Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J217212. Wilfred J. Schneider, Jr., Judge.
Lisa A. DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Gaut J.
Father, G.G., appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his nine-year-old daughter, S.G., who came into the dependency system after she was sexually abused by friends of father’s. The paternal grandfather informed the Children and Family Services (CFS) social worker that he had Indian heritage at an early stage of the proceedings, and CFS sent notices to various tribes. However, the notices gave incorrect and incomplete information about relatives despite the fact the relatives were available to provide the biographical ancestral information about Indian heritage.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
Father argues that the information provided in the notices sent to Indian tribes pursuant to the Indian Child Welfare Act (ICWA) was incorrect and incomplete, requiring reversal of the order terminating parental rights. CFS argues that the trial court’s finding at an earlier hearing that ICWA did not apply is res judicata. We reverse and order the court to ensure compliance with ICWA’s notice requirements.
BACKGROUND
Father had sole custody of S.G., age seven at the time of the initiation of dependency proceedings, since 2005. Father and S.G. lived in a small, one-room adobe like structure in a rural area with inadequate plumbing and electricity. Father is illiterate and has difficulty hearing. In July 2006, a referral was made to Department of Children’s Services (DCS) regarding suspected sexual abuse of S.G. by a friend of father’s, but no action had been taking because the minor’s inconsistent statements led the investigators to determine the charge was not substantiated, and because father took steps to protect S.G. from the perpetrator. However, in August 2007, another referral was made to DCS based on new allegations that S.G. had been sexually abused by another friend or relative of father’s. This allegation was substantiated and while father was cooperative, he did not seem to comprehend the extent of the danger to S.G. by allowing his friends to visit.
A dependency petition was filed on September 21, 2007, alleging neglect (§ 300, subd. (b)), due to father’s failure to protect, failure to provide adequate shelter (father and S.G. lived in a one-room adobe-type structure that lacked utilities), and inability to provide regular care due to his developmental disability. The petition also alleged sexual abuse (§ 300, subd. (d)), relating to father’s failure to protect S.G. from sexual abuse by two perpetrators, despite his knowledge that she was in danger of such abuse. S.G. was detained in foster care pending the jurisdictional hearing.
The detention report indicated ICWA may apply because the paternal grandfather indicated he had Sioux and Ojibwa ancestry. Notices were sent to numerous tribes, listing the father’s name, date and place of birth, and the paternal grandfather’s name, but no information about his date or place of birth, and no information about the paternal grandmother other than to refer to her as “John Arnold,” obviously in error. The tribes responded that based on the information provided, S.G. was not a member of a tribe. None of the responses indicated that the tribe had searched for the paternal grandfather’s name on tribal rolls.
On December 3, 2007, at the jurisdiction hearing, father submitted on the allegations after an amendment was added reflecting that the neglect was due to father’s difficulty in comprehending and accepting the fact that a relative could sexually abuse his daughter, impairing his ability to protect her. The court declared S.G. to be a dependent child, removed her from father’s custody, approved a reunification plan, and ordered father to participate in services. The court also ordered weekly unsupervised visits for father.
Throughout the dependency, S.G. exhibited problematic behavior, including sexualized behavior, and father did not parent her properly during most visits. The social worker also observed that the minor lacked manners. Because father smelled of alcohol when he met with her, the social worker ordered a drug test. The drug test came back positive for marijuana and benzodiazepines. Father had a letter from a doctor recommending medical marijuana use, although the doctor did not indicate the diagnosis for which the marijuana was prescribed.
Father participated minimally in services, and he informed the counselor that his sister helped him with his homework because he was illiterate, so the counselor could not tell if he was benefitting. The father’s sister informed the social worker that father has a drinking problem. In January 2008, the social worker confronted father about his marijuana and alcohol use, informing him that he would have to complete a substance abuse program and submit to drug tests twice monthly. Father’s subsequent drug tests were positive for marijuana also. DCS recommended reducing visitation to one hour every other week. On January 31, 2008, the court ordered a psychological evaluation of father. At that interim review hearing, the court also found that ICWA did not apply.
The psychological evaluation revealed he functions in the mentally defective range, with an IQ of 64. During the evaluation, father admitted to regular use of marijuana. The evaluator expressed concern about father’s cognitive deficits and his tendency to be concrete, as well as his impaired judgment and poor decision making. The psychologist also noted that father’s cognitive deficits made it debatable whether he could truly conceptualize the molestation of his daughter, or the inherent complexities of providing solid parenting for his daughter. He concluded by stating that while father cared for his child, he could not provide adequate parenting due to his limitations.
Nevertheless, an additional period of services was recommended and in April 2008, father agreed to a revised case plan including individual counseling, another parenting class, drug treatment and random testing, and sexual abuse counseling, among other components, and services were extended for another six months.
In October 2008, DCS submitted its report for the 12-month review hearing. The report documented S.G.’s escalating behavior problems, which included trouble focusing, abusing animals, urinating on stuffed animals, and a demanding nature. She wanted to be removed from her foster home, but referred to the foster parents as “mom” and “dad.” Father’s participation in the revised plan was minimal: he had attended only four meetings of Alcoholics Anonymous/Narcotics Anonymous, and had not demonstrated benefit from counseling, which was terminated due to his failure to attend and he continued using marijuana. Further, father had not completed the additional parenting class, and was inconsistent with visits.
