by registered or certified mail, return receipt requested. (25 U.S.C. 1912(a); Cal. Rules of Court, rule 5.664(f)(1).) The Department submitted receipts evidencing that it served the notices by certified mail. However, the Department did not submit signed return receipts evidencing that the notices were received by the BIA and the Eastern Band of Cherokee Indians. (See, e.g., In re I.G., supra, 133 Cal.App.4th at p. 1252 [“The Department is required to file with the court ‘a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.’ ”]); In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906 [“Although the ICWA does not impose an obligation to file the receipts and correspondence with the court, [citation] the requirement has been adopted by our courts to ‘head off numerous appellate complaints of non-compliance with the ICWA . . . .”]); In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1447 [notice was inadequate because the department did not submit evidence of delivery of the notice to the tribes]; In re Suzanna L. (2002) 104 Cal.App.4th 223, 232 [insufficient evidence that two tribes received actual notice because the trial court was not provided with copies of the notices or the return receipts it received, if any].)
While this failure is of less concern with regards to the Eastern Band of Cherokee Indians since the Department received a response confirming that the tribe did in fact receive the notice, it is a significant defect with respect to the BIA. The Department received no communication from the BIA, and in the absence of a signed return receipt, there is no confirmation that the BIA received the notice. The purpose of notifying the BIA is to invoke its assistance in tracing the Indian child’s ancestry and determining which tribe, if any, should receive notice, which is critically important in an instance such as this when the tribal affiliation cannot be identified. (See In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422 [BIA presumably has more resources and skill with which to trace a child’s Indian ancestry].)
As to additional defects in service, the notice served on the Eastern Band of Cherokee Indians was also misaddressed. The BIA periodically publishes in the Federal Register a current list of designated tribal agents for service of notice and the proper mailing addresses. The list operative at the time the Department sent the notice in this case identifies the address for the Eastern Band of Cherokee Indians as “15 Emma Taylor Road, P.O. Box 507, Cherokee, North Carolina, 28719.” (70 Fed.Reg. 13527, Mar. 21, 2005.) The Department, however, mailed the notice to P.O. Box 455 and omitted reference to Emma Taylor Road.
The Department was also required to serve the notice on the chairperson or designated agent for service of process. (25 U.S.C. 1912(a); Cal. Rules of Court, rule 5.664, subd. (f)(2); In re Asia L., supra, 107 Cal.App.4th at p. 509 [notice not addressed to chairpersons or designated agents for service of process]; In re H.A., supra, 103 Cal.App.4th at p. 1213 [notice should have been sent to the tribe’s chairperson or designated agent for service of process].) Again, in the operative Federal Register, the BIA identified the designated agent of the Eastern Band of Cherokee Indians as Barbara Jones, Director Family Support Services. (70 Fed.Reg. 13527, Mar. 21, 2005.) However, the Department sent the notice to the “Eastern Band/Cherokee Ind.,” with no reference to the designated agent.
We note that the response received on behalf of the Eastern Band of Cherokee Indians was indeed from Barbara Jones, Director Family Support Services. It thus appears that, despite the Department’s failures in addressing the notice, it was ultimately received by the individual authorized to respond on behalf of the Eastern Band of Cherokee Indians. We nevertheless point out these defects with the hope that the Department takes greater care in complying with the ICWA notice requirements in the future in order to avoid a situation where such mistakes deprive the tribe of proper notice.
We make one final observation pertaining to the manner in which the Department served the notices. Steven complains that the Department failed to notice the remaining two federally recognized Cherokee tribes, specifically the Cherokee Nation of Oklahoma and the United Keetoowah Band of Cherokee. The Department acknowledges that it noticed only one of the three federally-recognized Cherokee tribes, but contends that such notice was not deficient because it also noticed the BIA, which, according to the Department, constitutes proper notice pursuant to In re C.D. (2003)110 Cal.App.4th 214, 227 and In re Edward H. (2002) 100 Cal.App.4th 1, 4. In those two cases, the courts recognized that the ICWA allows for “ ‘notice to some but not all possible tribes in which a dependent child may be eligible for membership’ ” provided the agency also serves notice on the BIA. (In re C.D., supra, 110 Cal.App.4th at p. 227; In re Edward H., supra, 100 Cal.App.4th at p. 4.) In a recent case, however, the court determined notice to be inadequate where the notice was sent to all three federally-recognized Cherokee tribes and the BIA, but the notice to one of the tribes was misaddressed. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.)
