In re A.U.

Filed 7/12/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story continue from Part I………..

The Erroneous Appointment of the Guardian Ad Litem

Was Harmless Beyond Reasonable Doubt

Sonia argues that the erroneous appointment of a guardian ad litem constitutes "structural error" requiring automatic reversal of the order appointing the guardian ad litem and all subsequent orders in the dependency case. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309-311; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 556-557.) She concedes that there is a split of authority in the appellate courts as to whether the erroneous appointment of a guardian ad litem for a parent in dependency proceedings constitutes a structural error requiring automatic reversal or whether it is a trial error subject to a harmless error analysis. (See Chapman v. California (1967) 386 U.S. 18 (Chapman); In re Angela C. (2002) 99 Cal.App.4th 389, 395.)

This court has determined that it will review the improper appointment of a guardian ad litem to determine whether the error is harmless beyond a reasonable doubt. (Enrique G., supra, __ Cal.App.4th at p __ [2006 Cal.App. Lexis 901, 16-17]; Daniel S., supra, 115 Cal.App.4th at pp. 912-916; see also Sara D., supra, 87 Cal.App.4th at p. 673 ["Reversal is not required if the violation of the appellant's due process rights was harmless beyond a reasonable doubt."].)

Citing Jessica G., Sonia argues that the erroneous appointment of a guardian ad litem was not harmless beyond a reasonable doubt because the court cannot know what the parent might have done or suggested to her attorney if the guardian ad litem had been appointed. (Jessica G., supra, 93 Cal.App.4th at p. 1189.) However, Sonia does not support her claim with specific references to the record. Without any basis in the record to support a conclusion that the parent might have taken a course of action different from that taken by the guardian ad litem, we would have to conclude that the error was structural in order to reverse.[1]

An example of the application of the Chapman harmless error analysis to the erroneous appointment of a guardian ad litem is found in Sara D., in which the appellate court concluded that the appointment was not harmless beyond a reasonable doubt. In Sara D., prior to the appointment of the guardian ad litem, the parent contested jurisdiction and informed the court that three additional witnesses, including the parent, would testify at the jurisdictional hearing. The court appointed a guardian ad litem before the hearing concluded. After the guardian ad litem was appointed, the parent's attorney and the guardian ad litem agreed to submit to the court's jurisdiction in exchange for what was essentially nothing more than an agreement to conform the petition to the proof presented at the earlier hearings. (Sara D., supra, 87 Cal.App.4th at p. 673.) Without speculating on the substance or effect of the omitted testimony, the Sara D. court determined that the testimony might have had an impact on the court's decision, and concluded that the error therefore was not harmless beyond a reasonable doubt. (Ibid.) A similar situation occurred in In re Joann E., supra, 104 Cal.App.4th at page 360, in which the parent intended to call a witness who was not called to testify after a guardian ad litem was appointed.

In contrast to Sara D. and Joann E., Sonia does not specify how or when the proceedings in this case might have been impacted by the appointment of a guardian ad litem. Sonia did not appear at any of the hearings in A.U.'s dependency case. She told the social worker, "I don't want to go to court. I don't like court." Our review of the record does not reveal any information that would allow us to conclude that anything Sonia might have done or suggested to her attorney would have been different if the guardian ad litem had not been appointed. (See Sara D., supra, 87 Cal.App.4th at p. 673.)

Further, neither Sonia's counsel nor her guardian ad litem compromised her fundamental rights. (Daniel S., supra, 115 Cal.App.4th at p. 914; see Christina B., supra, 19 Cal.App.4th at p. 1454.) On the contrary, the record shows that they protected Sonia's rights at each juncture throughout the proceedings. Sonia's attorney repeatedly requested continuances because Sonia was not present and enlisted Aunt's help to try to secure Sonia's appearance at the jurisdiction hearing. Sonia's attorney vigorously advocated that the court provide Sonia the opportunity to undergo a psychological evaluation before the disposition hearing to determine whether she would benefit from services. Despite Sonia's statements suggesting that she was resigned to, and comfortable with, A.U.'s placement in Aunt's permanent custody, her attorney requested contested hearings at the jurisdiction, disposition and permanency planning stages of the proceedings. In addition, Sonia's appellate rights were preserved.

