Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Ct. No. J982169. Albert J. Garcia, Referee. (Pursuant to Cal. Const., art. VI, § 21.)
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant for Appellant, I.F.
Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant for Appellant, M.C.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, for Plaintiff and Respondent.
CROSKEY, J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), I.F., mother of the dependent minor child M.C. (Mother and M.C., respectively), and M.C., father of the minor child (Father), appeal from a order that terminated their parental rights to M.C.. The parents assert that the trial court erred when it found that the Los Angeles Department of Children and Family Services (the Department) has complied with the notice requirements of the Indian and Child Welfare Act (25 U.S.C. § 1901 et seq., the ICWA).
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
Upon the filing of the parents’ respective opening briefs, the Department submitted to this court a letter brief in which it set out what it termed a “statement of limited concession” regarding one of the several ICWA issues raised by the parents. The Department did not address the other issues.
Our review of the record shows that this is yet another case in which the Department and the dependency court have failed to comply with the notice requirements of the ICWA. Therefore, a limited reversal of the order from which the parents have appealed will be made to permit compliance with those notice requirements.
See this Division’s recently published opinion Justin L. v. Superior Court (Los Angeles County Department of Children and Family Services) (2008) 165 Cal.App.4th 1406, in which we stated: “We publish this opinion to call attention, once again, to the persistent failure of the juvenile court and the Department to fulfill their obligations under ICWA.”
BACKGROUND OF THE CASE
1. Initiation of Dependency Court Jurisdiction
M.C. was born in October 2005. She was taken into protective custody on October 14, 2005 and detained in the home of her maternal cousin because she tested positive for drugs when she was born.
The appellate record contains a letter signed by Mother, addressed to the court, and dated five days before the November 28, 2007 hearing at which parental rights were terminated (which was more than two years after the minor was placed with the maternal cousin/caregiver). In the letter, Mother asserted that the caregiver is not really the minor’s cousin and is not a relative of the minor.
The section 300 petition filed by the Department was sustained for the following allegations. One, M.C.’s toxicology screen at birth was positive for tricyclics and Mother’s toxicology screen when M.C. was born was positive for marijuana. Two, Mother has a 17-year history of substance abuse. When M.C. was born Mother was currently a user of cocaine and marijuana, and on August 30, 2005, Mother had a positive toxicology screen for cocaine. Moreover, Mother continued to use illegal drugs after the court ordered her to participate in a substance abuse rehabilitation program. Three, M.C.’s sibling, J.D., is a current dependent child of the juvenile court because of Mother’s substance abuse. And, M.C.’s siblings, N.H., K.P., E.D., E.D., A.D. and T.J. are former dependents of the juvenile court because of Mother’s substance abuse and general neglect of them, and they received permanent placement services when Mother failed to reunify with them. Prior services by the juvenile court and the Department have failed to resolve these family problems because Mother continues to use illegal drugs.
2. Early Court Proceedings
M.C. was detained by the court on October 19, 2005. The next day she was admitted to a hospital and discharged 12 days later with a diagnosis of cardiomyopathy, abnormal electroencephalogram, neurological deficits. She had a compromised immune system, had trouble gaining weight and trouble with feeding, and tremulousness and suspected drug withdrawal. Fortunately, subsequent reports from the Department show that her health improved.
At a November 16, 2005 pretrial resolution conference, the court adjudicated the section 300 petition, declared M.C. a dependent child, and ordered that Mother would have no reunification services because she had failed to reunify with other children and because her parental rights had been terminated to other children. Father was ordered to attend parenting classes and 12 random toxicology tests on demand, with a missed/failed/diluted test to result in compulsory attendance in a rehabilitation program and thereafter attendance in an after care program or continued testing. Monitored visits were ordered for the parents.
3. The Six-Month Review Hearings
The section 366.21, subdivision (e) six-month review hearing was originally set for May 17, 2006. The Department’s report states M.C. was healthy and developing age appropriately. Father had not begun toxicology testing until February 9, 2006. He had two tests that month and two the next. Three were positive for cocaine and cannabinoids and one was positive for cocaine. He never responded to inquiries by the social worker regarding whether he had enrolled in a substance abuse program because of his dirty tests. His explanation for the positive tests was that he was probably around someone that was using drugs because he does not use drugs anymore. The report states Father has a long history of drug abuse. The Department recommended that his reunification services be terminated. Mother was in jail for having stabbed Father on his hand with a pair of scissors. She told the social worker she is pregnant again and Father is the father of her unborn child.
