Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Fresno County. Super. Ct. No. 07CEJ300121-1 Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Elena E. Matsis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
Shannon D., mother of Ethan M., appeals from a dispositional order that denied her reunification services because of a history of drug abuse and resistance to prior treatment (Welf. & Inst. Code, § 361.5, subd. (b)(13)). Shannon’s sole contention is the juvenile court erred in finding the Indian Child Welfare Act (ICWA) (25 U.S.C. §§ 1901 et seq.) inapplicable to Ethan because the Department of Children and Family Services (Department) provided incomplete ICWA notice. As we shall explain, we agree ICWA notice was incomplete. Accordingly, we will remand the matter for the limited purpose of allowing the Department to provide complete ICWA notice.
Although Shannon was denied reunification services, they were ordered for Ethan’s father, Erik. M. He is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2007, the Department filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (b), alleging Shannon had a substance abuse problem that negatively affected her ability to provide regular care, supervision and protection for then four-month-old Ethan because she continued to use drugs while caring for Ethan despite having received extensive court ordered services. The Department filed a second petition in May 2007, which added allegations under section 300, subdivision (b) that Shannon and Erik had a history of exposing Ethan to an environment of domestic violence, as Erik reported that Shannon had stabbed him with a knife in March 2007.
Ethan’s maternal grandmother, Nona Y[], told a social worker Shannon had Cherokee heritage. Consequently, a social worker called Nona on May 17, 2007, to obtain additional information about Shannon’s Native American heritage. Nona said Shannon had Cherokee heritage through her father, T.J.H. Nona explained the paternal great great-grandmother, whose name she did not know, was full-blooded Cherokee, and she thought the paternal great-grandmother, Tina H., was 3/4 Cherokee. On May 24, Shannon filed a parental notification of Indian status form JV-130, which stated that as far as she knew, she had no Indian ancestry.
On May 1, 2007, Erik filed a parental notification of Indian status form JV-130, which stated that he is or may be a member of, or eligible for membership in, the “Cherokee, Blackfoot” tribes. A social worker called Erik on May 17 to obtain additional information about his Native American heritage. Erik said he had Blackfeet and Cherokee heritage through his paternal grandfather, Henry M., and his paternal grandmother, Luella M., but he was uncertain which grandparent was Cherokee and which was Blackfeet. Erik did not know their birth dates, but did say his grandfather was from Tennessee and his grandmother, who was dead, was from Oklahoma. Erik said his father, Gerald M., was born in Sanger, but he did not know his birth date. Erik was not sure if any of his relatives were enrolled members of either tribe.
On May 31, the Department sent a notice of involuntary child custody proceedings for an Indian child (form JV-135) to the (1) Cherokee Nation, (2) Eastern Band of Cherokee Indians, (3) United Keetowah Band of Cherokee, (4) Blackfeet Tribe and (5) Bureau of Indian Affairs (BIA), notifying them of the jurisdictional hearing set for June 7. The notice included the names, addresses, and birth dates for Ethan’s parents. The notice did not contain any information about Ethan’s maternal grandparents and instead stated “Information not provided by parent.” With respect to Ethan’s paternal grandparents, the notice listed “Bridgette T[]” as his paternal grandmother and “Gerald T[]” as his paternal grandfather, with Gerald T.’s date of birth “unknown,” his birthplace “Sanger, CA,” and his tribe, band and location “Cherokee and Blackfeet.” With respect to Ethan’s great-grandparents, the notice listed Ethan’s maternal great-grandmother as “Tina H[],” with her tribe, band and location as Cherokee; his maternal great-grandfather as “Information not provided by parent”; his paternal great-grandmother as “Luella M[],” with her date of birth unknown and birthplace as Oklahoma, and her tribe, band and location as “Cherokee and/or Blackfeet”; and his paternal great-grandfather as “Henry M[],” with his date of birth unknown, his birthplace Tennessee, and his tribe, band and location as “Cherokee and/or Blackfeet.”
The Department received responses before the jurisdictional hearing from the Blackfeet Tribe and the United Keetowah Band of Cherokee Indians. The Blackfeet Tribe stated Ethan was not an Indian Child as defined by ICWA because the names of those listed on the notice were not on the tribe’s enrollment records. The United Keetowah Band stated that based on a search of enrollment records using the information provided, Ethan was not a member of, or eligible for enrollment in, the tribe.