There is nothing in the record to show how the erroneous appointment of a guardian ad litem might have affected Sonia's rights to participate in the proceedings, contest the state's position, consult with her attorney, or receive the effective assistance of counsel. We conclude that under the circumstances in this case, the erroneous appointment of the guardian ad litem was harmless beyond a reasonable doubt. (See Enrique G., supra, __ Cal.App.4th at p. __ [2006 Cal.App. Lexis 901, 16-17, 19-20].)

C

This Court Will Not Infer a Finding That Sonia Was Incompetent

From Evidence of Mental Illness

The Agency contends that Sonia's mental illness constitutes substantial evidence that she was incompetent. In support of its position, the Agency details Sonia's mental health history as well as anecdotal evidence of her current condition.

We reject the argument that this court can infer from evidence in the record of mental illness that Sonia was incompetent at the time the court appointed a guardian ad litem for her. The mere presence of mental illness does not mean that a party is unable to understand the proceedings and to assist counsel in the preparation of the case. (See, e.g., In re Christopher I. (2003) 106 Cal.App.4th 533, 568-569; People v. Ramos (2004) 34 Cal.4th 494, 508 ["A defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel."]; see generally People v. Smith (2003) 110 Cal.App.4th 492, 502.)

The record contains little, if any, evidence of Sonia's mental illness or its effect on her ability to understand the proceedings and to assist counsel. Other than Sonia's statement that in the past her condition had been diagnosed as schizophrenia, bipolar disorder and personality disorder, and third parties' anecdotal observations of her "odd behaviors" and mood swings immediately after A.U.'s birth, the record does not contain any current information from qualified mental health professionals[2] about Sonia's psychological or psychiatric condition, nor does it contain any evidence to support a conclusion that her mental health rendered her incompetent. Under these circumstances, we will not infer from evidence of mental illness in the record that Sonia's mental health condition prevented her from being able to understand the proceedings and to assist counsel in the preparation of the case. (See, e.g., In re Christopher I., supra, 106 Cal.App.4th at pp. 568-569; People v. Ramos, supra, 34 Cal.4th at p. 508.)

III

ICWA Errors Require Reversal

In 1978, Congress enacted the ICWA in order to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) To meet Congress's goals, "[p]roceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to those preferences." (Guidelines for State Courts, Indian Child Custody Proceedings (Guidelines) 44 Fed. Reg. 67584, 67586, § A(1) (Nov. 26, 1979).) These requirements include the duty to inquire into a dependent child's Indian heritage and to provide notice to any tribe or potential tribes, the parent, any Indian custodian of the child and, under some circumstances, to the BIA. (25 U.S.C. § 1912(a); rule 1439(d), (f); Guidelines, supra, 44 Fed.Reg. at p. 67588, § B.5.)

A

The Agency Performed Its Duty to Inquire Into the Child's Indian Heritage

Under federal guidelines and California law, the court and the social services agency have an "affirmative duty" to inquire whether a child who is the subject of dependency proceedings "is or may be an Indian child." (Rule 1439(d); Guidelines, supra, 44 Fed.Reg. at p. 67588, § B.5.) The Agency is charged with obtaining "all possible information" about the child's Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 630 (Louis S.).)

Sonia contends that the Agency did not meet its duty to inquire into A.U.'s Indian heritage. She concedes that the Agency interviewed maternal relatives and obtained sufficient information to complete the required form. However, Sonia maintains that the Agency's inquiry was deficient because the social worker summarized only A.U.'s Mexican Indian heritage in an addendum report to the court, while information concerning A.U.'s American Indian heritage was contained in the attached form JV-135 but not included in the report's narrative summary.

The record shows that the Agency interviewed several family members about A.U.'s Indian heritage, completed the required form and presented it to the court for review, albeit belatedly. We presume that the court reviewed the form JV-135 as well as the narrative in the addendum report. Therefore the Agency fulfilled its duty of inquiry when it obtained "all possible information" about A.U.'s Indian heritage and presented the results of its inquiry to the court. (Louis S., supra, 117 Cal.App.4th at p. 630.)

