Opinion
B233097
12-07-2011
In re J.G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. HELEN M., Defendant and Appellant.
Helen H. Yee, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK80426)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Juvenile Court Referee. Reversed and the matter is remanded to the juvenile court with directions.
Helen H. Yee, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel for Plaintiff and Respondent.
Helen M.'s parental rights with respect to her son J.G. were terminated pursuant to section 366.26 of the Welfare and Institutions Code. Helen M. claims on appeal that the Department of Children and Family Services (DCFS) failed to give adequate notice under the Indian Child Welfare Act (25 U.S.C.§ 1901 et seq.) (ICWA). We reverse and remand with directions.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
J.G. came to the attention of DCFS at birth when Helen M. tested positive for cocaine and marijuana use. Helen M. signed a case plan agreeing to complete individual counseling, parenting classes, substance abuse treatment, and random drug testing. After Helen M.'s first three tests indicated that she continued to use drugs, DCFS filed a dependency petition alleging that J.G. fell within the jurisdiction of the juvenile court under section 300, subdivisions (b) and (g).
On January 15, 2010, J.G. was declared a dependent child of the court under section 300, subdivision (b); he was soon placed in the home of his maternal great-grandmother. The juvenile court ordered monitored visitation and family reunification services. Initially, Helen M. made progress: she enrolled in an outpatient drug rehabilitation program, passed six drug tests, and participated in individual counseling, substance abuse counseling, and parenting education. As 2010 progressed, however, she repeatedly tested positive for controlled substances and also began missing days of treatment. The concurrent planning assessment recommended adoption by the maternal great-grandmother should reunification with Helen M. fail. An adoption home study was performed on the maternal great-grandmother's home.
In February 2011, Helen M.'s substance abuse program discharged her due to her noncompliance with the program and a lack of commitment to recovery. Helen M. tested positive for illegal substance use in December 2010 and January 2011.
In May 2011, the juvenile court terminated Helen M.'s parental rights and freed J.G. for adoption, designating the maternal great-grandmother as the prospective adoptive parent. Helen M. appeals.
DISCUSSION
The juvenile court and DCFS have an affirmative and continuing duty to inquire whether the child named in the dependency petition is or may be an Indian child (In re Desiree F. (2000) 83 Cal.App.4th 460, 469-470; Cal. Rules of Court, rule 5.481), and to give notice by registered mail, return receipt requested, to the tribe of both the proceedings and the right to intervene. (25 U.S.C. § 1912(a).) Notices must be sent to all tribes of which the child may be a member or eligible for membership. (§ 224.2, subd. (a)(3).)
Early in the dependency proceedings, Helen M. declared that she was unaware of any Native American ancestry. On December 21, 2009, the juvenile court noted Helen M.'s denial of Native American heritage on the record, although it did not make any finding that ICWA did not apply at that hearing or at any other hearing transcribed and provided to this court on appeal. In early reports, DCFS accurately stated that "On 12/21/2009, the Court reported that Mother indicates that she does not have any American Indian [h]eritage. On 12/17/2009, Mother reported that as far as she knew, J[.G.]'s father doesn't have Indian [h]eritage in his family."
By the end of 2010, maternal great-grandmother had informed DCFS that her mother was half Native American. The record contains no indication that DCFS inquired any further into this indication that J.G. may be an Indian child. Rather, DCFS began to assert that the juvenile court had found on December 21, 2009, that ICWA did not apply.
Based on the information DCFS received from the maternal great-grandmother, the juvenile court had reason to know that J.G. could be an Indian child. "The Indian status of the child need not be certain. Notice is required whenever the court knows or has reason to believe the child is an Indian child." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) There is no evidence in the record that DCFS carried out its obligations to investigate J.G.'s potential Native American heritage based on the maternal great-grandmother's revelation and to gather the information required by section 224.2, subdivision (a)(5). (Cal. Rules of Court, rule 5.481(a)(3).) Instead, DCFS inaccurately represented to the juvenile court that it had already found ICWA to be inapplicable.
We find unconvincing county counsel's arguments that the information the maternal great-grandmother provided was so vague as to not trigger any duty to provide ICWA notice. This case is not akin to In re O.K. (2003) 106 Cal.App.4th 152, or In re J. D. (2010) 189 Cal.App.4th 118, in which a family member posited that a dependent child might have Indian ancestry but, upon further inquiry, did not know the family's history and was unable to identify any tribe to which the child could be connected. As we have already observed, here there is no evidence that the maternal great-grandmother was uninformed of the family's history or was unable to provide more specific information because the record does not show that she was ever asked to provide any details of her Native American ancestry after she made the statement that her mother was half Native American. Nor is this case similar to In re Jeremiah G. (2009) 172 Cal.App.4th 1514, in which one parent initially claimed possible Native American ancestry but then retracted that claim, for there is no indication of any retraction here.
"Notice is mandatory, regardless of how late in the proceedings a child's possible Indian heritage is uncovered." (In re Kahlen W., supra, 233 Cal.App.3d at p. 1424.) The failure to provide notice under ICWA requires that the termination of parental rights be vacated. (See 25 U.S.C. §§ 1912(a), 1914 [no termination of parental rights hearing may be held until at least 10 days after proper notice to potentially intervening tribes; failure to comply with ICWA's notice provisions is a ground for invalidating a termination of parental rights].) We therefore reverse and remand the order denying terminating parental rights, with directions to the court to order DCFS to investigate J.G.'s possible status as an Indian child; to gather as much of the information required by section 224.2, subdivision (a)(5) as is available; and to send proper ICWA notices consistent with the requirements of ICWA and California Rules of Court, rules 5.481 and 5.482. Proper notice under ICWA must include the petition and following information, if known: the child's name, birth date and birthplace; the name of the tribe in which the child is enrolled or may be eligible to enroll in; the names of the child's mother, father, grandparents, great-grandparents, and any Indian custodians; those individuals' maiden, married, and former names as applicable, their birth dates, places of birth and death, tribal enrollment numbers, and current and former addresses. (25 C.F.R. § 23.11(a) & (d).) Because there is already relevant information about the maternal great-grandmother's mother, that information should also be provided to assist the relevant tribes and the Bureau of Indian Affairs. This will ensure that the Bureau of Indian Affairs and the relevant tribes have the opportunity "to investigate and determine whether the minor is an Indian child," and that any concerned tribe is advised "of the pending proceedings and its right to intervene." (In re Desiree F., supra, 83 Cal.App.4th at p. 470.)
If, after appropriate notice is given, a tribe responds, indicates that J.G. is an Indian child, and seeks intervention, the relevant orders shall be vacated for him and proceedings consistent with ICWA conducted. If no tribe responds that J.G. is an Indian child, or if no tribe seeks to intervene, the court shall reinstate its section 366.26 order.
DISPOSITION
The order terminating parental rights under section 366.26 is reversed and the matter is remanded to the juvenile court with directions that within 30 days of the remittitur, pursuant to ICWA and rules 5.481 and 5.482 of the California Rules of Court, DCFS investigate and provide the appropriate tribes and the Bureau of Indian Affairs with proper notice of the pending proceedings.
If, after notice is properly given, no tribe responds indicating that J.G. is an Indian child within the meaning of ICWA, the court shall reinstate its order terminating parental rights. If a tribe determines that J.G. is an Indian child and seeks to intervene in the juvenile court proceedings, the juvenile court shall vacate the relevant orders and conduct all proceedings in accordance with ICWA and the California Rules of Court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ZELON, J. We concur:
WOODS, Acting P. J.
JACKSON, J.