Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J210932, J210933, J210934 A. Rex Victor, Judge. Reversed.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant A.A.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minors.
OPINION
MILLER, J.
A.A. (mother) appeals from a Welfare and Institutions Code section 366.26 order terminating parental rights to her children Leanna L., L.L., and A.M.A. (the children). Mother claims that the San Bernardino Department of Children’s Services (the department) failed to properly give notice to Native American tribes in compliance with the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We agree with mother’s claim that the department failed to give the tribes adequate information regarding the paternal grandmother. Therefore, we will conditionally vacate the judgment and remand the matter to the juvenile court with directions to order compliance with the ICWA notice provisions.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
Counsel for the children filed a letter brief on April 17, 2008, joining in the department’s brief and urging us to affirm the order.
FACTUAL AND PROCEDURAL HISTORY
Mother gave birth to seven children: Michael (born 1999), Malik (born 2000), A.L.A. (born 2001), Leanna (born 2004), L.L. (born 2005), A.M.A. (born 2006), and D.L. (born 2007).
We take judicial notice of the two prior opinions issued by this court in In re A.A. (case No. E032604, filed June 10, 2003), and In re A.A. (case Nos. E035289 & E036644, filed August 30, 2005) and the record from those appeals. (Evid. Code, § 459.) The facts and procedural history of this portion of the opinion are taken from those cases.
On February 26, 2002, mother’s live-in boyfriend beat Michael to death. Before the beating, Michael had been vomiting and complaining his stomach hurt, but mother did not seek any medical assistance for him. An autopsy revealed that Michael suffered internal injuries from a previous blow to the stomach and peritonitis had set in; the peritonitis would have killed Michael even if the final beating had not. The department detained Malik and A.L.A., and after approximately one month in foster care, Malik and A.L.A. were placed with their maternal grandmother, Brenda S.
In April 2002, after a contested jurisdictional hearing, the juvenile court found jurisdiction over Malik and A.L.A. based on failure to protect, serious physical abuse, death of another child, failure to support (as to A.L.A.’s father only), and abuse of a sibling. Mother was denied reunification services. Michael M., the father of Malik, was given reunification services. A.L.A. was placed on a separate track since Michael M. was not her father.
In September 2002, after a contested section 366.26 hearing, the juvenile court found that A.L.A. was adoptable and terminated mother’s parental rights. Mother appealed the order, claiming the juvenile court failed to consider she was suffering from battered women’s syndrome. On June 10, 2003, we affirmed the juvenile court’s order. We held that mother had waived any issue regarding battered women’s syndrome and that battered women’s syndrome was irrelevant to the issue of whether A.L.A. was adoptable.
In both March and November 2003, the social worker discovered mother living in Brenda’s home despite the fact that mother was not allowed to reside in the same home where Malik and A.L.A. lived. Consequently, the department removed Malik and A.L.A. from the home and placed them in foster care. Brenda’s pending application to adopt Malik and A.L.A. was placed on “hold.” The department filed separate section 387 petitions for Malik and A.L.A. to remove them from their placement with Brenda on the ground that she allowed ongoing contact with Mother.
In February 2004, A.L.A. was placed with a maternal aunt in Northern California and Malik was placed with his father, Michael M., who had taken advantage of reunification services. The court dismissed the section 387 petition with respect to Malik and relieved Brenda’s appointed counsel. Brenda appealed both orders and filed a request for de facto parent status as to Malik.
In August 2004, the juvenile court found that Malik’s father had completed his reunification plan and there was no need for continuing supervision. It granted the father custody of Malik, terminated its jurisdiction over him, and dismissed Brenda’s de facto parent request as moot. Brenda again appealed.
On the court’s own motion, on February 11, 2008, the record in case No. E043684 was incorporated with this case.
On October 17, 2006, the department received a call to pick the children up from the San Bernardino Police Department. Mother’s boyfriend and the father of the children, Lee L. (father), was a suspect in a liquor store robbery. When the officers went to mother’s home to investigate the robbery, they discovered baggies, drugs, scales, and a gun. They also found signature gang member clothing, shoes, and personal effects. Mother was on felony probation at the time and a condition of her probation was to not communicate or socialize with gang members. Inasmuch as gang members had been living in the home, mother was arrested and taken into custody on a probation violation.
Father is not a party to this appeal.
