In Re Louis S.
Charisse A. appeals the order from the 12-month review hearing terminating services to her and continuing the court‘s jurisdiction over her son, Louis S., under
FACTUAL AND PROCEDURAL BACKGROUND
In July 2002 the Agency removed eight-year-old Louis from Charisse‘s custody
In January 2003 Charisse told the social worker that her maternal grandmother, Ramona L., was an Apache Indian. Charisse‘s mother, Vivian E., told the social worker Ramona was eligible for membership in the Chiricahua tribe, a branch of the Apache tribe, but she never registered with any tribe. Presumably in an effort to determine where to send notice to comply with the provisions of the ICWA, the social worker spoke with the enrollment clerk for the San Carlos Apache tribe, who said the members of the Chiricahua tribe had blended with their tribe a “long time ago.”
The social worker stated in her six-month review hearing report that in January 2003 she sent the ICWA notices to the San Carlos Apache tribe and to the Bureau of Indian Affairs (BIA). However, she did not file the notices or copies of the notices оr any return receipt with the court. The San Carlos Apache tribe reported Louis was not eligible for enrollment; the BIA did not respond. At the March six-month review hearing, the court found the ICWA did not apply.
At the September 2003 12-month review hearing, the court terminated Charisse‘s reunification services, but continued services to Louis‘s father and continued jurisdiction over Louis. Charisse timely filed this appeal. Subsequently, the court terminated reunification services for Louis‘s father and scheduled a
DISCUSSION
I
In her opening brief, Charisse asserts the Agency did not comply with the notice provisions of the ICWA: (1) it did not file the ICWA notices or copies of the notices with the juvenile court; (2) the ICWA notices it sent were insufficient; (3) it did not serve notice on all known Apaсhe tribes; and (4) it did not serve notice on the chairperson or the designated service agent for the San Carlos Apache tribe. We granted the Agency‘s request to augment the record with the notice it sent to the BIA in January 2003 and the notice it sent to the San Carlos Apache tribe in January 2004. Charisse argues these notices were deficient because: (1) her name and the names of her mothеr and grandmother were misspelled; (2) her grandmother‘s identification information was placed in the space on the form for her father‘s information; (3) no birthdates were provided for either her mother or grandmother; (4) the notices sent to the BIA were sent to the wrong address; and (5) the notice sent to the San Carlos
A
Congress enacted the ICWA in 1978 to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (
“[W]here 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 their right of intervention.” (
B
Charisse contends reversal of the order from the 12-month hearing is required because the Agency never filed the notices, copies of the notices or return receipts for notices it sent to the San Carlos Apache tribe or the BIA in the trial court. The BIA‘s Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979)) (the Guidelines), which were designed to implement the ICWA, require that an original or a copy of each ICWA notice must be filed in the juvenile court together with any return receipts. (In re Karla C., supra, 113 Cal.App.4th at p. 175, 6 Cal.Rptr.3d 205.) Although the Guidelines are not binding on state courts, this court has found the Guidelines to be persuasive with regard to the ICWA notice requirements. (Karla C., supra, at p. 175, 6 Cal.Rptr.3d 205; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255, 126 Cal.Rptr.2d 639.) Following the Guidelines several courts, including this court, have held that the ICWA notice, return receipts, and responses of the BIA and the tribes must be filed in the juvenile court. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1266-1267, 121 Cal.Rptr.2d 820; In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215, 128 Cal.Rptr.2d 12; In re Asia L. (2003) 107 Cal.App.4th 498, 507-509, 132 Cal.Rptr.2d 733; Karla C., supra, at p. 178, 6 Cal.Rptr.3d 205.)
Here, the social worker did not file any notices, copies of notices or return receipts with the juvenile court; she did file the response from the San Carlos Apache tribe with the court. However, responses to the ICWA notices without the notices
C
The Agency concedes the initial appellate record does not show the ICWA notice requirements were satisfied. However, it urges us to affirm because it contends the error was cured with the notice sent to the BIA in January 2003 and to the San Carlos Apache tribe in January 2004, which are now рart of the appellate record by augmentation.4 We may conclude the court‘s error is harmless if the notices sent by the Agency in January 2003 and January 2004 comply with the ICWA. (In re C.D. (2003) 110 Cal.App.4th 214, 224, 226-227, 1 Cal.Rptr.3d 578.)
