as: 119 Cal.App.4th 988, 14 Cal.Rptr.3d 798)
of Appeal, Fifth District, California.
re GERARDO A., Jr., et al., Persons Coming Under the
Juvenile Court Law.
County Department of Children and Family Services, Plaintiff and
A., Sr., Defendant and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for
Defendant and Appellant.
Phillip S. Cronin, County Counsel, and Howard K. Watkins, Deputy
County Counsel, for Plaintiff and Respondent.
Gerardo A., Sr., appeals from an order terminating his parental
& Inst.Code, § 366.26)
as to his five children (the A. children). [FN1]
He contends the court erroneously found at an earlier hearing
that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901
et seq.) did not apply to the children's dependency. On
review, we agree and will reverse.
All statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
(2002) 103 Cal.App.4th 1206, 1215, 128 Cal.Rptr.2d 12, this court
required a department or agency which seeks foster care placement
of or parental rights termination to a child who may
be eligible for Indian child status to make a documentary
record of its compliance with ICWA notice requirements (25 U.S.C.
or face the strong likelihood of appellate reversal. The department
in this case made the requisite documentary showing. Nevertheless, the
appellate record also reveals the department possessed identifying Indian heritage
information that it did not share with *991
one or more tribes of which the dependent child could
be a member. Because one of the purposes of ICWA
notice is to enable a tribe to investigate whether a
child is eligible for tribal membership, that opportunity means little
if a department does not provide the available Indian heritage
information it possesses. Thus, we hold that a department's compliance
with the express ICWA notice
requirements will not suffice if the appellate record also reveals
the department possessed identifying Indian heritage information that it did
not share with one or more tribes of which the
dependent child could be a member.
In October 2001, law enforcement officers discovered two clandestine methamphetamine
(meth) labs on property upon which the A. children lived
with their mother and father, the appellant. Not only were
the A. children exposed to the toxic chemicals used in
making meth, but the children also had access to meth
in their residence. These circumstances led the Fresno County Superior
Court to exercise jurisdiction over the A. children and, as
of January 2002, adjudge them dependent children of the court
and remove them from parental custody.
Appellant's whereabouts were unknown to the court and respondent Fresno
County Department of Children and Family Welfare (the department) until
after reunification efforts between the mother and the children failed.
The record shows appellant was first properly noticed in August
2003, when he was personally served in state prison with
notice of the termination hearing. Although the court had appointed
counsel for appellant, appellant never personally appeared in these proceedings,
no transportation order having apparently been issued. Eventually in December
2003, the court terminated parental rights to all of the
Relevant To ICWA
At the outset of these dependency proceedings, the children's mother
reported to the department that she and her children were
Waksachi, an Indian tribe which was **801
not federally recognized. She added that her mother (the children's
maternal grandmother) might know more information. The mother's sister confirmed
the A. children's maternal grandmother was Waksachi Indian. She further
stated that the children's maternal grandfather was Chukchansi, Choinumni, and
In subsequent interviews with the mother, the department learned neither
she nor any one of her children was registered with
a tribe, federally *992
recognized or not. Nonetheless, the mother reported, she had an
enrollment number with the federal Bureau of Indian Affairs (BIA)
and received, along with the A. children's maternal grandmother, ongoing
BIA food distribution services. The entire family also received health
services through the Central Valley Indian Health Association. Further, the
children's maternal aunt once attended an Indian school.
The department received additional information that the children's mother also
had Wukchumni Indian heritage on her mother's side and Tachi
Indian heritage on her father's side. In addition, nephews of
the maternal grandfather were allegedly enrolled Tachi at the Santa
Consequently, the department had information that the A. children might
be entitled to the benefits of ICWA by virtue of
Waksachi and Wukchumni Indian heritage through their maternal grandmother and
Chukchansi, Choinummi, Tachi and Navajo Indian heritage through their maternal
In November 2001, before the jurisdictional hearing, the department served,
by certified mail with return receipt requested, a notice of
the A. children's dependency proceedings (also known as SOC 319),
a copy of the dependency petition, and a completed form
request for confirmation of child's status as Indian (request-for-confirmation form;
also known as SOC 318) upon several entities. They were
the BIA regional offices in Sacramento, California and Gallup, New
Mexico, the Santa Rosa Rancheria in Lemoore, California, the Colorado
River Indian Tribe in Parker, Arizona, and the Santa Rosa
Band of Mission Indians in Anza, California.
