|
(Cite
as: 110 Cal.App.4th 214, 1 Cal.Rptr.3d 578)
Court
of Appeal, Second District, Division 7, California.
In
re C.D. et al., Persons Coming Under the Juvenile Court
Law.
Department
of Children and Family Services, Los Angeles County, Plaintiff and
Respondent,
v.
Eric
D., Defendant and Appellant.
No.
B157482.
July
7, 2003.
Certified
for Partial Publication.
[FN*]
FN*
Pursuant to California Rules of Court, rules 976, subdivision (b)
and 976.1, this opinion is certified for publication with the
exception of parts II through IV.
*217
JOHNSON, J.
Eric D. (father) appeals from the juvenile court's dispositional order
removing his two children from his custody. Father asks this
court to reverse the order based on his contentions: (1)
the Los Angeles County Department of Children and Family Services
failed to comply with the notice requirements of the Indian
Child Welfare Act,
[FN1] (2) the court abused its discretion when it denied
father's Marsden
[FN2] motion, (3) there is insufficient evidence supporting the court's
decision to remove the children, and (4) there is insufficient
evidence supporting the court's finding father has a history of
drug and alcohol use.
FN1.
25 United States Code section 1901 et seq.
FN2.
People
v. Marsden
(1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.
In the published portion of the opinion, we hold notice
to a tribe under the Indian Child Welfare Act (ICWA)
must include, among other things, the categories of information set
forth in the Bureau of Indian Affairs Guidelines (Guidelines) at
25 Code of Federal Regulations part 23.11 (d)(3), if such
information is known, including, but not limited to, the name
of a child's grandparents. We find the Department of Children
and Family Services has complied with the notice requirements of
the ICWA in this case.
In the unpublished portion of the opinion, we find there
is insufficient evidence to support the juvenile court's jurisdictional finding
regarding drug and alcohol use. Accordingly, we reverse this finding
and the dispositional order to the extent the order includes
a substance abuse component. We affirm the dispositional order in
all other respects, and reject father's Marsden
challenge.
FACTS
AND PROCEEDINGS BELOW
On September 14, 2001, the Los Angeles Sheriff's Department took
father's children into protective custody based on allegations of physical
abuse by father.
The same day, deputies and a social worker interviewed the
children, M. (age 7), and C. (age 8).
According to the detention report, M. said father "slapped him
in the cheek and eye causing him to suffer a
black eye and fall to the ground" on September 10,
after father discovered M. had been hiding notes from his
teacher. M. said father kept him out of school for
three days because he did not want anyone to see
the black eye. M. **581
also said father kicked him on the legs and hit
him on his buttocks with a belt the same day.
At the time of the interview, M. had bruising and
swelling around his left eye, "a one-inch abrasion on his
back" and "two horizontal marks across his buttocks." *218
M. recounted another incident of abuse which occurred when he
was helping his father with a chore. M. said "father
smacked him in the mouth causing his tooth to bleed,"
and hit him on the forehead with father's head, because
M. did not understand and follow father's directions. M. said
father told him not to talk to social workers or
"the cops."
C. said father also told her not to talk to
social workers and not to open the door if a
social worker comes to the house with the police. During
the interview, C. denied M. had a black eye and
she "tried to convince [M.] that father did not hit
him." C. said "sometimes father hits her on the head
and causes her to lose her balance and fall to
[the] ground." She recounted an incident which she said occurred
around January 2001 when "father 'smacked' her in
the head and started kicking her" when she burned some
noodles she was cooking. C. said she was stirring the
noodles when father hit her on the head and this
caused her to burn her arm and hand. C. showed
the social worker a scar on her arm which she
said resulted from this incident. C. said when she was
five years old father also hit her and kicked her
when "she was stirring the food and she was not
doing it right."
Father denied M. had a black eye, but said "he
did see a scratch near [M.'s] eye that might have
come from their dog." Father said he disciplined M. for
hiding the notes by standing him in the corner. He
said he kept M. out of school for a few
days and brought M. to work with him "to give
[M.] a 'one on one, bonding time' " with father
and to encourage M. "to get an education so he
does not have to work two jobs like father does."
