In re Antoinette S.

• Decision Date: 31 December 2002
• Docket Number: No. G030583.,G030583.
• Citation: 104 Cal.App.4th 1401,129 Cal.Rptr.2d 15
• Parties: In re ANTOINETTE S., a Person Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent, v. R.S., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

129 Cal.Rptr.2d 15

104 Cal.App.4th 1401

In re ANTOINETTE S., a Person Coming Under the Juvenile Court Law.

Orange County Social Services Agency, Plaintiff and Respondent, v. R.S., Defendant and Appellant.

No. G030583.

Court of Appeal, Fourth District, Division 3.

December 31, 2002.

Review Denied April 23, 2003.

Stephen S. Buckley, under appointment by the Court of Appeal, for the Minor.

OPINION

ARONSON, J.

R.S. (father) contends the juvenile court's failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA, or the Act) deprived the court of jurisdiction to terminate his parental rights to five-year-old Antoinette S. The court held the termination hearing without waiting "at least ten days after receipt of notice" by the Secretary of the Interior. (25 U.S.C. § 1912(a); subsequent statutory citations are to this title unless otherwise noted.) While broad language utilized by some of our sister Courts of Appeal and other state courts suggests such error is jurisdictional, we agree with those courts reaching the opposite conclusion. In our view, the error is not jurisdictional. Nor does it always require reversal or remand for strictly proper notice. Here, the failure to ensure a 10-day window after notice to the Secretary was harmless. Finally, father's argument that the court should have applied the substantive provisions of the ICWA is also without merit. We therefore affirm the judgment.

I

Orange County Social Services Agency (SSA) placed a hospital hold on then four-year-old Antoinette because blood tests ruled out her mother's explanation that she "bruises easily" and because of suspicion her bowel obstruction was caused by blunt force trauma to her stomach. X-rays showed two healing rib fractures that did not surprise or shock mother but which she could not explain. Mother admitted Antoinette had been vomiting for six weeks and had lost 10 to 15 pounds before being brought to the hospital.

SSA filed a dependency petition alleging serious physical harm to Antoinette and failure to protect her. A box checked on the petition indicated, "Child may be of Indian ancestry." The record does not disclose what information prompted SSA to check that box. At the initial detention hearing mother denied she or father had any Indian heritage. Taking mother at her word, the juvenile court and SSA proceeded as if the ICWA did not apply. Neither mother nor father ever suggested to the trial court in any subsequent proceeding that the Act applied.

SSA made repeated efforts over the next nine months to locate Antoinette's father, to whom mother was married but had not seen for more than two years. The social worker finally received a voice mail from father two weeks before the termination of parental rights hearing. Father was incarcerated and had not seen Antoinette since "early last year some time before I got busted for drugs." He explained his absence this way: "I got busted [for possession of drugs] and then was in and out of jail a few times last year. I have been around Anaheim when I am not in jail."

Father told the social worker he believed his deceased maternal grandparents had Native American ancestry. In response to the worker's inquiries, father was not able to provide birth dates for either his grandmother or his grandfather, nor was he even sure of their names. He did not know whether they were members of any tribe. Father himself was not a member of any tribe.

Nevertheless, SSA sent notice regarding Antoinette's possible Indian heritage to the appropriate regional Bureau of Indian Affairs (BIA) office of the Department of the Interior the day before the termination hearing. The notice included a form entitled, "REQUEST FOR CONFIRMATION OF CHILD'S STATUS AS INDIAN." The form listed Antoinette's name, sex, birth date, and birthplace (Anaheim, CA). It also contained mother's married and maiden names, her birth date, birthplace (Mexico City, Mexico), and similar information for father (birthplace: Orange, CA), as well as mother's and father's definitive, "No," regarding whether they were enrolled tribal members. The names of Antoinette's maternal grandmother, paternal grandparents, and paternal great grandparents were provided, but their birth dates, birthplaces, tribal affiliations, and enrollment statuses were reported as "unknown." SSA attached a copy of Antoinette's birth certificate. In the "Remarks" section of Antoinette's family history, the social worker wrote: "Child's birth father claimed his maternal grandparents . . . had Indian ancestry in their fam[ily] background. He reports both grandparents to be deceased. He was not able to identify a particular tribal affiliation."

