In re Jason R.

Filed 7/22/10 In re Jason R. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Debra Losnick, Juvenile Court Referee. Reversed and remanded.

Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Los Angeles County Counsel, Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

Marvin R. (father) appeals from an order terminating his parental rights to Jason R. (born January 2006) and Tracey W. (born January 2007) pursuant to section 366.26 of the Welfare and Institutions Code.^[1] Fathers sole argument is that the Department of Children and Family Services (DCFS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.).

We remand to the juvenile court for the limited purpose of complying with the notice requirements of ICWA as to the United Keetoowah Band of Cherokee Indians.

COMBINED FACTUAL AND PROCEDURAL HISTORY

On October 8, 2007, Heather W. (mother) was arrested for shoplifting at a K-Mart store while accompanied by her children, Stephanie W. (born May 2004), Jason, and Tracey.^[2] The children were detained and placed in foster care. Father, who is the biological father of Jason and the alleged father of Tracey, was incarcerated at the time, having been arrested in July 2007.^[3]

A section 300 petition was filed on October 11, 2007. The petition alleged that mother had placed the children in a detrimental and endangering situation, subjecting them to risk of physical and emotional harm and damage.

1. Prior dependency proceedings

The family had previously come to the attention of DCFS. On July 23, 2006, mother and father exposed Stephanie and Jason to a violent confrontation between mother and father. Father was arrested for inflicting corporal injury to a spouse/cohabitant. The 2006 petition also alleged that father was an abuser of illicit drugs and alcohol, which rendered him unable to care for the children, and that mother was aware of the substance abuse yet allowed father to have unlimited access to the children. The petition further alleged that father had a criminal history of drug-related offenses.

Mother was provided with reunification services, and in September 2007, after successfully completing parenting, anger management, and domestic violence classes, mother regained custody of her children and the case was closed. Father, who was not in compliance with his reunification plan, was incarcerated prior to the closing of the case. Tracey was born during the course of the prior proceeding and was not declared a dependent at that time.

2. ICWA notifications in the prior proceedings

During the course of the prior proceeding, mother and maternal grandmother told DCFS that they had Cherokee heritage, but they were not able to provide ancestral information. Paternal grandmother stated that she was one-half Quechan Indian and provided her tribal enrollment number. She said father was one-quarter Quechan Indian.

DCFS prepared an ICWA notice to be sent to the appropriate tribes.^[4] On September 11, 2006, a copy of the notice was filed with the juvenile court.^[5] The notice referenced both Stephanie and Jason and included their dates and places of birth. It also stated that mother had Cherokee heritage, and that father is a Quechan Indian. The notice gave the names of the maternal grandmother, maternal grandfather, and maternal great-grandmother as well as the name and enrollment number of the paternal grandmother. The certificate of mailing was dated September 5, 2006, and certified that a copy of the notice was sent to the Secretary of the Interior, Bureau of Indian Affairs; the Bureau of Indian Affairs; the Department of Interior; the Cherokee Nation of Oklahoma; the Eastern Band of Cherokee Indians; the United Keetoowah Band of Cherokee Indians; and the Quechan Tribal Council.

On October 16, 2006, DCFS received the return receipt from the Quechan Tribal Council. A letter from the Quechan tribe indicated that Stephanie and Jason were not eligible for enrollment with the tribe because their blood quantum was not sufficiently high. In addition, on September 8, 2006, a social worker from DCFS spoke to a representative of the Quechan tribe who informed the social worker that Stephanie and Jason are descendents [sic] of the Quechan Tribe but they are not eligible because the blood degree required is 1/4th but they are 1/8th blood degree therefore they would not be eligible for enrollment.

A second notice was prepared by a different social worker, listing the same tribes and agencies as the September 2006 notice. This notice was sent on October 16, 2006. Jasons date of birth was omitted. In the section asking for additional information regarding mother there is a note that on September 18, 2006, the social worker received a letter from the Cherokee tribe indicating that the children are not enrolled or eligible for enrollment. The notice included information about the birth place of the maternal grandfather. The additional information under maternal grandfathers name stated that he had no information regarding Indian ancestry except that his mother, who was listed in the September notice, belonged to the Cherokee tribe and is now deceased. Her name and birthplace were included, but other information was listed as unknown. The notice stated that the maternal grandmother had no Indian ancestry. Notes under fathers information mentioned the September 8, 2006 letter from the Quechan tribe indicating that Stephanie and Jason are not eligible for enrollment.