By the end of May 2006, the social worker was reporting that the minor is bonded to the caregiver. The report states the parents have very bad tempers and they constantly fight when they are together, including when they visit the minor. The social worker recommended that the court terminate the parents’ parental rights. At the June 15, 2006 section 366.21, subdivision (e) six-month review hearing, Father indicated he had enrolled in a substance abuse program the prior week and he had attended “a couple of [parenting] classes.” Father’s reunification services were terminated, a section 366.26 hearing was set for October 12, 2006, the court found that adoption by the maternal cousin caretaker was appropriate as a permanent plan, and the Department was ordered to complete the adoption home study.
A report for a July 25, 2006 progress hearing on adoptive planning shows Father had been arrested on January 31, 2006 and was released nine days later, however the report does not state the nature of the arrest. After being released from jail, Father did not call to arrange for visits with the minor until Easter week. M.C. continued to do well in the care of her maternal cousin. A report for an August 30, 2006 progress hearing shows the caregiver still had several outstanding matters to complete before her adoptive home study could be completed.
4. The Section 366.26 Hearings
According to the Department’s report for the day on which the section 366.26 hearing was originally set to be heard, October 12, 2006, the adoption assessment was completed but the home study was not yet approved. The Department was recommending that M.C. be adopted by her caregiver maternal aunt. The minor was reported to be in good health, developing age appropriately, and receiving good care in her placement. Mother had visited the minor only once since she was released from jail; and since approximately the end of July 2006, Father had only visited the child once.
On December 14, 2006, a status review hearing was held. The Department’s report states Father remained out of compliance with his case plan. M.C. was reported to be very attached to the caregiver and the caregiver’s children, and the caregiver was reported to be an excellent adoptive parent for the minor. M.C. spent most of her weekends in the home of the caregiver’s mother when the caregiver had to work. The caregiver’s mother has adopted one of the minor’s siblings and is a legal guardian of another of the minor’s siblings, and they are bonded to the minor.
The report for the February 8, 2007 section 366.26 hearing shows that the adoption home study was completed on December 6, 2006. M.C. and her caregiver were reported to be bonded and their relationship to be “equivalent to that of a birth child.” The appellate record reflects that both Mother and Father were in the county jail and were removed to attend the February 8 hearing. (A May 24, 2007 Department report states the parents were arrested on December 4, 2006.) The matter was continued to March 23, 2007 at the parents’ request for a contested hearing, and the parents indicated they would be released from jail by that time. Neither parent appeared on that date even though the record reflects that Mother was released on March 20, 2007 and Father was released the following day. The matter was continued again to April 6, 2007 and again to May 24, 2007.
According to the report for the May 24, 2007 section 366.26 hearing, Mother had been arrested again for parole violation, and Father had also been arrested again. The matter was continued to June 8, 2007 due to illness of an attorney. The Department’s report for the June 8, 2007 sets out a history of the parents’ visitation, and visitation problems, with the minor, and a review of why Father’s request for a transfer of care for M.C. to a paternal aunt was found to not be in the minor’s best interests. On June 8, 2007, the court ordered the Department to inquire of the caregiver whether she would permit the parents to have contact with the minor if the parents’ parental rights are terminated.
The parents had relatively few visits with the minor during the two years the case was pending. They were incarcerated for a significant portion of the time, they had problems finding a proper monitor, and they often let time go by without making contact with the caregiver or social worker to set up visits. They also complained that the caregiver was not permitting them to visit the minor.
Thereafter, the matter was continued several times due to the parents being incarcerated. The caregiver reported she would permit the parents to have contact with M.C. after the child is adopted. By the time of the hearing on September 18, 2007, Mother had given birth to a baby boy in jail and the child was placed with his paternal aunt.
At the September 18, 2007 section 366.26 hearing, Mother told her attorney she had completed classes at the institution at which she was incarcerated. The social worker was ordered to obtain the relevant information. When the worker interviewed Mother at the jail in Lynwood, Mother stated she had not actually commenced any programs but once she was returned to the prison in Corona she would begin a substance abuse program that includes parenting, anger management and domestic violence classes and testing. The minor’s caregiver remained committed to permitting the parents to visit the minor after adoption is completed.