SSA sent a similar notice to the State Department of Social Services (DSS) for help in determining whether Antoinette might be an Indian child. In her cover letter, the social worker stated, "Antoinette's birth father reports that his maternal grandparents have some type of Indian ancestry in their background. [¶] Unfortunately, I was unable to obtain very much information regarding the extent of his family's Indian [a]ncestry from the child's birth father.... The birth mother states that she is not aware of any Indian [heritage within her family of origin."

Father appeared at the termination hearing, where neither he, SSA, nor the court raised the issue of his possible Indian ancestry; nor was the possible applicability of the ICWA addressed. The court terminated parental rights. Mother does not appeal on any ground, but father now raises the ICWA for the first time on appeal.

II Preliminary Issues: Should the Merits Be Reached?

We deal briefly with two preliminary issues raised by SSA regarding whether we should reach the merits of father's arguments.

First, father's claim that his grandparents had Native American ancestry, and that Antoinette therefore does as well, was sufficient to trigger the notice requirements of the Act, notwithstanding SSA's insistence the information was too vague. The ICWA provides 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 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." (25 U.S.C. § 1912(a), italics added.) That the identity of the tribe is not known does not discharge SSA from the requirement of giving notice. Section 1912(a) provides that in such cases "notice shall be given to the Secretary in like manner...." "Secretary" means the Secretary of the Interior (25 U.S.C. § 1903(11)), and notice to the Secretary is accomplished by notice to the BIA. (In re Edward H. (2002) 100 Cal.App.4th 1, 4, 122 Cal.Rptr.2d 242; see 25 U.S.C. § la [delegating Secretary's duties to BIA].) The purpose of notice to the BIA is that it "presumably has more resources and skill with which to ferret out the necessary information" (In re Desiree F. (2000) 83 Cal.App.4th 460, 469, 99 Cal.Rptr.2d 688 (Desiree F.)), such as which tribe or tribes might be entitled to notice.¹

SSA suggests father's general claim of his Native American heritage did not give the juvenile court reason to know Antoinette was in fact an "Indian child" within the meaning of the ICWA, and thus notice was not required. The ICWA defines an Indian child as an unmarried person under the age of 18 who "is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) Father and mother admitted they were not enrolled members of any tribe, but that is not dispositive because enrollment is not the sole means to establish tribal membership. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254, 126 Cal. Rptr.2d 639 (Dwayne P.)) [noting that "a child may qualify as an Indian child within the meaning of the ICWA even if neither of the child's parents is enrolled in the tribe"]. In any event, SSA's argument fails to "distinguish between a showing that may establish a child is an Indian child within the meaning of the ICWA and the minimal showing required to trigger the statutory notice provisions." (Id. at p. 258,126 Cal.Rptr.2d 639.)

After an exhaustive analysis, the court in Dwayne P. recently concluded the "minimal showing" required to trigger notice under the ICWA is merely evidence "suggesting]" the minor "may" be an Indian child within purview of the Act. (Dwayne P., supra, 103 Cal.App.4th at p. 258, 126 Cal.Rptr.2d 639.) We agree. Congress has recognized "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe." (25 U.S.C. § 1901(3).) The purpose of the ICWA is therefore to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families...." (25 U.S.C. § 1902.) Because of the important interests at stake, courts around the country "have interpreted the ICWA notice provision broadly." (Dwayne P., supra, 103 Cal.App.4th at pp. 256-257, 126 Cal. Rptr.2d 639 [citing cases]; see, e.g., In re M.C.P. (1989) 153 Vt. 275, 571 A.2d 627, 634-635 ["it is preferable to err on the side of giving notice . . ."].)

As noted in Dwayne P., the federal guidelines for Indian child custody proceedings provide that a court "has reason to believe a child involved in a child custody proceeding is an Indian" when, among other things, "[a]ny public or state-licensed agency involved in child protection services . . . has discovered information which suggests that the...