 


Filed 5/20/15 In re Levi R. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


In re LEVI R., a Person Coming Under the                             B258280
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. CK63288)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

ANNA L. et al.,

         Defendants and Appellants.




         APPEALS from an order of the Superior Court of Los Angeles County. Anthony
Trendacosta, Commissioner. Conditionally reversed with directions.
         Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and
Appellant Anna L.
         Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and
Appellant Richard R.



 
 


       Mark J. Saladino, County Counsel, and Kim Nemoy, Principal Deputy County
Counsel, for Plaintiff and Respondent.
                                 ____________________

       Anna L. (Mother) and Richard R. (Father) appeal from an August 5, 2014 order
terminating their parental rights over Levi R. (born in 2010) contending that substantial
evidence did not support the juvenile court’s finding that proper notice was given under
the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Mother argues that the
Department of Children and Family Services (DCFS) failed to comply with the inquiry
and notice requirements of the ICWA because the notice did not include all available
information regarding maternal relatives; the notice sent to the United Keetoowah Band
was sent to the wrong designee; and DCFS failed to notice a federally recognized Navajo
tribe. Mother requests that the order terminating parental rights be conditionally reversed
and the matter remanded for compliance with notice requirements. Father joins in
Mother’s arguments. DCFS concedes in a letter brief that Mother’s arguments are
meritorious and requests this court to enter a limited reversal of the order terminating
parental rights.
       We agree with Mother’s and Father’s contentions and conditionally reverse the
August 5, 2014 order terminating Mother’s and Father’s parental rights. We remand the
matter to the juvenile court with directions to: Order DCFS to complete new notice
forms after interviewing Mother and all known maternal relatives; order DCFS to send a
new notice to Mother and Father, the Bureau of Indian Affairs (BIA), the Secretary of the
Interior, and all bands of the Cherokee and Navajo tribes to the designees listed on the
current federal registry, including the Colorado River Indian Tribe; and hold a new
section 366.26 hearing at least 60 days after the tribes receive the new notices.1 If, after
receiving proper notice, a tribe determines Levi R. is an Indian child as defined by the
ICWA, the court shall proceed in conformity with the provisions of the ICWA. If no
 
       1 DCFS recommended that 60 days would be needed for the tribes to evaluate the
notices and to “ensure the parents are noticed for the hearing and re-appointed counsel.”
                                              2
 


tribe indicates that Levi is an Indian child within the meaning of the ICWA, the court
shall reinstate the order terminating Mother’s and Father’s parental rights over him.
                                    BACKGROUND
       We discuss only the facts pertinent to this appeal regarding the ICWA notice and
not the facts leading up to the filing of the Welfare and Institutions Code section 300
petitions on behalf of Levi and the termination of parental rights.2
       On June 1, 2013, Mother denied that Levi had Indian ancestry. On June 5, 2013,
Mother filled out a parental notification of Indian status form, stating that she might have
Indian ancestry, specifically the Navajo and Cherokee tribes. Her handwritten notations
referenced “GG Mo,” “Gracie,” and “James Allen [P.]” She also wrote the name of
maternal great-aunt “Mary [L.]” and a phone number. Father filled out a parental
notification of Indian status form, indicating he had no Indian ancestry.
       Mother and Father were in custody but appeared at a June 5, 2013 detention
hearing. “Maternal grandmother and great uncle” were also present at the hearing. The
juvenile court noted that Mother indicated that she had Navajo and Cherokee heritage.
When asked whether she, her parents, or grandparents were registered members of any
tribe, Mother answered that maternal grandmother “could better answer that.” Maternal
grandmother then stated that her grandmother’s mother, Gracie, was “100 percent
Cherokee.” Maternal grandmother believed Gracie may have been a registered member
of a tribe. Mother stated that maternal great-aunt Mary L. “has all the information on
that” and gave the court Mary L.’s telephone number. Maternal grandmother also stated
that her grandfather, James Allen P., was full Cherokee. Father denied Indian ancestry.
       The juvenile court ordered DCFS to complete a full investigation, including
interviewing Mary L. at the telephone number provided by Mother and re-interviewing