The mailing receipts from the October 2006 ICWA notice show that while the correct address for each tribe was listed on the notice, the notices for the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians were both sent to the address for the Eastern Band. Both return receipts are signed by the same person.

Letters from the Eastern Band of Cherokee Indians confirm that neither Stephanie nor Jason were registered or eligible to register as members of the tribe. Thus the Eastern Band of Cherokee Indians was not empowered to intervene in the matter.

The previous dependency proceedings were terminated before a formal ICWA finding was entered.

3. ICWA investigations in the current proceeding

In the detention report for the current proceeding, DCFS reported The Indian Child Welfare Act does not apply as represented by the mother. On October 16, 2007, the court ordered DCFS to [i]nvestigate mothers and fathers prior claim of Native American heritage by interviewing the parents and any known relatives to obtain all possible information concerning this claim. DCFS was also ordered to give notice to any applicable tribe; to the Bureau of Indian affairs and the Secretary of the Interior; and to the Cherokee tribes for mother.

The jurisdiction/disposition report filed on November 8, 2007, indicated that ICWA does or may apply. Mother had not made herself available for an interview, although DCFS tried to reach her at several different telephone numbers. The jurisdiction/disposition report included information regarding ICWA compliance efforts in the prior dependency proceeding.

The matter was continued five times between November 14, 2007 and January 15, 2008. On January 9, 2008, a DCFS social worker communicated with father. Because father was in federal custody, he could not be transported to court. Father informed the social worker that he was affiliated with the Quechan Indian Tribe of Yuma, Arizona.

On January 10, 2008, a DCFS social worker was informed by paternal grandmother that father is one-quarter Quechan Indian, but that his children would not be eligible as they are only one-eighth Indian and this is not a sufficient amount of blood for eligibility. According to the social worker the grandmother reported that they submitted all the information to the tribes during the last case and that she would gather the information and provide it to the social worker. By letter dated January 11, 2008, the paternal grandmother provided the social worker with the names of her mother and her grandparents, whom she described as full blooded Quechan Indians. She also provided a copy of fathers enrollment card.

In an information for court officer filed January 15, 2008, DCFS referenced a report dated September 12, 2006, which indicated that paternal grandmother . . . informed the DI CSW that she was one half Indian and . . . her son (the father of the children) was one fourth Indian. DI CSW has faxed a letter to the Quechan tribe requesting a confirmation on the tribal information. On 9/8/06 DI CSW spoke to Rhonda Aguerro who stated, The children Stephanie and Jason are descendents [sic] of the Quechan tribe but they are not eligible because the blood degree required is 1/4th but they are 1/8th blood degree therefore they would not be eligible for enrollment.[]

The jurisdiction/disposition hearing was held on January 15, 2008. The juvenile court received fathers proof of Indian registration and transferred the case to a different department. The court declared the children dependents and ordered that father not receive reunification services pursuant to section 361.5, subdivision (e). The court held that because the Quechan tribe was not federally recognized, the case was not an ICWA case but was a heritage case and thus could proceed. The court ordered DCFS to determine fathers paternity status as to each of the children. The court also ordered that the family be provided with Indian heritage services.

4. Fathers section 388 petition and fatherhood findings

On March 11, 2008, father filed a section 388 petition seeking parenting classes while in custody. The petition also named two possible caretakers for the children, a paternal uncle and the paternal grandmother. The petition asked that father be declared the childrens presumed father and that he be offered reunification services. In his statement regarding parentage, father indicated that he believed he was the parent of all three children. He claimed that he lived with the children from the date of Stephanies birth until August 2005. He stated that he told people the children were his children, and that he and others in his family helped provide for them. The court denied the petition, stating: Does not qualify for presumed status.

On March 25, 2008, mother testified that father was the father of Tracey and Jason. However, father was not at the hospital when Jason was born due to incarceration, and he had never seen Tracey due to incarceration. The court found father to be the alleged father of Tracey and the biological father of Jason. The court ordered DCFS to look at fathers relatives for the purposes of placing Jason only. In response, the social worker contacted the paternal grandmother, who said that if fathers paternity was in question she was not interested in caring for any of the children because she did not want to split them up.