The contested section 366.26 hearing was finally held on November 28, 2007. The court heard testimony from the case social worker and the parents. The court found that M.C. was adoptable and that none of the statutory exceptions to termination of parental rights exist. Parental rights were terminated and thereafter the parents filed timely notices of appeal.
CONTENTIONS ON APPEAL
The issues in this appeal concern whether the ICWA notice requirements were complied with.
DISCUSSION
1. Notice Requirements in the ICWA
“State law mandates notice to ‘all tribes of which the child may be a member or eligible for membership.’ (§ 224.2, subd. (a)(3).)” (In re J.T. (2007) 154 Cal.App.4th 986, 992.) Notice is required when the court, a social worker or a probation officer knows or has reason to know that an Indian child may be involved (§ 224.2, subd. (a)), and a court “ ‘needs only a suggestion of Indian ancestry to trigger the notice requirement.’ ” (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) “If the identity of the tribe cannot be determined, notice must be given to the Bureau of Indian Affairs.” (In re Robert A., supra, 147 Cal.App.4th at p. 988.)
“An ‘Indian tribe’ is defined as ‘any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians . . . . ’ (25 U.S.C. § 1903(8); see § 224.1, subd. (a); [Cal. Rules of Court,] rule 5.664 (a)(6).)” (In re J.T., supra, 154 Cal.App.4th at p. 992.)
“The notice sent to the Indian tribes must contain enough identifying information to be meaningful. [Citation.] A ‘social worker has “a duty to inquire about and obtain, if possible, all of the information about a child’s family history” ’ required under regulations promulgated to enforce ICWA. [Citation.]” (In re Robert A., supra, 147 Cal.App.4th at p. 989.)
The juvenile court has a duty to “ ‘review the information concerning the notice given, the timing of the notice, and the response of the tribe, so that it may make a determination as to the applicability of ICWA, and thereafter comply with all of its provisions, if applicable.’ ” (In re Robert A., supra, 147 Cal.App.4th at p. 990.)
A finding by the trial court that ICWA notice was adequately given is reviewed under the substantial evidence test. (In re Robert A., supra, 147 Cal.App.4th at p. 991.)
2. Background of the ICWA Issues in This Case
When the Department social worker interviewed Mother at the hospital where M.C., Mother informed the worker that Father is “part Indian. I don’t know what tribe.” Mother did not state that she herself has Indian heritage. At the detention hearing on October 19, 2005, Father informed the court he has Indian ancestry, specifically Cherokee. The court set a pretrial resolution conference hearing for November 16, 2005 and made an order directing the Department to do the following for that hearing: interview the parents and known relatives to obtain information regarding Father’s ICWA claim; prepare an appropriate ICWA notice of hearing form for the November 16, 2005 hearing; and give such notice to any applicable tribe and their designated agent, and to the Bureau of Indian Affairs and the Secretary of the Department of the Interior, with the tribes to receive notice at least ten days before the hearing and the Bureau and Secretary to receive notice at least 15 days before the hearing.
The jurisdiction/disposition report prepared by the Department for the November 16, 2005 hearing states that the ICWA does or may apply. The report contains a copy of the ICWA notice of hearing form (Judicial Council form JV-135) that was sent to Cherokee tribes, the Bureau of Indian Affairs and the Secretary of the Interior. The notice has very little information in it regarding Father’s Indian heritage. The information consists of the minor’s name and date/place of birth; Father’s name and address, the date and place of his birth; and the names and birth years of the paternal grandmother and paternal great-grandmother, as well as statements that all of these people are of the Cherokee tribe.
The Department’s report contains a proof of service that states the ICWA notices for the November 16, 2005 hearing were sent to the Cherokee Nation of Oklahoma in Tahlequah, Oklahoma, the United Keetoowah Band in that same city, the Eastern Band of Cherokee Indians in Cherokee, North Carolina, and to the Bureau of Indian Affairs in Sacramento, California and the Secretary of the Department of the Interior in Washington, D.C. The proof of service, which was signed on November 7, 2005, states that the ICWA notices were not sent until November 8, 2005. Thus, the notice time was not pursuant to the court’s October 19, 2005 order. Moreover, the record does not contain any return receipts from the addressees. Nevertheless, the dependency court did not make an ICWA inquiry at the November 16, 2005 hearing.