The children were ill and the home was dirty. They were fed on the floor with no plates or napkins. There was only one bed in the house and one portable crib (which was being used to store a case of liquor). Mother had made pallets on the dirty floor for the children to sleep in.
On October 20, 2006, dependency petitions were filed against mother and father (the parents) for the children, alleging failure to protect (§ 300, subd. (b)), causing another child’s death through abuse or neglect, (§ 300, subd. (f)), failure to provide support (§ 300, subd. (g)), and abuse of sibling (§ 300, subd. (j)). On the petition forms, the boxes indicating that ICWA may apply were checked. The October 23, 2006, detention reports also indicated that ICWA may apply.
On October 23, 2006, the juvenile court detained the children, finding that there existed a substantial danger to the children, the children suffered severe emotional damage, and there was no reasonable means to protect the children without removing them from the custody of the parents. Part and parcel with the juvenile court’s other orders was an order for the parents to complete and return a family information sheet to the social worker. The paternal grandmother, A.J., who lived in Las Vegas, appeared seeking custody of the children.
The court inquired whether the parents had American Indian heritage. Father informed the court that he had Blackfoot, Cherokee, and Apache ancestry. A.J. affirmed there was Indian ancestry, saying, “I don’t know how much it runs through their blood but it’s quite heavily in mine.” When the court inquired as to mother’s Indian heritage, mother told the court she was of Cherokee ancestry.
On October 25, 2006, Father filed a JV-130 form notifying the court that he was either a member or eligible for membership in the Blackfoot and Cherokee tribes. Mother also filed a JV-130 form indicating possible membership in the Cherokee tribe.
In the November 13, 2006, jurisdiction/disposition report, the department reported that mother gave the names of her parents as Brenda S. and Louis A. Father identified his parents as A.J. and Arthur L. The social worker interviewed A.J., who admitted she had been diagnosed with schizophrenia and had been in and out of mental health facilities since she was 18 years old. A.J. was not on medication and did not feel she needed medication.
On December 12, 2006, the JV-135 forms were mailed by the department to the relevant tribes and the Bureau of Indian Affairs (BIA). The forms provided the names of the parents along with their current and former addresses and dates of birth. Mother’s form listed her possible heritage in the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, and the Cherokee Nation. Father’s form listed his possible heritage in the same Cherokee tribes, as well as the Jicarilla Apache Nation, Blackfoot Tribe, the Fort Sill Apache Tribe, the Apache Tribe of Oklahoma, the Mescalero Apache Tribe, the White Mountain Apache Tribal Council, the Tonto Apache Tribal Council, the San Carlos Tribal Council, and the Yavapai-Apache Nation. In the section for “additional information,” the department noted, “Father states that his family is not registered.”
The ICWA form also listed maternal grandmother, Brenda with unknown addresses, birthdate and birthplace. It listed paternal grandmother, A.J. with unknown addresses, birthdate and birthplace. The maternal grandfather, Louis A. was listed as having an unknown current address, birthdate and birthplace.
Louis A. was incorrectly labeled as the paternal grandfather on the form. He is, in fact, the maternal grandfather.
At the December 21, 2006, jurisdiction/disposition hearing, mother and the department agreed that the allegations of substance abuse and gang activity in the home were to be stricken and the remainder of the allegations were found true. The court found clear and convincing evidence that the children could not remain safely in the home and reunification for both parents was ordered. It also found the parents had complied with the initial services ordered and had made progress in alleviating the underlying reasons for removal. The court also determined that ICWA notice had been provided.
At the January 25, 2007, review hearing, the court found mother had complied with the core components of her plan and allowed unsupervised visitation.
In its June 12, 2007, due diligence report, the department documented the responses from the various tribes to the ICWA notice. The United Keetoowah Band of Cherokee, the White Mountain Apache Tribal Council, the San Carlos Tribal Council, the Eastern Band of Cherokee, the Fort Sill Apache Tribe, and the Tonto Apache Tribal Council all stated that the children were not eligible for membership. The BIA and the other tribes did not respond. The Cherokee Nation requested further information regarding the maternal grandmother, including Brenda’s maiden name, her middle name and date of birth, and “paternal” grandfather Louis A.’s (ante, fn. 6) middle name and date of birth. The department responded via email.
At the June 21, 2007, review hearing, mother was six-months pregnant with her seventh child D.L. The department recommended that services be continued for six months. Counsel for the children objected to the recommendation for continued services. The court continued the matter for the department to reassess its recommendation.
