Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions, Super.Ct.No. J200070-71.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minors.
OPINION
MILLER J.
Leonora L. (mother) appeals the juvenile court’s order terminating her parental rights to her son, Erik S. and her daughter, Marissa S., pursuant to Welfare and Institutions Code section 366.26. Mother’s sole contention is that the San Bernardino County Department of Children’s Services (DCS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA), requiring reversal. We agree that proper notice was not provided and that the matter must be remanded for the purpose of satisfying the ICWA’s notice provisions.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
Erik (born August 1999) and Marissa (born January 2003) came to the attention of DCS in February 2005 after their parents were arrested for domestic violence. A juvenile dependency petition was filed, alleging, among other things, that both parents were incarcerated and had failed to arrange for the children’s care; both had histories of substance abuse and domestic violence; and Marissa was found to have multiple bruises to both buttocks. The children were initially placed in foster care, and soon thereafter began residing with their maternal grandfather and his wife. Then, in November of that year, they were placed with their father under a plan of family maintenance; however, they were removed from his custody in April 2006 following his arrest for assaulting his two sisters, and placed with their paternal grandparents, where they remain. Ultimately, after attempts at family reunification proved unsuccessful, the court terminated parental rights, paving the way for the children to be adopted by their grandparents.
DISCUSSION
The essence of mother’s position is that DCS shirked its responsibility by failing to ensure that sufficient information was provided in the notices it gave to the tribes and the Bureau of Indian Affairs (BIA) so as to enable them to determine the ICWA’s applicability, and that the juvenile court compounded that error by failing to review the notices to ascertain their accuracy. As we shall explain, the record supports mother’s position.
A. Applicable law.
The purpose of the ICWA is, of course, 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; In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) “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.) The provisions of the ICWA, which are said to be the highest standard of protection for Indian children, apply to juvenile dependency proceedings in this state, including proceedings to terminate parental rights. (In re Junious M. (1983) 144 Cal.App.3d 786, 796.)
“When a dependency court has reason to know the proceeding involves an Indian child, the Department must notify the Indian child’s tribe, or, if the tribe’s identity or location cannot be determined, the Bureau of Indian Affairs, of the pending proceedings and of the right to intervene . . . . Notice must be sent to all tribes of which a child may be a member or eligible for membership. [Citation.]” (In re Brooke C. (2005) 127 Cal.App.4th 377, 383-384.)
The courts of this state have declared this notice requirement to be a “key component” of the ICWA. The purposes of the ICWA cannot be fulfilled unless proper notice is given to either the identified Indian tribe or the BIA. (In re C.D. (2003) 110 Cal.App.4th 214, 224.) Notice, as prescribed by the ICWA, ensures that “the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Because the failure to give proper notice forecloses participation by interested Indian tribes, the ICWA’s notice requirements are strictly construed and strict compliance is required. (In re Desiree F., supra, 83 Cal.App.4th at pp. 474-475.)
Moreover, the fact that notice is given is meaningless if insufficient information is presented to the tribe to enable it to make the requisite determination. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) The notice must include all required information, including the child’s name, date of birth, and place of birth; the names and addresses of the child’s parents, grandparents, and great-grandparents, along with dates of birth or death and/or other identifying information. A copy of the dependency petition must also be provided. (Ibid.) It is the agency’s responsibility to obtain as much information as possible about the child’s potential Indian background and to provide that information to the relevant tribe or, if the name of the tribe is not known, to the BIA. (Ibid.) Failure to provide notice in a manner consistent with the ICWA mandates reversal. (Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 416; In re Junious M., supra, 144 Cal.App.3d at p. 796.)
B. Pertinent facts.
During the February 2005 detention hearing, the court inquired if mother had any possible Indian heritage. She responded, “No. My grandpa is a little bit of Indian.” The court requested that she make a phone call to verify her Indian heritage and provide the social worker with information regarding “any relationship to Indian tribes.” In March, at the jurisdictional/dispositional hearing, the court ordered DCS to “complete ICWA notice.” Both parents were present in court, and father denied any Indian heritage.
Later that month, DCS mailed to 10 Apache and Blackfeet tribes, and to the BIA, a form JV-135; however, the form, as completed, contained numerous errors. For example, Erik’s name was shown as “Eric”; mother’s name was listed, but virtually everything else pertaining to mother was marked “unknown,” including her current and former addresses, her birth date, and her birthplace. In addition, the maternal grandfather was identified as “Joe H.,” with address, birth date and birthplace marked “unknown.” Return receipts were received from five of the noticed tribes and the BIA.
At a continued jurisdictional hearing held in April 2005, the court found that notice under the ICWA “has been completed,” and scheduled a six-month review hearing for October.
In August 2005, a newly-assigned social worker determined that the file contained only three out of 12 return receipts, and letters from only four tribes stating that the ICWA did not apply, and thus “did not feel comfortable” that proper notice had been effected. In September, DCS noticed all of the tribes and the BIA of the upcoming six-month review hearing.
Apparently not until May 2006, during a hearing on subsequent and supplemental petitions, did the court inquire as to the status of notice under the ICWA. The deputy county counsel indicated that he would contact the social worker and obtain her “accounting as to the ICWA notice.” The court then made a tentative ruling that the ICWA did not apply.