5. Placement and permanency

By December 2008, all three children were placed in one foster home and were doing well. The foster mother indicated an interest in adopting all three children. In April 2009, the children were still doing well with their foster mother. The social worker recommended terminating mothers reunification services and scheduling a section 366.26 hearing.

On May 12, 2009, the court terminated mothers reunification services and scheduled a section 366.26 hearing.

The permanency hearing was held on September 25, 2009. Father was unable to appear. In his absence, his attorney stated, I know that [father] strenuously objects to termination of his parental rights and he wishes to maintain his connection to the children. Counsel asked that father be given current photographs of the children, and the court so ordered. Father was identified by the court as the alleged father of both Jason and Tracey. The court proceeded to terminate parental rights, finding the children to be adoptable and that no exception applied.

Fathers notice of appeal was filed on October 27, 2009.

DISCUSSION

Father argues that DCFS failed to comply with the notice requirements of ICWA. Father contends that the juvenile courts finding that ICWA did not apply, and its subsequent order terminating parental rights, must be reversed.

I. Relevant law

Congress enacted ICWA to allow Indian tribes to intervene in dependency proceedings in order 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.) ICWA requires that 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 Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (25 U.S.C.  1912, subd. (a).) A tribes determination that the child is or is not a member of or eligible for membership in the tribe is conclusive. [Citation.] (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.)

ICWA notice requirements are strictly construed. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.) The notice sent to the Indian tribes must contain enough information to be meaningful. (Id. at p. 175.) The notice must include, if known: (1) the Indian childs name, birthplace, and birth date; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the childs parents, grandparents, great-grandparents, and other identifying information; and (4) a copy of the dependency petition. (Ibid.) DCFS must file with the court the ICWA notice, return receipts and responses received from the tribes. (Id. at pp. 175; 178-179.)

DCFS concedes that the United Keetoowah Band of Cherokee Indians may not have received proper notice. Thus, DCFS does not oppose a limited reversal of the order terminating the appellants parental rights and remand to the juvenile court for the sole purpose of procuring proper ICWA notice to the United Keetoowah Band of Cherokee Indians.

II. Notices sent in the earlier proceeding constitute substantial compliance

Failure to comply with the ICWA notice requirements is prejudicial error unless the Indian tribe has participated in or has stated it has no interest in the dependency proceedings. (In re H. A. (2002) 103 Cal.App.4th 1206, 1213.) However, where notice has been received by the tribe, errors or omissions in the notice are reviewed under the harmless error standard. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)

Father makes several arguments as to why DCFS failed to comply with the notice requirements of ICWA. As to the forms sent on October 11, 2006, father argues, the birth date of the childrens maternal great-grandmother was omitted.^[6] In fact, the birth date of the childrens maternal great-grandmother was listed as unknown. This was not error. DCFS is required to provide to the Indian tribe all available information about the childs ancestors. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) There is no evidence that maternal great-grandmothers birth date was available to DCFS. DCFS interviewed maternal grandfather, who indicated that his mother was an Indian and belonged to the Cherokee tribe. The record shows that DCFS gathered all available information from maternal grandfather, and properly listed as unknown the date of birth of maternal great-grandmother.

Father also argues that the record shows signed return receipt cards for all of the addresses to which ICWA notices were sent in October 2006 except the Cherokee Nation of Oklahoma. However, DCFS points out that ICWA notices were also sent out in September 2006 and that DCFS received a signed return receipt from the Cherokee Nation of Oklahoma as a result of that mailing. Therefore, the tribes failure to respond to the October 2006 notice is harmless.

Fathers next argument is that the juvenile court improperly relied on the ICWA information gathered in the prior dependency proceedings. In October 2007, following initiation of the new dependency proceeding, the court ordered DCFS to investigate the parents prior claims of Indian heritage and to give notice to the applicable tribes and the Bureau of Indian Affairs. Father claims that DCFS failed to follow this order. Instead, DCFS set forth the same information that was contained in the status review report dated March 13, 2007. And while DCFS communicated with paternal grandmother and father regarding Indian heritage, there is no evidence that DCFS communicated with mother regarding her Indian heritage. Nevertheless, father argues, the court made a finding that this is not an ICWA case, but a heritage case.