At the continued hearing on July 16, 2007, the department recommended that services be terminated and a section 366.26 hearing be set as mother had not complied with services and did not have stable housing.
After hearing evidence during the July 24, 2007, review hearing, the court ruled that mother had not made substantial progress toward reunification and there was not a reasonable probability that mother would reunify with her children in six months. The court terminated services and set a contested section 366.26 hearing.
On July 30, 2007, mother filed a Notice of Intent to File Writ Petition. Mother’s appellate counsel filed a no-issue letter on August 17, 2007. This court dismissed the writ proceeding on August 28, 2007.
On July 31, 2007, the superior court ruled that ICWA did not apply and no further notice was required.
In September 2007, mother’s seventh child, D.L., was born and taken into protective custody by the department. At a September 26, 2007, detention hearing, mother responded to the juvenile court’s inquiry indicating that she had no Indian heritage.
On October 18, 2007, the court sustained a first amended section 300 petition, declared D.L. a dependent child, removed her from mother, and ordered reunification services. The court found that ICWA did not apply.
On January 14, 2008, the juvenile court terminated parental rights to Leanna, L.L., and A.M.A.. Mother timely filed a notice of appeal.
DISCUSSION
A. Request For Judicial Notice.
Mother contends that the ICWA notices sent to the tribes were insufficient in that they failed to contain the basic information required by the BIA. In her brief, mother states, “There was no indication in the record that the department—despite the ability to do so—made any attempt to learn from the paternal grandmother [her] basic information” because the department wrote on the form “that the paternal grandmother’s birth date, addresses, and maiden name were unknown.” (Italics added.) Mother asserts that “the department had only to ask the paternal grandmother” for the information during the October 25, 2006, interview to fulfill their duty to inquire. (Italics added.)
Mother further alleges that “No information was listed concerning her parents,” (italics added) and complains that “there was no indication in the record that the department made any effort to get the required information from the children’s relatives.” (Italics added.)
The department contends that their inquiry was sufficient to comply with ICWA in that the children are not Indian children, and Mother should be collaterally estopped from raising the ICWA issue since she has never previously asserted that any of her seven children were Indian children. In support of its collateral estoppel argument, the department requests this court take judicial notice of mother’s recent representations in D.L’s dependency proceedings that she does not have Native American heritage.
In her opposition to the request for judicial notice, mother states: “the issue on appeal concerns the revelation of Indian heritage through the paternal grandmother.” However, in her opening brief, mother alleges that the department failed to obtain information regarding her parents and her children’s relatives. In contradistinction to her opposition to the request for judicial notice, mother, in her appellate brief, has raised as an issue the department’s failure to inquire regarding her maternal lineage. Thus, the paternal grandmother’s lineage is not the sole issue on appeal. Consequently, we address the issues mother raised in her brief regarding the children’s Indian heritage through both their maternal and paternal lines. In order to do so, we grant the department’s request for judicial notice.
B. The Children Were Not Eligible For Cherokee Tribal Membership.
Because mother claimed she had Cherokee ancestry, the department remitted ICWA notices to the three Cherokee tribes: The Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, and the Cherokee Nation. The Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee responded to the notices, indicating the children were not eligible for membership in those tribes. Their determination that the children were not Indian is conclusive. (§ 224.3, subd. (e)(1).)
On January 16, 2007, the Cherokee Nation requested further information for maternal grandparents Brenda S. and Louis A. The Cherokee Nation did not request further information on the paternal lineage. More than 60 days had elapsed by the time the juvenile court ruled that ICWA did not apply, on July 31, 2007, and no further notice was required. Without a determinative response from the Cherokee Nation within 60 days after receiving the notice, the juvenile court could properly find that ICWA was not applicable to the proceeding. (§ 224.3, subd. (e)(3).)
C. Mother Is Judically Estopped From Asserting Indian Ancestry Through Her Maternal Line.
“The doctrine of issue preclusion prevents relitigation of issues already argued and decided. [Citation.] Among other requirements, the doctrine only applies where the identical issue was decided previously, and the party against whom the earlier decision is asserted had a ‘“‘full and fair’”’ opportunity to litigate the issue. [Citations.]” (In re Y.R. (2007) 152 Cal.App.4th 99, 110.)