Father explained the children had no contact with their mother.
He said they were taken away from her about five
years before because they were malnourished and were living in
a dirty home.
[FN3] Father said that as a result of a prior
dependency case, he attended two parenting classes.
FN3.
The children's mother was a party to these dependency proceedings
until she passed away in or about November 2001.
In a subsequent interview on September 17, 2001, C. said
she wanted to tell the
judge: "Dad's spanking us a lot. He's always putting us
in the corner...." She also told the interviewer: "[Dad]'s being
mean to us sometimes." M. said he wanted to tell
the judge about the incident discussed above when he was
doing a chore incorrectly and father "bumped his head into"
M.'s head and "smacked" M. in the mouth, causing his
tooth to bleed.
On September 19, 2001, the Department of Children and Family
Services (DCFS) filed a petition under Welfare and Institutions Code
[FN4] section 300, subdivisions (a) and (b), alleging father physically
abused and neglected C. *219
and M. The petition also alleged father has a history
of using drugs and alcohol, which renders him "incapable of
providing regular care for the children" and endangers the children's
"physical and emotional health and safety and creates a detrimental
home environment." A social worker from San Luis Obispo, who
had dealt with this family in the past, reported "there
were allegations of drug and alcohol abuse for mother and
father" in a prior dependency case.
FN4.
All further statutory references are to the Welfare and Institutions
Code unless otherwise noted.
**582
On September 19, father appeared at a detention hearing and
the juvenile court appointed counsel for him. The court found
DCFS had made a prima
facie case for detaining C. and M. and ordered them
placed in foster care. The court also ordered reunification services
and monitored visits for father. At the hearing, father reported
the children's paternal grandfather, who is deceased, was of Blackfeet
heritage. The court appointed an expert to determine whether the
"case falls within the Indian Child Welfare Act [ICWA]." Mother
later reported her paternal grandparents, who are deceased, "had Cherokee
American Indian heritage."
DCFS sent notice of the proceedings under the ICWA to
the Bureau of Indian Affairs (BIA), the Blackfeet Tribe, the
Eastern Band of Cherokee Indians, the Cherokee of South East
Alabama and the Cherokee Nation of Oklahoma. DCFS used a
preprinted form issued by the State of California Health and
Welfare Agency and the California Department of Social Services entitled
"Notice of Involuntary Child Custody Proceeding Involving an Indian Child"
(form SOC 19).
DCFS also asked the BIA to confirm the children's status
with the Blackfeet and Cherokee Tribes. For this purpose, DCFS
used another pre-printed form issued by the State of California
Health and Welfare Agency and the California Department of Social
Services entitled "Request for Confirmation of Child's Status as Indian"
(form SOC 318). This form includes a space for identifying
a child's grandparents. DCFS did not provide this information to
the BIA even though father had given DCFS the name
of the children's paternal grandfather and had represented the grandfather
was of Blackfeet heritage.
In November 2001, DCFS prepared a Jurisdictional/Dispositional Hearing Report which
updated the juvenile court on father's criminal case resulting from
the September 10 incident of alleged physical abuse. On October
19, the criminal court ordered father to stay at least
100 yards away from C., M., and their babysitter. Before
this order, father had visited and called the children regularly.
The same Hearing Report discusses a social worker's interview with
C. and M. on October 29, 2001. When asked about
the incidents of physical abuse, *220
C. responded: "[M.] was put in the corner ... kicked
in the leg, 1 black eye, smacks us in the
head, smacks us on the bottom with a hand, with
a belt, or he used corner and some nights he
leaves us there all night, standing there facing the wall
and I fall asleep on the rug. We never get
any sleep. [Sic.]" C. said sometimes her father tells her
and M. to pull their pants and underwear down before
he spanks them. C. said she has gotten "a few
bruises on [her] butt but [father] doesn't care." C. told
the social worker: "I still want to live with my
Dad if he don't spank us, hit us, yell at
us, and he doesn't smack us or put us in
the corner. That's what I want him to tell the
Judge. If he doesn't keep his promise, I want to
go back to foster care. I'll tell the nurse to
tell the social worker to get us in foster care
again."