[FN2] Relevant to this appeal, the completed request-for-confirmation form included
all of the information summarized above regarding the mother's Indian
heritage. In spaces provided for the birthplaces of all the
maternal relatives named as well as for some birthdates the
letters "unk" were inserted.
We note not all the names of these tribes coincide
with the tribal names or associations provided by the maternal
relatives. The appellate record does not clarify the department's reasoning
in serving these
particular tribes. However, appellant does not contend the department's decision
to serve these tribes was error.
Two months later and before the dispositional hearing, the department
served, again by certified mail with return receipt requested, notice
of the dispositional hearing date along with a completed notice
form SOC 319 upon the Picayune Rancheria in Coarsegold, California,
and the Navajo Nation in Window Rock, Arizona as well
as each of the tribes and the BIA regional offices
It is undisputed on review that the Picayune Rancheria is
a federally-recognized tribe of the Chukchansi Indians.
The department received only one response to its notices. The
Colorado River Indian Tribe informed the department it did not
recognize the A. children as members of its tribe. In
turn at the January 2002 dispositional hearing, the superior **802
court specifically found that ICWA did not apply to the
A. children's dependency proceedings.
Appellant has two specific criticisms of the department's efforts to
provide proper ICWA notice. As a consequence, appellant contends, the
superior court erred
in January 2002 by determining that ICWA did not apply
to his children. One, he questions the absence of certain
information on the request-for-confirmation form the department completed and served
in November 2001 on some of the tribes and BIA.
Two, he contends the department improperly failed to serve its
completed request-for-confirmation form, along with ICWA notice, on the Picayune
Rancheria and the Navajo Nation. Having reviewed the record and
applicable law, we agree with appellant's second contention and will
On a procedural note, the department contends appellant has forfeited
the issue of ICWA compliance by failing to preserve the issue in the superior
court (In re Richard
K. (1994) 25 Cal.App.4th
580, 590, 30 Cal.Rptr.2d 575) and not appealing the superior court's January
2002 finding in a timely fashion (In
re Pedro N. (1995)
35 Cal.App.4th 183, 41 Cal.Rptr.2d 819. 189). We find no forfeiture
on this record.
The department did not perfect notice on appellant until August
2003 and there is no showing in the record that
prior to the termination hearing, he or his counsel received
discovery or other notice regarding the mother's claims of Indian
heritage or the court's January 2002 ruling. Under these circumstances,
this appeal represents the first opportunity for appellant to raise
the issue of ICWA compliance. To accept respondent's argument would
be to violate appellant's
due process rights. (In
re Meranda P.
(1997) 56 Cal.App.4th 1143, 1151, 65 Cal.Rptr.2d 913.) Therefore, we
find his challenge to be timely and will review it
on the merits.
ICWA protects the interests
of Indian children and promotes the stability and security of Indian tribes
and families by establishing certain *994
minimum federal standards, distinct from state court standards, in juvenile
dependency actions involving an Indian child. (In
re Kahlen W. (1991)
233 Cal.App.3d 1414, 1421, 285 Cal.Rptr. 507.) When a state court
"knows or has reason to know that an Indian child is involved"
in a juvenile dependency proceeding, a duty to give notice under ICWA
arises. (25 U.S.C. § 1912(a); In
re Kahlen W., supra,
233 Cal.App.3d at p. 1421, 285 Cal.Rptr. 507.) Under ICWA, an "Indian
child" means "any unmarried person who is under age eighteen
and 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).) The Indian status
of the child need not be certain in order to trigger notice. (In
re Kahlen W., supra,
233 Cal.App.3d at p. 1422, 285 Cal.Rptr. 507.) The requisite notice
enables the tribe and/or BIA, in part, to investigate and determine whether
the minor is an "Indian child." (In
re Junious M. (1983)
144 Cal.App.3d 786, 796, 193 Cal.Rptr. 40.)
To ensure compliance with ICWA notice requirements, this court held
(2002) 103 Cal.App.4th 1206, 1214, 128 Cal.Rptr.2d 12 that a
department which seeks the foster care placement of or the
termination of parental rights to a child who may be
eligible for Indian child status **803
must do the following or face the strong likelihood of
reversal on appeal to this court.
