In re S.E., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.S. et al., Defendants and Appellants.
No. B244326
Second Dist., Div. Four.
June 26, 2013
217 Cal. App. 4th 610
COUNSEL
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SUZUKAWA, J.-
INTRODUCTION
A.A.-E. (Father) and S.S. (Mother) appeal from an order of the juvenile court establishing guardianship of their son, S.E. Both parents contend that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the inquiry and notice requirements of the federal Indian Child Welfare Act of 1978 (ICWA) (
FACTUAL AND PROCEDURAL BACKGROUND
1. Dependency Proceedings Culminating in Legal Guardianship Order
On April 16, 2008, DCFS received a referral alleging neglect of S.E. (born Oct. 2005) by Mother. The list of medical concerns for the boy included failure to thrive/oral aversion, delayed speech, anemia, eczema, undescended testes, severe tooth decay, and asthma. Mother signed a voluntary family maintenance contract but, over the ensuing months, she repeatedly failed to adequately care for him and told social workers that her religious beliefs were not compatible with conventional medicine.
In January 2009, DCFS determined that S.E. was not getting adequate care for his problems and detained S.E. from Mother, placing him with the maternal grandparents. On January 21, DCFS filed a petition pursuant to
On February 20, 2011, Father was arrested in New Orleans and provided information as to the whereabouts of Mother and S.E. On March 4, Mother and S.E. were located in the New Orleans area and Mother was arrested. DCFS picked up S.E. and transported him back to Los Angeles, again placing him with the maternal grandparents.
In its disposition report, DCFS recommended that no reunification services be provided to the parents pursuant to
On September 20, 2011, pursuant to
DCFS‘s status review and
On July 17, 2012, the court ordered that the child be placed under legal guardianship and terminated jurisdiction over the case.
DCFS‘s initial detention report dated January 21, 2009, noted that Mother said she had native American Indian ancestry through the Cherokee tribe and that the child‘s maternal grandmother was half Cherokee. Maternal grandmother, C.W., confirmed she had Cherokee Indian heritage. She said her maternal grandfather was Cherokee, but she did not know if he was registered or of any specific tribal affiliation. The name of the maternal grandmother‘s grandfather (S.E.‘s maternal great-great-grandfather) was not stated anywhere on the Judicial Council form ICWA-030.
Father indicated on the parental notification of Indian status form that he might have Indian ancestry. At the detention hearing on January 21, 2009, Father said he had Sioux and Choctaw Indian heritage through his maternal grandmother, the child‘s paternal great-grandmother.
The court ordered DCFS to investigate the parents’ claims and provide ICWA notice to the appropriate tribes. In April 2009, DCFS reported that notice under ICWA was given to the Cherokee tribes, but the notice was erroneous and would have to be corrected.
DCFS filed an interim review report dated June 3, 2009, which included the ICWA notice provided to the Cherokee tribes and response letters from two tribes indicating S.E. was not an Indian child. At the hearing on June 3, 2009, the court found that ICWA did not apply to the case. Father‘s Indian ancestry was never investigated. Subsequent reports, including those generated after S.E. was located and returned to California, simply reiterated that ICWA did not apply.
DISCUSSION
I. Applicable Law
Pursuant to
[79 Cal.Rptr.3d 189].) If known, names (maiden, married, former, and aliases), current and former addresses, birth dates, places of birth and death, tribal enrollment numbers, and any other information is to be provided. (Id. at p. 575, fn. 3.) Notice given by DCFS pursuant to ICWA must contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child‘s eligibility for membership.
“Deficiencies in an ICWA notice are generally prejudicial, but may be deemed harmless under some circumstances. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162 [30 Cal.Rptr.3d 726]; [In re] Antoinette S. [(2002)] 104 Cal.App.4th [1401,] 1411-1413 [129 Cal.Rptr.2d 15].)” (In re Cheyanne F., supra, 164 Cal.App.4th at p. 577.) Where notice has been received by the tribe, errors or omissions in the notice are reviewed under the harmless error standard. (Id. at p. 576.)
We note that Mother and Father did not forfeit any deficiencies in the notice requirements by failing to raise them below because the notice provisions are designed in part to protect the potential tribe‘s interests. (In re Alice M. (2008) 161 Cal.App.4th 1189 [74 Cal.Rptr.3d 863]; In re Marinna J. (2001) 90 Cal.App.4th 731, 739 [109 Cal.Rptr.2d 267].)
II. Analysis
A. Mother‘s Indian Heritage
Mother contends that DCFS‘s failure to state the name of S.E.‘s great-great-grandfather rendered the notice given inadequate. DCFS responds on appeal that it has no obligation to include information about ancestors as remote as great-great-grandparents in ICWA notices, as evidenced by the fact that there is no designated space for such ancestors on the ICWA notice forms promulgated by the Judicial Council of California.
Although we are sympathetic to DCFS‘s contention that Mother‘s objection will result in regrettable delay in the proceedings, we cannot say that the failure to thoroughly investigate the child‘s Indian heritage constitutes harmless error. The information which was omitted here pertained directly to the ancestor Mother and the maternal grandmother affirmatively claimed was Indian. Under these circumstances we cannot say that the omission was harmless and that providing the ancestor‘s name might not have produced different results concerning the child‘s Indian heritage. (Cf. In re Antoinette S., supra, 104 Cal.App.4th 1401 [omission of information concerning non-Indian relatives is harmless error if the notice included all known information about the Indian parent and relatives].) Where the information was known, its inclusion was required regardless of the lack of a
B. Father‘s Indian Heritage
Father contends we must reverse the guardianship order and remand the matter to the juvenile court with directions to ensure compliance with the ICWA notice provisions. DCFS acknowledges error in its oversight in providing notice to the tribes specified by Father and that a limited remand is required, but contends reversal of the guardianship order is not necessary. We disagree.
As the court stated in Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779 [53 Cal.Rptr.3d 251] in disagreeing with the case relied upon by DCFS, In re Brooke C. (2005) 127 Cal.App.4th 377 [25 Cal.Rptr.3d 590], “[e]ven assuming ICWA errors are not jurisdictional, we conclude the failure to give ICWA notice means that the orders in this case cannot stand.” (Nicole K., supra, at p. 785.) If notice to the Sioux and Choctaw tribes had revealed the child was an Indian child, the provisions of ICWA would have applied at the hearing establishing guardianship as the child‘s permanent plan. Because the juvenile court applied different standards and provisions other than those in ICWA, its order must be vacated until ICWA notice is provided and the court determines what standard is applicable. (Nicole K., at p. 785.) We understand that even if S.E. were found to be an Indian child, the relevant tribe might decide not to intervene in the matter or to intervene in only a limited way, such that the establishment of guardianship as the permanent plan would remain unaffected. However, if that proved to be the case, the juvenile court could readily reinstate the order of legal guardianship.
DISPOSITION
The order establishing guardianship is reversed. The case is remanded to the juvenile court with directions to order DCFS to provide notice to the tribes as specified in this opinion, in accordance with ICWA. If after proper notice the court finds the child is an Indian child, the court shall proceed in
Epstein, P. J., and Willhite, J., concurred.