Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. INJ015809 Christopher J. Sheldon, Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent. Jennifer Mack, under appointment by the Court of Appeal, for Minors.
OPINION
RICHLI J.
Ricky M. (Father) appeals from a Welfare and Institutions Code section 366.26 hearing wherein his parental rights to R.M. (R.) and M.M. (M.) were terminated. Father’s sole claim on appeal is that there was insufficient evidence that notice was given as required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related federal and state law.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
In his notice of appeal filed in the juvenile court, Father indicated that he was only appealing the termination of parental rights to R. and M. However, in his opening brief, Father appears to claim (although it is not entirely clear) that the appeal pertains not only to R. and M., but also to C.V. (C.) and V.M. (V.), who were included as dependents in the juvenile court proceedings. The Riverside County Department of Public Social Services (the Department) claims that Father has no standing to raise inadequate ICWA notice as to C., of whom he is not the biological father. The Department also claims that the notice of appeal was deficient as to V. and therefore asks this court not to consider the orders pertaining to her in the instant appeal. We will address these issues, post.
We agree that that there was insufficient evidence of even substantial compliance with the ICWA notice requirements. Accordingly, the appropriate appellate remedy is a conditional reversal and limited remand. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704-710; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343.)
I
FACTUAL AND PROCEDURAL BACKGROUND
A. First Section 300 Petition
On February 24, 2004, a section 300 petition was filed by the Department against Suzanna L. (Mother) for then six-year-old C. and one-year-old V., and against Father for V., for failure to protect, severe physical abuse, and abuse of sibling (§ 300, subds. (b), (e) & (j)). Father was the biological father of V. but not of C. According to the petition, V., who was medically fragile due to cerebral palsy, had a burn or injury to her neck and back that neither Mother nor Father could explain, Mother had admitted to drug use while she was pregnant with V., and Father had tested positive for marijuana on February 14, 2004.
C.’s biological father’s whereabouts were unknown at the time. The juvenile court found probable cause supported the petition and formally detained V. and C.
Mother and Father fully cooperated with the Department. At the jurisdictional hearing, V. and C. were placed back with Mother and Father with a family maintenance plan. The dependency proceeding was terminated on July 12, 2004.
B. Second Section 300 Petition Resulting In Termination of Parental Right for R., M., and C. and Permanent Planned Living Arrangement for V.
Mother and Father had two more children together, R. and M. All four children were detained on December 9, 2005, after Mother gave birth to M. Mother and M. tested positive for amphetamines and methamphetamines, and because the living conditions at the maternal grandparent’s home where the other children were staying was unacceptable, they were also detained. Father was listed as the biological father of M., R. and V.; E.V. was listed as C.’s father, but his whereabouts were unknown. C., R., and M. were placed in confidential foster care, and V. was admitted to the hospital.
On December 13, 2005, a section 300 petition was filed for all four children based on inadequate supervision; willful and negligent failure to provide adequate food, clothing or shelter; and inability to care for the children due to substance abuse (§ 300, subd. (b)) and for no provision of support (§ 300, subd. (g)). On December 14, 2005, the juvenile court found prima facie evidence supported the petition and formally detained the children.
After the juvenile court made jurisdictional findings, C. was placed with his maternal grandparents, V. remained in the hospital, and R. and M. were placed with the paternal grandparents. The family participated in reunification services. Father got a job, rented an apartment for the family, and reconciled with Mother. On July 5, 2006, all of the children were returned to Mother’s custody, and V., who remained in specialized care, was allowed to return home on weekends for unsupervised visits.
In December 2006, the maternal grandmother advised the Department that Mother had relapsed and was again taking drugs. Father had lost his job. Mother was homeless and had had a positive drug test. As a result, C., R., and M. were detained again and placed with the maternal grandmother, and the Department filed a supplemental petition pursuant to section 387. V. remained as an inpatient at the Children’s Sub Acute Unit at the San Bernardino Community Hospital.
C.’s father, E.V., was located by the time of the section 387 hearing. It was not recommended that he receive reunification services due to his long-term incarceration and because there was no parent-child bonding.
On March 13, 2007, after finding the allegations in the section 387 petition true, the juvenile court terminated reunification services. It selected a permanency plan of adoption for C., R., and M., most likely by the maternal grandparents, who had agreed to adopt all three children. A planned permanent living arrangement (PPLA) was selected for V., because the maternal grandparents were incapable of caring for her and because there was no other adoptive family. A hearing pursuant to section 366.26 was set.
On July 16, 2007, at the section 366.26 hearing, the juvenile court found that it was likely that M., C., and R. would be adopted together by the maternal grandmother and that termination of parental rights would not be detrimental to them. Accordingly, it terminated the parental rights of Father, Mother, and E.V. to those three children. Since there was no suitable adoptive home for V., a PPLA was selected for her. She remained in the children’s unit in San Bernardino but was awaiting an opening at the Angel View Children’s Habitation Center, which was closer to the maternal grandparent’s home.
Father filed a notice of appeal from the termination of parental rights for M. and R. He did not designate in his notice that he was appealing the PPLA for V. or the termination of parental rights for C.
II
ICWA NOTICE
Father contends that there was insufficient evidence of compliance with the notice requirements of the ICWA.
A. Additional Factual and Procedural Background.
At the time the first section 300 petition was filed in 2004, the Department was ordered to investigate the possibility of Indian heritage as to V. and C. The paternal grandmother advised the Department that her grandmother was of Indian heritage, specifically, the “Catawau” Tribe of South Carolina. The Department claimed to have sent notice of the petition to the tribe on March 11, 2004, but no proof of service is included in the record. The Department also claimed to have served the jurisdictional report, addendum report, and interim review report on the “Catawba Indian Nation” or the “Catawau Indian Nation” in South Carolina and the Bureau of Indian Affairs (BIA), but again no proof of service appears in the record. The original petition was eventually dismissed when C. and V. were returned to Father’s and Mother’s custody.
