In re S.W.
Filed 1/28/13 In re S.W. CA2/4
NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 FOUR
In re S.W. et al.,
Persons Coming Under the Juvenile Court Law.
B242309
(Los Angeles County
Super. Ct. No. CK84303)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHAEL W.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court of
County, D. Zeke Zeidler, Judge. Reversed and remanded.
Eva
E. Chick, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Navid
Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Michael W. (Father) appeals
from an order of the juvenile court terminating his parental rights to his
daughters, S.W. and A.W. He contends
that the Los Angeles County Department of
Children and Family Services (DCFS) failed to comply with the inquiry and
notice requirements
of the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901
et seq.), and the analogous California statutes governing custody proceedings
involving Indian children. (Welf. &
Inst. Code, § 224 et seq.)
not in full compliance with the requisites of the statute. We reverse for the limited purpose of full
compliance with ICWA, as explained below.
factual and procedural background
The
(OCSSA) filed a section 300 petition on behalf of S.W. (born in June 2008) and
A.W. (born February 2010) in July 2010, alleging that their parents had
unresolved substance abuse problems that interfered with their ability to care
for the children, and that Father had mental health problems.
under the influence of a controlled substance and were incarcerated. The children were placed with the maternal
grandmother.
The
social worker inquired about the parents’ possible American Indian
heritage. Mother denied any such
heritage, while Father stated there might be some Indian ancestry in his family
but he was not sure. At the detention
hearing on July 9, 2010, the Orange County Juvenile
Court found a prima facie case for
detaining the children and ordered OCSSA to investigate the family’s possible
Indian ancestry.
A
social worker interviewed the parents and the maternal grandfather. The maternal grandfather said his family
belonged to a tribe in either Texas or New Mexico, but he did not know which
one. He gave the social worker the names
of his grandparents. On July 22, 2010,
OCSSA sent ICWA notices to the Bureau of Indian Affairs (BIA), the Secretary of
Interior, and all of the federally registered tribes in Texas and New Mexico.
with certified mail receipts for the notices that had been sent to the
tribes. OCSSA also provided the court
with letters received from the tribes stating the children were not enrolled
members nor eligible for enrollment in their respective tribes.
The
ICWA social worker spoke to the paternal great aunt, Catherine S., who stated
the family tribal affiliation was with the Powhatan tribe. OCSSA noted that Powhatan is not a federally
recognized tribe.
At
the hearing on August 11, 2010, the Orange County Juvenile Court found that
notice had been given to the BIA and the relevant tribes in accordance with
ICWA requirements. Father indicated for
the first time that he believed his tribal affiliation was through either the
Blackfeet or Sioux tribe. The court
therefore ordered notice to be sent to those tribes.
Further
interviews with Father and his relatives indicated that his relatives were
certain their affiliation was with the Powhatan tribe, while Father said he had
“heard somewhere maybe that it was Blackfeet or Sioux.†The paternal great-grandmother said she was
unaware of any ancestry through the Blackfeet or Sioux tribes.
On
August 20, 2010, OCSSA sent notices to the BIA, the Secretary of Interior,
numerous Sioux tribes, and the Blackfeet Tribe.
receipts for those notices.
At a
hearing on September 1, 2010, the court found OCSSA had complied with ICWA
notice requirements. The court continued
the matter to allow for receipt of responses from the Indian tribes. However, on September 7, 2010, the court
transferred the case to Los Angeles County, where Mother resided.
The
Los Angeles County Juvenile Court accepted jurisdiction over the matter on
October 6, 2010, and scheduled a contested disposition hearing. In a report dated December 28, 2010, DCFS
provided a summary of the notices OCSSA had given to the BIA and various tribes
under ICWA. It also provided the letters
from the Apache and Pueblo tribes stating the children were not members or
eligible for membership. At the December
28, 2010 hearing, the court noted that the Orange County Juvenile Court had instructed
OCSSA on August 11, 2010, to initiate ICWA notices to the Blackfeet and Sioux
tribes. On September 1, 2010, that court
found that notice was proper and complete as to all of the tribes.