The Department’s reports for the various hearings held thereafter all state that the ICWA does not apply in this case, however the reports do not indicate that the Department received any responses from the tribes, the Bureau of Indian Affairs or the Secretary of the Interior. There was also no mention of the ICWA at those hearings until the issue of ICWA compliance was brought up at the October 4, 2007 section 366.26 hearing, when the parents’ attorneys indicated that both parents were claiming Indian ancestry. Thus, for the first time in the case, Mother was claiming to have Indian heritage. The court asked what information was obtained from the prior ICWA notification and the Department’s attorney indicated return receipts were received by the Department. The court indicated that because no ICWA finding was made as to Father, and because Mother was now claiming Indian heritage, the Department would have to provide ICWA notices for both parents. The court continued the section 366.26 hearing to November 28, 2007.
It would seem that since Mother is no stranger to the dependency court, the matter of whether she has Indian heritage would have been determined by now. Moreover, we find it rather suspicious that it was two years after the instant case commenced, and when termination of her parental rights was imminent, that Mother suddenly claimed to have Cherokee, Blackfeet and Choctaw ancestry. Section 224.3, subdivision (e) provides that “[w]ith respect to giving notice to Indian tribes, a party shall be subject to court sanctions if that person knowingly and willfully falsifies or conceals a material fact concerning whether the child is an Indian child, or counsels a party to do so.”
The record contains a JV-135ICWA form giving notice of the November 28, 2007 section 366.26 hearing. It states the minor is reported to be eligible for membership in the Cherokee, Blackfeet and Choctaw tribes. The form states Mother reported that her Indian heritage is through the maternal side of her family. The minor’s maternal grandmother’s name, tribe (Cherokee), year of birth and month and year of death were indicated. The maternal great-grandmother’s name, tribes (Choctaw and Blackfeet), and date and place of death were indicated. The maternal great-grandfather’s given name was not known, but the form indicated the name he went by and his tribe (Cherokee); no other information about him was indicated. Mother did not know if the family was registered with any tribe.
The ICWA form states that Father’s sister reported that the paternal great-grandmother and great-grandfather were part Cherokee but registry was not known. The paternal grandmother’s name, year of birth, and year and place of death were indicated. The form states no information is known about the paternal grandfather. The name of the paternal great-grandmother was given, as well as her tribe (Cherokee) date and place of birth, and year and place she died. The name of the paternal great-grandfather was given, together with his place of birth and tribe (Cherokee.) Father did not know if the family was registered.
The proof of service for the form states service of the form was made on October 17, 2007 on the Bureau of Indian Affairs in Sacramento and the Secretary of the Interior in Washington, D.C.; on all three of the Cherokee tribes originally noticed; on the Blackfeet Tribal Council in Browning, Montana; and on the Choctaw Nation of Oklahoma in Durant, Oklahoma, the Jena Band of Choctaw in Jena, Louisiana, and the Mississippi Band of Choctaw in Choctaw, Mississippi.
Signed return receipt cards were received from all of those addressees. Additionally, letters were received from all of the tribes and none of them indicated that M.C. is an Indian child under the ICWA. At the section 366.26 hearing on November 28, 2007, the court asked the parents’ attorneys if they had any comments regarding the applicability of the ICWA and the attorneys indicated they had none. However, when the court found that the Department complied with the requirements of the ICWA and that the ICWA does not apply in this case, both parents indicated to their respective attorneys, who in turn indicated to the court, that they objected to the court’s findings.
3. Specific ICWA Issues Raised by the Parents
In this appeal, Mother and Father contend that the ICWA notice requirements were not met because (a) notice to two Choctaw tribes was incorrectly addressed, (b) the court did not order that the tribes be re-noticed after the court received additional vital information about M.C.’s relatives, and (c) even though a determinative response was not received from one of the tribes, the trial court failed to wait 60 days before making its ICWA findings.
a. Incorrect Addresses
Section 224.2, subdivision (a) (2) provides that ICWA notices sent to a tribe are to be sent to “the tribal chairperson, unless the tribe has designated another agent for service.” (Accord California Rules of Court, rule 5.664 (f).) “The purpose of the requirement that notice be sent to the designated persons is to ensure that notice is received by someone trained and authorized to make the necessary ICWA determinations, including whether the minors are members or eligible for membership and whether the tribe will elect to participate in the proceedings.” (In re J.T., supra, 154 Cal.App.4th at p. 994.)