M. told the social worker father slapped him in the
face about a thousand times. He also said father sometimes
smacks C. on the head, "flick[s]" both of them
on the neck, hurts their feelings, and keeps them in
the corner all night. M. said he wanted to live
in the foster home and visit father.
The Hearing Report also contains information about father's alleged drug
and alcohol use. C. told a social worker she had
not seen her father use alcohol or drugs. Later C.
said her father "had green bottles and drunk some (
[C.] showed the height of a beer bottle)." Finally, **583
C. said her father did not drink from the green
bottles, but "he gave some to his friends." M. said
father "used to drink wine with friends," but he doesn't
drink wine anymore. The children's mother told a social worker
father "smokes Marijuana and drinks." Mother also reported "she saw
alcohol bottles." Mother admitted she used to have a drug
problem, and she said father had a drug problem in
the past as well.
DCFS submitted documents to the juvenile court from the family's
prior dependency case in San Luis Obispo. Social workers reported
there "d[id] not appear to be any threat to the
children's well-being in [father]'s home." In late 1997, the court
awarded sole legal and physical custody of the children to
father and terminated jurisdiction.
On November 21, 2001, father pleaded no contest to one
misdemeanor count of inflicting injury upon a child [FN5]
based on the September 10 incident of abuse on M.
The court convicted father and placed him on summary probation
for three years. The court also ordered father to complete
30 days of community service,
pay a restitution fine, attend a 52-week parenting program and
refrain from using excessive force on C. and M.
FN5.
Penal Code section 273d, subdivision (a).
On March 25, 2002, the day of the disposition hearing,
father asked the juvenile court to relieve his counsel. The
court had appointed this attorney for*221
father on November 7, 2001, after father's first attorney determined
there was a conflict of interest. The juvenile court conducted
a Marsden
hearing and denied father's request for new counsel.
At the disposition hearing, DCFS submitted on the papers. Father
presented the juvenile court with a notebook of evidence he
had compiled, and the court received it into evidence. The
notebook contained father's responses to statements in the reports and
the allegations against him, letters from witnesses who saw M.
around September 10 and said he did not have a
black eye, awards and certificates he and the children had
received, and pictures of the children. Father did not call
any witnesses.
The court decided father's notebook of evidence "raise[d] a substantial
question" as to whether M. had a black eye on
September 10 and 11, 2001. Accordingly, the court struck an
allegation in the petition concerning the black eye. Considering all
of the documents in the record and father's misdemeanor
conviction for inflicting injury on a child, the court found
substantial evidence demonstrating father inappropriately disciplined C. and M. Therefore,
the court sustained the following allegation: "[O]n prior occasions, minors'
father excessively and inappropriately disciplined the children [C.] and [M.][¶]
That on or about 11/21/2001, father pled no contest to
a violation of Penal Code section 273[d, subdivision (a)] regarding
inappropriate discipline, and the criminal court accepted the plea entering
a conviction on the misdemeanor charge. [¶]
Such conduct by father endangers the minors' physical and emotional
health and safety and places the minors at risk of
serious physical harm."
The only other allegation in the petition the court sustained
was the following allegation concerning drug and alcohol use: "[F]ather
Eric [D.] has a history of using drugs and alcohol
which renders the father Eric [D.] incapable of providing regular
care for the children [C.] and [M.] Further, the father
Eric [D.]'s substance abuse endangers the children [C.] and [M.]'s
physical **584
and emotional health and safety and creates a detrimental home
environment."
The juvenile court declared C. and M. dependents of the
court under section 300, subdivisions (a) and (b). The court
found clear and convincing evidence demonstrating a substantial danger exists
to the children's physical and emotional health and safety. The
court also found "[t]here are no reasonable means
to protect the children without removal from the custody of
the father" and "[r]easonable efforts have been made to prevent
or eliminate the need for further removal." Having received no
notice C. and M. are eligible for membership in any
tribe, the court concluded the ICWA does not apply. The
children remained placed with DCFS.
