In re Breanna L.
Filed 8/20/12 In re
Breanna L. CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
In re BREANNA L. et al.,
Persons Coming Under the Juvenile Court Law.
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
TIMOTHY L.,
Defendant and Appellant.
C067751
(Super. Ct. Nos. JD224948 &
JD224949)
Timothy
L. (father) appeals from a juvenile court
order of legal guardianship for minors Breanna L. and Stephen L. (Welf. & Inst. Code, § 366.26.)
to noncompliance with the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). We agree and shall reverse as to ICWA
only.
Given father’s
sole contention, we need not recite the facts in detail. Those pertinent to ICWA are set out in the
Discussion.
The minors (aged 7
and 8 years old, respectively) were detained in October 2006 because of
father’s substance abuse problems and the inability of the stepmother, E.L.,
with whom they were living, to care for them.
The minors’ biological mother, L. G., was absent.
Father claimed
Iroquois heritage, and notice was sent to the federally recognized Iroquois
tribes. After none responded positively
within the statutory deadline, the juvenile court found ICWA did not apply.
In January 2007,
the juvenile court ordered the minors placed in foster care and granted
2008.
Mainly due to the
minors’ learning disabilities and behavioral problems, the juvenile court did
not adopt a permanent plan under section 366.26 until March 25, 2011.
At that time, the court ordered a plan of legal guardianship with the
minors’ current foster parents. This
appeal followed.
DISCUSSION
Father contends we
must reverse and remand for further proceedings under ICWA because the tribes
did not receive notice of relevant and easily available information.
At the
his JV-130 form that the minors were or might be eligible for membership in the
“Iroquise” [sic] tribe. The juvenile court ordered ICWA notice sent
to the Iroquois tribes.
On October 24, 2006,
Mary Lee, ICWA paralegal for
County Department of Health and Human Services (the Department), declared
that as of that date, which was “the Court designated Drop Dead date for
noticing,” she had been unable to reach father, who was homeless, at the
telephone number listed for him in the detention report, and he had not
returned her call. Other attempts to
obtain contact information for father had failed. Therefore, Lee had sent notice to the 11
federally recognized Iroquois tribes which consisted only of the JV-135 form
(“Notice of Involuntary Child Custody Proceedings For an Indian Child”
andsupporting documents. This documentation
contained only the parents’ names, addresses (in father’s case, the last known
address), and birthdates, and the minors’ names and birthdates.
In a declaration
filed November 9, 2006, Lee
stated that all the tribes had filed return receipts.
On November 14, 2006, father’s counsel
stated that the information contained in the JV-135 was complete and accurate.
In the
jurisdiction/disposition report, filed December
4, 2006, the social worker noted that father had named his parents
and his maternal grandfather, and said the grandfather was “a registered
Iroquois Tribe member in Canada.”
On December 12, 2006, father’s counsel
again verified the accuracy of the information contained in the JV-135,
adding: “I reviewed it on November 14th,
and it hasn’t changed since then.” The
record does not reveal why counsel did not mention the new information father
had given the social worker.
At the
jurisdiction/disposition hearing on January
18, 2007, the juvenile court found that timely ICWA notice had been
provided as required by law to the Iroquois tribes, 60 days had expired, and
the tribes had responded negatively or had not responded. Therefore, ICWA did not apply.
Where the juvenile court knows or has
reason to know that a child involved in a dependency proceeding is an Indian
child, ICWA requires that notice of the proceedings be given to any federally
recognized Indian tribe of which the child might be a member or eligible for
membership. (25 U.S.C. §§ 1903(8),
1912(a); In re Robert A. (2007) 147
Cal.App.4th 982, 989.) Notice requirements
are construed strictly. (
Where notice has been given, any error in notice is subject to harmless
error review. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)
Notice must
include all of the following information, if known: the child’s name, birthplace, and birth date;
the name of the tribe in which the child is enrolled or may be eligible for
enrollment; names and addresses of the child’s parents, grandparents,
great-grandparents, and other identifying information; and a copy of the
dependency petition. (25 U.S.C. § 1952;
§ 224.2, subd. (a)(5)(A)-(D); In re Mary
G. (2007) 151 Cal.App.4th 184, 209.)
Notice which contains only the names, birth dates, and birthplaces of
the minors and the parents is insufficient as a matter of law to make any
determination under ICWA. (
1455.)
Because the
primary purpose of ICWA is to benefit the tribes, a parent does not forfeit a
claim of ICWA notice violation by failing to raise it in the juvenile
court. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 783, fn.
1; In re Marinna J. (2001) 90
Cal.App.4th 731, 738-739.) Therefore, we
reject the Department’s claim that father has forfeited the issue because he
did not “timely” provide information about his family to the ICWA paralegal, or
because his trial counsel did not call the juvenile court’s attention to the
information father gave the social worker.
The Department
asserts that there was substantial compliance with ICWA. We disagree.
ICWA notice which
gives no information about the parents’ ancestry is legally insufficient. (In re
D.T., supra, 113 Cal.App.4th at p. 1455.)
Because such notice fails to serve ICWA’s essential purpose, it cannot
constitute substantial compliance with ICWA.
And here, as we have shown, information about father’s ancestry missing
from the ICWA notice was provided through the jurisdiction/disposition report
before the juvenile court made its ICWA ruling.
Once the Department had this information, its failure to request that
the court order new ICWA notice was inexplicable.
Finally, the
Department asserts that any error in failing to renotice the tribes was
harmless because “father’s claim of Indian ancestry was through a Canadian
tribe; and ICWA notice is not required to non-federally-recognized
tribes.” This proposition, for which the
Department cites no authority, fails for multiple reasons.
First, the
jurisdiction/disposition report does not state that “father’s claim of Indian
ancestry was through a Canadian tribe”:
it states only that father said the maternal grandfather was a
registered Iroquois tribal member “in Canada.” Second, even if that statement is taken to
mean that the grandfather belonged to a Canadian tribe, it still suggests that
he might have had blood ties to one or more Iroquois tribes located in the United
States.
Lastly, information about the child’s grandparents and
great-grandparents, if known, must be furnished to the tribes, even if
insufficient in itself to prove the child’s membership or eligibility for
membership in a tribe. (25 U.S.C. §
1952; § 224.2, subd. (a)(5)(A)-(D); In re
Mary G., supra, 151 Cal.App.4th at p. 209.)
For all the above
reasons, we must remand for further proceedings under ICWA.
DISPOSITION
The matter is
remanded to the juvenile court with directions to vacate its order of legal
guardianship for the minors and to send new notice to the Iroquois tribes,
containing the additional information as to his Indian ancestry father has
provided to the Department and any further information along those lines he may
have. If the court finds, after the new
notice has been given, that ICWA has been complied with and does not apply, the
court shall reinstate its order of legal guardianship. If the court finds that ICWA applies, it
shall proceed in accordance with ICWA.
BLEASE , Acting P. J.
We concur:
NICHOLSON , J.
HOCH , J.
name="_ftn1" title="">[1] Further undesignated section references are
to the Welfare and Institutions Code.
E.L., the
minors’ stepmother, filed an opening brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835. This court issued a partial remittitur as to
her on March 9, 2012.
She was living in another state. She received reunification services, but they
were terminated in January 2008.
A third minor, 12-year-old M. L., was also detained. Her case was ultimately severed from that of
the other minors.
