as: 113 Cal.App.4th 1449, 5 Cal.Rptr.3d 893)
of Appeal, Third District, California.
re D.T. et al., Persons Coming Under the Juvenile Court
Dorado County Department of Social Services, Plaintiff and Respondent,
S., Defendant and Appellant.
for Partial Publication.
Under California Rules of Court, rules 976(b) and 976.1, only
the Factual and Procedural Background and part I of the
Factual and Procedural Background, part II of the Discussion, and
the Disposition are certified for publication.
Rehearing Denied Nov. 25, 2003.
APPEAL from a judgment of the Superior Court of El
Dorado County, Gregory W. Dwyer, Temporary Judge [FN1].
Reversed in part and affirmed in part.
Although the stipulation inadvertently referred to article VI, section 22
of the California Constitution, the designation was made pursuant
to article VI, section 21.
Janet H. Saalfield, Sausalito, under appointment by the Court of
Appeal, for Defendant and Appellant.
Louis B. Green, County Counsel, and Cherie J. Vallelunga, Deputy
County Counsel, for Plaintiff and Respondent.
Appellant, the mother of D.T. and R.T. (the minors), appeals
from the juvenile court's order terminating her parental rights. Appellant
contends the juvenile court failed to ensure compliance with the
notice provisions of the Indian Child Welfare Act (ICWA). (25
U.S.C. § 1901
et seq.) We agree and shall reverse.
In the unpublished portion of this opinion we conclude that
appellant has waived her contention that the juvenile court's finding
of adoptability was not supported by substantial evidence.
FACTUAL AND PROCEDURAL BACKGROUND
A dependency petition was filed in July 2001 concerning R.T.
and D. T., ages one
and two respectively, after their father was arrested on a
On forms entitled "DESIGNATION OF AMERICAN INDIAN STATUS," appellant and
the minors' father indicated Indian heritage through the Cherokee tribe.
The father indicated, more specifically, that his tribal affiliation was
"Cherokee (Tennessee)." At the detention hearing, the juvenile court inquired
whether the parents knew the particular tribe. The father's attorney
replied "Tennessee for the father," while appellant's attorney stated that
appellant "[wa]s not sure" but she would try to get
the information and provide it to the social worker. The
juvenile court ordered that notice be provided to the Bureau
of Indian Affairs (BIA) and "the Cherokee Nation." The court
sustained the petition as amended and continued the matter for
a dispositional hearing.
In the social worker's report for the dispositional hearing, under
a section entitled "INDIAN CHILD WELFARE ACT STATUS," it was
reported: "Notices have been sent. SEE NOTICES." The record contains
notices on form "SOC 319" to the three federally recognized
Cherokee tribes and the BIA. (65 Fed.Reg. 13298 (Mar. 13,
At a subsequent hearing, the juvenile court inquired whether there
had been any response from "the Cherokee Nation." The social
worker said she had "received nothing back on the father."
As to appellant, the social worker reported
"it says that they have insufficient information." In response to
the court's question as to what information was needed, the
attorney for the social services agency responded: "It is important
in most cases to be able to trace back to
1900 with names, birth dates, and birth places of ancestors."
Appellant's attorney said appellant did not have any of this
information but she was attempting to get it from her
father, whom she had been unable to contact.
At the dispositional hearing, the attorney for the social services
agency reported that a response had been received from the
BIA "indicating that the child is not considered an Indian
child, either one of them." In response to the court's
query whether "[t]hey [we]re declining to be involved in these
proceedings," the attorney responded "it says, 'Is not registered nor
eligible to register as a member of this tribe.' "
The court found the "Cherokee **896
Nation has been noticed, they have responded, and ... they
are declining to participate in these proceedings." All subsequent reports
from the social services agency stated the ICWA did not
At the six-month review hearing, the juvenile court terminated reunification
services and set a hearing to select a permanent plan
for the minors pursuant to Welfare and Institutions Code section
because neither parent had complied with the case plan.
All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
After the section 366.26 hearing, the juvenile court found the
minors adoptable and terminated parental rights.
See footnote *, ante.
Juvenile Court Failed to Obtain Sufficient Information to Comply with
Appellant contends the
juvenile court erred by failing to ensure compliance with the notice provisions
of the ICWA. We agree that the notice provided was insufficient.