*222
The court ordered reunification services and instructed father to attend
parenting classes and individual counseling for anger management. The court
also ordered father to complete "six clean, consecutive, random drug
tests" before DCFS would be authorized to liberalize visitation for
father.
DISCUSSION
I. DCFS
HAS COMPLIED WITH THE NOTICE REQUIREMENTS OF THE ICWA.
Father contends DCFS failed to comply with the notice requirements
of the ICWA because DCFS (1) did not include the
children's paternal grandfather's name on the notices it sent to
the Blackfeet Tribe and (2) did not send notice of
the proceedings to one of the federally recognized Cherokee Tribes.
Based on these grounds, father asks this court to reverse
the order removing his children from his custody.
The ICWA is designed "to
protect the interests of the Indian child" and "to promote the
stability and security of Indian tribes and families." [FN6]
It sets forth the manner in which a tribe may obtain jurisdiction
over child custody proceedings involving an "Indian child" or
intervene in the state
court proceedings.
[FN7] The notice requirements of the ICWA ensure a tribe will have
"the opportunity to assert its rights" under the statute. [FN8]
FN6.
In
re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1421, 285 Cal.Rptr. 507.
FN7.
In
re Kahlen W., supra,
233 Cal.App.3d at page 1421, 285 Cal.Rptr. 507.
FN8.
In
re Kahlen W., supra,
233 Cal.App.3d at page 1421, 285 Cal.Rptr. 507.
Section 1912, (a) of the ICWA sets forth the following
requirements for proper notice: "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. If the identity or location of the
parent or Indian custodian and the tribe cannot be determined,
such notice shall
be given to the Secretary [of the Interior] in like
manner, who shall have fifteen days after receipt to provide
the requisite notice to the parent or Indian custodian and
the tribe. No foster care placement or termination of parental
rights proceeding shall be held until at least ten days
after receipt of notice by the parent or Indian custodian
and the tribe or the *223
Secretary...." California courts have concluded a "juvenile court's failure to
secure compliance with" **585
these notice requirements constitutes prejudicial error.
[FN9]
FN9.
In
re Kahlen W., supra,
233 Cal.App.3d at page 1424, 285 Cal.Rptr. 507; In
re Marinna J.
(2001) 90 Cal.App.4th 731, 739, 109 Cal.Rptr.2d 267.
A. Notice
to a Tribe Under the ICWA Must Include the Name
of a Child's Grandparents and Any Other Information Set Forth
in the BIA Guidelines at 25 Code of Federal Regulations
Part 23.11(d)(3), to the Extent Such Information Is Known.
Father contends DCFS failed to give proper notice under the
ICWA because it did not include the children's paternal grandfather's
name on the notices it sent to the Blackfeet Tribe.
Father argues the "omission of [the grandfather]' s name from
the notices to the Blackfoot [sic][T]ribe very well may invalidate
any
determination by the Blackfoot [sic] Tribe that [C.] and [M.]
are not Indian children."
In California, an agency providing
notice of dependency proceedings to a tribe under the ICWA is required
to use form SOC 319 issued by the State of California Health and Welfare
Agency and the Department of Social Services entitled "Notice of
Involuntary Child Custody Proceeding Involving an Indian Child."
Pre-printed on this form is the following language: "Required
Form-- No Substitution Permitted." This form provides a tribe
with information about a child's parents (names, tribal affiliation, birthplaces
and birthdates), and notice of the dependency proceedings and of the tribe's
right to intervene. California courts have concluded an agency complies
with the notice requirements of the ICWA when it (1) fills out form SOC
319 and sends it to the appropriate tribe(s), by registered mail with
return receipt requested, and (2) files with the juvenile court the completed
form and proof of its service on the tribe.
[FN10]
FN10.
See, e.g., In
re H.A.
(2002) 103 Cal.App.4th 1206, 1215, 128 Cal.Rptr.2d 12.
The State of California Health and Welfare Agency and the
Department of Social Services also issued form SOC 318 entitled
"Request for Confirmation of Child's
Status as Indian." This form, which an agency also may
send to a tribe, includes spaces for inserting information about
a child's "family history," including the names and tribal affiliation
of the child's grandparents. It is clear form SOC 318
does not satisfy the notice requirements of the ICWA because
it does not provide a tribe with notice of the
proceedings or of the tribe's right to intervene.