 
       2 Undesignated statutory references are to the Welfare and Institutions Code.
Failure to comply with the ICWA is the only basis for Mother’s and Father’s appeals.
We therefore do not address the juvenile court’s findings leading up to termination of
Mother’s and Father’s parental rights.
                                              3
 


Mother and maternal grandmother. It also ordered DCFS to notice “the appropriate tribes
and the [BIA] if necessary.” The court found that the ICWA did not apply as to Father.
       On July 23, 2013, maternal aunt Rebecca B. and maternal grandmother reported to
DCFS that the family had Cherokee heritage. They stated that Mary L. had constructed a
family tree showing Cherokee heritage. On July 23, 2013, DCFS left a message for Mary
L. regarding the family’s Cherokee heritage.
       On July 24, 2013, DCFS sent a notice of custody proceedings for an Indian child
to the BIA, the Secretary of the Interior, and to three Cherokee tribes. The notice
contained the names and addresses of Mother, Father, and maternal grandmother. It did
not contain any information regarding Gracie or James. As pertinent to this appeal, the
notice for the United Keetoowah Band of Cherokee Indians was sent to Sonya Cochran at
P.O. Box 746, Tahlequah, OK 75565. A September 9, 2013 letter from the Cherokee
Boys Club, Inc., stated that Levi was not registered with, nor eligible to register as, a
member of the Eastern Band of Cherokee Indians.
       On November 5, 2013, DCFS sent a notice of custody proceedings for an Indian
child to the Secretary of the Interior, the BIA, the Navajo Nation, two contacts for the
Navajo Region, and the Ramah Navajo School Board, Inc. The notice contained the
names and addresses of Mother, Father, and maternal grandmother. It did not contain
any information regarding Gracie or James. Return receipts were received from the
Secretary of the Interior, the BIA, the Navajo Region, the Ramah Navajo School Board,
Inc., and the Navajo tribes.
       On October 15, 2013, at the jurisdictional hearing, Mother and Father waived their
rights to a court trial and pleaded no contest to the section 300 petition. The juvenile
court found Levi to be a minor described by section 300, subdivision (b). At the
dispositional hearing on December 10, 2013, the court declared Levi a dependent under
section 300, subdivision (b) and removed him from the care of Mother and Father. The
court determined that notice had been given to all appropriate parties, the ICWA did not
apply, and the court had no reason to know that Levi was an Indian child as defined by


                                               4
 


the ICWA. On August 5, 2014, the court terminated parental rights of Mother and
Father. Mother and Father appealed.
                                       DISCUSSION
Substantial evidence did not support the juvenile court’s finding that proper notice
was given under the ICWA
       Mother and Father contend that DCFS failed to comply with the inquiry and notice
requirements of the ICWA because the notice did not include all available information
regarding maternal relatives; the notice sent to the United Keetoowah Band was sent to
the wrong designee; and DCFS failed to notice a federally recognized Navajo tribe.3 We
agree.4
       “Congress passed the ICWA in 1978 ‘to promote the stability and security of
Indian tribes and families by establishing minimum standards for removal of Indian
children from their families and placement of such children “in foster or adoptive homes
which will reflect the unique values of Indian culture . . . .”’ [Citations.]” (In re
Gabriel G. (2012) 206 Cal.App.4th 1160, 1164.) If the court “knows or has reason to
know that an Indian child is involved” in a dependency proceeding, the social worker or
probation officer shall provide notice to the child’s tribe. (§§ 224.2, subd. (a), 224.3,
subd. (d).)
       Pursuant to section 224.2, subdivision (a) “(3) Notice shall be sent to all tribes of
which the child may be a member or eligible for membership, until the court makes a
determination as to which tribe is the child’s tribe in accordance with subdivision (d) of
 