At a
subsequent hearing on February 18, 2011, the court noted that ICWA was not
applicable to the case. The court
declared the children dependents of the court and ordered DCFS to provide
family reunification services.
The
parents did little to comply with the case plan; they visited sporadically with
the children and failed to appear for drug tests. In August 2011, DCFS recommended termination
of family reunification services. DCFS
informed the court that the maternal grandmother wanted the children’s maternal
aunt, who lived in Texas, to adopt the children. The maternal grandmother planned to live with
the aunt and the children. DCFS
requested that the court order an Interstate Compact for the Placement of
Children (ICPC) so that the maternal aunt’s home could be evaluated. The court so ordered. In September 2011, the juvenile court
terminated family reunification services.
In
the January 2012 section 366.26 hearing report, DCFS said the parents had not
complied with court-ordered services.
Father did not visit the children and Mother rarely did. DCFS recommended termination of parental
rights.
The
maternal aunt’s ICPC was approved in April 2012 and DCFS recommended placement
with her. The maternal grandmother
continued to plan to move there along with the children. At a hearing on April 6, 2012, the court
ordered the children to be placed with the maternal aunt. It ordered DCFS to initiate an adoptive home
study of the maternal aunt’s home.
On
June 12, 2012, neither parent appeared for the section 366.26 hearing. In accordance with DCFS’s recommendation, the
juvenile court terminated parental rights and ordered adoption as the permanent
plan for the children.
This
appeal by Father followed.
discussion
Father
contends on appeal that the order terminating parental rights must be reversed because
DCFS did not comply with several aspects of the ICWA notice requirements. We shall discuss in turn each of Father’s
contentions of alleged error in ICWA notice.
Pursuant to 25 United States
Code section 1912, subdivision (a): “In
any involuntary proceeding in a State court, where the court knows or has
reason to know that an Indian child is involved, [DCFS] 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.†Section 224.2,
subdivision (a)(1) similarly provides that notice to the tribe “shall be sent
by registered or certified mail with return receipt requested.†Notice given by DCFS pursuant to the ICWA must contain enough
information to permit the tribe to conduct a meaningful review of its records
to determine the child’s eligibility for membership. “[B]oth the federal ICWA regulations (25
C.F.R. § 23.11(d)(3) (2008)) and section 224.2, subdivision (a) require
the agency to provide all known information concerning the child’s parents,
grandparents and great-grandparents.†(
571, 576.) If known, names (maiden,
married, former, and aliases), current and former addresses, birthdates, places
of birth and death, tribal enrollment numbers, and any other information are to
be provided. (Id. at p. 575, fn. 3.)
“Deficiencies in an ICWA
notice are generally prejudicial, but may be deemed harmless under some
circumstances. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162; [In re] Antoinette S.
[(2002)] 104 Cal.App.4th [1401,] 1411-1413.)â€
(In re Cheyanne F.,
pursuant to section 224.2 and neither a tribe nor the BIA has provided a
response within 60 days, the court may determine that the ICWA does not apply
to the proceedings. (§ 224.3, subd.
(e)(3).)
We
note that Father did not forfeit any deficiencies in the notice requirements by
failing to raise them below because the notice provisions are designed in part
to protect the potential tribe’s interests.
(In re Alice M. (2008) 161
Cal.App.4th 1189; In re Marinna J.
(2001) 90 Cal.App.4th 731, 739.)
to the Blackfeet and Sioux Tribes
The
children’s paternal great aunt affirmatively stated that the family had Indian
ancestry through the Powhatan tribe.
That tribe is not federally recognized, and therefore OCSSA and DCFS
were not required to notify it of the pendency of these dependency
proceedings. The tribe in question must
be a federally recognized Indian tribe, group, band, or community eligible for
federal services provided to Indians in order to trigger ICWA notice
requirements. (25 U.S.C. § 1903(8);
781; In re John V. (1992) 5
Cal.App.4th 1201, 1217.)
