Opinion
E041983
5-25-2007
In re JOSHUA P., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. VANESSA P., Defendant and Appellant.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Ruth E. Stringer, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent. Robert Wayne Gehring, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
I
INTRODUCTION
Mother appeals from the order terminating her parental rights to Joshua P., born in September 2004. The only issue mother raises concerns proper notice under the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq. DCS concedes its failure to comply with ICWAs notice requirements and proposes this court reverse the terminating order with instructions to the juvenile court to order DCS to provide proper notice under ICWA and to reinstate the order terminating parental rights if no tribe chooses to intervene. We agree and reverse with directions.
II
FACTUAL AND PROCEDURAL BACKGROUND
In view of the concession by DCS, we summarize the record very briefly. Mother lost custody of three other infants between 1998 and 2002 and her parental rights were eventually terminated. In August 2005, mother was arrested for possession and being under the influence of drugs. DCS filed the original dependency petition concerning Joshua and alleging maternal drug use and domestic violence between the parents. (§ 300, subds. (b), (g), and (j).) Joshua received a medical evaluation of developmentally delayed. In December 2005, the court declared him a dependent and placed him in foster care.
For a while, mother participated in reunification services and visitation. She tested negative for drugs in November 2005 but relapsed almost immediately. She renewed her reunification efforts, then ceased again from December 2005 until March 2006.
She entered drug treatment in March 2006 but admitted using methamphetamine at the same time. In April, a psychologist diagnosed her as schizophrenic.
In June 2006, the court terminated reunification services and scheduled the section 366.26 hearing.
In December 2006, the court denied mothers petition for modification, ordered adoption as Joshuas permanent plan, and terminated parental rights.
III
ICWA
Congress enacted ICWA "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, . . ." (25 U.S.C. § 1902.) Under ICWA, an Indian child 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); Cal. Rules of Court, rule 5.664(a)(1), formerly rule 1439(a)(1).)
"[T]he tribe determines whether the child is an Indian child and its determination is conclusive." (In re Karla C. (2003) 113 Cal.App.4th 166, 174; Cal. Rules of Court, rule 5.664(g)(1), formerly rule 1439(g)(1).) Any affected tribe has the right to intervene at any time in state dependency proceedings. But "`. . . the tribes right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending." (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) For this reason, "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 childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: . . ." (25 U.S.C. § 1912(a).)
Both the juvenile court and DPSS have an affirmative duty to inquire whether a dependent child is or may be an Indian child. (Cal. Rules of Court, rule 5.664(d), formerly rule 1439(d).) The notice requirement is triggered when there is any suggestion that a child has Indian ancestry. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; Dwayne P. v. Superior Court, supra, 103 Cal.App. 4th at p. 255.) When the notice contains insufficient information, it is effectively meaningless. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.)
At the detention hearing in August 2005, mother mentioned she may have Indian heritage through the Crow or Cherokee tribes and father may have Ute ancestry. DCS mailed notices to the Bureau of Indian Affairs and the Ute and Cherokee tribes. But the notices did not include fathers name or the names of mothers relatives. No notice at all was sent to the Crow tribe.
Notice that failed to identify father, his relatives, or the mothers relatives and the absence of notice to the Crow tribe caused prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
IV
DISPOSITION
Under these circumstances, the order of the juvenile court is reversed. Upon remand, DCS is directed to give notice in conformity with ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 710-711.) If no tribe intervenes, the court shall reinstate the order terminating parental rights and make any further determinations without reference to ICWA. (In re Marinna J. (2001) 90 Cal.App.4th 731, 740.)
We concur:
McKinster, Acting P. J.
Miller, J. --------------- Notes: The notice provisions of ICWA are now incorporated into California law at Welfare and Institutions Code sections 224 through 224.3, inclusive, and Cal. Rules of Court, rule 5.664. All statutory references in this opinion are to the Welfare and Institutions Code unless stated otherwise.