When the new section 300 petition was filed in 2005, according to the detention report, the Department did not believe that the ICWA applied because Mother had advised them on December 9, 2005, that neither she, Father, nor E.V. had Indian ancestry.
At the detention hearing held on December 14, 2005, the juvenile court noted that Father might have Indian heritage. That same day, Father filed a parental notification of Indian status(JV-130) form, notifying the Department and the juvenile court that he might have Indian ancestry. Father did not designate any particular tribe. Mother claimed she had no Indian ancestry.
Despite this notification, in a jurisdictional report filed on January 3, 2006, and the status review report filed on June 15, 2006, the Department stated that ICWA did not apply. The Department continued to state in its reports that ICWA was not applicable to any of the children.
On July 16, 2007, at the section 366.26 hearing, the juvenile court found once again that ICWA did not apply.
B. Analysis.
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, in accordance with former California Rules of Court, rule 5.664(d)(3), Father completed a form JV-130 identifying himself as having possible Indian ancestry. Once Father identified himself as having Indian ancestry, the BIA was to be notified of the instant proceedings for Father’s biological children. Furthermore, in the prior proceedings, Father’s mother claimed affiliation with the “Catawau” tribe of South Carolina. The only similar tribe listed in South Carolina is the Catawba Indian Nation. (See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 70 Fed.Reg. 71194-01 (Nov. 25, 2005), 68 Fed.Reg. 68180-01 (Dec. 5, 2003).) That tribe should also have been notified of the instant proceedings, assuming it is the same tribe identified by the grandmother.
The record is devoid of any notice to the Catawba tribe or the BIA of the petition resulting in the termination of parental rights for Father’s biological children, R. and M. Despite Father filing a form JV-130 claiming Indian ancestry, there is nothing in the record showing that the Department notified the BIA or the Catawba tribe, nor is there any evidence of a reply from either the BIA or the tribe. The Department simply concluded after the form JV-130 was filed that ICWA did not apply. The juvenile court also concluded that ICWA was not applicable, despite the fact that the record is devoid of any evidence that adequate notice was given. We therefore cannot conclude that the Department complied, or even substantially complied, with the notice provisions of the ICWA as to R. and M.
If Father is requesting that the orders pertaining to C. and V. also be reversed due to inadequate notice, we find that on remand no notice is required as to C. and V.
The notice requirement of ICWA is not applicable to C. Former California Rules of Court, rule 5.664(a)(4) provides that a parent of an Indian child “means the biological parent . . . or any Indian person who has lawfully adopted an Indian child” and “does not include . . . an unwed alleged father where paternity has not been determined or acknowledged.” There was no dispute below that E.V., not Father, was C.’s biological father. Father has never claimed that he adopted C. Although Father fails to acknowledge this fact in his brief, there is simply no evidence before this court showing that he was C.’s biological father. Accordingly, Father has no standing to dispute the termination of parental rights to C. based on inadequate ICWA notice.
As for V., who is clearly Father’s biological daughter, but for whom a PPLA was ordered and Father’s parental rights were not terminated, we agree with the Department that the notice of appeal was deficient. If Father wanted to appeal the PPLA as to V., the notice of appeal form should have been so marked; it clearly provides for such an appeal. Although the general rule is that a notice of appeal is to be liberally construed (see Cal. Rules of Court, rule 8.400(c)(2); In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017), here, since the form specifically provided for an appeal from the PPLA order, and defendant specified that he was appealing the termination of rights as to R. and M. only, nothing in the notice of appeal could be construed to find this instant appeal applicable to V. Furthermore, that defendant intended only to appeal the termination of parental rights to R. and M. is supported by the fact that defendant stated in his opening brief that he was only appealing the termination of parental rights. Finally, defendant has failed to file a reply brief disputing the Department’s argument that his appeal is only applicable to R. and M. Accordingly, we remand only so that the Department can give proper notice for R. and M.
Counsel representing the minors in this case filed a letter brief on February 27, 2008. In that brief, counsel concedes that the ICWA notice was not required for C. However, counsel disputes the Department’s claim that the notice of appeal was deficient as to V. and asks that, if remand is ordered, it apply also to V. Minor’s counsel argues that the notice of appeal should be liberally construed to include V. Since it is not clear that it was defendant’s intent to include V. when filing his notice of appeal, and he does not make any direct argument as to V. in his brief, we decline to include V. on remand.
III
DISPOSITION
The order terminating parental rights as to only R. and M. is conditionally reversed, and we order a limited remand, as follows.
As soon as reasonably practicable, the Department shall file a motion for findings with respect to (1) whether it has complied with the notice requirements of ICWA and related law, and (2) whether R. and M. are Indian children. (See Cal. Rules of Court, rule 5.481.) The Department should confirm that the children are affiliated with the Catawba tribe. The Department may choose to introduce evidence concerning possible notice that it has already been given and any response to such notice. If no notice has been given, the Department shall give notice, and wait for any response, before it files the motion.
If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights as to M. and R. If the juvenile court finds that M. and R. are Indian children, it shall set a new section 366.26 hearing as to them only and conduct all further proceedings in compliance with ICWA and related law.
The judgment is affirmed in all other respects.
We concur: McKINSTER Acting P.J., KING J.