Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Reversed with directions. Super.Ct.No. RIJ112288.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Ellen L. Bacon, under appointment by the Court of Appeal, for Minors.
OPINION
RICHLI J.
Richard T. (Father) appeals from the juvenile court’s order terminating his parental rights to his 3-year-old daughter, Monique T., and 21-month-old son, R.T., pursuant to Welfare and Institutions Code section 366.26. Father’s sole contention on appeal is that the juvenile court and the Riverside County Department of Public Social Services (DPSS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
ICWA requires that notice of a state court juvenile dependency proceeding be provided to any Native American tribe with which the child may be affiliated, or to the Bureau of Indian Affairs (BIA) if the tribe is not known. Federal guidelines, the California Rules of Court, and California statutory and case law require that any notice provided be filed with the juvenile court.
In the present case, despite Father claiming Native American ancestry, DPSS failed to send notices to the relevant tribes or to the BIA. County counsel concedes that DPSS and the juvenile court failed to comply with the notice requirements of the ICWA and therefore agrees a limited reversal is warranted in this case. We agree with the parties and will conditionally vacate the judgment and remand the matter to the juvenile court with directions to order compliance with the ICWA notice provisions.
I
FACTUAL AND PROCEDURAL BACKGROUND
This case originally began in June 2006 when DPSS removed the children from the parents’ care based upon allegations of substance abuse by the parents, the parents’ respective criminal histories, domestic violence between the parents, and the parents’ incarceration.
At the detention hearing, Father informed the court that his father (paternal grandfather) was “half Indian.” Father did not know with which tribe his father was affiliated; however, he indicated that his mother would have that information. Based upon Father’s statements, the juvenile court ordered that DPSS ask the paternal grandmother about the “Indian issues” and reserved “on the ICWA issues until [the social worker could] talk to paternal grandma and see what Indian tribe affiliations there [were].”
On June 23, 2006, the social worker spoke with the paternal grandmother, who confirmed that there was Native American ancestry. The grandmother reported that the paternal grandfather was deceased, and she was not sure “what kind of Indian he was.” She believed, however, that the paternal grandfather had Indian ancestry through the Columbus, Georgia tribe. The social worker checked the National Tribal Listing and found no information listed for a Native American tribe in Columbus, Georgia. “Due to insufficient information,” the social worker did not send notice to any tribe or to the BIA.
On June 29, 2006, the juvenile court found the allegations in the section 300 petitions to be true. The children were declared dependents of the court. Mother was granted reunification services, but services were denied to Father based upon his lengthy incarceration.
Mother’s reunification services were eventually terminated on April 2, 2007. On October 4, 2007, the court terminated the parents’ parental rights, and this appeal followed.
II
DISCUSSION
Father contends the juvenile court and DPSS failed to comply with the notice requirements of the ICWA, and therefore the court’s order terminating parental rights must be reversed. County counsel concedes the error, and agrees that a limited reversal of the judgment is required.
ICWA requires that notice of a state court juvenile dependency proceeding be provided to any Native American tribe with which the child may be affiliated, or to the BIA if the tribe is not known, if “the court knows or has reason to know that an Indian child is involved.” (25 U.S.C. § 1912(a).) 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); see also former Cal. Rules of Court, rule 5.664 (a)(1).) “The Indian status of a child need not be certain or conclusive to trigger the ICWA’s notice requirements. [Citation.]” (In re D.T. (2003) 113 Cal.App.4th 1449, 1454; see also In re Jonathan D. (2001) 92 Cal.App.4th 105, 110.)
Effective January 1, 2008, California Rules of Court, rule 5.664 was repealed, and the rules pertaining to ICWA can now be found at rule 5.480 et seq.
“‘To satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [a social service 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 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 Asia L. (2003) 107 Cal.App.4th 498, 507.)
It is the court’s duty to assure compliance with ICWA. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471-472.) “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.]” (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.)
Here, Father triggered the notice requirements by stating that he believed he had Native American ancestry from his father’s side. Per the juvenile court’s order, the social worker thereafter spoke with the paternal grandmother, who stated that she believed the paternal grandfather had American Indian ancestry through the Columbus, Georgia tribe. The social worker checked the National Tribal Listing and found no information listed for a Native American tribe in Columbus, Georgia. The social worker therefore determined there was insufficient information and did not send notice to any tribe or the BIA. However, the social worker should have sent notice to the BIA in accordance with the provisions of ICWA. The record is devoid of any notice to the BIA of the petition resulting in the termination of parental rights. Despite Father claiming Indian ancestry and failure to notify the BIA, DPSS simply concluded that ICWA did not apply. The juvenile court concluded that ICWA “does not apply to this case,” despite the fact that the record is devoid of any evidence that notice was given. We therefore cannot conclude that DPSS and the juvenile court complied with the notice provisions of the ICWA. Accordingly, we agree with DPSS that a limited reversal is warranted in this case. (In re Francisco W. (2006) 139 Cal.App.4th 695, 708; In re Jonathon S. (2005) 129 Cal.App.4th 334, 343.)
III
DISPOSITION
The order terminating parental rights is conditionally reversed, and we order a limited remand, as follows:
The juvenile court is directed to order DPSS to give notice in compliance with the ICWA and related federal and state law.
Once the juvenile court finds that there has been substantial compliance with the notice requirements of the ICWA, it shall make a finding with respect to whether the children are Indian child. (See former Cal. Rules of Court, rule 5.664(g).) If at any time within 60 days after notice has been given there is a determinative response that the children are or are not Indian children, the juvenile court shall find in accordance with the response.
If there is no such response, the juvenile court shall find that the children are not Indian children. If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights.
If the juvenile court finds that the children are Indian children, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with the ICWA and all related federal and state law.
We concur: McKINSTER, Acting P.J., KING, J.