Opinion
A130408
08-22-2011
In re Alexandra T., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. G.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. J40384)
Plaintiff G.S. (Mother), the mother of Alexandra T. (Minor), appeals a juvenile court dispositional order setting a six-month prepermanency hearing (Welf. & Inst. Code, § 366.21, subd. (e)). Mother contends, and the Solano County Health and Social Services Department (Department) concedes, the Department violated the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We conditionally reverse the order and remand the case for compliance with the ICWA notice requirements.
All undesignated section references are to the Welfare and Institutions Code.
BACKGROUND
Because Mother does not challenge the court's jurisdictional finding that Minor comes within the provision of section 300, subdivision (b), or its orders adjudging Minor a dependent child and ordering Mother to participate in family reunification services, our factual recitation includes facts relevant only to Mother's ICWA claim on appeal.
The Department's section 300 petition (Petition) filed on September 24, 2010, stated that Minor "may have Indian ancestry." According to the Department's detention report, Minor's father (Father) said there was "possibly" Native American ancestry in his family and Mother said there was no Native American ancestry in her family.
Father is not a party to this appeal. Mother and Father are collectively referred to as Parents.
Mother's Parental Notification of Indian Status (ICWA-020) form filed on October 7, 2010, stated there was Indian ancestry on Mother's side of the family, but the tribe was unknown. On October 12, the maternal grandmother reported to the Department possible Indian ancestry. She suspected the tribes were Cheyenne, Sioux or Navajo because her father, who would have had the ancestry, was born in Colorado. The Department's attempts on October 12 to interview Father were unsuccessful and he did not return a phone call to provide further family contact or Indian heritage information.
On October 15, 2010, the Department sent ICWA notices regarding the instant dependency proceeding to the Cheyenne-Arapaho Tribes of Oklahoma, Navajo Nation, Colorado River Tribal Council, Northern Cheyenne Tribe, and the Sacramento Bureau of Indian Affairs (BIA). The record does not contain responses from these tribes or the BIA.
The Department's disposition report, filed on October 20, 2010, indicates that the above notices were sent by certified mail or return receipt requested. At the conclusion of the October 22 dispositional hearing, the court declared Minor a dependent child of the court (§ 300, subd. (b)), removed her from Mother's custody, ordered reunification services to Parents, and supervised visitation by them. The disposition order stated that Minor may be an Indian child and found that the Department had complied with the inquiry and notice requirements under the ICWA.
DISCUSSION
Mother contends the Department's ICWA notices were inadequate.
"Congress enacted 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.' [Citation.] Section 1911 of ICWA provides that a tribe may intervene in state court dependency proceedings. (25 U.S.C. § 1911(c).) Notice to the tribe provides it the opportunity to exercise its right to intervene. [Citation.]" (In re Damian C. (2009) 178 Cal.App.4th 192, 196; see also In re Jack C. (2011) 192 Cal.App.4th 967, 977 ["ICWA sets forth minimum substantive and procedural standards to protect the interests of Indian children, Indian families and Indian tribes. [Citations.]"].)
In part, 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 of their right of intervention." (25 U.S.C. § 1912(a); see § 224.2, subd. (a).) Section 224.2, subdivision (b) echoes the ICWA requirement that "[n]otice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter . . . unless it is determined that the [ICWA] does not apply to the case . . . ." The court " 'needs only a suggestion of Indian ancestry to trigger the notice requirement.' [Citation.]" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) When the tribe's identity cannot be determined, notice must be given to the BIA. (25 U.S.C. § 1912, subd. (a); In re Francisco W., at p. 702.)
Section 224.2, subdivision (a)(5) specifies information to be included in the ICWA notice including, for example, "All names known of the Indian child's biological parents, grandparents, and great-grandparents . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (§ 224.2, subd. (a)(5)(C).) ICWA notice requirements must be strictly construed. (In re Francisco W., supra, 139 Cal.App.4th at p. 703.)
Mother argues the Department's ICWA notice sent to the tribes and the BIA was inadequate because it (1) did not contain the maternal grandmother's or any other maternal relative's tribal affiliations, (2) failed to include Father's address, which was known to the Department, and (3) did not provide a place of birth for Father.
The Department concedes that its ICWA notice did not comply with the ICWA because it lacked complete information regarding the Minor's Indian relatives. However, the Department asserts, and we agree, that Father's bare assertion prior to the detention hearing that there was "possibly" Native American ancestry in his family is insufficient to trigger the ICWA notice requirements. In In re O.K. (2003) 106 Cal.App.4th 152, 157, the court held ICWA notices were not required where the minor's grandmother said that the minor's father "may have Indian in him[,]" but could not identify the tribe involved and did not know her family history. Father's statement of "possible" Native American ancestry, without more, is "too vague, attenuated and speculative to give the dependency court any reason to believe" Minor might be an Indian child. (In re J.D. (2010) 189 Cal.App.4th 118, 125.)
Mother also argues that the Department failed to send notice to the 16 federally recognized Sioux tribes, to the designated ICWA representatives of the Cheyenne and Navajo tribes and to the Secretary of the Interior. The Department concedes it failed to send notice to the 16 federally recognized Sioux tribes and to the Secretary of the Interior.
The Department does not address Mother's claim that the ICWA notices sent were not sent to the named designated representatives of the Cheyenne and Navajo tribes and were instead, sent to the "ICWA Representative" of those tribes. It also does not address Mother's claim that the ICWA notice was sent to the wrong address for the Cheyenne-Arapaho Tribes of Oklahoma and Colorado River Tribal Council.
" 'Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service.' (§ 224, subd. (a)(2); see 71 Fed.Reg. 43788 ["Indian Child Welfare Act; Receipt of Designated Tribal Agents for Service of Notice"].)" (In re J.T. (2007) 154 Cal.App.4th 986, 994.) "The purpose of the requirement that notice be sent to the designated persons is to ensure that notice is received by someone trained and authorized to make the necessary ICWA determinations . . . . Receipt by an unidentified person at the tribe's address does not fulfill this purpose." (Ibid.)Here, the record does not show that, as to the properly addressed notices or the improperly addressed notices, the tribal chairperson or designated tribal agent received actual notice of the proceedings. Thus, the deficiencies are prejudicial.
With the exception of Mother's ICWA notice claim as to Father, we conclude the ICWA notice requirements were not satisfied. Accordingly, we remand for the limited purpose of ensuring compliance with the ICWA. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1389-1390.)
DISPOSITION
The juvenile court's disposition order is conditionally reversed. The matter is remanded to the juvenile court with directions to proceed in compliance with the notice provisions of the ICWA and section 224.2, in accordance with the views expressed in this opinion. If, after proper notice, the court finds that Minor is an Indian child, the juvenile court shall proceed in accordance with the ICWA and section 224 et seq. If, however, the juvenile court finds that Minor is not an Indian child, the court shall reinstate the disposition order. (See In re B.R. (2009) 176 Cal.App.4th 773, 786.)
SIMONS, Acting P.J. We concur. NEEDHAM, J. BRUINIERS, J.