Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. J42265, J43296
ELIA, J.
M.O. challenges the orders of the juvenile court terminating her parental rights to I.O. and Ma.O. under Welfare and Institutions Code section 366.26. She contends that the Department of Social Services and the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act. We remand for compliance with the Indian Child Welfare Act (ICWA).
Background
Appellant M.O. is the mother of I.O. and Ma.O. On June 29, 2007, the Monterey County Department of Social Services (Department) filed a Welfare and Institutions Code section 300 petition on behalf of I.O. on the grounds that M.O. had mental health problems that impaired her ability to care for the then four-months-old I.O. At the detention hearing, the juvenile court ordered appellant to complete form JV-130 to disclose to the Department all information concerning any Native American Indian ancestry. When appellant submitted the form, she merely signed it. She did not check any boxes to indicate that she did or did not have Indian ancestry.
The jurisdiction/disposition report stated that both M.O. and her mother, the maternal grandmother of I.O., had stated that they had no Indian ancestry. The identity of I.O.'s father was unknown. In September 2007, the court sustained the petitioN.M.O. was receiving reunification services and the court continued those services at the February 2008 six-month review hearing. At that hearing, the court terminated M.O.'s own dependency case, which had been initiated in December 2004, as she had now reached the age of 18.
In June 2008, M.O. gave birth to Ma.O. and the Department filed another section 300 petition on Ma.O.'s behalf. At the detention hearing for Ma.O., appellant filed form ICWA-020, Parental Notification of Indian Status. She checked the box indicating, "One or more of my parents, grandparents, or other lineal ancestors, is or was a member of a federally recognized tribe." She wrote, "Maternal grandfather may be Native American, unknown tribe" and gave a telephone number and the name "Chris O[.]"
In August 2008, at a status review hearing for I.O., the Department recommended terminating reunification services and setting a section 366.26 hearing to terminate parental rights. In September, the court did so. In October 2008, the department filed a report for Ma.'s jurisdiction/disposition hearing. It noted that Ma.'s father's whereabouts were unknown. The report said that appellant had reported at the disposition hearing that she might have Indian heritage but that she had not identified a specific tribe. The Department was sending notice to the Bureau of Indian Affairs (BIA).
At a hearing on October 10, 2008, in Ma.'s case, the juvenile court asked M.'s counsel whether appellant was affiliated with any tribes. Counsel said that M.'s mother was outside and suggested that she be brought in to answer that question. When Maria M., M.O.'s mother and the maternal grandmother of I.O. and Ma., was asked, counsel said that she had advised him that M.O. "may have Native American ancestry." Maria M. said, "I think it was Cherokee." When asked if she had any further information, Maria said, "No, her dad does." Counsel told the court that Maria M. told him that M.O.'s "father has further information, and he's at home right now." Counsel suggested that the matter trail so that he could contact M.O.'s father. The court said, "No, I want to continue this, because I'm not going to sign the report and be reversed by the Court of Appeal that we do not go through the ICWA process."
The jurisdictional hearing for Ma. was held on October 24, 2008, before a different juvenile court judge. Counsel for the Department told the court that at the previous hearing there was an "ICWA issue." Counsel said that the social worker had been unable to contact M.O.'s father, Chris O., the maternal grandfather. Counsel said, "However, there were two prior dependencies with [M.O.] as a dependent. [¶] I went through my files and could find nothing from [Chris O.] that indicated he had Indian heritage." She said that she had contacted the attorney who had represented Chris O. during appellant's own dependency case and that he had looked in his files and had told her that "there was no ICWA on his client's side." The court suggested that Chris O.'s counsel could file a declaration to that effect. The court said, "The only cases I've seen come back reversed on appeal out of this court have been for ICWA noncompliance." Counsel for M.O. said, "I would like to see something from the Department with respect to who they contacted, what efforts they made and any comments or information that they received as a result of that investigation." The court ordered counsel for the Department to file a declaration regarding ICWA compliance efforts. The court adopted the recommendations of the Department, including that the ICWA did not apply and that appellant had "reported that she may have Indian heritage."
On October 28, 2008, counsel for the Department sent the BIA Judicial Council form ICWA-030 regarding Ma. The form included the maternal grandfather's name and date and place of birth and said, "Mother claims Native American Heritage on the maternal grandfather's side, however, has no tribal affiliation, membership number or other information." The form also included the names of Ma.'s maternal great-grandfather and maternal great-grandmother.
On November 3, 2008, counsel for the Department filed the declaration describing her efforts to contact the maternal grandfather for information regarding Indian heritage. She said that M.O. had completed the June JV-130 form indicating "that she may have native American heritage on her father's side" but that she was "unable to identify any tribe." Counsel declared that the maternal grandmother was present at the October 10 hearing, "and indicated that the maternal grandfather may have Native American ancestry, however she was unable to identify a specific tribe." Counsel declared that the social worker had called the maternal grandfather at the number given on the June ICWA form on five separate dates but that "no return phone call has been received." Counsel declared that she had spoken to the attorney who represented the maternal grandfather when M.O. was herself the subject of dependency proceedings. She declared that that attorney had looked through his files and had reported that he had found no indication that the maternal grandfather had claimed Indian heritage. Counsel declared that she reviewed the her own case files from when M.O. was twice the subject of dependency proceedings and found no indication that the maternal grandfather had Indian heritage and that the maternal grandmother had said that there was no Native American ancestry in the family. In that case, the court had made the finding that the ICWA did not apply. Counsel stated that in I.O.'s case, M.O. had executed the JV-130 form "stating that she did not have Native American heritage."
