Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SJ11569, Ernest Borunda, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.
HALLER, J.
Christina A. appeals a judgment terminating her parental rights to her son, Steven H., under Welfare and Institutions Code section 366.26. She contends the judgment
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
must be reversed because proper notice was not provided under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901). We hold because the record shows proper ICWA notice was not provided, the judgment must be reversed and the matter remanded for further proceedings to ensure compliance with the notice requirements of the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
On December 19, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of seven-month-old Steven, alleging Christina and Steven's father, Richard H., used methamphetamine to excess and their home was filthy.
Upon inquiry, Christina said she did not have American Indian heritage but believed Richard did. She mentioned the Barona Band of Kumeyaay Indians. The court ordered the Agency to prepare notice. Richard told the social worker he was registered with a Kumeyaay tribe, but was unsure of his status. He said his father has Cherokee heritage, but he had no other information and was not able to provide any contact information for his parents. He said he would try to reach his mother and other relatives and would complete an ICWA information form. He did not return the form and did not speak with the social worker again.
The Agency sent notice by certified mail to the Bureau of Indian Affairs (BIA), the Jamul Indian Village Kumeyaay, the Ewiiaapaayp Band of Kumeyaay Indians, and three Cherokee tribal groups, and supplied the information Richard had provided. Each notice was sent to the appropriate tribal address, but did not identify the name of the tribal chairperson or designated agent.
By January 30, 2006, the Agency had received correspondence from two Cherokee groups indicating that based on the information supplied, Steven was not an Indian child in relation to the Cherokee Nation, and they would not be intervening in the case. The certified mail return receipts were filed with the court. The court found true the allegation regarding the parents' drug use and dismissed the allegation regarding their home. It declared Steven a dependent child, found proper notice had been given under the ICWA and continued the matter to receive responses from the tribes that had been sent notice. On May 2, 2006, the court found the ICWA notice had been provided and the ICWA did not apply to Steven.
During the next six months, the parents did not comply with the requirements of their reunification plans. At the six-month hearing on August 30, 2006, the court terminated services and set a section 366.26 hearing. At the section 366.26 hearing on April 25, 2007, it terminated parental rights, finding Steven was adoptable and none of the statutory exceptions to adoption were present.
DISCUSSION
Christina contends the court erred by finding the ICWA did not apply. She argues the Agency's inquiry was inadequate, notice was not provided to all of the federally recognized Kumeyaay tribes and the mailings were not properly addressed to the tribal chairperson or designated recipient for each tribe.
Congress enacted the ICWA in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . ." (25 U.S.C. § 1902.) "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.) Section 1911 of the ICWA provides that a tribe may intervene in state court dependency proceedings. (25 U.S.C. § 1911, subd. (c).) Notice to the tribe provides it the opportunity to exercise its right to intervene. (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) The ICWA provides "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 child's tribe, by registered mail with return receipt requested, of the pending proceedings, and their right of intervention." (25 U.S.C. § 1912, subd. (a).) If the tribe is unknown, the notice must be given to the Secretary of the Interior. (Ibid.)
Christina argues the Agency did not follow the court's directive to interview her and others who might assist in establishing Indian heritage for Steven, but relied on Richard as its sole source of information. She also complains the Agency did not make continuing inquiry regarding Steven's possible Indian heritage. We do not find error in regard to these arguments. Richard was the individual who was identified as potentially having Indian heritage. Christina said she had no Indian background. Richard said he was possibly registered with a Kumeyaay tribe, but did not know if he were still registered because he had been convicted of a felony. He said his mother had information about the family's Indian status, but he had no contact information for her, he was estranged from his family and he and his mother did not speak. He said his father has Cherokee heritage, but he had no contact information for him either and could supply no further information other than his paternal grandparents' names. He told the social worker he would attempt to contact his relatives and would complete an information form, but he did not communicate with the social worker again and did not return the form. He did not make himself available to the social worker during the case and by the time of the hearing, his whereabouts were unknown. The social worker took all of the information Richard was able to supply and asked him for contact information for other relatives. Because he remained out of touch after that time, she was unable to secure more information. Christina's argument that out-of-state relatives who were evaluated for placement may have had further information is speculative. The record does not show the Agency did not make adequate inquiry.
However, we find merit in Christina's argument that the notice was deficient because it was sent to only two of the 13 federally recognized Kumeyaay tribal entities. She states in her brief that there are 13 Kumeyaay tribal units in San Diego County. (71 Fed.Reg. 43801, et seq. (Aug. 2, 2006); <http://www.kumeyaay.info>.) The record shows only two were sent notice of the proceedings. Thus, the judgment must be reversed to allow the Agency to provide proper notice to all 13 Kumeyaay tribal entities. In providing notice, the Agency must comply with California Rules of Court, rule 5.664(f)(2), which requires that the ICWA notice be sent to the tribal chairperson unless another agent has been identified. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213.) Because the record also shows notice to each tribal entity was addressed without specifying the tribal chairperson or other agent (and there was no response from three of these tribes), in addition to sending proper notice to the Kumeyaay tribal groups that were never afforded notice of the proceedings, the Agency must resend notice to the Cherokee group and two Kumeyaay entities that were previously sent notice but did not respond. We consider that the Agency substantially complied with notice requirements regarding the two Cherokee Bands and BIA that responded to the notice sent. If, after remand and proper notice, a tribe exercises its right to intervene, the court must proceed in compliance with the ICWA. If no tribe intervenes, the court may reinstate the judgment terminating parental rights.
DISPOSITION
The judgment is reversed. The court is directed to require the Agency to fully comply with the notice requirements of the ICWA. If, after notice, a tribe exercises its right to intervene, the court is directed to hold a new section 366.26 hearing. If no tribe exercises its right to intervene, the court is authorized to reinstate the judgment.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.