Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J36605
NEEDHAM, J.
Petitioner Kathleen R. (mother) seeks writ review of an order setting a permanency planning hearing under Welfare and Institutions Code section 366.26 in the dependency case of her daughter, Anastasia W. (Cal. Rules of Court, rules 8.450, 8.452.) Mother contends that real party in interest Solano County Department of Health and Social Services (Department) failed to comply with the Indian Child Welfare Act (ICWA), because the notices it sent to the relevant Indian tribes did not contain identifying information sufficient to allow a complete search of their registration rolls. The Department concedes the notices were inadequate and that the order must be reversed.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. Facts and Procedural History
Anastasia was taken into protective custody after mother allowed her to travel out of state with her former domestic partner, who left the child in the care of another person whose children were the subject of dependency proceedings. Mother also suffered from a number of mental health and drug abuse issues. A juvenile dependency petition was filed on May 16, 2006, alleging that Anastasia fell within the provisions of section 300, subdivisions (b), (c) and (g). At the detention hearing on May 17, 2006, mother filed Judicial Council form JV-130 stating that she may have Indian ancestry and that she may be a member or eligible for membership in the Cherokee Tribe.
On May 22, 2006, the Department sent notice of the dependency proceeding to the United Keetoowah Band of Cherokee, the Eastern Band of Cherokee Indians, and the Cherokee Nation (collectively, the Tribes), as well as the Bureau of Indian Affairs (BIA). The notice listed mother’s name as Kathleen R., Kathleen W., and Kathleen W.-R. It provided her current and past addresses, as well as her date of birth. The notice identified the maternal grandmother as Kathleen Elaine Smith and the maternal grandfather as Russell Smith, but did not provide the birth date or address of either grandparent, or the maiden name of the grandmother.
Mother pled no contest to an amended version of the dependency petition alleging failure to protect under section 300, subdivision (b). On June 21, 2006, the Department sent the Tribes and BIA notice of the upcoming disposition hearing. The identifying information regarding mother and the maternal grandparents was identical to that sent in the original notice.
The Department prepared a revised report for the disposition hearing, both of which noted that the mother’s middle name was “Gina,” that she believed she was 25 percent Cherokee Indian because her biological mother is half Cherokee, and that her biological mother’s maiden name was “Kathleen Elaine Garnett.” Mother had been placed in foster care at age three and has had no contact with her mother since then. She did not know the name of her own grandparents or whether her parents had been registered with the Cherokee tribe.
At the disposition hearing held July 17, 2006, the parties submitted to the Department’s recommendation that Anastasia remain in foster care and that mother receive six months of reunification services. As part of her reunification plan, mother submitted to a psychological evaluation in which she stated that her mother was Native American and she believed she was living in Fresno.
A six-month status review hearing report was filed by the Department on January 26, 2007, which stated that the ICWA did not apply because notices had been sent to the Tribes and the BIA, and the only responses received were from the BIA and Eastern Band of Cherokees stating that Anastasia was not eligible for membership. On January 31, the Department sent notices of the six-month review hearing to the Tribes and BIA, providing the same information as the prior notice, which included naming the maternal grandmother as “Kathleen Elaine Smith.”
The six-month review hearing was held on February 13, 2007, and mother was given an additional six months of services. The court determined that the ICWA did not apply because the Department had made reasonable efforts to comply with its provisions, but there had been no positive response from the Tribes or BIA. On February 28, the Department received a response from the Cherokee Nation requesting the maternal grandfather’s middle name and the dates of birth and maiden names of mother and the maternal grandmother. It also requested the birth dates of all listed relatives. The letter stated that it was impossible to validate or invalidate Anastasia’s Cherokee heritage without additional information. The Department did not respond to this letter.
The Cherokee Nation had been advised of mother’s date of birth.
On July 19, 2007, the Department filed a 12-month status review report indicating that mother was pregnant and that she had made her scheduled visits with Anastasia, but had been unable to fully comply with her reunification plan due to complications with her pregnancy. At the hearing on November 9, the court terminated services and set the case for a permanency planning hearing under section 366.26. There was no further discussion of the ICWA or its application.
II. Discussion
The ICWA (25 U.S.C. § 1901 et seq.) protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency actions. (In re D.T. (2003) 113 Cal.App.4th 1449, 1453-1454 (D.T.); see also Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30; 25 U.S.C. §§ 1902, 1903.) When a state court or social services agency “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(a); see also § 224.2, subd. (a); D.T., supra, at p. 1454.) The Indian status of the child need not be certain to trigger this duty. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422 (Kahlen W.).)
The notice requirement enables a tribe or the BIA to determine whether a child is eligible for membership. It also gives the tribe or BIA the opportunity to assert its rights under the ICWA and intervene in the dependency proceedings. (Kahlen W., supra, 233 Cal.App.3d at p. 1421.) Substantial compliance with the ICWA notice requirements is sufficient. (Id. at pp. 1421-1422.)
In this case, mother informed the Department that her biological mother was half Cherokee Indian, and initial notices were sent to the Tribes and BIA identifying the maternal grandmother only by her married name, “Kathleen Elaine Smith.” Before the disposition hearing was held, mother advised the Department that her mother’s maiden name was “Kathleen Elaine Garnett.” Yet the Department did not include this new information when it sent the ICWA notice of the disposition or six-month review hearings, and the court made a determination at the six-month review hearing that based on the lack of any positive response, the ICWA did not apply. This did not amount to substantial compliance with the ICWA, because the maternal grandmother might well have been enrolled in a Cherokee tribe under her maiden name rather than her married name. The Department concedes in its response to mother’s writ petition that the notices to the Tribes and BIA were incomplete and that the order setting the case for a hearing under section 366.26 must be reversed.
Although the grandmother’s maiden name was the most critical omission, we note that the Cherokee Nation sought additional information from the Department that was not contained in the notices. Moreover, the notices were not served on the tribal chairperson or designated agent for service of process for each of the Tribes, as is required by section 224.2, subdivision (a)(2). When the new notices are sent, the Department should comply with section 224.2. It should also include additional identifying information that is already known to it, such as mother’s middle name, and should make reasonable efforts to acquire other information regarding the maternal grandparents’ birth dates and addresses, as requested by the Cherokee Nation.
III. Disposition
The petition is granted. Let a writ issue directing the juvenile court to vacate its order setting the case for a section 366.26 hearing and further directing it to ensure that proper ICWA notice is sent to the Tribes and BIA. If, after receiving such notice, no tribe intervenes, the juvenile court shall reinstate its order and set a new date for the section 366.26 hearing. (See In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112.) If, upon proper notice, a tribe determines that the minor is an Indian child as defined by the
ICWA, the juvenile court shall conduct all further proceedings in conformity with all provisions of the ICWA.
This opinion is final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur. JONES, P. J., SIMONS, J.