Father
also claimed he might have Blackfeet and Sioux ancestry, although paternal
relatives disagreed. Nonetheless, OCSSA
sent notice to the Blackfeet and Sioux tribes, the BIA, and the Secretary of
Interior. Father alleges error in that
the record does not contain a certified mail receipt for the Sisseton-Walpeton
Sioux tribe, and furthermore there are no return letters in the record from any
of the Blackfeet or Sioux tribes.
Respondent counters that the information provided by Father was too
vague to trigger the notice requirements.
We do not agree. Although family
members disagreed with Father’s belief that the family might have Blackfeet
and/or Sioux ancestry, his naming of those tribes was sufficiently specific to
trigger ICWA notice requirements.
Indeed, OCSSA sent notice to the Sioux tribes, a readily definable
group, and to the Blackfeet tribe.
Unfortunately the case was transferred to Los Angeles County on
September 7, 2010, before the tribes responded (and before 60 days had
elapsed),
title="">[5] and apparently there was no communication
between OCSSA and DCFS thereafter to follow up on the tribes’ responses. Out of an abundance of caution, we therefore
remand the matter to the juvenile court to direct DCFS to send notice once
again to the Blackfeet and Sioux tribes, as well as the BIA and the Secretary
of Interior, and to allow the statutory time for their responses to be
received.
to the Pueblo and Apache Tribes
Father
further contends that ICWA notice was inadequate because a few Apache tribes
were not notified by OCSSA of the pendency of these proceedings. This argument is without merit. The maternal grandfather was specific in
stating that his family was from a tribe in either Texas or New Mexico, but he
did not know the name of the tribe.
OCSSA noticed every federally registered tribe in those states. The three tribes Father claims should have
also received notice are tribes located in Arizona (the San Carlos Apache
tribe, the White Mountain Apache tribe, and the Tonto Apache tribe). The maternal grandfather did not say he had
Pueblo or Apache ancestry, he only specified possible ancestry from a tribe
from either New Mexico or Texas. The
notices sent by OCSSA were comprehensively and specifically responsive to the
information provided by the maternal grandfather. As father acknowledges, “[w]hen there is
evidence that the child has a certain Indian heritage, but the identity of the
specific tribe of which the child may be a member is unknown, the notice
requirement is satisfied if notice is sent to all of the potential federally
recognized tribes, as well as to the BIA.â€
The potential tribes were those in New Mexico and Texas, according to
the unambiguous information provided by a family member.
However,
as with the Blackfeet and Sioux tribes, the record is devoid of responses from
several of the Pueblo and Apache tribes (although many had responded that the
children were not eligible for membership, and those responses are in the
record). Those notices were sent in late
July 2010, and therefore 60 days had not elapsed when the Orange County
juvenile court transferred the case to Los Angeles on September 7, 2010. We will not simply presume that OCSSA
received negative responses from the remainder of the tribes, or failed to
receive responses. We therefore direct
the juvenile court to order DCFS to send notice to the tribes for which a
response letter is not contained in the record.
By our reckoning, these include the following: Pueblo of Cochiti, Pueblo of Jemez, Pueblo of
Laguna, Pueblo of Pojoaque, Pueblo of San Ildefonso, Pueblo of San Juan,
Pueblo of Santa Ana, Pueblo of Taos, Pueblo of Tesuque, Pueblo of Zuni, Ysleta
Del Sur Pueblo, and Alabama-Coushatta Tribes of Texas.
disposition
The order terminating
parental rights is reversed. The case is
remanded to the juvenile court with directions to order DCFS to provide notice
to the tribes specified in this opinion, in accordance with ICWA. If after proper notice the court finds the
children are Indian children, the court shall proceed in conformity with
ICWA. If, after proper inquiry and
notice, the court finds the children are not Indian children, the order
terminating parental rights and selecting adoption as
the permanent plan shall be reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
WILLHITE,
J.
name="_ftn1" title="">[1] All
undesignated section references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Mother
is not a party to this appeal.