Judicial estoppel prevents a party from asserting a position that is contrary to a position previously taken in the same proceeding. The doctrine serves to prevent a litigant from “playing ‘fast and loose with the courts’” by advocating one position, and later, when it becomes beneficial, asserting the opposite. (Jackson v. Los Angeles (1997) 60 Cal.App.4th 171, 181.) The doctrine applies when “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. [Citations.]” (Id. at p. 183; Thomas v. Gordon (2000) 85 Cal.App.4th 113, 117-118.)
In this instance, mother is judicially estopped from raising the issue that she has Indian heritage. In her first appeal (case No. E032604) mother appealed the order terminating her parental rights to A.L.A. on the ground that the juvenile court failed to consider evidence that she suffering battered women’s syndrome. We held that the issue was waived and was irrelevant to the issue of A.L.A.’s adoptablity. Mother did not raise an ICWA issue either in her appeal or in the lower court.
The section 300 petition filed in case No. E032604 did not have a checked box alleging that A.L.A. and Malik were Indian children. The jurisdiction/disposition report and the section 366.26 report both stated that ICWA did not apply. A.L.A.’s health records indicated ICWA did not apply. The juvenile court issued orders for the children’s parents to complete the family information sheet and to reveal membership in an Indian tribe. The family information sheet indicated mother and maternal grandmother, Brenda, were African-American. In their interviews with social workers, mother stated she had two sisters and a brother, she lived with her mother and stepfather, and her biological father was in prison.
In case Nos. E035289 and E036644, maternal grandmother’s appeal revolved around the issues of de facto parent status and the removal of A.L.A. and Malik from Brenda’s home. There, too, the appellate record reveals that the detention report, the status reports, and the health records indicate that ICWA did not apply. Further, the juvenile court issued the same order for the parents to complete the family information sheet and to reveal membership in any Indian tribes.
In the most recent dependency case involving D.L., the juvenile court conducted an ICWA inquiry to which mother responded there was no Indian heritage. The juvenile court found that ICWA did not apply.
In the first two proceedings, the court ordered mother to reveal any Indian heritage. Mother did not do so. In D.L.’s pending proceeding, again, mother stated there was no Indian heritage. Mother cannot now, in this appeal, claim that she has Indian heritage.
While it is true that a court has a continuing duty to ascertain a child’s Indian status (25 U.S.C. § 1911(c); §§ 224.4, 224.3, subds. (a), (f)), mother was repeatedly ordered to disclose any Indian ancestry in the three dependency cases occurring both before and after filing the notice on appeal in this case. She was provided a myriad of opportunities to inform the department of any tribal membership. Mother may not “whipsaw” the court by taking two antithetical positions: that she both is and is not Indian. She may not now complain that there was inadequate ICWA notice in order to obtain a reversal and delay the matter further.
D. The Department’s Failure to Obtain Paternal Grandmother’s Information Is Prejudicial.
Mother also contends that the department did not make any attempt to learn from paternal grandmother A.J. her birthdate, addresses and maiden name. Mother argues that the department had the ability to obtain this information as they had interviewed A.J. and could have discovered her basic information at that time.
With respect to the children’s paternal lineage, the department claims that father was not a tribe member because prior to November 7, 2007, father stated he was not registered with a tribe, thus there was no need to include A.J. on the form.
ICWA does not apply to all children of Indian descent, but only to those who are or may be eligible for membership in a recognized tribe. To be Indian, a child must be under the age of 18, be the biological child of a member of an Indian tribe, and be either (1) a member of an Indian tribe, or (2) eligible for tribal membership. (25 U.S.C. § 1903(4).) There is a distinction between membership and enrollment. Enrollment is not necessarily required for membership or for ICWA to apply. (In re Junious M. (1983) 144 Cal.App.3d 786, 796 (Junious M.).) The fact that father stated that “his family is not registered with a tribe” is not dispositive.
When a court in a dependency proceeding 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 child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a); Junious M., supra, 144 Cal.App.3d at pp. 790-791; In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385.)
“To satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [the social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the social services agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739, fn. 4; see also In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 178.)
