Opinion
C059232.
2-25-2009
In re S.M. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. J. M. et al., Defendants and Appellants.
Not to be Published
Appellants J. M. (father), father of S.M., and Sh.M. (mother), mother of S.M., J.H. and T.P. (the minors), appeal from the juvenile courts order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further statutory references are to the Welfare and Institutions Code unless otherwise noted.) Father claims that notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) as to S.M. was insufficient. Mother joins in this argument. Because relevant information relating to fathers Indian heritage was omitted from the ICWA notice regarding S.M., we shall remand her matter for proper notice. As appellants have not raised any issues concerning the other minors, the appeals shall be dismissed in their matters.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2007, the Sacramento County Department of Health and Human Services (the Department) filed petitions concerning four-month-old S.M., seven-year-old J.H. and 10-year-old T.P., as well as their two older siblings, alleging that mother tested positive for amphetamines at S.M.s birth, after which appellants agreed but failed to participate in voluntary services.
Prior to the detention hearing, mother disclosed she had Cherokee ancestry through her grandmother. On the date of the detention hearing, mother submitted a form stating she might be a member or eligible for membership in the "Cherokee" tribe, and father submitted a form stating he may have Indian ancestry. The juvenile court ordered notice to the Cherokee tribes and the Bureau of Indian Affairs (BIA), and ordered appellants to cooperate with the Department in providing information required for ICWA notice and to complete a "JV-135 form" and return it to the Department within 48 hours.
Judicial Council form JV-135 is used to provide ICWA notice.
The Departments ICWA paralegal submitted a declaration approximately three weeks later stating that the Department had not received any documentation from appellants concerning their Indian heritage. The paralegal spoke to the mother and obtained the name of the mothers maternal grandmother, who mother reported was "full Cherokee." Mother stated she would attempt to obtain further information about this relative, and the paralegal made two further attempts, both unsuccessful, to obtain this information from mother.
The paralegal also spoke to fathers mother, who informed her that the father had Cherokee heritage "from the paternal grandfathers side of the family and that his children should be getting `Indian money." According to the paralegal, the paternal grandmother "did not provide . . . the paternal grandfathers name," but said she would call some of his relatives for additional information and contact the paralegal the next day. The paralegal did not hear back from the paternal grandmother, despite leaving three messages for her.
ICWA notices were sent to the BIA and the three federally-recognized Cherokee tribes containing, in substance, the information that had been provided concerning the minors Indian heritage. Each tribe responded that, based on the information provided, it had determined the minors were not members or eligible to become members.
Shortly after the ICWA notices were sent, father was interviewed by the social worker, at which time he provided the name of the paternal grandfather and reported that he had continued contact with him. Additionally, the social worker received calls from the paternal grandmother and aunt expressing interest in having S.M. placed with them.
At a hearing in May 2007, mother reviewed the ICWA notice and verified its accuracy, but the record does not reflect that father was provided the notice to review.
In June 2007, an amended petition was filed concerning S.M., adding an allegation that father had absconded with her following a visit in May 2007, after which he left her with "total strangers" who reported the minor had been abandoned. Father was arrested for kidnapping and was facing parole revocation proceedings.
In August 2007, the Departments ICWA paralegal sent letters to the BIA and the Cherokee tribes with updated information that the mother recently had provided regarding the names of the maternal grandparents. Information concerning the paternal grandfather was not included in the notice. Again, all three tribes responded that the minors were not members or eligible for membership.
At the jurisdictional/dispositional hearing in August 2007, the juvenile court sustained the allegations in the amended petition, denied reunification services to the father and ordered mother to comply with the case plan. The court set the matter for an ICWA compliance hearing.
At the ICWA compliance hearing, the juvenile court found there had been compliance with the ICWAs notice provisions and that the minors were not Indian children.
Mother did not comply with her case plan and did not visit the minors for several months following an incident in August 2007 when she absconded with the two younger minors during an unapproved, unsupervised visit with them. At the review hearing, the juvenile court terminated mothers reunification services and set the matters for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minors.
At the section 366.26 hearing in May 2008, parental rights were terminated as to S.M. and J.H., who were both found to be adoptable. T.P. had been found difficult to place at a previous hearing, and the date for review of her matter was continued.
DISCUSSION
Appellants claim the ICWA notice was deficient because it did not include information about the paternal grandfather. We agree.
Congress passed the ICWA "to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children `in foster or adoptive homes which will reflect the unique values of Indian culture . . . ." (In re Levi U. (2000) 78 Cal.App.4th 191, 195; 25 U.S.C. § 1902; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30 .)