In 1978, Congress passed the ICWA,
which is designed "to promote the stability and security of Indian
tribes and families by establishing minimum standards for removal of Indian
children from their families and placement of *1454
such children 'in ... homes which will reflect the unique values of Indian
culture....' " (In
re Levi U. (2000) 78
Cal.App.4th 191, 195; 92 Cal.Rptr.2d 648 25 U.S.C. § 1902; Mississippi
Choctaw v. Holyfield
(1989) 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29.)
Among the procedural safeguards included in the ICWA is a
provision for notice, which states in part: "In any involuntary
proceeding in a State court, 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).)
In addition, ICWA notice must include the following information, if
known: the name of the child; the child's birth date
and birthplace; the name of the tribe in which the
child is enrolled or may be eligible for enrollment; names
of the child's mother, father, grandparents and great grandparents or
Indian custodians, including maiden, married and former names or aliases,
as well as their birth dates, places of birth and
death, tribal enrollment numbers, and current and former addresses; and
a copy of the petition. (25 C.F.R. § 23.11(a)
& (d) (2003); 25 U.S.C. § 1952.)
"Determination of tribal
membership or eligibility for membership is made exclusively by the tribe."
(Cal. Rules of Court, rule 1439(g).) [FN4]
The Indian status of a child need not be certain or conclusive to
trigger the ICWA's notice requirements. (In
re Desiree F. (2000)
83 Cal.App.4th 460, 471, 99 Cal.Rptr.2d 688.) In the present matter,
under a section entitled "INDIAN CHILD WELFARE ACT STATUS,"
the social worker's report stated: "Notices have been sent.
SEE NOTICES." **897
The record contains notices to the BIA and the three federally recognized
Cherokee tribes on form "SOC 319." There are no other
ICWA notices in the record.
All further rule references are to the California Rules of
Court unless otherwise indicated.
Although the notice forms included notification of the pendency of
the proceedings and an advisement of the right to intervene,
they provided scant information to assist the BIA and the
tribes in making a determination as to whether the minors
were Indian children. In fact, other than the names, birth
dates, and birthplaces of the minors and their parents, no
information was provided to assist the tribes in making this
We are cognizant that appellant informed the juvenile court she
did not have information going "back to 1900 with names,
birth dates, and birth *1455
places of ancestors." However, the notices failed to include information
already known to the social worker, such as appellant's married
the parents' current addresses, the names of the minors' grandparents,
and that the claimed tribal affiliation was Cherokee. All of
this information was contained in the social worker's dispositional report.
Moreover, the social worker's affirmative duty to inquire whether the
minors might be Indian children mandated, at a minimum, that
she make some inquiry regarding the additional information required to
be included in the ICWA notice. (See rule 1439(d).) The
record does not disclose any inquiry of the father after
he informed the court at the detention hearing that he
had Cherokee heritage. And it cannot be implied from the
fact that appellant could not trace her ancestors back to
1900 that she could provide no additional information about her
parents or grandparents. Although the court instructed the parents to
provide the social worker with "any and all information that
you have or can reasonably give" regarding Indian ancestry, there
is nothing in the record to indicate that the parents
were ever told, specifically, what information was relevant to this
inquiry. The father's attorney stated as much when he informed
the juvenile court: "I don't know what information the social
worker needs for the father...."
"[O]ne of the primary purposes
of giving notice to the tribe is to enable the tribe to determine whether
the child involved in the proceedings is an Indian child. [Citation.]"
(In re Desiree
F., supra, 83 Cal.App.4th
at p. 470, 99 Cal.Rptr.2d 688.) Notice is meaningless if no information
to assist the tribes and the BIA in making this determination. With
only the names, birth dates and birthplaces of the minors and the parents,
it is little wonder the responses received were that the information was
insufficient to make a determination or that the minors were not registered
or eligible to register. Consequently, we conclude the notice provided
was insufficient. As the tribes and the BIA were deprived of any
meaningful opportunity to determine whether the minors were Indian children,
the error was prejudicial.
See footnote *, ante.
The order terminating parental rights is vacated, and the matter
is remanded to the juvenile court with directions to order
the social services agency to make proper inquiry and to
comply with the notice provisions of the ICWA. If after
proper inquiry and notice, the BIA or a tribe determines
that the minors are Indian children as **898
defined by the ICWA, the juvenile court is ordered to
conduct a new section 366.26 hearing in conformity with all
provisions of the ICWA. If, on the other hand, no
response is received or the tribes and the BIA determine
that the minors are not Indian children, all previous
findings and orders shall be reinstated.
In all other respects, the orders are affirmed.
We concur: SCOTLAND, P.J., and NICHOLSON, J.