[FN11]
FN11.
In
re Samuel P.
(2002) 99 Cal.App.4th 1259, 1266, 121 Cal.Rptr.2d 820; see also
In
re Jeffrey A.
(2002) 103 Cal.App.4th 1103, 1108, 127 Cal.Rptr.2d 314.
*224
Prior to the disposition hearing in this case, DCFS filled
out and sent form SOC 319 to the Blackfeet Tribe
and to the BIA. DCFS also sent form SOC 318
to the BIA. DCFS failed to insert the name of
the children's paternal grandfather or his tribal affiliation on form
SOC 318 (Request for Confirmation of Child's Status as Indian),
even though father had provided this information. DCFS did not
send form SOC 318 to the Blackfeet Tribe. Despite these
omissions, DCFS arguably complied with the ICWA because it completely
and correctly filled out the "required" form--form SOC 319--which gave
the Blackfeet Tribe notice of the proceedings and of its
right to intervene. This was our initial determination.
On February 18, 2003, we granted father's petition for rehearing
in this matter **586
to review whether form SOC 319 is sufficient for providing
notice to a tribe under the ICWA. Father contends proper
notice to a tribe must include the name of a
child's grandparents, if known. Form SOC 319 does not include
a space for inserting the name of a child's grandparents.
In December 2002, while this appeal was pending, DCFS provided
the Blackfeet Tribe with the name of the children's paternal
grandfather and great grandfather, using form SOC 318 (Request for
Confirmation of Child's Status as Indian). DCFS also provided notice
of a January 7, 2003 hearing, using "required" form SOC
319. The juvenile court received no notice indicating the children
are eligible for membership in the Blackfeet Tribe. At the
January 7 hearing, the juvenile court concluded "this case does
not fall within the [ICWA]."
DCFS has cured any notice problem
father complains about. Notwithstanding that, we will not dismiss
this issue as moot because it is of great public significance. Without
proper notice to a tribe of dependency proceedings, the purposes of the
ICWA cannot be fulfilled. Thus, we will review whether form SOC
319 is sufficient for providing notice under the ICWA.
The BIA Guidelines set forth specific
categories of information an agency should include in its notice to a
tribe under the ICWA.
[FN12] "Although the Guidelines do not have a binding effect on this
court, the construction
of a statute by the executive department charged with its administration
is entitled to great weight." [FN13]
Like other California courts, we are "persuaded that insofar
as the ICWA notice provisions are concerned, the Guidelines 'represent
a correct interpretation of the [ICWA].' " [FN14]
Accordingly, we will look to *225
the Guidelines in determining whether form SOC 319 satisfies the notice
requirements of the ICWA.
FN12.
25 Code of Federal Regulations part 23.11(a), (d) and (e)
(2001).
FN13.
In
re H.A., supra,
103 Cal.App.4th at page 1211, 128 Cal.Rptr.2d 12, citing In
re Desiree F.
(2000) 83 Cal.App.4th 460, 474, 99 Cal.Rptr.2d 688.
FN14.
In
re Dwayne P.
(2002) 103 Cal.App.4th 247, 255, 126 Cal.Rptr.2d 639, quoting In
re Junious M.
(1983) 144 Cal.App.3d 786, 792, 193 Cal.Rptr. 40.
Aside from information about the hearing and the tribe's right
to intervene in the dependency proceedings, the BIA Guidelines state
notice to a tribe "shall include the following information, if
known: [¶]
(1) Name of the Indian
child, the child's birthdate and birthplace. (2) Name of Indian
tribe(s) in which the child is enrolled or may be
eligible for enrollment. (3) All names known, and current and
former addresses of the Indian child's biological mother, biological father,
maternal
and paternal grandparents
and great grandparents or Indian custodians, including maiden, married and
former names or aliases; birthdates; places of birth and death;
tribal enrollment numbers, and/or other identifying information. (4) A copy
of the petition, complaint or other document by which the
proceeding was initiated." [FN15]
FN15.
