Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. JD17587
Mihara, Acting P.J.
Appellant Darlene W. appeals from a juvenile court order terminating her parental rights over her daughter, Mary H., and selecting adoption as the permanent plan pursuant to Welfare and Institutions Code section 366.26. On November 27, 2006, the Santa Clara County Department of Family and Children’s Services (Department) filed a petition alleging that Mary, born in November 2006 with positive toxicology for cocaine, came within section 300, subdivision (b) (failure to protect; inability to care for child due to substance abuse). The court sustained the petition, declared Mary a dependent, and placed Mary in foster care. Appellant was provided reunification services, but visitation was irregular and she made only limited progress in her case plan. During the proceedings, appellant advised the Department of Indian heritage, referring to “Black[]foot[,]” Cherokee, and one other unknown tribe. She also completed a JV-130 form naming “Blackfoot” and Cherokee heritage. The Department sent notices to several tribes and to the Bureau of Indian Affairs (BIA). On April 25, 2007, the court determined that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply in this case and, on December 6, 2007, terminated parental rights. Appellant contends the December 6, 2007 order must be reversed for failure to comply fully with the notice requirements of ICWA. The Department concedes the issue.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
We accept the concession. If there is reason to believe that the child that is the subject of the dependency proceeding is an Indian child, ICWA requires notice to the child’s Indian tribe of the proceeding and of the tribe’s right of intervention. (25 U.S.C. § 1912(a); see also § 224.2, subd. (b).) Section 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 . . . .” In other words, unless there is additional information to the contrary, notice must be sent to all federally recognized tribes within the tribal group identified by the child’s parents or relatives. (See In re J.T. (2007) 154 Cal.App.4th 986, 993.) In this case, the Department sent notice to the BIA, the Blackfeet tribe, the three federally recognized Cherokee tribes, and one Chippewa tribe (Chippewa Cree Indians). The record does not reveal the reason for the inclusion of only the Chippewa Cree Indians, and not the other 19 federally recognized Chippewa tribes. (71 Fed. Reg. 43788, 43798-43804 (Aug. 2, 2006).) If the parents or other relatives have identified Chippewa heritage generally, notice must be sent to all Chippewa tribes. If only the Chippewa Cree Indians tribe was identified, or the Department has some other basis for noticing this particular tribe, that fact should be stated in the record to support the conclusion that the ICWA notice was adequate. Absent such evidence, we cannot conclude the Department complied fully with ICWA.
Additionally, the notice sent to the Eastern Band of Cherokees did not comply strictly with ICWA. Section 224.2 states that “any notice sent in an Indian child custody proceeding under this code shall be sent to . . . the minor’s tribe and comply with” the listed requirements. (§ 224.2, subd. (a).) These requirements include notice addressed “to the tribal chairperson, unless the tribe has designated another agent for service.” (§ 224.2, subd. (a)(2); see also 25 C.F.R. § 23.12 [designated agents and addresses are published in Federal Register].) The notice to the Eastern Band of Cherokees was not sent to the designated agent. (See 71 Fed. Reg. 43788, 43798 (Aug. 2, 2006).) Although the Department received a signed return receipt from its notice to this tribe, the designated agent did not sign the receipt and the tribe did not respond to the notice. Thus, the record contains no verification that notice actually reached the appropriate representative of the Eastern Band of Cherokees. Reversal to comply with ICWA is therefore required. (See Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 [failure to provide notice to designated agent or address, without evidence of actual notice, cannot be considered harmless error].)
The December 6, 2007 order is reversed. The case is remanded to the juvenile court with directions to order the Department to complete notice to the tribes in accordance with ICWA. If, after proper notice, the court finds that Mary is an Indian child, the court shall proceed in conformity with ICWA. If, after proper notice, the court finds that Mary is not an Indian child, the order terminating parental rights and selecting adoption as the permanent plan shall be reinstated.
We Concur: McAdams, J., Duffy, J.