In re Jesse T.

Filed 1/6/10 In re Jesse T. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Jennifer T., the mother of Jesse T. (mother), appeals from an order terminating her parental rights following a Welfare and Institutions Code section 366.26 permanency hearing (.26 hearing).[1] Mother contends the order must be reversed because the Mendocino County Department of Social Services (Department) failed to comply with the notice requirements set forth in the Indian Child Welfare Act (ICWA), (25 U.S.C.  1901, et seq.). The Department concedes the content and manner of service of the ICWA notices were deficient and requests a limited reversal as described in In re Francisco W. (2006) 139 Cal.App.4th 695, 704 (Francisco W.). We appreciate the Departments straightforward admission of error and remand the case to the juvenile court for the limited purpose of ensuring compliance with the ICWA.

Factual and Procedural Background

Given the Departments concession of error, we recite only briefly the facts pertinent to the ICWA issues raised on appeal. On May 3, 2005, the Department filed a second original dependency petition alleging neglect under section 300, subdivision (b). The petition alleged mother and father were unable to care for their three children, including Jesse, despite several years of intensive voluntary services in an effort to prevent detention. Jesse was then living with foster parents in a respite placement that had commenced in January 2005.

Mother and father were provided reunification services for 18 months, during which time Jesse returned to mother and father for an extended visit. While Jesse had received the special attention he needed and had thrived with the foster parents, mother and father were unable to meet his special needs or to control his behavior. Jesse returned to his foster home, with some visitation by mother and father.

By November 2008, mother and father had relocated to Oregon and had separated. Communication by telephone was problematic because of Jesses developmental disabilities. Jesses foster parents made a commitment to adopt him and a .26 hearing was scheduled for June 2009.

At the May 2005 detention hearing, mother had stated the children might have Cherokee, Blackfeet or Crow heritage. ICWA notice was sent to these tribes on the now superseded JV-135 form. The information provided was scant, and the notices were not sent to a tribal chairperson or a designated agent for service. Although the return receipts were signed, the status of the individuals signing the receipts was unknown. Notice was sent a second time. Again, it was scanty and not sent to the tribal chairperson or designated agent for service. The responses reflected the paucity of information provided. For example, the Eastern Band of Cherokee replied that the children were not enrolled or eligible based on the information exactly as provided by the notice. The Cherokee Nations response included numerous ???????? indicating missing information. The Blackfeet Tribe asked that a family tree be completed , but no completed family tree, or any other reply to the tribe, appears in the record.[2]

Discussion

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1911(c), 1912.) (In re Holly B. (2009) 172 Cal.App.4th 1261, 1266.) If there is reason to believe a child who is the subject of a dependency proceeding is an Indian child, ICWA requires notice to the childs Indian tribe of the proceeding and of the tribes right of intervention. (25 U.S.C.  1912(a); see also Welf. & Inst. Code, 224.2, subd. (b).)

Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families [because it] ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) [T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) Because  failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, [ICWA] notice requirements are strictly construed.  [Citation.] (In re Robert A. (2007) 147 Cal.App.4th 982, 989.)

The notice sent to the tribes must contain enough identifying information to be meaningful. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) A social worker has a duty to inquire about and obtain, if possible, all of the information about a childs family history required under regulations promulgated to enforce ICWA. (In re S.M . (2004) 118 Cal.App.4th 1108, 1116.) The federal regulations relating to ICWA notices require inclusion of information about the child, the tribe in which the child is enrolled or eligible for enrollment, the names and addresses of the parents, grandparents, great-grandparents and other identifying information, in addition to information about the dependency. (In re Mary G. (2007) 151 Cal.App.4th 184, 209.) Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases, birthdates, place of birth and death, current and former addresses, tribal enrollment numbers, and other identifying data. (Francisco W., supra,139 Cal.App.4th at p. 703.) It is essential for the agency to provide the Indian tribe with as much information as is known about the childs ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) A notice that does not include sufficient information, or includes incorrect information about the dependent childs ancestors, is meaningless, and does not satisfy the notice requirements of ICWA. (Ibid.)

In In re Louis S., supra, the court noted notices to the tribes contained misspelled and incomplete names, and did not provide birthdates for either the maternal or paternal grandmother. The reviewing court concluded the incorrect and incomplete information prevented the tribe from conducting a meaningful search to determine Louiss tribal heritage. (In re Louis S., supra, 117 Cal.App.4th at p. 631.) In In re Jennifer A. (2002) 103 Cal.App.4th 692, 705, the reviewing court came to a similar conclusion based on a dearth of information provided to the Cherokee Nation. As the Department acknowledges, the ICWA notices sent in this case share many of these same deficiencies.

We now consider the appropriate remedy. Numerous courts have reversed orders terminating parental rights where the court failed to comply with ICWA notice requirements and remanded for the limited purpose of ensuring compliance with the act. (Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, 1410 [Remand for the limited purpose of ICWA compliance is all too common]; In re Alice M. (2008) 161 Cal.App.4th 1189, 1203; In re J.T. (2007) 154 Cal.App.4th 986, 994; Francisco W., supra, 139 Cal.App.4th at pp. 705-706; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1268.) As the Francisco W. court explained, The limited reversal approach is well adapted to dependency cases involving termination of parental rights in which we find the only error is defective ICWA notice. This approach allows the juvenile court to regain jurisdiction over the dependent child and determine the one remaining issue. The parties already have litigated all other issues at the section 366.26 hearing, and it is not necessary to have a complete retrial. Thus, the child is afforded the protection of the juvenile court, and, at the same time, his or her case is processed to cure the ICWA error, which is more expeditious than a full rehearing of all section 366.26 issues. . . . (Francisco W., supra, 139 Cal.App.4th at p. 705.) We follow the Francisco W. courts reasoning here, as well, and remand the case to the juvenile court for the limited purpose of ensuring compliance with the ICWA.

Disposition

The order terminating mothers parental rights is reversed. The case is remanded to the juvenile court with directions to comply with the notice provisions of the ICWA. If, after providing notice, the court determines Jesse T. is an Indian child, the court shall proceed in conformity with the ICWA. If, however, after proper inquiry and notice, the court determines Jesse T. is not an Indian child, the order terminating mothers parental

rights and selecting adoption as the permanent plan shall be reinstated. (In re Alice M., supra, 161 Cal.App.4th at p. 1203; Francisco W., supra, 139 Cal.App.4th at pp. 705, 711; see also D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 208.)

______________________

Banke, J.

We concur:

______________________

Marchiano, P. J.

______________________

Margulies, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. For the reasons set forth in In re Edward S. (2009) 173 Cal.App.4th 387, 392, footnote 1, we adopt the practice of using the partys first name and last initial as required by California Rules of Court, rule 8.400(b)(2).

[2] Given the Departments concession of error, we also need not consider, and therefore deny, mothers motion to take additional evidence on which we deferred ruling pending disposition of the appeal.