Citing an August 2, 2006 notice of the Department of Interior’s Bureau of Indian Affairs respecting the Bureau’s publication on that date of its list of ICWA designated tribal agents (71 Fed.Reg. 43788-02 (Aug. 2, 2006)), the parents assert that the notices sent to the Mississippi Band of Choctaw Indians and the Choctaw Nation of Oklahoma are defective because the notices were sent, in both of those two cases, to the “ICWA Representative,” and there is no indication in the record that the notices were actually delivered to the tribal chairpersons or the designated agents for service. Further, the notice sent to the Mississippi Band of Choctaw Indians was sent to the wrong post office box.
A review of the record and the Federal Register pages shows that (1) the ICWA notices were not sent to the designated tribal agents of those two tribes, and the reply letters sent to the Department social worker by those two tribes are not from the designated tribal agents; and (2) the post office box for the Mississippi Band of Choctaw Indians to which the ICWA notice was sent was incorrect. Thus, notice to those two tribes was not proper.
b. No Third Round of Notices
Section 224.3, subdivision (f) provides: “Notwithstanding a determination that the Indian Child Welfare Act does not apply to the proceedings made in accordance with subdivision (e), if the court, social worker, or probation officer subsequently receives any information required under paragraph (5) of subdivision (a) of Section 224.2 that was not previously available or included in the notice issued under Section 224.2, the social worker or probation officer shall provide the additional information to any tribes entitled to notice under paragraph (3) of subdivision (a) of Section 224.2 and the Bureau of Indian Affairs.” Paragraph (5) of subdivision (a) of section 224.2 lists information that should be provided on the ICWA notice form. Among other things set out in that list are the names of the minor’s biological parents, grandparents, and great-grandparents, including their birth, married, and former names and aliases.
The name of M.C.’s maternal grandmother that is listed on the ICWA notices mailed to the tribes in October 2007 is “Katie F[].” However, in the November 23, 2007 letter that Mother presented to the court (see fn. 3, ante), Mother asserted: “My mother Lillie Mae G[] was once Lillie Mae P[].” Thus, according to Mother’s letter, the tribes received the wrong information regarding the name of the minor’s grandmother. Also, the letter stated that the minor’s maternal great-grandfather’s name is Henry Ford S[], whereas the ICWA notice only listed the name he went by, “Mumu.”
Additionally, the ICWA notices mailed in October 2007 state that the name of M.C.’s paternal great-grandmother is “Katie G[] AKA Katie H[].” The letter to the court contains the following cryptic sentence: “Judge Garcia, Joyce C.[] and one of her daughter [sic] pulled up Katie H[] on the Indian Reservation there are 12 Katie H[]s and because they are not an organization they were told that they had to pay for each one of the packets in order to get the right one.” At the end of the letter Mother states: “Please Your Honor allow me 90 calendar days from 11/28/07 to do some necessary footwork to prove that M.C. is Cherkee [sic] Indian.” The letter does state what “pulled up” means.
Clearly, this letter has asserted new information regarding the names of the minor’s ancestors. Mother and Father contend that under section 224.3, subdivision (f), the Department must therefore send new notices to the tribes. However, the Department questions the authenticity of the letter. The Department observes there is no file stamp on the letter and no indication in the clerk’s transcript or the reporter’s transcript that the trial court actually read and considered the letter. The Department requests that the case be remanded with directions to the dependency court to question Mother about the authenticity of the letter and the matters asserted in the letter, for the purpose of determining whether it is necessary to re-notice the tribes. The Department also requests that we order the trial court to require that both parents fill out and sign the ICWA form entitled “Parental Notification of Indian Status (ICWA-020) if the trial court determines that new ICWA notices must be sent.
c. Lack of a Determinative Response From a Band of Indians and the Premature ICWA Finding by the Dependency Court
Section 224.3, subdivision (e) (3) provides that when a “proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the Bureau of Indian of Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] does not apply to the proceedings, provided that the court shall reverse its determination of the inapplicability of the [ICWA] and apply the act prospectively if a tribe or the Bureau of Indian Affairs subsequently confirms that the child is an Indian child.” (Italics added.) Subdivision (e)(1) addresses “determinative responses.” It states: “A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe, or testimony attesting to that status by a person authorized by the tribe to provide that determination, shall be conclusive. Information that the child is not enrolled or eligible for enrollment in the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom.”