The report for the January 16, 2009 section 366.26 hearing said that M.O. had signed the Parental Notification of Indian Status stating that she had no known Indian ancestry for I.O. but that there was "the possibility of ties to an unknown American Indian tribe" for Ma. The social worker stated that the BIA had been notified and no affiliation was determined.
The January 16 hearing was again before a different judge than the one who had presided over the October 10 hearing. The court said it had read counsel for the Department's "declaration regarding efforts to contact the paternal [sic] grandfather for confirmation." The juvenile court found that the ICWA did not apply, finding that M.O. had "competed and filed form JV-130-ICWA-020 ('Parental Notification of Indian Status') and has denied that she has any Indian heritage." The court terminated M.O.'s parental rights to I.O. and Ma.
Discussion
Appellant contends, "The order terminating parental rights must be vacated due to noncompliance with the ICWA notice provisions." She contends, "the Department and juvenile court failed to inquire whether Ma[.] and I[.] may be Indian children."
The purposes of the ICWA are to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Welfare and Institutions Code section 224, et seq., charges the juvenile court with carrying out these purposes and complying with the ICWA and provides the framework for implementing the ICWA in California dependency proceedings. To ensure a tribe's right to intervene, the ICWA requires that in any involuntary state court proceeding where "the court knows or has reason to know that an Indian child is involved," the party seeking foster care placement or termination of parental rights for the Indian child shall notify the child's tribe of the pending proceedings and of its right to intervene. (25 U.S.C. § 1912(a).) The notice requirements apply to all hearings under Welfare and Institutions Code section 300 et seq. (§ 224.3.)
"Under the ICWA, where a state court 'knows or has reason to know' that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C. § 1912(a).) The court and the social services agency 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.' [Citation.]" (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.)
"[Welfare and Institutions Code s]ection 224.2, subdivision (a)(3)... requires that notice 'be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child's tribe....'... [T]he language of subdivision (a)(3) must be construed as requiring notice to all federally recognized tribes within the general umbrella identified by the child's parents or relatives..., even if the family's precise tribal affiliation, if any, has not been determined." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1202.) "Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service." (Welf. & Inst.Code, § 224.2, subd. (a)(2).)
"The notice must include the names of the child's ancestors and other identifying information, if known, and be sent registered mail, return receipt requested. [Citation.] When proper notice is not given, the dependency court's order is voidable. [Citations.]" (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.) The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.)
Formal notice is required when it is "known or there is reason to know that an Indian child is involved...." (Cal. Rules of Court, rule 5.481,(b)(1), Welf & Inst. Code, § 224.2, subd. (a).) But if the agency "knows or has reason to know that an Indian child is or may be involved" the agency is not required to send formal notice, but rather is required only to further inquire about the child's Indian status. (Cal. Rules of Court, rule 5.481(a)(4).) "The circumstances that may provide reason to know the child is an Indian child include... a person having an interest in the child... or a member of the child's extended family, informs or otherwise provides information suggesting that the child is an Indian child to the court...." (Cal. Rules of Court, rule 5.481(a)(5).)
Here, M.O. indicated on the JV-130 form that she may have Indian heritage and her mother stated in open court, "I think it was Cherokee." This was sufficient to trigger further duties of the Department under the ICWA. As has often been stated, "The Indian status of the child need not be certain to invoke the [ICWA] notice requirement. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1422.)" (In re Desiree F., supra, 83 Cal.App.4th at p. 471.) In fact, "[t]he showing required to trigger the statutory notice provisions is minimal." (In re Miguel E. (2004) 120 Cal.App.4th 521, 549.) "A hint may suffice for this minimal showing." (Ibid.) As this court has stated, " '[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.' " (In re Alice M., supra, 161 Cal.App.4th at p. 1198.)
In In re Alice M., the appellant stated merely that her daughter, the dependent, is or may be a member of, or eligible for membership in, an Apache and/or Navajo tribe. She provided no further information. Nonetheless, this court concluded that the ICWA notice provisions were indeed triggered, and that the juvenile court committed prejudicial error by failing to comply with them. (Alice M., supra, 161 Cal.App.4th at pp. 1198.)