The September and October 2006 ICWA notices filed in the prior dependency proceeding regarding Jason and Stephanie were before the juvenile court when it ruled on the applicability of ICWA. Thus, the juvenile court had before it return receipts from the Department of the Interior; the Secretary of the Interior; the Bureau of Indian Affairs; the Eastern Band of Cherokee Indians; the Quechan Tribal Council; and the Cherokee Nation of Oklahoma.^[7] The court also had evidence that a DCFS social worker had spoken with a representative of the Quechan tribe, who informed the social worker that Jason and Stephanie were not eligible for enrollment. In addition, a letter from a Cherokee tribe was received by DCFS on September 18, 2006, indicating that the children are not enrolled and not eligible for enrollment. And finally, the court had before it statements from both sides of the family that a further ICWA investigation was not necessary. Mother represented to DCFS that ICWA did not apply, and paternal grandmother acknowledged that prior proceedings had revealed that Jason and Tracey would not be eligible for membership in the Quechan tribe.

With this evidence before it, the juvenile court was justified in concluding that the relevant Indian tribes had no interest in the dependency proceedings. (In re H. A., supra, 103 Cal.App.4th at p. 1213.) The Eastern Band of Cherokee Indians, the Quechan tribe, and the Cherokee Nation of Oklahoma had previously received information regarding Jason and had declined to assert an interest in the proceedings. Under the circumstances, the juvenile court was correct in determining that the matter was not an ICWA case.

III. Notice as to Tracey

Father argues that there is no indication that the applicable tribes received notice as to Tracey, who had not been a subject of the prior dependency proceeding.^[8] However, because the trial court properly determined that there is no membership or eligibility for Jason, there is no reason to believe that the result would be any different if notices were re-issued on remand for an assessment regarding Tracey. (See In re Z.N. (2009) 181 Cal.App.4th 282, 302; see also In re E.W. (2009) 170 Cal.App.4th 396, 400 [where notice to tribes was provided regarding one sibling, there was no reason to believe that providing notice regarding the other sibling would have produced different results].)

In addition, mother affirmatively represented to DCFS at the commencement of this proceeding that ICWA did not apply. Paternal grandmother made the same representation. Based on these representations, DCFS had no reason to inquire further as to Traceys status under ICWA. (In re S.B. (2005) 130 Cal.App.4th 1148, 1161 [where DCFS makes inquiry into childs status as Indian child, and parents provide no information requiring follow-up, DCFS has no further duty of inquiry].) Under the circumstances, DCFSs failure to specifically notify the tribes as to Tracey does not constitute reversible error.^[9] (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424 [failure to comply with notice provisions of ICWA may be deemed harmless error].)

IV. Limited reversal as to the United Keetoowah Band of Cherokee Indians is appropriate

Both parties acknowledge that the certified mail receipt for the United Keetoowah Band of Cherokee Indians bore an address different from that shown on Form JV-135. In addition, the return receipt cards for both the United Keetoowah Band of Cherokee Indians and Eastern Band of Cherokee Indians bear the same signatory and the same address in Cherokee, North Carolina. In other words, it appears that the social worker may have mailed the notice which should have been directed to the United Keetoowah Band of Cherokee Indians to the Eastern Band of Cherokee Indians. DCFS agrees that the United Keetoowah Band of Cherokee Indians may not have received adequate notice as to Jason. Because the tribe did not receive adequate notice as to Jason, there is no reason to assume that Tracey is not eligible for membership.

DCFS does not oppose a limited reversal of the termination of fathers parental rights for a remand to procure proper ICWA notice to the United Keetoowah Band of Cherokee Indians. Such limited reversals are appropriate in ICWA cases. (See Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268; In re Francisco W., supra, 139 Cal.App.4th at pp. 695, 704-706.) Under the circumstances of this case, where it is apparent that one tribe may not have received proper notice, a limited reversal and remand to permit compliance is warranted.