Here, the written response from the Mississippi Band of Choctaw Indians states that M.C. is not enrolled, nor eligible for enrollment in the tribe, but the written response does not also state that enrollment is a prerequisite for membership under tribal law or custom of that tribe. Therefore, since that tribe did not provide the court with a “determinative response,” no finding respecting the minor’s ICWA status could have been properly made until 60 days had expired after the tribe received the ICWA notice. Here, however, the court’s finding that the ICWA does not apply to M.C. was made before the 60 days expired.
3. Remedy for Non-Compliance with the ICWA Notice Requirements
The goal of the dependency statutory scheme is to return the minor to his or her parents, or if that is not possible, to provide the minor with a permanent home, all in as short a time as possible. When the notice requirements of the ICWA are not met by the Department and the trial court, then the goal of a timely decision regarding the child is thwarted because the decision is put on hold until the requirements are complied with.
The ICWA notice requirements are strictly construed, and because the requirements are intended to benefit the tribe, they cannot be waived by a parent. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) “ ‘Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.’ [Citation.] 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. [Citations.]” (Id. at p. 1265.) Such prejudicial error requires reversal and remand. (Id. at p. 1267.)
As we noted in our recently published opinion (see fn. 2, ante), reviewing courts have all too often been forced to make limited purpose reversals of orders so that the dependency courts may comply with the requirements of the ICWA. Such limited purpose reversal is required here because of improper addresses used for two of the tribes, because the 60-day waiting period was not complied with for the written response of one of those two tribes, and perhaps because no new ICWA notices were ordered in response to Mother’s letter.
We agree with the Department that upon remand of this case, the trial court should hold a hearing for the purpose of (1) questioning Mother regarding the contents of her letter as it concerns the new information regarding the minor’s maternal and paternal ancestors, and (2) determining whether the new asserted information regarding M.C.’s ancestry is trustworthy. An air of suspicion hangs over Mother’s recent claim of Indian heritage and her even more recent letter. (See fn. 6, ante.) We also agree that the court should order both parents to fill out a Parental Notification of Indian Status form, which on its face requires that it be signed under penalty of perjury. The court should order the parents to fill out that form at the hearing.
Additionally, at the hearing the court should request, from the parents, the names, addresses, and telephone numbers of their relatives whom they believe may have additional information concerning Indian heritage, and before any new ICWA notices are sent by the Department, the Department should consult with those relatives to determine all known information about the minor’s biological grandparents and great-grandparents (pursuant to § 224.2, subd. (a)(5)(B) & (C)), so that yet another sudden burst of new information from Mother (or Father) does not delay the goal of the dependency statutory scheme, which is to provide M.C. with a permanent home in as short a time as possible.
Finally, if the court determines that new information contained in Mother’s letter is sufficiently trustworthy, and/or if the Department receives additional information from relatives of the parents, the Department should prepare a new JV-135 form for re-notification of all of the tribes that were noticed in October 2007. If the court determines that the information in Mother’s letter is not sufficiently trustworthy and if there is no additional information forthcoming from the parents’ relatives, the court should order the Department to re-notice the two tribes that were improperly addressed, keeping in mind that the Department of the Interior’s most current list of designated tribal agents should be consulted to determine the proper addressees and addresses for those two tribes. Moreover, the Department and the court must comply with the statutory time requirements of the ICWA regarding notice and ICWA findings.
“Any Indian tribe entitled to notice pursuant to 25 U.S.C. 1912 may designate . . . an agent for service of notice other than the tribal chairman and send a copy of the designation to the Secretary [of the Department of the Interior] or his/her designee. The Secretary or his/her designee shall update and publish as necessary the names and addresses of the designated agents in the Federal Register. A current listing of such agents shall be available through the area office.” (25 C.F.R. § 23.12(2008).)
DISPOSITION
The order terminating the parents’ parental rights is reversed and the cause is remanded for further proceedings, consistent with the views expressed herein, for the sole purpose of ensuring compliance with the ICWA. If, after proper inquiries and notices are made, a tribe claims that M.C. is an Indian child, the dependency court shall proceed in this case in conformance with the provisions of the ICWA. If determinative responses from the tribes are not received within the statutory time period and no tribe claims in its response that M.C. is an Indian child, the order terminating the parents’ parental rights shall be reinstated.
We Concur: KLEIN, P. J., ALDRICH, J.
We note that the above mentioned Bureau of Indian Affairs list of designated tribal agents for ICWA notice (71 Fed.Reg. 43788-02 (Aug. 2, 2006)), states that publication of such list is done “in the Federal Register on an annual basis.”