In re Alyssa R.

Filed 10/16/06 In re Alyssa R. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Debra Losnick, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Reversed.

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

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Because this dependency cases raises only limited legal issues, we dispense with the usual statement of facts. By way of background, we need say only that appellant Jorge R. is the father of Alyssa and Gena, that the children were detained in December of 2003, when Alyssa was fourteen months old and Gena three months old, that the Welfare and Institutions Code section 300 petition was sustained under section 300, subdivision (b), and that reunification services were terminated in March 2005. This appeal is from the denial of appellant's January 25, 2005, section 388 petition, in which he sought a home of parent order or increased visitation. His contention is that the order denying the petition must be reversed because the trial court and DCFS failed to comply with the Indian Child Welfare Act.[1]

The facts are these: at a December 9, 2003 hearing, the court stated that "mother has indicated there may be some Cherokee Indian heritage on her side of the family," and ordered DCFS to evaluate that heritage and give notice to the Bureau of Indian Affairs. DCFS partially complied, but appellant contends that the compliance was inadequate because the Bureau of Indian Affairs was not properly served, because only one of three federally recognized Cherokee tribes (In re Marinna J. (2001) 90 Cal.App.4th 731, 737) was served, and because the notices did not include sufficient information.

Before we consider those contentions, we must consider several DCFS arguments which concern our jurisdiction. The first is that the appeal must be dismissed because it was not authorized by appellant. DCFS relies on In re Alma B. (1994) 21 Cal.App.4th 1037 and In re Sean S. (1996) 46 Cal.App.4th 350. In both cases, the notice of appeal was signed by counsel. In Alma B., the appellant had failed to comply with her reunification plan, lost contact with the social services department, and was not present at the hearing at which the appealed-from orders were made. Her lawyer did not know her whereabouts, but filed the appeal based on his belief about her desires. The Court held that "Because we cannot impute Alma's authorization for her trial counsel to appeal orders made after her disappearance, the appeal must be dismissed." (In re Alma B., supra, 21 Cal.App.4th at p. 1043.) Sean S. is similar. The parent demonstrated "no true interest in preserving parental ties." Not only did she fail to show up for the section 366.26 hearing, "she telephoned her attorney and told him, quite simply, she was not going to appear. No explanation. She was just not going to show up. Clearly, a parent who voluntarily chooses not to appear at the selection and implementation hearing has functionally abandoned any parental interest in the minor." (In re Sean S., supra, 46 Cal.App.4th at p. 352.)

Here, a

ppellant's attorney signed the section 388 petition and the notice of appeal, dated February 13, 2006, but appellant was present at a January 9 hearing, and at that time his lawyer represented that he had completed a residential drug and alcohol treatment program. The record indicates that DCFS had his address, and there is no evidence that he lost contact with his attorney. We cannot say that appellant's behavior amounted to functional abandonment of interest in his children, such that the appeal must be dismissed.

DCFS also makes arguments based on the notice of appeal, contending that because the notice of appeal refers only to the ruling on the section 388 petition, and not to Indian Child Welfare Act violations, any such violations are not before us, and also contending that the appeal does not concern the section 388 petition, and thus has been abandoned.

The arguments are puzzling. It is true that appellant does not make the evidence-based arguments typical on appeal of denial of a section 388 petition, but he does contend that the order must be reversed, citing Indian Child Welfare Act violations. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 260 [ICWA violation renders voidable any action taken without the requisite notice].) The Indian Child Welfare Act issues are thus encompassed by the notice of appeal. The appeal has not been abandoned.

DCFS also asserts waiver, that appellant waived any Indian Child Welfare Act violation by failing to raise it in the trial court. As DCFS acknowledges, there is a split of authority on the question. Given that the purpose of the Act is to protect the interests of Indian children and to promote the stability and security of Indian tribes and families (In re Crystal K. (1990) 226 Cal.App.3d 655, 661) we agree with those courts which have held that "the waiver doctrine cannot be invoked to bar consideration of the notice error on appeal. Our conclusion is consistent with the protections afforded in the Act to the interests of Indian tribes." (In re Marinna J., supra, 90 Cal.App.4th at p. 739.)

Finally, we reject DCFS's argument that neither it nor the trial court had reason to know that these were Indian children. To the contrary, the trial court found that "mother has indicated there may be some Cherokee Indian heritage on her side of the family." DCFS did not challenge that finding, but instead began the notice process. The Indian status of the child need not be certain to invoke the notice requirement. (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 254.)

We now turn to appellant's contentions.

DCFS informed the court that it sent notice to the Cherokee Nation of Oklahoma, the Bureau of Indian Affairs, and the Office of Tribal Services. The record includes a proof of service indicating service on the Cherokee Nation of Oklahoma in Tahiequah, Oklahoma, and a copy of the relevant certified mail receipt, including the "complete on delivery" section, with a stamped signature in the "received by" line.

Notice was also directed to the Office of Tribal Services, Human Service Division, in Washington, D.C. However, the proof of service shows "Cherokee Nation" as the person served. The record includes a partial certified mail receipt, but there is no copy of the section which is to be filled in on delivery.

Notice to the Bureau of Indian Affairs was sent to an address in Sacramento, but again, the proof of service shows "Cherokee Nation" as the person served. There is no copy of a mail receipt at all.

We agree with appellant that notice was inadequate. Notice must be sent to all tribes of which a child may be a member or eligible for membership. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.) Given that DCFS did not know which specific Cherokee Tribe the children might belong to, notice to the BIA would have been sufficient (In re Edward H. (2002) 100 Cal.App.4th 1, 5), but the proofs of service on the BIA shows that service was not correct.

Further, we agree with appellant that the content of the notices was inadequate.

As appellant points out, DCFS used SOC 318 and SOC 319 forms. These forms are no longer in use, but appellant concedes that in this case, which began in 2003, their use was proper. He also points out, however, that DCFS left blank the spaces for the children's and mother's place of birth, although DCFS had reported that it knew the mother's place of birth (Los Angeles) and could presumably have learned the children's places of birth from her. DCFS also misspelled the maternal grandmother's name and omitted her place of birth, although again, the information could most likely have been obtained on inquiry of the mother or the maternal grandmother herself. As of January 2004, the maternal grandmother's whereabouts were known, because she was incarcerated in Los Angeles. DCFS argues that it had no obligation to give notice of information it did not have, but "[t]he burden is on the Agency to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA." (In re Louis S. (2004) 117 Cal.App.4th 622, 630; In re C.D. (2003) 110 Cal.App.4th 214, 225.) There is no showing that DCFS tried to obtain this information.

The order must be reversed, although we agree with DCFS that a conditional reversal is proper. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)

Disposition

The order denying the section 388 petition is reversed and the case is remanded to the so that DCFS can comply with the notice provisions of Indian Child Welfare Act. If, after proper notice, a tribe claims these children as Indian children, the court shall proceed in conformity with all provisions of Indian Child Welfare Act. If no tribe claims that these children are Indian children, the ruling shall be reinstated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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[1] He also contends that "the failure to proceed in accordance with the ICWA provisions requires that the judgment terminating parental rights and freeing the child for adoption must be reversed . . . ." Our record includes no such order.