Respondent argues, "The grandmother did not say that she knew there was a Cherokee connection. She did not say she believed there was a Cherokee connection. She said she thought there might be such a connection, but the child's grandfather M[.]'s father – was the person who would know about that." (Emphasis in original.) Yet even respondent acknowledges, "In this case, there was a suggestion that the child might have Cherokee heritage" and that "if that is all there were in this case, then there would be a duty to give notice to the Cherokee tribes." As respondent sees it, the Department "made a reasonable effort to verify the suggestion" by trying to reach the maternal grandfather. Respondent argues that implicit in the Department's obligation to make further inquiry is "that the child welfare department and the court should be able to act on the results of such an investigation – whatever the outcome. If the further inquiry shows that there is no basis for the suggestion of Indian heritage, then the child welfare department and the court should be able to act on that result." Respondent's position is, essentially, that, absent verification by the maternal grandfather, and in light of the Department's counsel's declaration concerning the ICWA information from M.O.'s own dependency proceeding, notice to the Cherokee tribes was not required.
We do not consider the Department's obligation to make further inquiry to be for the purpose of defeating the assertion of Indian heritage. Rather, it is to see if more information concerning that heritage is available to assist in preparing the notices. Of course, had the Department been able to reach Chris O., and had he denied having Cherokee heritage, that would be another matter. However, the fact that the Department was unable to reach Chris O. for verification of his Indian heritage does not mean that the Department is relieved of its obligation to give notice to the Cherokee tribes.
Respondent relies on In re Shane G. (2008) 166 Cal.App.4th 1532. In that case, the mother of Shane, who was the subject of the dependency proceedings, claimed to have Comanche heritage, but stated that neither she nor any of her children, some of whom had been the subject of prior dependency proceedings, "had ever been tribal members." The juvenile court noted that in 2005, ICWA was found inapplicable, and that the file contained a letter from the Comanche tribe declining to intervene in another dependency case involving the dependent's sibling because that child lacked the required one-eighth heritage. There was another finding in 2006 that ICWA did not apply. The juvenile court continued the matter for the agency to provide copies of ICWA notices regarding Shane. In the addendum report, the agency stated that during an interview with a social worker, Shane's maternal grandmother said that although Shane's great-great-great-grandmother was a Comanche princess, no one in the family had ever lived on a reservation, participated in Indian ceremonies, attended an Indian school, received services from an Indian health clinic, or possessed any ceremonial costumes. The agency acknowledged, however, that notices were sent only as to the child's older siblings, not Shane. At a continued hearing, the parties stipulated that a Comanche tribal office representative would testify that the tribe requires one-eighth heritage for membership, and that the maternal grandmother would testify that Shane's heritage was 1/64th. The juvenile court found that the agency had made reasonable ICWA inquiry, and that, based on the addendum report, the stipulated testimony, and the letter from the tribe, the ICWA did not apply.
Shane G. is distinguishable. Notice had been sent to the Comanche tribe regarding Shane's half-sister. The Comanche heritage was asserted through their mother. The tribe had determined that Shane's half-sister, who had the same mother, was not eligible for membership. Here, no notice has been sent to the Cherokee tribe concerning either I.O. or Ma.O. Thus, the juvenile court here did not have a response from the tribe concerning their ineligibility for membership. Although the juvenile court here took into consideration information concerning M.O.'s own dependency case, it had no information concerning what inquiries were made during that case to determine what Native American ancestry the family might have.
We are also troubled by some of the statements in the declaration filed by counsel for the Department. Counsel stated that in I.O.'s case, M.O. had executed the JV-130 form "stating that she did not have Native American heritage." However, M.O. left blank all of the boxes on that form, including the one that reads "I have no Indian ancestry as far as I know." One cannot conclude from that form that she indicated that she did not have Native American heritage. Counsel also declared that the maternal grandmother was present at the October 10 hearing, "and indicated that the maternal grandfather may have Native American ancestry, however she was unable to identify a specific tribe." Because a different judge was hearing the matter than the one who had been present when the grandmother stated that she thought the maternal grandfather had Cherokee lineage, the judge ruling on the ICWA notice issue would have been unaware that there had been mention of a specific tribe.
Here, the children's maternal grandmother asserted in open court that the children may have Cherokee heritage through their grandfather. This was sufficient to trigger the requirement of notice to the tribes. Thus, however skeptical we may be about whether I.O. or Ma.O. will ultimately be determined to be Indian children, the failure to give notice to the Cherokee tribes was error.
Disposition
The orders terminating parental rights are conditionally reversed, and the matter is remanded to the juvenile court with directions that the Monterey County Department of Social Services provide proper notice to all three Cherokee tribes. The Department is directed to file proof of receipt of such notice by the tribes, along with a copy of the notice and any responses. If, after receiving notice as required by the ICWA, no response indicates that I.O. or Ma.O. are Indian children, or the responses received indicate that they are not Indian children within the meaning of the ICWA, the orders terminating parental rights shall be immediately reinstated. If any tribe determines that I.O. or Ma.O. are Indian children within the meaning of the ICWA, the juvenile court shall conduct further proceedings applying the provisions of the ICWA, Welfare and Institutions Code section 360.6, and rule 5.664 of the California Rules of Court.
WE CONCUR: RUSHING, P. J., PREMO, J.