At the June 7 jurisdictional hearing, the parents submitted to the petition’s allegations as written, which the juvenile court found true. In addressing ICWA issues, the juvenile court noted that while Shannon had filed a JV-130 stating she did not have any Indian ancestry, her mother had told the social worker of Shannon’s possible Indian ancestry. Shannon informed the court that her paternal aunts are enrolled in a tribe, but she didn’t know which tribe. The court ordered the parents provide the Department with all information regarding their Indian ancestry by June 13 and the Department follow up on potential ICWA issues with respect to both parents.
Shannon filed a new JV-130, which stated that she is or may be a member of, or eligible for membership in, a federally recognized Indian tribe, or may have Indian ancestry. When a social worker later contacted Erik to obtain all relevant ICWA information, the only new information he provided was a possible birth date for his father, Gerald M., of either November 17, 1952 or November 17, 1953. Shannon did not provide any additional information.
On June 14, the Department sent a notice of involuntary child custody proceedings for an Indian child (form JV-135) to the (1) Cherokee Nation, (2) Eastern Band of Cherokee Indians, and (3) Bureau of Indian Affairs (BIA), notifying them of the dispositional hearing set for July 3. The form contained the same information regarding Ethan’s parents, grandparents and great-grandparents as the previous JV-135.
In a June 8 letter from the Cherokee Nation, the tribe asked the Department for additional information so it could verify Cherokee heritage, including “Paternal Grandfather, Gerald T[]’s Middle name and date of birth, and paternal great-grandfather, Henry M[]’s middle name and date of birth,” as well as dates of birth for everyone and the females’ maiden names. In response, the Department sent the Cherokee Nation a June 28 letter which stated the social worker had contacted the father, who provided the following information: (1) paternal great-grandfather, Henry M., is 80 years old and he does not know his date of birth or his middle name; and (2) paternal grandfather, “Gerald M[]’s Date of Birth is 11/17/1953 or 1952. No Middle name. (Gerald T[] is an error - Gerald - Father/T[] - Step Father.)”
The Cherokee Nation responded on July 3 that the tribal records had been examined and based on the information provided, Ethan could not be traced in the tribal records and therefore was not an “Indian Child” in relationship to the Cherokee Nation.
The BIA sent the Department two letters which acknowledged receipt of the notices and returned them because the tribes had been noticed and their determinations were final for ICWA purposes.
The Eastern Band of Cherokee Indians responded on June 27 that it had reviewed the tribal registry and based on the information received from the Department, Ethan is not registered nor eligible to register as a member of the tribe and therefore is not considered an “Indian Child” in relation to the tribe.
The Department filed a written motion to declare ICWA inapplicable. The Department asked the court to find Ethan is not an Indian child as defined in ICWA because the tribes the parents identified had been noticed of the proceedings, the Department received responses from each of them, and none of the tribes claimed Ethan as a member or eligible for membership. The motion was heard at the August 29 settlement conference. The Department’s counsel asked the court to find ICWA not applicable in this case. The court responded it was going to make a finding that ICWA is inapplicable and asked if anyone wished to be heard further. None of the parties responded to the court’s invitation, and the minute order reflects the court’s finding that ICWA is not applicable.
A contested dispositional hearing was held on September 13. The court made its dispositional orders on September 20, from which Shannon appeals.
DISCUSSION
Shannon contends proper ICWA notice was not provided because the May 31 and June 14, 2007 notices contained the following errors: (1) the name of Ethan’s maternal grandmother was listed as “Information not provided by parent” when the Department knew her name was Nona Y.; (2) the name of Ethan’s maternal grandfather was listed as “Information not provided by parent” when Nona had told them his name was T.J.H.; (3) Ethan’s paternal grandfather was listed as “Gerald T[],” when his name was actually “Gerald M[]”; (4) although by June 13 the Department had information regarding Gerald M.’s date of birth, that information was not listed on the June 14 form JV-135; and (5) although the Department sent Gerald M.’s name and birth date to the Cherokee Nation on June 28, it did not send this corrected information to the other tribes or the BIA. The Department concedes the notices were defective and “technically” in error, but argues the error has been waived and remand is not required because Shannon has not shown prejudice.
We agree the Department failed to give proper notice to the tribes. ICWA provides that when a child subject to a dependency proceeding is or may be of Native American heritage (referred to in ICWA as an “Indian child”), each tribe of which the child may be a member or eligible for membership must be notified of the dependency proceeding and the tribe’s right to intervene in the proceeding. (25 U.S.C. § 1912(a).) An “Indian child” for purposes of ICWA is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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).) If proper notice is not given, the child, the parent, or the tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.)