the Department must complete and serve, pursuant to the terms
of 25 United States Code section 1912(a), the 'NOTICE OF
INVOLUNTARY CHILD CUSTODY PROCEEDING INVOLVING AN INDIAN CHILD' [(the SOC
319)] along with a copy of the dependency petition. Second,
the Department must file with the superior court copies of
proof of the registered mail or certified mail and the
return receipt(s), the completed 'NOTICE OF INVOLUNTARY CHILD CUSTODY PROCEEDING
INVOLVING AN INDIAN CHILD' that was served, and any responses
re H.A., supra,
103 Cal.App.4th at p. 1215, 128 Cal.Rptr.2d 12.)
Our review of the record discloses that the department complied
with the letter of 25 U.S.C. § 1912(a)
and our opinion in In
re H.A., supra.
The real question for review is whether the department reasonably
did enough or could have done more to inquire about
the maternal family's Indian heritage and in turn inform the
As to his first contention,
appellant assumes the department's social workers spoke only to the children's
mother and maternal aunt on the subject of Indian
heritage. According to appellant, the department should have inquired
of the children's maternal grandmother or other older maternal *995
relatives for additional family history, such as the birthplaces and/or
birthdates for those listed on the request-for-confirmation form whose
birthplaces and/or birthdates were noted as "unk" or unknown.
We reject this argument because it is based on speculation.
(1964) 230 Cal.App.2d 70, 72, 40 Cal.Rptr. 690 [it is
appellant's burden to affirmatively show error on the record].) The
fact that the record is silent regarding whether the department
spoke with anyone other than the children's mother and maternal
aunt does not necessarily mean the department failed to make
an adequate inquiry for Indian heritage information. Similarly, appellant assumes
without any basis in the record that the maternal grandmother
or other older maternal relatives were available to be interviewed
in 2001 and could have supplied the missing birthplaces and
birthdates for the request-for-confirmation form. Under these circumstances, we need
not address appellant's underlying contention that it is the department's
duty under ICWA to interview family elders.
respect to appellant's second contention, we agree the department failed
to provide all of the tribes entitled to notice in this case with the
Indian heritage information it (the department) had collected. As
in November 2001, the department served "relatively complete notices,"
including the completed request-for-confirmation form, on the BIA regional
offices in Sacramento, California, and Gallup, New Mexico, the Santa Rosa
Rancheria in Lemoore, California, the Colorado River Indian Tribe in Parker,
Arizona, and the Santa Rosa Band of Mission Indians in Anza, California.
However, for some reason undisclosed by the record, it did not serve the
Picayune Rancheria and the Navajo Nation, both of whom were entitled to
notice here, with any notice of the proceedings in November 2001. In
January 2002 when it did serve notice on the Picayune Rancheria and the
Navajo Nation, the department did not include copies of the request-for-confirmation
it previously completed. Thus, the record establishes the department
failed to provide Indian heritage information that it possessed regarding
the A. children to the Picayune Rancheria and the Navajo Nation.
Because the record reveals that the department possessed identifying Indian
heritage information and it did not share that information with
one or more tribes of whom a dependent child could
be a member, we cannot conclude the department's effort to
serve notice satisfied ICWA. As mentioned earlier, one of the
purposes of ICWA notice is to enable the tribe or
BIA to investigate and determine whether the minor is an
"Indian child." (In
re Pedro N., supra,
35 Cal.App.4th at p. 186, 41 Cal.Rptr.2d 819.) The opportunity
for a tribe or the BIA to investigate means little
if the department does not provide the available
Indian heritage information it possesses.
