In re J.F. CA3 ( 2015 )

Filed 3/12/15 In re J.F. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
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In re J. F. et al., Persons Coming Under the Juvenile C077305
Court Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No. J06381)
AGENCY,
Plaintiff and Respondent,
v.
Mariah B.,
Defendant and Appellant.
Mariah B., mother of the minors, appeals from orders of the juvenile court
terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further
undesignated statutory references are to the Welfare and Institutions Code].) Mother
contends it was error to terminate parental rights where there was inadequate notice
pursuant to the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We
reverse.
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FACTS
The minors, two-year-old J. F. and three-month-old I. F., were detained in
May 2013 as a result of severe physical injury inflicted on I. F. while in his parents’ care.
The detention/jurisdiction report stated father claimed Indian heritage through the
paternal great-grandmother but he did not know if she belonged to a tribe. Mother also
claimed Indian ancestry but did not have any information about it.
At the outset of the case, the social worker became aware of the names of the
maternal grandmother and the maternal great-grandmother. Both parents provided names
of relatives for assessment for placement of the minors. The jurisdiction report filed in
August 2013 reflected father’s claim, his limited information, and that the Bureau of
Indian Affairs (BIA) had been contacted. The report also included contact information
for the maternal grandmother, the maternal great-grandmother, the maternal great-aunt,
and the paternal grandmother.
The San Joaquin County Human Services Agency (Agency) sent notice of the
proceedings to the BIA in July 2013. The notice included the names, birth dates, and
address of the parents and the name of the maternal grandfather but no other information
about any other relatives and no tribal identification. An Agency declaration said that the
BIA responded to the notice. The response stated that the BIA did not determine tribal
eligibility and did not maintain a list of persons possessing Indian blood. The response
further stated that the notice contained insufficient information to determine “Tribal
Affiliation” and to forward notice to the appropriate tribe when further information was
available.
At the contested jurisdiction hearing in October 2013 the court found that the
ICWA was not an issue in the case. In February 2014 the court bypassed services for
both parents. Parental rights were terminated in July 2014.
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DISCUSSION
Mother argues reversal of the orders terminating parental rights is required
because the court and the Agency did not comply with the notice provisions of the
ICWA: specifically, that there was inadequate inquiry into whether there was reason to
believe the minors were Indian children and what their tribal affiliation might be, and that
the notice sent to the BIA failed to include all relative information known or readily
available to the Agency. We agree.
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.)
The juvenile court and the Agency have an affirmative duty to inquire at the outset of the
proceedings whether a child who is subject to the proceedings is, or may be, an Indian
child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court “knows
or has reason to know that an Indian child is involved,” notice of the pending proceeding
and the right to intervene must be sent to the tribe, or to the BIA if the tribal affiliation is
not known. (25 U.S.C. § 1912(a); see Welf. & Inst. Code, § 224.2; Cal. Rules of Court,
rule 5.481(b).)
A. Inquiry
The Agency has an ongoing duty to interview the minor’s parents and extended
family, if known, concerning the child’s membership status or eligibility. (§ 224.3,
subds. (a) and (c); Cal. Rules of Court, rule 5.481(a)(4).)
Here both parents claimed Indian heritage. The maternal grandmother and
maternal great-grandmother as well as the paternal grandmother were known and
available to the Agency. Since the relatives were already being assessed for placement, it
would not have been burdensome to ask the grandmothers about any Indian heritage or
lack thereof and report the results of the inquiries to the court. This was not done.
Because the Agency failed to inquire about the parents’ Indian heritage, the court lacked
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adequate information to determine whether the ICWA applied. (In re L.S. (2014)
230 Cal.App.4th 1183, 1198.)
B. Notice
State statutes, federal regulations, and the federal guidelines on Indian child
custody proceedings all specify the contents of the notice to be sent to the tribe in order to
inform the tribe of the proceedings and assist the tribe in determining if the child is a
member or eligible for membership. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg.
67588 (Nov. 26, 1979) guideline No. B.5.) If known, the Agency should provide name
and date of birth of the child; the tribe in which membership is claimed; and the names,
birth dates, places of birth and death, current addresses, and tribal enrollment numbers of
the parents, grandparents, and great-grandparents as this information will assist the tribe
in making its determination of whether the child is eligible for membership and whether
to intervene. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. 67588, supra,
guideline No. B.5; In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.)
Here, the Agency had names and addresses of grandparents and at least one great-
grandparent but did not include them as required in the notice. Because the Agency
failed to inquire about the parents’ Indian heritage, we cannot determine whether the
inadequate contents of the notice were harmless. Certainly if, after proper inquiry, no
tribe is identified, the BIA’s response will be unchanged. However, if inquiry of the
grandparents produces the name of a tribe, complete and accurate information in the
notice will be critical to the tribe’s ability to determine whether the minors are eligible.
DISPOSITION
The orders terminating parental rights are reversed and the matter is remanded for
the limited purpose of compliance with the notice and inquiry provisions of the ICWA
and a determination of whether the ICWA applies in this case. If, after proper inquiry,
the Agency is able to identify a tribe claimed by the parents, the Agency is directed to
provide proper notice with all known information. If, after inquiry and notice, if
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required, the juvenile court determines the parents were unable to identify any tribe or
there was either no response to notice sent to an identified tribe or the tribe determined
the minors were not Indian children, the orders shall be reinstated. However, if a tribe is
identified and noticed, the tribe determines the minors are Indian children, and the court
determines the ICWA applies to this case, the juvenile court is ordered to conduct a new
selection and implementation hearing in conformance with all provisions of the ICWA.
RAYE , P. J.
We concur:
NICHOLSON , J.
BUTZ , J.
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