Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIJ117358, Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant (mother).
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant (father).
Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
M.B. (mother) and R.C. (father) separately appeal from the juvenile court’s July 27, 2010, decision to terminate their respective parental rights to their two sons, E.A. (age two) and D.C. (age one). The parents argue the decision should be reversed because the notices to tribes under the Indian Child Welfare Act (ICWA) were defective in that they failed to provide the available information about the children’s paternal grandfather and paternal great-great-grandmother and that this error was prejudicial. As explained below, we order a conditional reversal to allow Riverside County Department of Public Social Services (DPSS) to comply with the notice provisions of ICWA regarding the paternal grandfather, and recommend, as a matter of practice, that the notices include the information regarding the paternal great-great-grandmother.
Because the sole issue in this appeal is one of proper notice under ICWA, this section of the opinion will focus on the facts and procedure relevant to that issue.
On December 6, 2008, the teenage parents brought four-month-old E.A. to the emergency room with a broken leg. The treating physician suspected child abuse and contacted the police, who then contacted DPSS. DPSS filed a Welfare and Institutions Code section 300 petition on December 9, 2008. The juvenile court ordered E.A. detained on December 10, 2008.
All further section references are to the Welfare and Institutions Code unless otherwise indicated.
On August 27, 2009, DPSS filed a section 300 petition regarding newborn D.C. At the August 28, 2009 detention hearing for D.C., the juvenile court ordered D.C. detained. Also at that hearing, each parent submitted a Parental Notification of Indian Status form on which they checked the box indicating “I have no Indian ancestry as far as I know.” In the detention report, the social worker had reported that father had stated he may have some Indian heritage “but not enough to qualify” for ICWA and could not provide any tribal names. The juvenile court questioned father regarding this and father stated “Well, my grandmother has Cheyenne and Cherokee in her, but I don’t think it’s enough.” Father’s mother, the paternal grandmother, was in court, stated her name, and, upon questioning by the court, stated “I’m not sure what kind [of Indian heritage]. Her [the paternal great-grandmother] father was Indian and she has had problems tracing our family tree.” The juvenile court then had the paternal great-grandmother brought into the courtroom, where she provided her full name and answered “Yes” when asked if she has Native American ancestry. When asked if she knew which tribes, she sated “I know most of them” and listed the Chiricahua Apache and Cheyenne for her father (the paternal great-great-grandfather) and Sioux, Shoshone, and Cheyenne for her mother (the paternal great-great-grandmother). The paternal great grandmother supplied the names and dates of birth and death for her parents. She also provided two telephone numbers at which the social worker could contact her with further questions. The juvenile court found that ICWA may apply and ordered DPSS to provide notice to the Indian tribes. DPSS indicated that “there is a very large number of Sioux and Shoshone tribes, ” which the court depicted as “dozens and dozens of tribes” that would have to be notified. Just as the hearing was ending, the paternal great-grandmother remembered the name of her “other great-grandmother” (the paternal great-great-great-great-grandmother) and that she was born in 1862 on the Natchez, Mississippi reservation.
DPSS sent notices to 70 tribes, but did not include the available information on the paternal grandfather or paternal great-great-grandmother. None of the tribes responded that the children were Indian children.
On February 22, 2010, the juvenile court held a hearing combining the six-month review hearing for E.A. and the jurisdiction/disposition hearing for D.C. The court found that ICWA notice had been given as required by law and that ICWA does not apply. The court then terminated reunification services to both parents regarding E.A. and set a section 366.26 hearing for June 24, 2010. Regarding jurisdiction and disposition for D.C., the court took jurisdiction, denied reunification services, found that ICWA does not apply, and set a section 366.26 hearing for June 24, 2010.
Both parents filed petitions under section 388 requesting reinstatement of reunification services and vacation of the section 366.26 hearing. On July 27, 2010, the juvenile court denied these petitions, terminated the parents’ parental rights and set adoption by the current caretakers as the permanent plan. This appeal followed.
Discussion
Father and mother each argue the juvenile court committed prejudicial error when it found DPSS had fulfilled its notice requirements under ICWA. Specifically, the parents argue: 1) DPSS failed to include in the ICWA notices available information on the paternal grandfather, Richard A., born in 1973 and the paternal great-great-grandmother, Annie C., born in 1913 and deceased in 1972; and 2) this was prejudicial. DPSS does not dispute that the notices did not contain this information or that it had access to this information.
ICWA’s major purpose is to protect Indian children, and the law “is based on a presumption that it is in the best interests of the Indian child not to be separated from the tribe.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425.) Thus, “ICWA’s procedural and substantive requirements must be followed in involuntary child custody proceedings when an ‘Indian child’ is involved.” (In re O.K. (2003) 106 Cal.App.4th 152, 155.)
Federal regulations require that the notice to the tribes include, among other things “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; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information.” (25 C.F. R. § 23.11(d)(3) (2010).)
The record indicates that DPSS knew the name, birth date and address of the paternal grandfather but failed to include these in the notices sent to the various Indian tribes. In In re S. M., (2004) 118 Cal.App.4th 1108, the court found ICWA notice inadequate when the notices to the tribes “did not include, ... the birth date and birthplace of the paternal grandfather, the birthplace of [the child’s] paternal great-grandparents, the places of death if any relatives are deceased, or any current or former addresses.” (Id. at p. 1117.) In the present case, the information included in the notices to the tribes lacked the information known by DPSS as to the paternal grandfather and clearly required by ICWA. We therefore conclude the notices were inadequate under ICWA.
While federal regulations, namely 25 Code of Federal Regulations part 23.11(d)(3) (2010) cited above, do not specifically require the inclusion of the paternal great-great-grandmother’s information in the notices, we recommend as a matter of practice that the notices sent out in response to this opinion include this information.
We may deem a deficiency in notice harmless error when, even if notice had been given, the child would not have been found to be an Indian child. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162 [despite defective notice, the tribe eventually took part in the proceedings].) Here, based on the incomplete information provided, the tribes indicated the children were not Indian children. However, the information provided to the tribes was incomplete, and we therefore cannot conclude the error was harmless. We will reverse the order terminating parental rights and will remand the matter for further proceedings incompliance with ICWA. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343; In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)
Disposition
The order terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order DPSS to comply with the notice provisions of ICWA and related federal and state law and to file all required documentation with the juvenile court for the court’s inspection. If, after proper notice, a tribe claims the children are Indian children, the juvenile court shall proceed in conformity with the provisions of
ICWA. If no tribe claims that the children are Indian children, the order terminating parental rights shall be reinstated.
We concur: McKINSTER J., KING J.