Neither the child nor the parents need to be enrolled members of a tribe to trigger ICWA notice requirements. (See Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.) According to federal ICWA provisions incorporated into California law (Welf. & Inst. Code, §§ 224-224.3), notice must be given when the court “knows or has reason to know that an Indian child is involved, ...” (25 U.S.C. § 1912(a).) A parent’s suggestion that the child “might” be of Native American ancestry is enough to trigger the notice requirement. (In re Miguel E. (2004) 120 Cal.App.4th 521, 549; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408.) The information supplied by the parents in this case was sufficient to trigger ICWA’s notice requirement.
In order to comply with ICWA notice requirements, the social services agency must notify the child’s tribe, by registered mail with return receipt requested, of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a).) If there is more than one possible tribal affiliation, the agency must provide notice to each tribe through the tribe’s chairperson or its designated agent for service of process, as published in the Federal Register. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213; 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (a); Cal. Rules of Court, rule 5.481(b)(4).)
ICWA notice must include all required information, including the child’s name, date of birth, and place of birth; the name of the tribe or tribes in which the child is enrolled or in which the child may be eligible for enrollment; the names, and current and former addresses, of the child’s biological parents, grandparents and great-grandparents, along with the birth dates, places of birth and death, and tribal enrollment numbers, and/or other identifying information; and a copy of the petition, complaint or other document by which the proceeding was initiated. (25 C.F.R. § 23.11(a), (d) & (e) (2005); see also Welf. & Inst. Code, § 224.2, subd. (a).)
When the notice contains insufficient information, it is effectively meaningless. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) Because the failure to give proper notice forecloses participation by interested Indian tribes, ICWA notice requirements are strictly construed, and strict compliance is required. (In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475.)
As the Department concedes, the record shows it did not comply with the ICWA notice requirements as the notices either omitted or incorrectly stated information about Ethan’s relatives that was in the Department’s possession and could have helped identify tribal membership. Specifically, the notices failed to identify Ethan’s maternal grandmother and grandfather, listed an incorrect last name for Ethan’s paternal grandfather and the June 14 notice omitted his date of birth. Due to these omissions, the juvenile court erred in finding that ICWA did not pertain to Ethan. (In re H.A., supra, 103 Cal.App.4th at p. 1211 [it is the juvenile court’s sua sponte duty to assure ICWA notice compliance].) If the juvenile court had reviewed the notices served on the tribes, it would have discovered the Department did not provide them with all of the available Indian heritage information it possessed regarding Ethan. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 996.)
The Department claims Shannon has forfeited her right to complain because she did not raise these deficiencies in the juvenile court. We disagree. First, it is the juvenile court’s duty to assure ICWA compliance (In re Desiree F., supra, 83 Cal.App.4th at p. 470), not the parent’s responsibility to remind the juvenile court of its sua sponte duty. Second, although this court does apply a waiver analysis when a parent fails to timely challenge a juvenile court’s action regarding ICWA (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 [the parent is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal]), Shannon has timely challenged the juvenile court’s finding that ICWA is inapplicable, as she has raised the issue in a timely appeal from the dispositional order. (See, e.g., In re Joseph P. (2006) 140 Cal.App.4th 1524, 1528-1529.) For these reasons, the claim is not waived.
We also reject the Department’s assertion that remand is not required because Shannon has not demonstrated prejudicial error flowing from the noticing defects. As this court has held, the failure to provide a tribe with Indian heritage information constitutes prejudicial error. (In re Gerardo A., supra, 119 Cal.App.4th at p. 996.) We note that although reunification services were not ordered for Shannon, they were ordered for Ethan’s father. Given Shannon’s timely appeal, a limited remand is appropriate and consistent with Ethan’s best interest to clarify the record at an early stage of the dependency proceedings. (See, e.g., In re Francisco W. (2006) 139 Cal.App.4th 695, 704-707.)
DISPOSITION
The finding that ICWA is inapplicable to the case is reversed. The matter is remanded to the juvenile court with directions to order the Department to give notice in compliance with ICWA. If the BIA or any tribe responds by confirming that Ethan is or may be eligible for membership within 60 days of sending proper notice under the ICWA (Cal. Rules of Court, rule 5.482(c)), the court shall proceed pursuant to the terms of the ICWA and is hereby authorized to vacate, in whole or in part, any prior finding or order which is inconsistent with ICWA requirements. If there is no confirmation that Ethan is or may be eligible for Indian tribal membership within 60 days after proper and adequate notice has been received, the court may proceed accordingly.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.