One of the purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455, 5 Cal.Rptr.3d 893.) Notice is meaningless if no information or insufficient information is presented to the tribe to make that determination. (Ibid.) The notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner‘s name; a statement of the right to the tribe to intervene in the proceeding; and information about the Indian child‘s biological mother, biological father, maternal and paternal grandparents and great grandparents or Indiаn custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; current and former addresses; tribal enrollment numbers, and/or other identifying information. (In re Karla C., supra, 113 Cal.App.4th at p. 175, 6 Cal.Rptr.3d 205; In re C.D., supra, 110 Cal.App.4th at p. 225, 1 Cal.Rptr.3d 578;
The State of California Health and Wеlfare Agency and the Department of Social
The augmented record shows that in January 2003 the social worker sent forms SOC 318 and 319 to the BIA.5 The forms contained multiple errors. Charisse‘s first name and Vivian‘s last namе are misspelled on form SOC 319. Vivian‘s birthdate is missing from form SOC 318, although the information was available because the children are in foster care with her. The social worker wrote Ramona‘s name in the location on form SOC 318 for information about the maternal grandfather and did not include Ramona‘s full name or birthdate. There is no evidence the social worker was unable to obtain Ramona‘s birthdatе and she was aware of Ramona‘s full name because she used it in her report. This information is critically important because Ramona is the person with the alleged Indian heritage.
Because the notices contained misspelled and incomplete names, provided information about Ramona in the wrong part of the form, and did not provide birthdates for Vivian or Ramona, the tribe could not conduct a meaningful search to determine Louis‘s tribal heritage. (See, e.g., In re Jennifer A. (2002) 103 Cal.App.4th 692, 705, 127 Cal.Rptr.2d 54.) These errors also demonstrate the importance of filing the notices with the trial court. Had the notices been filed with the court, it could have corrected the errors in a timely fashion.
The errors were not cured by the Agency‘s January 2004 notice. The Agency must provide all known information to the tribe, pаrticularly that of the person with the alleged Indian heritage. (In re C.D., supra, 110 Cal.App.4th at p. 225, 1 Cal.Rptr.3d 578.) The January 2004 notice consisted of only form SOC 319. It contains no information about Ramona, and Charisse‘s first name and Vivian‘s last name are misspelled. The notice is meaningless because the tribe could not adequately search its records for the relevant person. (In re D.T., supra, 113 Cal.App.4th at p. 1455, 5 Cal.Rptr.3d 893.) The court‘s error of finding the ICWA did not apply has not been cured by thе information contained in the Agency‘s augmentation of the record.
D
Although the deficiencies in the notice provided by the Agency compel reversal of the order from the 12 month hearing and subsequent orders, we address Charisse‘s other asserted errors to guide the Agency on remand.
1
Charisse asserts the notice sent to the BIA was insufficient because it was sent to the wrong address. For dependency proceedings in California, notice is sent to the BIA‘s regional office in Sacramento. (
2
Charisse asserts the Agency should have sent notice to the eight recognized Apache tribes, not solely to the San Cаrlos Apache tribe. The Agency must provide notice to all tribes of which the child may be a member or eligible for membership. (
There are eight recognized Apache tribes, but the Chiricahua tribe is not one of them. (68 Fed.Reg. 68180 (Dec. 5, 2003).) The social worker contacted the San Carlos Apache tribe, presumably tо determine the affiliation of members of the Chiricahua tribe. She learned members of the Chiricahua tribe had blended with the San Carlos Apache tribe. If all members of the Chiricahua tribe had merged with the San Carlos Apache tribe, notice solely to that tribe is sufficient. (
3
Charisse argues reversal is warranted because the Agency did not serve notice on the chairperson or the designated service agent of the San Carlos Apache tribe. Notice should be sent to the tribe‘s chairperson unless the tribe designates another agent for service of process. (
Regardless, our record, even as augmented, does not show the intended recipient of the January 2003 notice sent to the San Carlos Apache tribe. Charisse assumes the notice was not sent to Terry Ross because Ed Hopkins and Verna Talkalai wrote the replies for the tribe. However, the fact the designated agent did not write the replies does not mean the notices were improperly addressed. Ross may have given the notice to Ms. Talkalai because she is the еnrollment clerk for the tribe. Even though not serving the appropriate tribal entity may constitute reversible error (In re H.A., supra, 103 Cal.App.4th at p. 1213, 128 Cal.Rptr.2d 12), we need not decide whether it does so here. However, on remand we urge the Agency to ensure the notices are sent to the designated agents of the tribe or tribes.
II
Having concluded error occurred and this matter must be remanded to the juvenile court, we examine the orders affected by the error.8 Charisse appealed the order entered at the 12-month review hearing, which we reverse because of noncompliance with the notice requirements of ICWA. (See
We find it increasing incredible that the Agency seems incapable of complying with the ICWA in a significant number of cases recently before this court. The conduct of the Agency in this case has caused the unnecessary expenditure of time and effort by the trial court, county counsel, parents’ counsel, minor‘s counsel and this court, and more importantly has delayed final resolution of Louis‘s future. Unfortunately, the sole remedy available to this court is to continue reversing orders in juvenile dependency cases in which there has been inadequate compliance with the ICWA by the Agency.
DISPOSITION
The order made at the 12-month review hearing and all subsequent orders are reversed. The court is directed to ensure that proper notice is given under the ICWA. If, after receiving notice, no tribe intervenes, the juvenile court shall reinstate the orders. (See Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 261, 126 Cal.Rptr.2d 639.)
WE CONCUR: NARES, Acting P.J., and HALLER, J.