Gerardo A., Sr., appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) as to his five children (the A. children). 1 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.
In
In re H.A.
(2002)
PROCEDURAL HISTORY
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 A. children.
DISCUSSION
Facts 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
In subsequent interviews with the mother, the department learned neither she nor any one of her children was registered with a tribe, federally 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 Rosa Ranchería.
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 grandfather.
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 Ranchería in Lemoore, California, the Colorado River Indian Tribe in Parker, Arizona, and the Santa Rosa Band of Mission Indians in Anza, California. 2 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.
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 Ranchería in Coarsegold, California, and the Navajo Nation in Window Rock, Arizona as well as each of the tribes and the BIA regional offices previously served. 3
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
Issues
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 Ranchería and the Navajo Nation. Having reviewed the record and applicable law, we agree with appellant’s second contention and will reverse.
Analysis
I.
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)
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)
II.
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain
minimum federal standards, distinct from state court standards, in juvenile dependency actions involving an Indian child.
(In re Kahlen W.
(1991)
To ensure compliance with ICWA notice requirements, this court held in
In re H.A., supra,
“First, 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 received.”
(In re H.A., supra,
Our review of the record discloses that the department complied with the letter of 25 U.S.C. section 1912(a) and our opinion in
In re H.A., supra,
III.
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 relatives for additional family history, such as the birthplaces and/or birth-dates 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.
(Calhoun v. Hildebrandt
(1964)
IV.
With 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 appellant notes, 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 Ranchería 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 Ranchería 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 Ranchería and the Navajo Nation, the department did not include copies of the request-for-confirmation form
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,
We recognize that our holding in
In re H.A., supra,
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,
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)
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 Ranchería 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 Ranchería 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,
DISPOSITION
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 Ranchería, the Navajo Nation, and any other Indian tribe entitled to ICWA 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.
Vartabedian, Acting P. J., and Wiseman, J., concurred.
Notes
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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.
It is undisputed on review that the Picayune Ranchería is a federally-recognized tribe of the Chukchansi Indians.
That precise issue was not raised in
In re H.A., supra,
We deny appellant’s request for judicial notice of his counsel’s independent research regarding Indian tribes.