In re J.T.
| Decision Date | 29 August 2007 |
| Docket Number | No. A117049.,A117049. |
| Citation | 65 Cal.Rptr.3d 320,154 Cal.App.4th 986 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re J.T., et al., Persons Coming Under the Juvenile Court Law. Contra Costa County Bureau of Children and Family Services, Plaintiff and Respondent, v. Sandra S., Defendant and Appellant. |
Silvano B. Marchesi, County Counsel, Carol T. Nguyen, Deputy County Counsel, for Petitioner and Respondent.
Caroline J. Todd, under appointment by the Court of Appeal under the First District Appellate Project, Berkeley, for Defendant and Appellant.
Sandra S. appeals from the termination of her parental rights to her three children. The sole issue she raises is the agency's failure to comply with the notice requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.). We reverse and remand with directions for further proceedings.
Sandra S. (Mother) is the mother of J.T. (born 2002), Cassandra T. (born 2003) and Mary T. (born 2005). In October 2004, the Contra Costa County Bureau of Children and Family Services (CFS) filed juvenile dependency petitions for J.T. and Cassandra pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j).1 The children were detained and placed in foster care. The petitions, as amended, alleged that the parents failed to provide appropriate care to Cassandra, who had numerous medical and nutritional needs; the parents had a history of domestic violence; Mother had mental health problems; and the father had a substance abuse problem. The parents admitted one allegation in each petition and the juvenile court sustained the petitions pursuant to section 300, subdivision (b). The court issued dispositional orders removing the children from the home. Those orders were continued at the six-month status review hearing in September 2005.
The jurisdiction, disposition and six-month status review reports from CFS stated the ICWA did not apply. The father denied Indian ancestry. Mother, who was adopted, told CFS her biological parents had Sioux and Cherokee Indian ancestry, but she did not know her biological parents' names.
In June 2005, Mary was born and immediately detained. The juvenile court sustained allegations of failure to protect and the abuse and neglect of siblings in a petition brought pursuant to section 300, subdivisions (b) and (j). At the disposition hearing, the court removed Mary from the parents' home.
The jurisdiction report and an addendum in Mary's case stated that the ICWA did not apply, citing the same information provided in the reports for her older siblings. The social worker re-interviewed Mother about her Indian ancestry in October 2005 and for the first time Mother produced adoption documents, which stated that her biological mother was of German and Sioux Indian descent. The documents did not include the biological mother's name, date of birth, place of birth or other identifying information. CFS continued its attempts to gather additional information.
Despite reunification services, the parents failed to reunify. In July 2006, the court held a combined status review hearing for all three children. The status review reports for the three children concluded that the ICWA did not apply. The court terminated reunification services and set a permanency planning hearing pursuant to section 366.26 for November 16, 2006.
The reports for the section 366.26 hearing again stated the ICWA did not apply. In response to a CFS inquiry, the Alameda County Post Adoption Unit reported that it had no record of an adoption involving a child with Mother's last name (S.) as either a birth or an adoptive name.
Nevertheless, at the November hearing deputy county counsel requested a continuance to allow CFS to comply with ICWA notice requirements. He reported, The court continued the hearing to January 11, 2007.
On November 21, 2006, CFS called Mother's adoptive father and learned Mother's birth name and the name of Mother's biological mother. On December 13, 2006, CFS mailed ICWA notices that included this information to three Cherokee tribes, three Sioux tribes and the BIA CFS received signed return receipts from the six tribes and the BIA that indicated receipt between December 14 and 22, 2006.2
On December 15, 2006, at county counsel's request, CFS called Mother's adoptive father again to request more information. During this conversation, the father suggested that Mother's middle birth name, "Rose," might be a clue that she was a member of the Rosebud Sioux Tribe. CFS promptly sent an ICWA packet to the Rosebud Sioux Tribe, and the signed return receipt was returned four days later. The father provided additional information about the adoption, but it was not helpful to the post adoption unit in locating Mother's adoption records. County counsel obtained a court order to view all records, but discovered that Mother's adoption file was not available because all files were destroyed after a dependent child turned age 28 years old. Mother was 31 years old. Also in December, Mother's attorney informed CFS that she had asked Mother to sign a form to allow any available file in Alameda County to be opened.
At the January 2007 hearing, CFS summarized its actions since the November hearing and concluded, CFS submitted documentation of ICWA notice. The court found that notice was given and the children are not eligible under the ICWA. Mother then moved for a continuance to allow the Rosebud Sioux tribe more time to respond and to allow her to file a petition to open Mother's adoption records. Deputy county counsel objected because CFS had already been informed that the adoption records had been destroyed and argued that it had provided sufficient ICWA notice. Mother responded that it was unclear whether the superior court adoption file or only the CFS departmental records had been destroyed or whether the adoption had occurred in Alameda County. The court denied the continuance because notice was proper and "we need to move on for the children." The court terminated the parents' rights to all three children.
Mother argues that the order terminating parental rights must be reversed because CFS did not comply with ICWA notice requirements. First, CFS did not send notice to "all tribes of which the child may be a member or may be eligible for membership." (§ 224.2, subd. (a)(3); see also Cal. Rules of Court, rule 5.664(f)(2), (3), as amended Jan. 1, 2007.)3 Second, CFS did not address notice to the tribal chairperson or a designated agent for service. (§ 224.2, subd. (a)(2); see also rule 5.664(f)(2), (3), as amended Jan. 1, 2007.)
Although Mother did not raise these objections below, a challenge to ICWA notice compliance is not forfeited due to a failure to object in the trial court. (In re Nikki R. (2003) 106 Cal.App.4th 844, 849, 131 Cal.Rptr.2d 256.) The trial court's finding that ICWA notice was adequate is reviewed for substantial evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632, 80 Cal. Rptr.2d 378; In re E.H. (2006) 141 Cal. App.4th 1330, 1333, 46 Cal.Rptr.3d 787.)
Section 224.2, subdivision (a) codifies ICWA notice requirements: "(a) If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall ... comply with all of the following requirements: ... [¶][¶] (2) Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service. [¶] (3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child's tribe in accordance with subdivision (d) of Section 224.1, after which notice need only be sent to the tribe determined to be the Indian child's tribe (§ 224.2, subd. (a)(2), (3).) Section 224.2 went into effect after the ICWA notices were sent in this case, but before the juvenile court ruled that notice was proper. (Stats.2006, ch. 838, § 31, effective January 1, 2007.) The juvenile court was required to apply the law in effect at the time it rendered a decision on January 11, 2007 on the adequacy of ICWA notice. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 931, 154 Cal.Rptr. 503, 593 P.2d 200.) As a rule of procedure, the new statute did not have an impermissible retroactive effect. (7 Witkin, Summ. of Cal. Law (10th ed. 2005) Constitutional Law, § 623, pp. 1017-1018; § 630, p. 1028.)
State law mandates notice to "all tribes of which the child may be a member or eligible for membership." (§ 224.2, subd (a)(3).) An "Indian tribe" is defined as "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians...." (25 U.S.C. § 1903(8); § 224.1, subd. (a); rule 5.664(a)(6).) The Department of the Interior publishes a list of "Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs" in the Federal Register, and the California Department of Social Services, Children and Family Services Division, publishes a list of tribes entitled to ICWA notice on its website. Mother identified her possible Indian heritage as Sioux...
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