We question why the Department chose to notice only one of the three Cherokee tribes, not incidentally, the one the farthest removed from Arkansas, the state identified by Steven as the location of the tribe to which he had ties. Indeed, the Department concedes “[i]t would have been optimal for the Department to notify all three” Cherokee tribes. However, we need not attempt to reconcile the apparent conflict between In re C.D. and In re Edward H. on the one hand, and Nicole K. on the other, since we have already determined that service of the notice was fatally deficient since it was apparently not sent return receipt requested.
We turn now to the contents of the notice itself, which Steven contends lacked significant information that was readily available. Again, we agree.
“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.) It is well established that the Department “has a duty to inquire about and obtain, if possible, all of the information about a child’s family history” required under regulations promulgated to enforce the ICWA. (In re C.D., supra, 110 Cal.App.4th at p. 225.) This duty requires any inquiry beyond merely the names, birth dates, and the birthplaces of the child and his or her parents. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.)
The cases in which the court has determined that the social services agency failed to fulfill its investigative duty are abundant. For example, in In re Jennifer A., supra, 103 Cal.App.4th at p. 705, the court observed that “the notice sent to the Cherokee Nation indicated that the birthplaces of the mother and the father were unknown. In addition, it identified the birthplace of [the child] only as ‘California.’ The mother and father were participating in the proceedings and may have been available to provide information about their birthplaces, as well as the birthplace of [the child], and it would appear SSA made little effort to provide the tribe with sufficient information for a thorough examination of tribal records.” Similarly, in In re Louis S. (2004) 117 Cal.App.4th 622, the court concluded the tribe could not conduct a meaningful search to determine the child’s tribal heritage because the agency, among other errors, did not provide birth dates for the maternal grandmother or maternal great-grandmother. The court noted the grandmother’s birth date was available because the children were in foster care with her. (Id. at pp. 630-631.)
Likewise here, the only information the Department included on the notice concerning Dorothy’s ancestry was M.C. and Steven’s names and addresses. The Department was aware that the possible Indian ancestry was on Steven’s side, yet it failed to even identify Steven’s birth date and place, despite the fact that this information was contained in the Department’s own file. Identifying information for Steven’s parents and grandparents was also listed as unknown or left blank. We find it absolutely incredulous that a simple inquiry of Steven or his aunt—who attended the detention hearing and was involved in the exchange regarding Dorothy’s Indian ancestry—would not have revealed those names, or at least some identifying information that could have been of potential use to the BIA or the Eastern Band of Cherokee Indians. And while we are reluctant to engage in speculation as to what information, if any, such an inquiry could have revealed, we find the Department’s assertion that “the record suggests that [Steven’s] aunt gave the court as much information as she had” to be completely lacking in merit. The only subject discussed during the detention hearing was the particular tribe with which Steven’s ancestors were affiliated. There was no discussion whatsoever of the names, birth places or birth dates of Steven’s parents and grandparents, and the record before us contains absolutely no indication that the social worker made any further attempt to gather such information. Accordingly, it simply cannot be said that the Department fulfilled its obligation to investigate Dorothy’s ancestry when completing the notice. And in the absence of pertinent information, the BIA and Eastern Band of Cherokee Indians could not conduct a meaningful search.
We close with another reference to In re I.G., supra, 133 Cal.App.4th 1246, where we added our voice to the judicial chorus of dismay at the “unabated rate” of reversals “occasioned by the inattention . . . to the stringent requirements” of the ICWA. (Id. at pp. 1254-1255, and cases there collected.) As we there observed, “Noncompliance with ICWA has been a continuing problem in juvenile dependency proceedings conducted in this state, and, by not adhering to this legal requirement, we do a disservice to those vulnerable minors whose welfare we are statutorily mandated to protect.” (Id. at p. 1254.) We continue to hope that this message gets through. Meanwhile, and yet again, noncompliance with the ICWA compels reversal—and an innocent three-year-old and her prospective adoptive parents must continue to wait in dismay.
III. Disposition
The October 16, 2006 order terminating Steven’s parental rights is reversed, and the matter is remanded for the limited purpose of providing notice of the proceedings in accordance with the ICWA requirements. If, after proper notice, the tribes either do not respond or determine that Dorothy is not an Indian child with respect to the tribes, the juvenile court shall reinstate the order.
We concur: Kline, P.J., Haerle, J.