The Code of Federal Regulations sets forth the required content of the notice. (25 C.F.R. § 23.11(b).) The relevant regulation provides that notice to the BIA “shall include the following information, if known: [¶] (1) Name of the Indian child, the child’s birthdate and birthplace. [¶] (2) Name of Indian tribe(s) in which the child is enrolled or may be eligible for enrollment. [¶] (3) All names known, and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great grandparents . . .; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information. [¶] (4) A copy of the petition, complaint or other document by which the proceeding was initiated.” (25 C.F.R. § 23.11(d)(1)-(4).) In addition, the notice must include, inter alia, a statement of the right to intervene in the proceedings. (25 C.F.R. § 23.11(e)(1).) The notice requirements of ICWA are mandatory and cannot be waived by the parties. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 707; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
Failure to provide proper notice is prejudicial error (In re Samuel P., supra, 99 Cal.App.4th at p. 1267), but not every faulty notice is prejudicial. (Junious M., supra, 144 Cal.App.3d at p. 794, fn. 8.) Errors in ICWA notice are subject to harmless error review. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)
We agree with mother that the department could have easily obtained A.J.’s birthdate, birthplace, and maiden name during their interview with her. Although the record reflects that A.J. has been diagnosed with schizophrenia, it appears her mental illness did not render her incapable of discussing her familial or personal history. Therefore, the failure of the department to obtain A.J.’s biographical information was error.
With respect to the tribes that have responded, the error was not prejudicial. Father informed the court that he had Cherokee, Blackfoot, and Apache ancestry. After the department provided the tribes with notice of the parents’ pertinent information, the United Keetoowah Band of Cherokee, the White Mountain Apache Tribal Council, the San Carlos Tribal Council, the Eastern Band of Cherokee, the Fort Sill Apache Tribe, and the Tonto Apache Tribal Council were able to make a determination that the children were not eligible for membership without the necessity of providing the paternal grandmother’s information.
In the one instance where further information was requested, the Cherokee Nation asked for the names of the maternal grandmother and grandfather. It did not find it necessary to request the paternal grandmother’s information. The department’s failure to provide the paternal grandmother’s information was not prejudicial because six tribes responded with a conclusive determination that the children were not eligible for tribal membership.
With respect to the nonresponsive agency and tribes (the BIA, the Cherokee Nation, and the other tribes), we find the failure to supply the paternal grandmother’s information was prejudicial. There exists the possibility that the tribes did not respond because they were unable to do so without sufficient familial information to render a determination of eligibility. Providing the paternal grandmother’s information may assist those tribes in assessing whether the children may be eligible for tribal membership.
The Cherokee Nation did not make an eligibility determination.
The Blackfoot tribe, the Apache Tribe of Oklahoma, the Mescalero Apache Tribe, and the Yavapai-Apache Nation.
When the notice sent is inadequate, the orders of the court terminating parental rights should be vacated and the matter should be remanded to the juvenile court with directions to order compliance with the ICWA notice provisions. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 111 (Jonathan D.).) “If, after proper inquiry and notice, no response is received from a tribe indicating the minor is an Indian child, all previous findings and orders shall be reinstated. If a tribe determines that the minor is an Indian child, or if other information is presented to the juvenile court that suggests the minor is an Indian child as defined by [ICWA], the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of [ICWA].” (Id., at pp. 111-112; see also Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.)
At oral argument, mother urged this court, citing In re D.T. (2003) 113 Cal.App.4th 1449, 1454, to order the department to include information on all of the grandparents and re-serve ICWA notice to all of the Indian tribes, including those tribes that have already been noticed. In In re D.T., the court held that the juvenile court failed to ensure ICWA compliance because the social worker did not include information already known to her, such as mother’s married name, the current addresses of the parents, and the names of grandparents. (In re D.T., at p. 1455.) The social worker failed to specify to the parents what information was relevant in assisting the tribes to trace any Indian ancestry the parents may have back to the year 1900. (Ibid.) We do not read In re D.T. as requiring that the department re-serve notice on tribes who have already made a conclusive determination regarding the children’s tribal eligibility.
We conclude that the department should supply the paternal grandmother’s information within the ICWA notice to the BIA, the Cherokee Nation, and the nonresponding tribes.
DISPOSITION
The order of the juvenile court terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to order compliance with the ICWA notice provisions with respect to the paternal lineage only. If, after proper inquiry and notice, no response is received from a tribe indicating the child is an Indian child, all previous findings and orders shall be reinstated. If a tribe determines that the child is an Indian child, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA.
We concur: RICHLI Acting P.J., GAUT J.