       3 Father contends that even though he does not claim Indian heritage, he has
standing to appeal because either parent of a child claiming Indian heritage has standing
to challenge an order made in violation of the ICWA. (In re Riva M. (1991) 235
Cal.App.3d 403, 411, fn. 6.) DCFS does not contest Father’s standing to appeal and
therefore we do not address the issue of whether Father has standing.
       4We follow the line of authority holding that issues regarding deficient notice
given under the ICWA are not forfeited even though the parties did not raise the issues in
the juvenile court. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.) DCFS does not
claim that the notice issues under the ICWA were forfeited by the parties’ failure to raise
them below.
                                               5
 


Section 224.1, after which notice need only be sent to the tribe determined to be the
Indian child’s tribe. [¶] (4) Notice, to the extent required by federal law, shall be sent to
the Secretary of the Interior’s designated agent, the Sacramento Area Director, Bureau of
Indian Affairs. If the identity or location of the parents, Indian custodians, or the minor’s
tribe is known, a copy of the notice shall also be sent directly to the Secretary of the
Interior, unless the Secretary of the Interior has waived the notice in writing and the
person responsible for giving notice under this section has filed proof of the waiver with
the court.” (§ 224.2, subd. (a)(3), (4).)
       “If the court or the Department ‘knows or has reason to know that an Indian child
is involved, the social worker . . . is required to make further inquiry regarding the
possible Indian status of the child, and to do so as soon as practicable, by interviewing the
parents, Indian custodian, and extended family members . . . , contacting the Bureau of
Indian Affairs . . . [,] the tribes and any other person that reasonably can be expected to
have information regarding the child’s membership status or eligibility.’ (§ 224.3,
subd. (c); see Cal. Rules of Court, rule 5.481(a)(4).) The circumstances that may provide
reason to know the child is an Indian child include, but are not limited to, ‘A person
having an interest in the child, including the child, an officer of the court, a tribe, an
Indian organization, a public or private agency, or a member of the child’s extended
family provides information suggesting the child is a member of a tribe or eligible for
membership in a tribe or one or more of the child’s biological parents, grandparents, or
great-grandparents are or were a member of a tribe.’ (§ 224.3, subd. (b)(1).)” (In re
Gabriel G., supra, 206 Cal.App.4th at pp. 1165–1166.)
       The juvenile court’s findings whether proper notice was given under the ICWA
and whether the ICWA applies to the proceedings are reviewed for substantial evidence.
(In re E.W. (2009) 170 Cal.App.4th 396, 403–404.)
       Failure of the notice to contain information about Mother’s family members
       Mother and Father contend, and DCFS concedes, that the notice failed to include
available information regarding Mother’s family members, namely Gracie and James.


                                                6
 


       “ICWA notice requirements are strictly construed” and must contain enough
information to be meaningful. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; id.
at pp. 700, 704 [DCFS did not comply with notice requirements where child family
history section in ICWA notices were “largely left blank” and DCFS did not include “any
background information” regarding paternal grandmother, even though father claimed
Indian heritage and DCFS “easily could have contacted the paternal grandmother for
additional pertinent information”].) “It is essential to provide the Indian tribe with all
available information about the child’s ancestors, especially the ones with the alleged
Indian heritage. [Citation.]” (Id. at p. 703.) Notices must include “[a]ll names known of
the Indian child’s biological parents, grandparents, and great-grandparents, or Indian
custodians, including maiden, married and former names or aliases, as well as their
current and former addresses, birthdates, places of birth and death, tribal enrollment
numbers, and any other identifying information, if known.” (§ 224.2, subd. (a)(5)(C).)
       DCFS failed to comply with the inquiry and notice requirements of the ICWA
because the notices did not contain all available information regarding Mother’s family
members, namely Gracie and James. Further, the record does not show whether DCFS
continued to attempt to contact Mary L. after leaving a message for her on July 23, 2013.
       Incorrect tribal contact
       Mother and Father contend, and DCFS concedes, that DCFS sent a notice to the
incorrect tribal agent designated for the United Keetoowah Band of Cherokee Indians,
and the error was not harmless because there was nothing in the record to indicate that the
tribe received actual notice. (In re J.T. (2007) 154 Cal.App.4th 986, 994.)
       Section 224.2, subdivision (a)(2) provides that notice to the tribe shall be sent to
the tribal chairperson, unless the tribe has designated another agent for service. “The
BIA . . . ‘periodically publishes a current list of designated tribal agents for service of
notice, along with the appropriate mailing addresses, in the Federal Register.’” (In re
Mary G. (2007) 151 Cal.App.4th 184, 210.) In May 2010, Sonya Cochran was one of
two registered agents for service of notice to the United Keetoowah Band. (ICWA:
Designated Tribal Agents for Service of Notice, 75 Fed.Reg. 28103, 28126 (May 19,
                                               7
 