B

Notice to the Tribes Was Deficient

Sonia contends that notice to Indian tribes was deficient. We agree. The Agency must strictly comply with ICWA notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) Title 25 of the United States Code section 1912(a) provides:

"In any involuntary proceeding in a State court, where 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 of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding."

Under California law, notice must be sent when there is "reason to believe the child may be an Indian child." (Rule 1439(f)(5).) "[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) If the tribe's location or identity cannot be determined, notice must be given to the BIA. (25 U.S.C. § 1912(a); rule 1439(f)(4); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.)

On November 8, 2005, at the scheduled permanency plan hearing, the Agency realized that it had not provided notice to the child's prospective tribes and requested a 60-day continuance in order to provide proper notice. On appeal, the Agency contends that it was not required to provide notice to the tribes because it properly notified the BIA. The Agency argues that the responsibility to research and investigate the identity of any tribe rests with the BIA, not with the Agency.

This position is untenable for two reasons. First, as discussed, ante, the Agency is charged with obtaining "all possible information" about a child's Indian heritage (see Louis S., supra, 117 Cal.App.4th at pp. 632-633) and identifying the child's tribe and prospective tribes whenever possible (see, e.g., In re Miguel E. (2004) 120 Cal.App.4th 521, 550; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 257; In re Marinna J. (2001) 90 Cal.App.4th 731, 737, 740.).) The Agency's duty includes researching the identity of tribes within a specific location as well as the history of non-federally registered tribes in the area to determine whether they have been absorbed into a federally registered tribe. (See, e.g., Louis S., supra, 117 Cal.App.4th at pp. 632-633.)[3] The Agency may contact the BIA and/or any tribal entities if it requires assistance locating or identifying the child's prospective tribe.[4] (See, e.g., In re Kahlen W., supra, 233 Cal.App.3d at p. 1420; Louis S., supra, 117 Cal.App.4th at pp. 632-633.)

Second, in this case, county counsel asked the trial court to continue the proceedings to allow the Agency sufficient time to properly notify the prospective tribes. This suggests that the Agency had the ability to identify and notify the prospective tribes of the section 366.26 hearing. We conclude that the Agency properly understood its obligation to inquire into the identity of any "tribes of which the child may be a member or eligible for membership" and to provide notice to any prospective tribes. (Rule 1439(f)(3); see 25 U.S.C. § 1912.) In view the information contained in form JV‑135 about A.U.'s American Indian heritage and county counsel's representation to the court that the Agency needed more time to provide notice to A.U.'s prospective tribes, the court's determination that the Agency was not required to provide notice to prospective tribes was error.

C

In The Absence of a Determinative Response by the BIA, the Court Erred

When It Did Not Wait 60 Days before Finding That the ICWA Did Not Apply

Sonia contends that the notice provided to the BIA was untimely. The Agency sent notice by registered or certified mail to the BIA of the November 8, 2005 permanency plan hearing on November 4. That hearing was continued to November 22, without further notice to the BIA. The Agency did not file with the court the proof of registered or certified mail, the return receipts, or any responses from the BIA. (Rule 1439(f).)[5] The record does not reflect when the BIA received notice of the dependency proceedings. (§ 294, subd. (c)(3)).

Rule 1439(f)(6) states:

"If, after a reasonable time following the sending of notice under this rule -- but in no event less than 60 days -- no determinative response to the notice is received, the court may determine that the act does not apply to the case unless further evidence of the applicability of the act is later received."

In the absence of a determinative response by the BIA to the notice sent on November 4, the court erred when it found on November 8 that ICWA did not apply. We therefore remand the matter with the following observations:

" 'To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, [a social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Rule 1439(f).) Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA.' [Citation.]" (In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703, quoting In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740.)

In any dependency hearing concerning foster care or termination of parental rights, the BIA is entitled to "fifteen days after receipt to provide the requisite notice to . . . the tribe." (25 U.S.C. § 1912(a), § 294, subd. (c)(3).) The hearing shall not be held "until at least ten days after receipt of notice by . . . the tribe." (rule 1439(h); see § 294, subd. (c)(2).) In computing these periods, the day of the hearing is included, and intermediate Saturdays, Sundays, and legal holidays are excluded. Legal holidays include state holidays. (Fed. Rules Civ. Proc., rule 6(a); In re H.A. (2002) 103 Cal.App.4th 1206, 1213.)