Among the procedural safeguards included in the ICWA is a provision for notice, which states in part: "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).) ICWA notice must include "[a]ll names known, and current and former addresses of the Indian childs biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information." (25 C.F.R. § 23.11; § 224.2, subd. (a)(5)(C).)
If the social worker "has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information" required to be provided in the ICWA notice. (§ 224.3, subd. (c).)
Errors in ICWA notice are subject to harmless error review. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
In the present matter, the Department had been informed that father has Cherokee heritage on the paternal grandfathers side and was provided the paternal grandfathers name. Father, who was in custody during most of the proceedings and could have been contacted by the Department at any time, reported that he had continued contact with the paternal grandfather, suggesting that father could have provided additional information about him. Other paternal relatives also had been in contact with the social worker. Yet, the Cherokee tribes were never provided with information about the paternal grandfather or his family. And nothing in the record suggests that further information was sought from father or other relatives concerning fathers Indian heritage. Consequently, the ICWA notice provided in this matter concerning S.M. was deficient.
Noting that ICWA notice is required only "where the court knows or has reason to know that an Indian child is involved" (25 U.S.C. § 1912, subd. (a)), the Department maintains the information before the juvenile court was insufficient to give it reason to know the minors were Indian children, i.e., that they were members of a tribe or eligible for membership and the children of a member. (See 25 U.S.C.A. § 1903(4).) However, one of "[t]he circumstances that may provide reason to know the child is an Indian child . . . [is if] [¶] [a] person having an interest in the child, including . . . a member of the childs extended family[,] provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the childs biological parents, grandparents, or great-grandparents are or were a member of a tribe." (§ 224.3, subd. (b)(1); see also Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979).) Thus, contrary to the Departments contention, a claim that the children or their parents are members of a tribe is not necessary to trigger the notice requirements of the ICWA. It is sufficient if, as here, a member of the extended family provides information suggesting that the minors grandparent or great-grandparent is a member of a tribe.
The Department also suggests that ICWA notice was only required to include "information resulting from its ICWA investigation" and not "additional family information received by [the Department] in the course of providing services." They are incorrect. The bifurcation of duties within a social services agency does not relieve that agency of the continuing duty of inquiry regarding Indian heritage and the duty to provide relevant information to the tribes that it discovers at any time during the proceedings. (See § 224.3, subd. (a).)
Finally, the Department claims that any error was harmless because the fathers Indian ancestry "was completely uncertain" and "[a]dditional information would not have led to identifying the [minor] as Indian." But the Indian status of a child need not be certain or conclusive to trigger the ICWAs notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) We cannot deem the error harmless here, where no information was provided in the ICWA notice regarding the paternal relative or relatives who were identified as having Indian heritage.
Appellants argue that all orders after the detention hearing must be vacated due to the inadequate ICWA notice. We disagree. "Aside from its notice provisions, the ICWA applies only to Indian children." (In re L.B. (2003) 110 Cal.App.4th 1420, 1427.) No determination has been made that S.M. is an Indian child. If, upon remand, such a determination is made, the remedy is a petition to invalidate prior orders. (25 U.S.C. § 1914; see In re Desiree F., supra, 83 Cal.App.4th at pp. 475-476.) Until such time, it would be premature to vacate orders other than those made at the section 366.26 hearing. (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-710.)
DISPOSITION
The order terminating parental rights as to S.M. is vacated, and the matter is remanded with directions to the juvenile court to direct the Department to make additional inquiry regarding the paternal grandfather and his Indian relatives in an effort to obtain available identifying personal and tribal information. In addition, the court is directed to order new notices to issue in compliance with the ICWA, which are to include information concerning the paternal grandfather, as well as all other required information in the Departments possession concerning the familys Indian heritage. Following such notice, if a tribe determines that S.M. is an Indian child, or if other information is presented to suggest she is an Indian child as defined by the ICWA, the juvenile court is ordered to conduct a new hearing pursuant to section 366.26 in conformity with all provisions of the ICWA. If, after proper notice, no tribe determines that S.M. is an Indian child or no response is received indicating she is an Indian child, all previous findings and orders shall be reinstated.
No issue having been raised as to J.H. and T.P., the appeals in their matters are dismissed.
With regard to T.P., we note that the issue is currently pending before the California Supreme Court whether a continuance of the section 366.26 hearing to find an appropriate adoptive family in a case where a child has been deemed difficult to place is an appealable order. (In re S.B. (2008) 160 Cal.App.4th 21 , review granted May 21, 2008, S162156.)
We concur:
RAYE, J.
ROBIE, J.