2010).) In July 2013, Sonya Cochran was no longer the designated tribal agent for the
United Keetoowah Band; instead the designated agent was Joyce Fourkiller-Hawk. (Id.,
77 Fed.Reg. 45815, 45838 (Aug. 1, 2012).) DCFS, however, incorrectly sent the notice
to Sonya Cochran. DCFS did not file a return receipt or letter from the United
Keetoowah Band.
       Accordingly, we conclude that upon remand the juvenile court must order DCFS
to send a new notice to the designee listed on the current federal registry.
       Failure to notify a Navajo tribe
       Mother and Father contend, and DCFS concedes, that DCFS failed to notice a
federally recognized Navajo tribe.
       DCFS noticed the Navajo Nation, one contact at the Navajo Region, and Ramah
Navajo School Board, Inc. But DCFS failed to send notice to a federally recognized
Navajo tribe, the Colorado River Indian Tribe. (ICWA: Designated Tribal Agents for
Service of Notice, 77 Fed.Reg. 45816, 45846 (Aug. 1, 2012).)
       In sum, DCFS failed to comply with the inquiry and notice requirements of the
ICWA because the notice did not contain all available information regarding maternal
relatives, namely Grace and James, DCFS addressed its notice to the wrong tribal contact
for one of the Cherokee tribes, and notice was not sent to a federally recognized Navajo
tribe. Therefore, we conditionally reverse the juvenile court’s order terminating Mother’s
and Father’s parental rights. (In re Gabriel G., supra, 206 Cal.App.4th at p. 1168
[limited reversal appropriate to ensure that ICWA requirements are met].) If, after proper
notice, the court finds that Levi is an Indian child, the court shall proceed in conformity
with the ICWA. If it is determined on remand that Levi is not an Indian child, the
juvenile court shall reinstate its order terminating Mother’s and Father’s parental rights.
                                      DISPOSITION
       The July 23, 2012 order terminating Father’s and Mother’s parental rights is
conditionally reversed. The matter is remanded to the juvenile court with the following
directions: Order DCFS to complete new notice forms after interviewing Mother and all
known maternal relatives; order DCFS to send a new notice to Mother and Father, the
                                              8
 


Bureau of Indian Affairs, the Secretary of the Interior, and all bands of the Cherokee and
Navajo tribes to the designees listed in the current Federal Registry, including the
Colorado River Indian Tribe; and hold a new Welfare and Institutions Code section
366.26 hearing at least 60 days after the tribes receive the new notices. If, after receiving
proper notice, a tribe determines that Levi R. is an Indian child as defined by the ICWA,
the court shall proceed in conformity with the provisions of the ICWA. If no tribe
indicates that Levi R. is an Indian child within the meaning of the ICWA, the court shall
reinstate the order terminating Mother’s and Father’s parental rights over him.
       NOT TO BE PUBLISHED.


                                                  BENDIX, J.*
We concur:


       ROTHSCHILD, P. J.


       CHANEY, J.




 
        * Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                                              9
