Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Santa Barbara County Nos. J1174836, J1174837. Arthur A. Garcia, Judge.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Stephen Shane Stark, County Counsel, Toni Lorien, Deputy County Counsel, for Plaintiff and Respondent.
PERREN, J.
Jessica M. (mother) appeals an order of the juvenile court terminating her parental rights to her daughters, Nina G. and Olivia M. (Welf. & Inst. Code, § 366.26.) Mother contends the Santa Barbara County Child Welfare Services (CWS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We agree, reverse and remand for the limited determination of whether the ICWA applies.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
On February 11, 2006, CWS filed juvenile dependency petitions on behalf of minors Nina G. and Olivia M. At the time of filing, Nina was four years old and Olivia was one year old. Both were in the custody of their mother. Nina's father, Frank G., and Olivia's father, Robert M., were both incarcerated when the petitions were filed.
The children were detained when Olivia was hospitalized due to mother's failure to follow medical recommendations, and because mother exhibited strange behavior during Olivia's hospitalization. Mother also has a history of drug abuse. The petitions allege parental failure to protect and provide for the children, and inability to provide care due to mother's mental illness or substance abuse and the fathers' incarceration. (§ 300, subds. (b) & (g.).)
At the February 15, 2006, detention hearing, mother signed a "Parental Notification of Indian Status" (Judicial Council form JV-130) stating that she had no Indian heritage. The court found that Frank G. was the presumed father of Nina G. and Robert M. was the alleged father of Olivia M., but neither father appeared at the hearing. The juvenile court asked whether either Frank G. or Richard M. had any Indian ancestry. A person in the audience claimed Richard M. had Cherokee ancestry, but no information was provided as to Frank G. At the court's request, mother stated that she would provide information to CWS about Frank G.'s relatives. The court found that both children "may be" Native American Indians.
Both fathers appeared at a March 6, 2006, jurisdictional hearing but no inquiry was made about Frank G.'s possible Indian ancestry. After several continuances, the court sustained the petition on April 3, 2006.
The jurisdictional report states that the ICWA might apply to Olivia and a later CWS report states that ICWA inquiries had been initiated regarding Olivia but no reply had been received. On February 28, 2006, CWS mailed a "Notice of Involuntary Child Custody Proceedings For An Indian Child" (Judicial Council form JV-135) to the Cherokee Nation and the Bureau of Indian Affairs covering Olivia M. The notice failed to include Robert M.'s place of birth and designated Wasco State Prison as his only address. The record shows no notice regarding Nina G.
At the May 23, 2006, disposition hearing, the juvenile court ordered reunification services for mother, but no services were offered to either father. On October 2, 2006, reunification services for mother were terminated and a section 366.26 hearing was set. The court found that the ICWA did not apply to either child. An October 2, 2006, status report indicates that a judgment of paternity had been obtained establishing Robert M. as the father of Olivia M., but the court did not revise its earlier order that he was only an alleged father.
At the March 7, 2006, section 366.26 hearing, the juvenile court terminated parental rights as to mother and both fathers. The order also stated that no finding had been made as to Robert M.'s paternity of Olivia M.
DISCUSSION
Mother contends the juvenile court and CWS failed to comply with the ICWA notice requirements. We agree. As CWS concedes, the ICWA notice requirements were not satisfied as to either Frank G. or Robert M. The record includes no evidence of notice as to Nina G., and shows deficient notice regarding Olivia M. due to incomplete information.
The ICWA protects the interests of Indian children and Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) "The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)
The juvenile court and social services agencies have an "affirmative and continuing duty to inquire" whether a minor subject to dependency proceedings is, or may be, an Indian child. (Cal. Rules of Court, former rule 5.664(d); In re J.N. (2006) 138 Cal.App.4th 450, 461.) The "social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors" and "[a]t the first appearance by a parent . . . in any dependency case, . . . the parent . . . must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130)." (Cal. Rules of Court, former rules 5.664(d)(2) & (d)(3).)
The duty to provide notice under the ICWA arises whenever "the court knows or has reason to know that an Indian child is involved," and it is preferable to err on the side of giving notice. (25 U.S.C. § 1912(a); see Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257.) Once the ICWA notice provisions are triggered, notice must be sent to any tribe of which the child may be a member or may be eligible for membership and, if the tribe is unknown, to the Bureau of Indian Affairs. (25 U.S.C. § 1912(a); Cal. Rules of Court, former rule 5.664(f).)
Here, both dependency petitions checked the boxes stating that the child "may be a member of, or may be eligible for membership in, a federally recognized Indian tribe" or "may be of Indian ancestry." But, no "Parental Notification of Indian Status" form JV-130 was completed by either father and, based on the record, neither the court nor CWS inquired regarding whether Frank G. had any Indian ancestry, despite the fact that Frank G. and Robert M. appeared at several hearings between March 6, and May 23, 2006. There is also nothing in the record indicating any attempt by CWS to obtain Robert M.'s place of birth or any other information that might have been helpful in determining Indian ancestry.
Although conceding non-compliance with the ICWA, CWS argues that mother has no standing to raise the issue on behalf of the fathers. We disagree. In In re Jonathon S. (2005) 129 Cal.App.4th 334, 338-339, the court held that, for purposes of standing, a non-Indian mother was aggrieved by an ICWA notice violation because she had rights and benefits flowing directly from her status as a parent within the meaning of the ICWA. The court explained: "Even a non-Indian parent has rights under the ICWA. The ICWA defines 'parent' so as to include (subject to one exception not applicable here) 'any biological parent or parents of an Indian child. . . .' [Citation.] It then provides that 'the parent,' as well as the tribe, is entitled to notice. (25 U.S.C. § 1912(a).)" (Jonathon S., at p. 339.) "Moreover, giving notice to the tribe could result in a determination that [the minor] is in fact an Indian child. In that event, the juvenile court would have to make certain specified findings before it could terminate parental rights" and these "heightened" findings would "tend to benefit the non-Indian as well as the Indian parent." (Ibid.; see 25 U.S.C. § 1912(a), (d), (f).)
CWS also contends that the ICWA does not apply to Robert M. because a "parent" under the ICWA "does not include the unwed father where paternity has not been acknowledged or established." (25 U.S.C. § 1903(9); Cal. Rules of Court, former rule 5.664(a)(4); see also In re Daniel M. (2003) 110 Cal.App.4th 703, 708.) CWS argues that the juvenile court found Robert M. to be an alleged father, this finding was never changed, and the juvenile court has exclusive jurisdiction over dependency proceedings. (§ 316.2.)
We do not question the juvenile court's initial determination that Robert M. was only an alleged father but, subsequently, a paternity judgment was obtained establishing Robert M. as the biological father of Olivia M. A juvenile court is required to take judicial notice of a paternity judgment and, in this case, the court expressly adopted the CWS finding in its October 2, 2006, status report that Robert M.'s paternity had been established. (See Cal. Rules of Court, rule 5.635(d)(4).) It is clear that Robert M. is a "parent," for purposes of the ICWA and the absence of an express order was an error presumably resulting from oversight.
DISPOSITION
The order of March 8, 2006, terminating parental rights is reversed and the proceeding is remanded to the juvenile court with directions to order CWS to comply with the notice provisions of ICWA, and to file all required documentation with the court. If, after proper notice, a tribe claims either Nina G. or Olivia M. is an Indian child, the juvenile court shall proceed in conformity with the provisions of ICWA. If no tribe makes such a claim, the order of March 8, 2006, shall be reinstated.
We concur: YEGAN, Acting P.J., COFFEE, J.