Opinion
E058589
2013-09-12
In re T.D., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. F.K., Defendant and Appellant.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. J245242)
OPINION
APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Reversed with directions.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother appeals from a juvenile court order terminating her parental rights to her daughter, T.D., born in July 2012. (Welf. & Inst. Code, § 366.26.) Mother, a registered member of the San Carlos Apache Tribe, contends the juvenile court failed to ensure proper notice was provided under the Indian Child Welfare Act of 1978, 25 United States Code section 1901 et seq. (ICWA).
All statutory references are to the Welfare and Institutions Code unless stated otherwise.
Respondent CFS concedes the record on appeal does not demonstrate compliance with ICWA notice requirements and proposes the proceedings be remanded to the juvenile court to allow compliance. If, after proper ICWA notice, no tribe claims that the child is an Indian child, the juvenile court shall proceed in conformity with all the provisions of ICWA and the order terminating parental rights shall be reinstated.
San Bernardino County Children and Family Services.
II
FACTS AND PROCEDURAL BACKGROUND
We summarily discuss the facts pertinent to the ICWA notice.
A. Detention Hearing
When the child was born in July 2012, CFS filed an original dependency petition, alleging parents' failure to protect because of mother's substance abuse problem and history of depression. The child was born at 33 weeks gestation and tested positive for cocaine. Mother admitted using drugs during her pregnancy. In Utah dependency proceedings, mother had previously lost parental rights to a son, Q.K., born in 2007. Mother is married to one man, M.K., and named a second man, M.D. Neither man is the biological father. The men did not participate in the dependency proceedings.
The juvenile court made a prima facie finding the petition was true as alleged and ordered CFS to provide mother with supervised visitation.
B. Tribe Membership and ICWA Notice
Mother was adopted by a paternal aunt and did not have any information about her biological mother except that she was Apache. Mother asserted that her child is or may be a member of the San Carlos Apache Tribe in Arizona. When the juvenile court asked mother, "[a]nd is anyone in your family an American Indian?" Mother responded, "Yes. I am full-blooded Apache," and added "I am registered" as a member of the tribe. Mother completed and signed a notice titled, "Parental Notification of Indian Status." Mother indicated both she and the child belong to the tribe.
On September 21, 2012, CFS sent notice of dependency proceedings to the Federal Bureau of Indian Affairs and the tribe. The notice identified mother by her married name, "F.K.," but did not include her maiden name, F.D., or her tribal registration. On October 25, 2012, CFS filed a declaration of due diligence with an attached letter from the Tribe, stating that the tribe did not find mother's name in the tribe's enrollment records and concluding there was no evidence of mother or child's membership in the tribe.
C. Jurisdiction and Disposition
According to CFS reports, mother acknowledged using drugs the day she gave birth, she had a history of depression and psychiatric medication, and she suffered from posttraumatic stress disorder. The child was living in foster care with a maternal cousin. Mother visited the child regularly and had "normal" mother-child interactions.
In October 2012, the juvenile court followed CFS's recommendation to sustain the dependency petition. In December 2012, the juvenile court removed the child from mother's custody and denied mother family reunification services pursuant to section 361. The court set a selection and implementation hearing pursuant to section 366.26.
At a nonappearance review hearing on January 8, 2013, the juvenile court found ICWA inapplicable.
D. Section 366.26 Report and Hearing
In April 2013, the child remained in foster placement. A maternal great-aunt was a prospective adoptive parent and willing to facilitate postadoption contact with mother. CFS described mother's visits with the child as appropriate but inconsistent. The juvenile court found the child to be adoptable and terminated mother's parental rights.
III
ICWA NOTICE
ICWA requires that "[i]n any voluntary 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 . . . 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 of their right of intervention." (25 U.S.C. § 1912(a).) California Rule of Court, rule 5.481 contains similar requirements.
It is essential to provide the Indian tribe with all available information about the child's ancestors, including mother's maiden, married, and former names, as required on the ICWA form. (In re Louis S. (2004) 117 Cal.App.4th 622, 630-631.) Notice is meaningless if insufficient information is presented to the tribe to make a membership determination. (Id. at p. 630.)
If there has been a lack of proper ICWA notice, the juvenile court's order terminating parental rights must be vacated because it is based on different standards than should have been applied if ICWA notice was provided and showed the child is an Indian child. Further, if, upon remand, the child is determined to be an Indian child, the parent can petition the juvenile court to invalidate all previous orders made in violation of ICWA. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384-386; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 781; Cal. Rules of Court, rule 5.486(a).)
It is not disputed that CFS and the juvenile court did not comply with ICWA notice provisions. If, following proper notice, the San Carlos Apache Tribe indicates the child is an Indian child, or if other information is presented showing she is an Indian child as defined by ICWA, the juvenile court must conduct new proceedings in conformity with ICWA's provisions. If, however, the juvenile court determines the child is not an Indian child, it must reinstate the vacated orders. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 781.)
The problem here is CFS sent notice of dependency proceedings identifying mother only by her married name, "F.K." Mother, however, was born in 1981, was adopted as a small child, and, during the first 25 years of her life, was known as "F.D." Mother did not use her married name until 2006. CFS never provided the tribe with mother's birth name or her adoptive name. Therefore, the tribe was unable to identify mother or her child as members. Mother is, however, a registered member of the tribe, and the child is a member, or may be eligible for membership. As conceded by respondent, CFS simply failed to comply with the law.
Under these circumstances, this case must be remanded to the juvenile court with directions to order CFS to comply with ICWA notice requirements, including providing proper notice of the proceedings to the San Carlos Apache Tribe. We therefore conditionally reverse the juvenile court's order terminating parental rights. (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1168 [limited reversal appropriate to ensure that ICWA requirements are met].) If, after proper notice, the court finds that the child is an Indian child, the court shall proceed in conformity with the ICWA. If it is determined on remand that the child is not an Indian child, the order terminating parental rights shall be reinstated.
IV
DISPOSITION
The order terminating parental rights is reversed and the proceedings are remanded to the juvenile court with directions to order CFS to comply with ICWA notice requirements, and to file all required documentation with the juvenile court for inspection. If, after proper notice, a tribe claims the child is an Indian child, the juvenile court shall proceed in conformity with all the provisions of ICWA. If no tribe claims that the child is an Indian child, the order terminating parental rights shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur: RAMIREZ
P. J.
KING
J.