25 Code of Federal Regulations part 23.11(a) and (d) (italics
added).
Using "required" form SOC 319, an agency may provide a
tribe with the information identified in subparagraphs (1), (2) and
(4), set forth above. This form also includes spaces for
inserting the names (including maiden and "all names known by"),
tribal affiliation, birthplaces and birthdates of the child's mother and
father. It does not include spaces for inserting any **587
of the other information identified in subparagraph (3), set forth
above.
Using form SOC 318 (Request for Confirmation of Child's Status
as Indian), an agency also may provide a tribe with
the names (including maiden and all names known
by), tribal affiliation and enrollment information, birthplaces and birthdates of
the child's grandparents and great grandparents.
We hold notice to a tribe under
the ICWA must include not only the information provided in connection
with form SOC 319, but also the information set forth in the BIA Guidelines
at 25 Code of Federal Regulations part 23.11(d)(3), if such information
is known, including the name of a child's grandparents. Therefore,
form SOC 319 fails to provide sufficient notice of dependency proceedings
to a tribe under the ICWA when an agency knows additional information
about a child's family history, such as the names of the grandparents.
The agency (DCFS in this case) has a duty to inquire about and obtain,
if possible, all of the information about a child's family history included
on form SOC 319 and in 25 Code of Federal Regulations part 23.11(d)(3).
[FN16]
FN16.
California Rules of Court, rule 1439(d) ("The court and the
county welfare department have an affirmative duty to inquire whether
a child for whom a petition under section 300 is
to be, or has been, filed is or may be
an Indian Child").
Neither form SOC 319 nor form SOC 318 includes spaces
for inserting the current or former addresses of any of
a child's relatives (other *226
than a reservation
name). Nor does either form include spaces for inserting the
place of death of any family member. Thus, even using
both forms to provide notice to a tribe will not
be sufficient in every case for providing all of the
information identified in 25 Code of Federal Regulations part 23.11(d)(3).
Therefore, we conclude the State of California Health and Welfare
Agency and the Department of Social Services should issue a
new "required" form which allows an agency to provide a
tribe with all of the information on form SOC 319
and all of the information identified in part 23.11(d)(3) on
one form.
As discussed above, we find DCFS complied with the notice
requirements of the ICWA while this appeal was pending, and
we will not reverse the dispositional order on this basis.
B. Notice
to the Cherokee Tribes Was Sufficient.
Father also contends DCFS failed
to comply with the notice requirements of the ICWA because it did not
send notice of the proceedings to the United Keetoowah Band of Cherokee
Indians. As set forth above, DCFS sent notice of the hearing to
the BIA, the Blackfeet Tribe, the Cherokee Nation of Oklahoma, the Eastern
Band of Cherokee Indians of North Carolina and the Cherokee of South East
Alabama.
[FN17] As listed in the Federal Register, the three federally "recognized"
Cherokee Tribes are the Cherokee Nation of Oklahoma, the Eastern Band
of Cherokee Indians of North Carolina, and the United Keetoowah Band of
Cherokee Indians of Oklahoma.
[FN18]
FN17.
Father does not contend the notice DCFS provided to these
Cherokee Tribes was deficient in any way.
FN18.
Indian Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 65 Federal Register 13298
(Mar. 13, 2000); In
re Marinna J., supra,
90 Cal.App.4th at page 737, 109 Cal.Rptr.2d 267, citing 61
Federal Register 58211 (Nov. 13, 1996).
**588
In In
re Edward H.,
[FN19] the Court of Appeal reviewed a notice issue under
the ICWA on facts quite similar to those in this
case. There, the father told a social worker "he had
reason to believe he belonged to ... the Choctaw Tribe."
[FN20]
The county community services agency made an inquiry and gave
notice of the dependency proceedings to the BIA, "as agent
for the Secretary of the Interior, the Choctaw Nation of
Oklahoma and the Mississippi Band of Choctaw Indians." [FN21]
Neither the BIA nor either of the two tribes "declared
the children to be Indian within the meaning of the
ICWA." [FN22]
The juvenile court therefore ruled the ICWA did not apply,
and it terminated parental rights.