We recognize that our holding in In
re H.A., supra,
did not require the completion and service upon identified tribes
and the BIA of a request for confirmation form or
any other documentation which sets forth the information, available to
a department, on a dependent child's Indian heritage. [FN4]
At most, this court observed:
That precise issue was not raised in In
re H.A., supra.
Other courts, however, have imposed such a duty, citing federal
guidelines (25 C.F.R. § 23.11(d)).
re Karla C.
(2003) 113 Cal.App.4th 166, 6 Cal.Rptr.3d 205 and In
(2003) 113 Cal.App.4th 1449, 5 Cal.Rptr.3d 893.)
request for confirmation includes blanks for detailing the dependent child's
family history as an aid to a tribe in determining
whether the particular dependent child qualifies for Indian child status.
The notice of hearing is helpful but again it is
not enough for notice under the federal law." (In
re H.A., supra,
Cal.App.4th at p. 1212, 128 Cal.Rptr.2d 12.)
Due to the department's omission, the juvenile court erred in
finding at the January 2002 dispositional hearing that ICWA did
not pertain to the A. children. (In
re H.A., supra,
103 Cal.App.4th at p. 1211, 128 Cal.Rptr.2d 12
[it is the juvenile court's sua sponte duty to assure
ICWA notice compliance].) Had the juvenile court reviewed the notice
served on the Picayune Rancheria and the Navajo Nation, it
would have discovered there was no evidence that the department
provided either of these tribes with the available Indian heritage
information it possessed regarding the A. children.
We further conclude the error
was prejudicial. Unless a tribe has participated in or expressly
indicated no interest in the proceedings, the failure to comply with ICWA
notice requirements (25 U.S.C. § 1912(a)) constitutes prejudicial
error. (In re
Desiree F. (2000) 83
Cal.App.4th 460, 472, 99 Cal.Rptr.2d 688.)
For clarification purposes on remand, we conclude the department properly
served, for ICWA purposes, the BIA regional offices in Sacramento,
California and Gallup, New Mexico, the Santa Rosa Rancheria in
Lemoore, California, the Colorado River Indian Tribe in Parker, Arizona,
and the Santa Rosa Band of Mission Indians in Anza,
California. The department must serve new ICWA notice upon the
Picayune Rancheria and the Navajo Nation, including the available Indian
heritage information it possesses regarding the A. children. It must
thereafter file with the superior court and serve upon the
parties the documentary proof of its compliance with this opinion
and the terms of In
re H.A., supra,
103 Cal.App.4th at p. 1215, 128 Cal.Rptr.2d 12. The department
should also explain, by way of social worker report or
testimony, the apparent discrepancies
between the names of the tribes **805
whom the maternal family *997
identified and the names of the tribes it served.
[FN5] If it appears either to the department or the
superior court that other federally-recognized tribes should be served with
ICWA notice and the completed request-for-confirmation form, such action should
be taken and further hearing in this case deferred until
the requisite time for notice (see 25 U.S.C. § 1912(a))
has elapsed. Thereafter, the court shall conduct a hearing to
determine whether proper notice was given, the import of any
response received and ultimately whether ICWA applies in this case.
We deny appellant's request for judicial notice of his counsel's
independent research regarding Indian tribes.
The order terminating parental rights is reversed. On remand, the
juvenile court is directed to vacate its prior ruling that
ICWA did not apply to the A. children's dependency and
conduct further proceedings consistent with the views expressed in this
opinion. If the court determines (1) the department has properly
served the available Indian heritage information it possesses regarding the
A. children, along with the proper notice, upon the Picayune
Rancheria, the Navajo Nation, and any other Indian tribe entitled
notice, and (2) no tribe claims the A. children are
"Indian children" under ICWA, the court shall reinstate its order
terminating parental rights. Alternatively, the court shall proceed in this
matter pursuant to the terms of ICWA.
WE CONCUR: VARTABEDIAN, Acting P.J., and WISEMAN, J.