In re S.M.

13 Cal.Rptr.3d 606

118 Cal.App.4th 1108

In re S.M., a Person Coming Under the Juvenile Court Law San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Ray M. et al., Defendants and Appellants.

No. D042955.

Court of Appeal, Fourth District, Division 1.

May 21, 2004.

Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant Ray M.

Susan Bookout, under appointment by the Court of Appeal, for Defendant and Appellant Lucille S.

John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Katharine R. Bird, Deputy County Counsel, for Plaintiff and Respondent.

Linda M. Fabian, under appointment by the Court of Appeal, for Minor.

McDONALD, J.

Ray M. appeals a judgment terminating his parental rights to his daughter, S.M., under Welfare and Institutions Code section 366.26.¹ Ray asserts the judgment should be reversed because (1) proper notice was not provided under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.); (2) the court abused its discretion by denying his section 388 modification petition; and (3) the court did not ensure S. was able to visit her half-brother, J.B. Lucille S., S.'s paternal grandmother and de facto parent, appeals from the denial of her section 388 modification petition. She raises no arguments relating to the denial of that petition, but contends that the judgment should be reversed because notice was not provided in compliance with the ICWA. Because the Agency did not comply with the notice provisions of the ICWA, we reverse the judgment terminating parental rights and direct the court to ensure proper notice under the ICWA is given.

FACTUAL AND PROCEDURAL BACKGROUND

The San Diego County Health and Human Services Agency (the Agency) removed S. from the custody of her mother, T.D., shortly after her April 2001 birth and filed a section 300 petition on her behalf. The petition alleged S. was at risk because T. was incarcerated and Ray's whereabouts were unknown. Shortly after S. was removed from T.'s custody, Lucille told the social worker that S. looked "just like my mother; you can see the Indian in her," and there was "Cherokee blood, on my mother's side."

At the May 2001 jurisdictional and dispositional hearing, the court made a true finding on the petition. However, because T.'s five other children had previously been declared dependents and did not reunify with her, the court did not order reunification services and scheduled a section 366.26 hearing. Although not clear from this record, it appears that because Ray was an alleged father, he was not offered services. In August 2001 the court found Ray was S.'s biological father and entered a judgment of paternity.

In November 2001 Ray filed a section 388 modification petition seeking to vacate the order referring the matter to a section 366.26 hearing and to obtain services because he had been declared S.'s biological father. Later that month, the court denied his petition. At the contemporaneous section 366.26 hearing, the court terminated parental rights after finding S. was adoptable and none of the section 366.26, subdivision (c)(1) exceptions applied. Ray timely appealed.

In June 2002 we reversed the judgment terminating parental rights because Ray had not received adequate notice of the jurisdictional and dispositional hearings. (In re S.M. (June 18, 2002, D039069) 2002 WL 1316390 [nonpub. opn.].) We did not address Ray's contention that notice had not been provided under the ICWA, but because there was sufficient evidence S. might be an Indian child, we directed the court to assure proper notice was given under the ICWA. (Id. at pp. 9, 11, at ** 4, 5.)

Following remand by this court, Ray told the social worker his grandmother, Lillian, may have been registered with one of the Cherokee tribes and before her death resided in Beaumont, Texas. In August 2002 the social worker sent notices to the Cherokee Indian tribes and the Bureau of Indian Affairs (BIA). The Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians responded that, based on the information provided by the Agency, S. was not eligible for enrollment in their tribes. The Cherokee Nation of Oklahoma requested more information about S.'s family members to verify Cherokee heritage.

In late August the Agency filed an amended petition, alleging S. was at risk of harm because of her parents' drug use. At the detention hearing, the court found notice had been provided pursuant to the ICWA and the ICWA did not apply. In October the court made a true finding on one allegation in the petition, granted Lucille's de facto parent application, declared S. to be a dependent, and removed her from T.'s custody. The court denied reunification services for both parents and scheduled a section 366.26 hearing. Ray and Lucille filed petitions for extraordinary writ relief under California Rules of Court, rule 39.1B,² which this court denied in April 2003. (Ray M. v. Superior Court (Apr. 25, 2003, D041129) 2003 WL 1950373 [nonpub. opn.].)

In July 2003 Lucille, Ray, and T. each filed a section 388 modification petition. Lucille sought a hearing to review the Agency's decision not to place S. with a paternal uncle and aunt. Ray and T. sought to vacate the section 366.26 hearing and obtain six months of services to reunify with S.T. also sought S.'s return to her custody. The next month the Agency received a letter from the Cherokee Nation of Oklahoma stating it had received no response to its previous request for information and reiterating it was unable to verify S.'s Indian heritage without further information.

In September 2003 the court denied the section 388 modification petitions. Contemporaneously, the court found S. was adoptable and none of the section 366.26, subdivision (c)(1) exceptions applied, and terminated parental rights.

DISCUSSION

I

Lucille³ and Ray assert the judgment must be reversed because notice of these proceedings was not given in compliance with the ICWA.

A

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.) It allows a tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)) because 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, 99 Cal.Rptr.2d 688.)

"[W]here 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(a).) Notice to the tribe provides it the opportunity to assert its rights. (In re Karla C. (2003) 113 Cal.App.4th 166, 174, 6 Cal.Rptr.3d 205.) "Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child." (Rule 1439(f)(5).) No proceeding to terminate parental rights may occur until 10 days after the tribe has received the notice. (25 U.S.C. § 1912(a).) We may void a judgment terminating parental rights if notice to the tribes or BIA is not given in accordance of provisions of the ICWA. (25 U.S.C. § 1914.)

B

Lucille and Ray contend reversal of the judgment is required because the Agency did not include information about Lillian in the August 2002 notices it sent to the Cherokee tribes and the BIA.

One of the primary purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455, 5 Cal.Rptr.3d 893.) Notice is meaningless if no information or insufficient information is presented to the tribe.⁴ (Ibid.) The notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name; a statement of the right to the tribe to intervene in the proceeding; and information about the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information. (In re Karla C., supra, 113 Cal.App.4th at p. 175, 6 Cal.Rptr.3d 205; In re C.D. (2003) 110 Cal.App.4th 214, 225, 1 Cal.Rptr.3d 578; 25 C.F.R. § 23.11(a), (d).)

The social worker has "a duty to inquire about and obtain, if possible, all of the information about a child's family history" required by 25 Code of Federal Regulations part 23.11(d)(3). (In re C.D., supra, 110 Cal.App.4th at p. 225, 1 Cal.Rptr.3d 578.) However, the initial appellate record shows no information was provided in the ICWA notices about Lucille or Lillian, the person with alleged Indian heritage. Information about Lucille was indisputably available as she was the minor's de facto parent. (See In re Jennifer A. (2002) 103 Cal.App.4th 692, 705, 127 Cal.Rptr.2d 54.) It is also likely Lucille had information about Lillian. However, the initial appellate record contains no evidence the social worker attempted to gather information from Lucille. Because the notices contained no information about Lillian or Lucille the tribes could not conduct a meaningful search with the information provided. (See, e.g., In re Jennifer A., supra, 103 Cal.App.4th at p. 705, 127 Cal.Rptr.2d 54; see also In re D.T., supra, 113 Cal.App.4th at p. 1455, 5 Cal.Rptr.3d 893.) The court erred in determining the...