FN19.
In
re Edward H.
(2002) 100 Cal.App.4th 1, 122 Cal.Rptr.2d 242.
FN20.
In
re Edward H., supra,
100 Cal.App.4th at page 4, 122 Cal.Rptr.2d 242.
FN21.
In
re Edward H., supra,
100 Cal.App.4th at page 4, 122 Cal.Rptr.2d 242.
FN22.
In
re Edward H., supra,
100 Cal.App.4th at page 4, 122 Cal.Rptr.2d 242.
*227
On appeal, the mother asked the appellate court to reverse
the order terminating her parental rights on the ground the
county community services agency failed to comply with the notice
requirements of the ICWA because it only gave notice to
two of the three federally recognized Choctaw Tribes. The agency
did not give notice to the Jena Band of Choctaw
Indians.
[FN23] The Court of Appeal concluded the agency complied with
the notice requirements of the ICWA, holding "proper notice to
some but not all possible tribes in which a dependent
child may be eligible for membership does not violate the
ICWA provided the agency also gives notice pursuant to 25
United States Code section 1912 to the [BIA]." [FN24]
As the court pointed out, 25 United States
Code section 1912(a) specifically authorizes service of notice upon the
Secretary of the Interior when the agency cannot determine the
identity or location of the tribe. The appellate court noted
"the identity of the actual
Choctaw Tribe in which [the children] might be eligible for
membership was unknown." [FN25]
FN23.
In
re Edward H., supra,
100 Cal.App.4th at page 4, 122 Cal.Rptr.2d 242.
FN24.
In
re Edward H., supra,
100 Cal.App.4th at page 4, 122 Cal.Rptr.2d 242.
FN25.
In
re Edward H., supra,
100 Cal.App.4th at page 5, 122 Cal.Rptr.2d 242 (italics added).
In this case, the children's mother
said she was of Cherokee heritage, but she did not identify a specific
Cherokee Tribe. DCFS gave notice of the proceedings to three Cherokee
tribal entities, but only to two of the three federally recognized Cherokee
Tribes. DCFS also gave notice to the BIA and asked it to confirm
the children's status with the Cherokee and Blackfeet Tribes.
[FN26] While we agree it would have been optimal if DCFS had given
notice
of the proceedings to all three of the federally recognized Cherokee **589
Tribes, we disagree with father's position the failure to do so constitutes
noncompliance with the ICWA or prejudicial error. burden of identifying
and providing notice to the proper tribe ... shifts
from the Once DCFS sends notice to the BIA "the state court to the
Secretary...." [FN27]
FN26.
The cases father relies on are all distinguishable because they
involve situations where the social services agency did not give
proper notice of the proceedings to any of the tribes
or
to the BIA. (See In
re Marinna J., supra,
90 Cal.App.4th at p. 736, 109 Cal.Rptr.2d 267; In
re Desiree F., supra,
83 Cal.App.4th at pp. 464-465, 470, 99 Cal.Rptr.2d 688; In
re Junious M., supra,
144 Cal.App.3d at p. 796, 193 Cal.Rptr. 40.)
FN27.
In
re Kahlen W., supra,
233 Cal.App.3d at page 1422, 285 Cal.Rptr. 507; In
re Desiree F., supra,
83 Cal.App.4th at pages 469- 470, 99 Cal.Rptr.2d 688.
Because DCFS did not know which specific Cherokee Tribe the
children might belong to, and it gave notice of the
proceedings to the BIA, we conclude DCFS complied with the
notice requirements of the ICWA. Father does not contend DCFS
knew any information about the children's purported Cherokee lineage which
it failed to disclose in its notices.
*228
II.-IV.
[FN**]
FN**
See footnote *, ante.
DISPOSITION
The jurisdictional finding regarding father's history of drug and alcohol
use is reversed. The dispositional order is reversed to the
extent it includes a substance abuse component. In all other
respects, the dispositional order is affirmed.
We concur: PERLUSS, P.J., and WOODS, J.
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