On May 24, 2006, DCS mailed another set of notices utilizing form JV-135. This time, the form listed all appropriate information with regard to mother, and again identified Joe H. as the maternal grandfather, with address, birth date and birthplace marked “unknown.” The form was mailed to nine applicable Indian tribes and to the BIA, and certified mail return receipts were received from all of them. DCS also received replies from six of the tribes, indicating that the children either were not Indian children or did not qualify for tribal enrollment or membership.
On August 22, 2006, the court held a permanency hearing. The court found that “noticing under the [ICWA] has been satisfied,” and that the ICWA “does not apply.” The court then proceeded to select adoption as the permanent plan and to terminate parental rights.
C. DCS failed to comply with the ICWA’s notice requirements.
From the first hearing in this case, DCS and the court were aware that mother claimed Indian heritage, yet no information, other than a name, was provided with respect to the relative whom mother identified as the ancestor having Indian heritage, i.e., her grandfather, or the children’s maternal great-grandfather. In this regard, it is clear from the record that Leonard L.—not Joe H.—is the children’s maternal grandfather, while Joe H. is presumably the children’s maternal great-grandfather (although he is named as maternal grandfather on the ICWA forms). However, Leonard L. is omitted from the form JV-135 despite the fact that he was certainly known by the social workers; he had appeared at multiple hearings, he had been investigated as a potential placement for the children, and the children had been placed with him and his wife for a period of time. There can be no excuse for completely omitting his name.
Although the maternal grandfather is identified as Leonard L., the record is unclear whether his wife, Veronica, and “maternal grandmother” are the same person. It seems unlikely based upon inferences in the record and the briefs; however, a conclusion either way, based upon the record, would be pure speculation.
This mistake might arguably have been harmless, if the notice had included sufficient information about the mother’s grandfather, since he was the one who allegedly was of Indian heritage. However, failing to list his birth date, place of birth, or place of death, if deceased, rendered it virtually impossible for a tribal clerk to determine his membership status. (See In re Louis S., supra, 117 Cal.App.4th at p. 631.)
DCS spoke to the maternal grandparents on multiple occasions; however, it does not appear that they were contacted in order to provide the information required to complete the JV-135 form. DCS was aware that mother had been raised by her
grandmother, and currently had a good relationship with her (the children’s great-grandmother). Presumably she could have supplied some of this information. Evidently, however, DCS did not ask. Under the circumstances reflected in the record, we agree with the mother that the juvenile court erred when it determined that notice had been properly provided to the tribes according to the ICWA.
DCS concedes that the form JV-135 utilized in May 2006 did not contain complete and accurate information, but maintains that any omission was harmless. It insists that the failure to designate Leonard L., the children’s grandfather, is not fatal because the inclusion of Joe H. constituted substantial compliance in that it is through Joe H.—and not Leonard L.—that the Indian heritage flowed. We cannot agree. A thorough review of the record reveals nothing to substantiate this position. Indeed, simply because Leonard L. and Joe H. had different surnames does not mean that Indian heritage could not have flowed through both of them.
DCS cites this court’s opinion in In re Rebecca R. (2006) 143 Cal.App.4th 1426, for the proposition an appellate court must not speculate about what an agency’s inquiry should have revealed if, on appeal, the appellant fails to specify the nature of the information which would have resulted had there been a proper inquiry. But that is not the issue here. Indeed, we perceive nothing else which mother could have revealed on appeal; all of the appropriate information was already known and readily available to DCS. “The burden is on the Agency to obtain all possible information about the minor[s’] potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA. [Citation.]” (In re Louis S., supra, 117 Cal.App.4th at p. 630.) This it failed to do.
In short, the trial court ordered that notice be given under the ICWA. At that point DCS was obliged to perform a reasonable investigation to obtain information necessary to provide proper notice to the applicable tribes, who have the sole right to determine whether a child is an Indian child. (In re Francisco W. (2006) 139 Cal.App.4th 695, 702.)
Furthermore, the second ICWA notice did not cure the defects of the first. Although the May 24, 2006, JV-135 form provided further detail concerning paternal relatives (which presumably was irrelevant anyway since the children’s father denied having any Indian heritage), the same deficiencies on the maternal side, from which the Indian heritage purportedly stemmed, persisted. “‘It is for the juvenile court, not DSS or its social workers, to determine whether the Act applies under a given set of circumstances.’” (In re Nikki R. (2003) 106 Cal.App.4th 844, 852, quoting In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) Based upon the information available to the juvenile court, a proper review of the May 24, 2006, notice would have disclosed that complete and accurate information was not being provided to the tribes and to the BIA.
We are therefore compelled under the ICWA to reverse the order terminating mother’s parental rights and to remand the matter to the juvenile court for the purpose of providing proper notice as required by law. “But this does not mean the trial court must go back to square one. It simply means the trial court must see to it that proper notice is given. If, after giving proper notice, it finds insufficient evidence that the [children are], in fact, [Indian children], it must reinstate its order terminating [mother’s] parental rights. [Citation.]” (In re Suzanna L. (2005) 104 Cal.App.4th 223, 237.)
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded to the juvenile court so that the appropriate tribe(s) can be properly noticed of the proceedings. If, after proper notice, a tribe claims that the children are Indian children and seeks to intervene in the juvenile court proceedings, a further permanency hearing shall be held. If, on the other hand, no tribe claims the children are Indian children, or if no tribe seeks to intervene, the order terminating parental rights shall be reinstated.
We concur: HOLLENHORST Acting P. J., GAUT J.