In this case, notice to the prospective Indian tribe or tribes was not provided in accord with federal and state law. (See 25 U.S.C. § 1912(a); § 294, subd. (c); rule 1439(f).) We are therefore compelled to reverse the judgment giving A.U. a permanent home and to remand the case for compliance with the requirements of the ICWA and with applicable state law. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1254-1255; see, generally, In re Francisco W. (2006) 139 Cal.App.4th 695, 704, 711.)

DISPOSITION

The judgment terminating parental rights is reversed. The matter is remanded to the juvenile court, with directions that it: (1) require the Agency to give proper notice under applicable federal and state law to any prospective tribes and the BIA, and file with the court the notices, return receipts, and any responses; (2) vacate the appointment of the guardian ad litem for future hearings in this matter; and (3) hold a new permanency plan hearing under section 366.26 hearing.

If, at the permanency plan hearing, the court determines that ICWA notice was proper and no Indian tribe seeks to intervene or otherwise indicates that the child is an Indian child as defined by ICWA, the court shall reinstate its findings and orders terminating parental rights. If, on the other hand, an Indian tribe determines that the child

is an Indian child under ICWA, the court shall conduct the jurisdiction, disposition, and all subsequent hearings in accordance with ICWA and applicable state law.

CERTIFIED FOR PUBLICATION

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Real Estate Attorney.

[1] The Jessica G. court in In re C.G. (2005) 129 Cal.App.4th 27, 34, concluded that that the erroneous appointment of a guardian ad litem for a parent in a dependency case constituted structural error.

[2] The trial court's findings that Sonia suffered atypical psychosis and borderline personality disorder were made in 1993 and 1994; findings made in 1996 and 1998 refer only to Sonia's "history of mental illness." Further, despite significant concerns about Sonia's mental health in the earlier dependency cases, the minute orders from those cases indicate that the court did not appoint a guardian ad litem for Sonia in those proceedings.

[3] The observations of the Louis S. court illustrate the extent to which a social service agency must attempt to fulfill its obligation to identify the child's tribe. "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 to 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. (25 U.S.C. § 1912(a); rule 1439(f)(3).) However, the social worker did not represent that the San Carlos Apache Tribe absorbed all members of the Chiricahua Tribe. Further, the San Carlos Apache Tribe is located in Arizona, as are the Tonto and White Mountain Apache Tribes. (68 Fed.Reg. 68180 (Dec. 5, 2003).) Minor's counsel represents the three tribes live in close proximity. We have no reason to doubt that representation. If it is true, the social worker should have determined whether any members of the Chiricahua Tribe were absorbed into either the Tonto or the White Mountain Apache Tribes or confirmed the San Carlos Apache Tribe absorbed all members of the Chiricahua Tribe. Once the social worker learns which tribe or tribes absorbed the Chiricahua, she need notice only those tribes. (25 U.S.C. § 1912(a); rule 1439(f)(3).) If the social worker cannot determine which tribes absorbed the Chiricahua, she should give notice to the BIA and the tribes she knows absorbed members of the Chiricahua Tribe. (25 U.S.C. § 1912(a); In re Edward H. [(2002)] 100 Cal.App.4th [1,] 4.) Serving the BIA eliminates the need to serve the remaining Apache Tribes. (25 U.S.C. § 1912(a); rule 1439(f)(4).)" (Louis S., supra, 117 Cal.App.4th at pp. 632-633.)

[4] Contacting the BIA (or a tribe) for assistance in identifying the child's tribe does not substitute for proper notice. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422; 25 U.S.C. § 1912(a); rule 1439(f)(4).)

[5] Rule 1439(f) states in part: "The parent or legal guardian and Indian custodian of an Indian child, and the Indian child's tribe, must be notified of the pending petition and the right of the tribe to intervene in the proceedings, and proof of such notice, including copies of notices sent and all return receipts and responses received, must be filed with the juvenile court."