Although the foster parents were not interested in adopting S.G., the social worker considered adoption likely, recommending that services be terminated and that a selection and implementation hearing (§ 366.26) be set. The contested 12-month review hearing was held on December 16, 2008. After reviewing the reports and hearing the testimony of the social worker, the court found it would be detrimental to return S.G. to her father’s custody, that father had failed to make substantive progress in addressing the problems that led to the dependency, and that DCS had provided reasonable services to reunify father and S.G. It also concluded that visits were detrimental. The court terminated services, suspended visitation, and scheduled a hearing for the selection and implementation of a permanent plan of adoption. (§ 366.26.)
Father timely filed a notice of intent to file a petition for extraordinary relief on the grounds (1) he was not provided with reasonable services tailored to meet his needs as a person with intellectual challenges (64 IQ), and (2) the court improperly suspended visits. We affirmed the trial court’s judgment on March 9, 2009.
On May 21, 2009, the court conducted a contested hearing as to the selection and implementation of a permanent plan for S.G. (§ 366.26.) The court found by clear and convincing evidence that it is likely the child will be adopted and terminated parental rights. Father timely appealed.
DISCUSSION
The sole issue presented in this appeal is whether the trial court’s finding that ICWA does not apply is supported by sufficient evidence that the notice to the tribes was adequate. We conclude the notices contained incomplete and incorrect information, and were insufficient to support the finding that ICWA does not apply.
The ICWA protects the interests of Indian children and promotes the stability and security of 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; In re Holly B. (2009) 172 Cal.App.4th 1261, 1266.) If there is reason to believe 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).)
Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families because it ensures the tribe will be afforded the opportunity to assert its rights under ICWA irrespective of the position of the parents, Indian custodian or state agencies. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Because failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, ICWA notice requirements are strictly construed. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) The notice sent to the Indian tribes must contain enough identifying information to be meaningful. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.)
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. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) The federal regulations relating to ICWA notices require inclusion of information about the child, the tribe in which the child is enrolled or eligible for enrollment, the names and addresses of the parents, grandparents, great-grandparents and other identifying information, in addition to information about the dependency. (In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) It is essential for the agency to provide the Indian tribe with as much information as is known about the child’s ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) A notice that does not include sufficient information, or includes incorrect information about the dependent child’s ancestors, is meaningless, and does not satisfy the notice requirements of ICWA. (Ibid.)
In In re Louis S., supra, the court noted that the notices to the tribes contained misspelled and incomplete names, and did not provide birthdates for either the maternal or paternal grandmother. The reviewing court concluded the incorrect and incomplete information prevented the tribe from conducting a meaningful search to determine Louis’s tribal heritage. (In re Louis S., supra, 117 Cal.App.4th at p. 631.) In In re Jennifer A. (2002) 103 Cal.App.4th 692, 705, the reviewing court came to a similar conclusion based on a “dearth of information” provided to the Cherokee Nation.
In the present case, the notices included incomplete and inaccurate information about the paternal relatives, who are the relatives with Indian heritage. Father informed CFS prior to the detention hearing that he had Indian heritage and CFS was aware that the paternal grandfather was very close with the father, and that the paternal grandfather indicated Sioux and Ojibwa ancestry. The paternal grandfather lives in a trailer on the same parcel of land as the father, so CFS was aware of his location in order to obtain additional biographical information about him and his relatives with Indian heritage. CFS also had contact information regarding father’s sister, the paternal aunt, another source of information about Indian heritage and biographical information about the paternal grandmother, who was misnamed in the notices and about whom no other information was provided.
There is no information in the record indicating that mother had any Indian heritage, while there is information that father is, at a minimum, eligible for membership in a tribe.
Noncompliance with ICWA has been a continuing problem in juvenile dependency proceedings conducted in this state, and, by not adhering to this legal requirement, we do a disservice to those vulnerable minors whose welfare we are statutorily mandated to protect. (In re I.G. (2005) 133 Cal.App.4th 1246, 1255.) CFS had all the means necessary to marshal the necessary biographical data about father and his tribal affiliation—or eligibility for tribal membership—but failed to do so. Because incomplete and inaccurate information was provided in the notice to the tribes, there is insufficient evidence to support the conclusion that ICWA does not apply.
CFS argues that the juvenile court’s finding that ICWA does not apply is res judicata because the finding was made in an appealable order in January 2008. We disagree. In general the forfeiture doctrine does not bar complaints on appeal concerning the application of ICWA. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) As many decisions have recognized, the notice requirements serve the interests of the Indian tribes irrespective of the positions of the parents and cannot be waived by the parent. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) A parent in a dependency proceeding is permitted to raise ICWA issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.)
CFS places great reliance upon our decision in In re Jonathan S. (2005) 129 Cal.App.4th 334 [Fourth Dist., Div. Two] in arguing that the finding made at the previous hearing that ICWA does not apply is res judicata. We did not hold that the mother in that case was precluded from raising an ICWA notice violation where the finding that ICWA did not apply occurred at an earlier hearing. In Jonathan S., mother raised the ICWA issue on appeal from a judgment terminating parental rights, but requested that we reverse the earlier order. (Id. at p. 339.) We noted that res judicata principles prevented us from reversing any prior orders, but we did examine the ICWA question on the current appeal, reversing the order terminating parental rights, with a limited remand directing compliance with ICWA. (Id. at pp. 342-343.)
We do the same here. Although we will not reverse the January 2008 order in which the finding was made, we will reverse the order currently under review for a limited remand.
DISPOSITION
The order terminating parental rights is reversed. The court is directed to order CFS to investigate and obtain complete and accurate information about paternal relatives and to provide corrected ICWA notices to the relevant tribes. If after receiving proper notice, an Indian tribe intervenes, the trial court shall proceed in accordance with ICWA. If no Indian tribes intervene after receiving proper notice, the judgment shall be reinstated.
NOT TO BE PUBLISHED
We concur Richli Acting P. J., Miller J.