DISPOSITION

The judgment terminating fathers parental rights is reversed and the matter is remanded to the juvenile court with directions to order DCFS to comply with the notice provisions of ICWA as to the United Keetoowah Band of Cherokee Indians. If, after proper notice, the United Keetoowah Band of Cherokee Indians claims that Jason and Tracey are Indian children, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, the United Keetoowah Band of Cherokee Indians claims that Jason and Tracey are not Indian children, the judgment terminating fathers parental rights shall be reinstated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

____________________________, P. J.

BOREN

____________________________, J.

ASHMANN-GERST

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

^[2] Stephanie is not a subject of this appeal.

^[3] According to fathers uncle, father was serving a sentence of 25 years to life. However, father told the social worker in January 2008 that he would be incarcerated for possibly 10 years, and that there was a possibility that his sentence could be reduced to six years or less. As of April 10, 2009, DCFS reported that father was serving a 20-year sentence at the United States Penitentiary in Victorville.

^[4] The proper form at the time was JV-135, which the DCFS social worker utilized. Since 2008, the appropriate form is ICWA-030.

^[5] DCFS has filed a motion to augment and to take additional postjudgment evidence on appeal. The motion attaches, as Exhibit 1, a copy of the JV-135 form filed with the juvenile court on September 11, 2006. Exhibit 2 to the motion to augment is a last minute information for the court filed on March 19, 2010, including return receipts from the Eastern Band of Cherokee Indians; the Cherokee Nation of Oklahoma; the Quechan Tribal Council; the Bureau of Indian Affairs; the Secretary of the Interior; and the Department of the Interior, Indian Child Welfare. Father has taken no position with regard to DCFSs motion, and acknowledges that, should we grant the motion, the only tribe requiring notice on remand is the United Keetoowah Band of Cherokee Indians. Under In re Josiah Z. (2005) 36 Cal.4th 664, consideration of certain limited postjudgment evidence in order to expedit[e] the proceedings and promot[e] the finality of the juvenile courts orders and judgment is permissible. (Id. at p. 676.) Therefore, in the interest of promoting the finality of the juvenile court judgment, we have granted DCFSs motion to augment.

^[6] Father notes repeatedly that the form also omitted a place of birth for Stephanie. Because Stephanie is not a subject of this appeal, and her place of birth is not relevant to a determination of Jasons or Traceys Indian status, we decline to address this argument.

^[7] Notice to the United Keetoowah Band of Cherokee Indians, which may have gone to an improper address, is discussed separately.

^[8] DCFS argues that, as an alleged father, father lacks standing to appeal the termination of parental rights as to Tracey. Under ICWA, alleged fathers fall outside of the definition of a parent. (25 U.S.C. 1903(9).) An alleged father who has failed to acknowledge or establish he is a parent under ICWA lacks standing to challenge a violation of the ICWA notice provisions. (In re Daniel M. (2003) 110 Cal.App.4th 703, 709.) Father concedes that DCFS accurately sets forth the law on this question; however, father argues that DCFS has clearly acknowledged that father is Traceys biological father. Father is correct; DCFS represented that Tracey and Jason have the same mother and father and that they are full siblings. However, DCFSs representations do not alter the juvenile courts finding that father was merely an alleged father. Despite fathers status as a mere alleged father, we address the question of Traceys ICWA status in the interest of achieving finality on this issue.

^[9] Father cites In re Jonathan D. (2001) 92 Cal.App.4th 105, 111 for the proposition that a previous determination that the minors siblings were not Indian children under the Act is not dispositive of the minors Indian status. However, we note that in Jonathan D., the maternal grandmother indicated that she could provide information that might not have been available during the previous case involving the minors half siblings. (Id. at p. 108.) The matter before us is distinguishable because, not only was it determined that Traceys siblings were not Indian children, family members from both mother and fathers sides affirmatively represented to DCFS that Tracey was not an Indian child. No new information regarding Tracey or Jason was available, therefore the previous ICWA finding was not in question.

In re Robert A. (2007) 147 Cal.App.4th 982, 990, is also distinguishable. There, the ICWA documents from the half siblings case were not before the juvenile court at the time of the proceedings in question and were not part of the juvenile court file. (Ibid.) Thus, the Court of Appeal declined to consider them. Here, in contrast, information regarding the ICWA investigation in the previous dependency proceeding was before the juvenile court in the present matter, and was properly considered by the juvenile court in making the determination that this was not an ICWA case.