In re N.J. CA4/2

Filed 6/30/14 In re N.J. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re N.J., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E060299
Plaintiff and Respondent, (Super.Ct.No. RIJ100227)
v. OPINION
R.J.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,
Judge. Reversed in part with directions.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for
Plaintiff and Respondent.
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R.J. (father) appeals an order terminating his parental rights to his daughter, N.
The only issue he raises is whether the juvenile court correctly found that the Riverside
County Department of Public Social Services (DPSS) complied with the notice
requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).
We agree that DPSS did not comply with those requirements. Consequently, we will
reverse the termination order and remand to allow DPSS to comply with ICWA’s notice
requirements.
FACTUAL AND PROCEDURAL HISTORY
Because ICWA compliance is the sole issue on appeal, an abbreviated history will
suffice. N. became a court dependent pursuant to Welfare and Institutions Code section
300 shortly after her birth because she was born with methamphetamine in her system.
Reunification services were ordered for father, who was deemed N.’s presumed father,
but not for mother, based on her failure to reunify with her older children in prior
dependency cases. (Father is not the father of those children.)
Father made some effort at reunification with N., but ultimately was unable to care
for her, in part because during the reunification period he was sentenced to four years in
prison, apparently for a theft offense, and was incarcerated at Delano State Prison. His
parental rights were terminated and N. was freed for adoption on December 19, 2013.
Father filed a timely notice of appeal.
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LEGAL ANALYSIS
THE RECORD SHOWS THAT DPSS DID NOT COMPLY WITH
ICWA NOTICE REQUIREMENTS
Father contends that DPSS failed to provide adequate information concerning his
possible Cherokee heritage to permit federally recognized Cherokee tribes to determine
whether N. qualified for tribal membership. He asserts that the court erred when it found
that DPSS had complied with ICWA’s notice requirements. We agree.
ICWA was enacted “‘to respond to a crisis in which large numbers of Indian
children were being removed from their families for placement in non-Indian homes.
[Citation.] ICWA was designed to protect the best interests of Indian children and
promote the stability and security of Indian tribes and families by establishing minimum
federal standards for the removal of Indian children from their families by state courts
and the placement of such children in foster or adoptive homes. [Citation.] [¶] At the
heart of ICWA are its jurisdictional provisions over child custody proceedings involving
Indian children domiciled both on and off the reservation.’” (In re Christian P. (2012)
208 Cal. App. 4th 437, 450-451, fn. omitted.)
“‘Among ICWA’s procedural safeguards is the duty to inquire into a dependent
child’s Indian heritage and to provide notice of the proceeding to any tribe or potential
tribes, the parent, any Indian custodian of the child and, under some circumstances, to the
Bureau of Indian Affairs.’ [Citation.] To comply with these notice requirements, [the
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social services agency is] required to (1) identify any possible tribal affiliations and send
notice to those tribes; and (2) submit copies of such notices, including return receipts, and
any correspondence received from the tribes to the trial court.’” (In re Christian P.,
supra, 208 Cal.App.4th at p. 451.)
“‘The [trial] court must determine whether proper notice was given under ICWA
and whether ICWA applies to the proceedings. [Citation.] We review the trial court’s
findings for substantial evidence.’” (In re Christian P., supra, 208 Cal.App.4th at
p. 451.)
Here, mother reported that she had Cherokee and Wintun ancestry. Father stated
that his paternal grandmother was “full Apache.” Father did not have more information
than that, and his grandmother had died when his father was 13. Neither father nor his
father was registered with a tribe or had any tribal affiliation. Father later reported to the
social worker that his paternal aunt informed him that the family does not have any
American Indian ancestry and that his paternal grandmother was part of a tribe in
Mexico. The social worker nevertheless asked for the grandmother’s name and date of
birth. However, father did not provide that information.
At a hearing on August 8, 2012, father stated that he had some Cherokee ancestry
through his mother. However, he had “no number” and could not “trace it back.” The
court asked if DPSS had noticed the Cherokee tribes for both mother and father. The
social worker replied, “It’s been reported to the ICWA.” The court accepted that
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statement as evidence that notice had been provided to the Cherokee tribes with respect to
both parents. At a subsequent hearing, the court found, based on documents filed by
DPSS on September 4, 2012, that N. was not an Indian child within the meaning of
ICWA and that “ICWA notice [was] good.”1
The ICWA notices prepared by DPSS state that mother claimed Cherokee
ancestry, as well as Wintun and Blackfeet, and that father claimed Apache ancestry.
Father contends that this was inadequate because the notices did not state that he claimed
Cherokee ancestry. DPSS argues that the notices were sufficient because “[t]here are
three Cherokee tribes, all of which received notice,” and all of which “responded
indicating that [N.] was not an Indian Child in connection to their tribes,” based on the
information that was provided. This information included all of the “relevant information
that was known about [father] and his relatives.” And, the response of one of the
Cherokee tribes appears to indicate that it considered father’s information as well as
mother’s in determining that N. is not an Indian child. Accordingly, DPSS contends,
substantial evidence supports the trial court’s finding that proper notice was given and
that N. is not an Indian child.
1 To be an Indian child within the meaning of ICWA, a child must be either (1) a
member of an Indian tribe, or (2) both eligible for membership in an Indian tribe and the
biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)
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We disagree. None of the responses from the Cherokee tribes indicated
specifically that they relied on the information provided with respect to both parents in
determining N.’s status. On the contrary, they refer in general terms to the “information
provided” or “information . . . supplied” or “information received.” The information
provided in the notices was that father claimed Apache ancestry, not that he claimed
Cherokee ancestry. Accordingly, the Cherokee tribes were not put on notice that N.
might be an Indian child by virtue of her father’s Cherokee ancestry, and the juvenile
court erred in finding “good” notice pursuant to ICWA.2
A notice violation under ICWA is reversible error only if the appellant shows a
reasonable probability that he or she would have obtained a more favorable result in the
absence of the error. (In re Christian P., supra, 208 Cal.App.4th at p. 452.) In the
absence of such a showing, the remedy is conditional reversal of the order terminating
parental rights and limited remand to allow the social services agency to comply with
ICWA. (In re Elizabeth W. (2004) 120 Cal. App. 4th 900, 908.) Father has not pointed to
any facts that support the conclusion that he would have obtained a more favorable result
if proper notice had been given to the Cherokee tribes. Accordingly, we will remand for
compliance by DPSS.
2
None of the other tribes noticed responded that N. was a member or entitled to
membership.
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DISPOSITION
The order terminating parental rights is conditionally reversed, and the cause is
remanded to the juvenile court with directions to order DPSS to provide the Cherokee
tribes with proper notice of the proceedings and of father’s claim of Cherokee ancestry.
If no response is received indicating that N. is an Indian child within the meaning of
ICWA, then the juvenile court shall reinstate the order terminating parental rights. If any
Cherokee tribe determines that N. is an Indian child within the meaning of ICWA, the
juvenile court shall proceed accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
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