In re David H.
Filed 7/11/13
In re David H. CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE
DISTRICT
DIVISION TWO
In re DAVID H., a Person Coming Under the Juvenile
Court Law.
ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Plaintiff
and Respondent,
v.
DENISE H.,
Defendant
and Appellant.
A136336
(Alameda
County
Super. Ct.
No. HJ11017632)
Denise
H. (mother) appeals from the order terminating her parental rights to her son,
David H., under Welfare and Institutions Code section 366.26.
(the agency) failed to comply with the notice requirements of the
notice provided to the tribes was harmless error. Accordingly, we affirm the order terminating
mother’s parental rights.
BACKGROUND
David’s
brother, K.H., was injured and brought into protective
custody on September 13,
2011. He was removed from the
care of mother and David H. (father). The
agency filed a petition pursuant to section 300, subdivision (a) on behalf of
K.H., and the juvenile court sustained the petition and declared K.H. a
dependent child of the court. The parents failed to reunify with K.H. and the
court terminated services to the parents on September
1, 2011. Mother’s parental
rights to K.H. were terminated under section 366.26 on April 13, 2012.
David
was born after his brother had been removed from the parents’ home. The parents failed to address the concerns
leading to his sibling’s removal and, in September 2011, the agency filed a
petition pursuant to section 300, subdivisions (b) and (j) on behalf of
David.
The
juvenile court held a detention hearing on September
16, 2011. The parents
submitted on the recommendation of detention, and the court ordered the
continued detention of David. The court
found that father was the presumed father of David. The court asked whether the parents believed
that they had “any American Indian heritage.â€
Mother responded that she did and reported Cherokee, Chippewa, and
Blackfoot heritage. Father stated that
he might have American Indian heritage.
Counsel for the agency informed the court that there was a finding that
the ICWA did not apply to David’s brother and he had the same biological
parents. Counsel for David told the
court that it had to issue independent ICWA notices for each child. The court suggested that the parents complete
the ICWA-029 forms.
Mother
completed the ICWA-029 form and indicated that she might be a member of the
Chippewa, Blackfoot, and Cherokee Tribes.
Father also completed the form and stated that he might be a member or
be eligible for membership of the Cherokee Tribe.
On
September 30, 2011, the agency
sent notices of David’s dependency case to the Bureau of Indian Affairs (BIA),
the Secretary of the Interior, the Blackfeet Tribe, the Bad River Band Lake
Superior Tribe of Chippewa Indians, and the Cherokee Nation. The notices contained the correct information
regarding David, mother, and father, but incorrectly listed mother’s father as
her grandfather. The notices also
erroneously listed a person with mother’s last name as father’s paternal
grandfather. The notice did not provide
information about the parents of mother and father.
The
three notified tribes responded to the notice and reported that David was not
enrolled, or eligible for enrollment, in their respective tribes.
On
December 16, 2011, the agency
sent out a second ICWA notice, which included correct information regarding
mother, father, father’s parents, mother’s father, mother’s grandmother,
mother’s grandfather, father’s grandmother, and father’s grandfather. The agency sent this second notice to the
BIA, the Secretary of the Interior, and the Bad River Band Lake Superior Tribe
of Chippewa Indians. The agency also
sent the notice to all the federally recognized Chippewa Tribes, with the
exception of the Lac du Flambeau Band of Lake Superior Chippewa Indians (Lac du Flambeau Tribe) and the St. Croix Tribe of Wisconsin. It also sent notice to two of the three
federally recognized Cherokee Tribes:
the Eastern Band of Cherokee Indians and the United Keetoowah Band of
Cherokee. Additionally, it mailed an
ICWA notice to various other tribes unaffiliated with the Chippewa, Blackfeet,
or Cherokee Tribes. It did not send a
second notice to the Blackfeet Tribe.
The
BIA and 13 of the 32 notified tribes responded.
They indicated that David was not enrolled or eligible for membership in
their respective tribes.
On
January 10, 2012, the agency
mailed a third ICWA notice to the tribes that had not responded to the second
notice, to the BIA, and to the Secretary of the Interior. The family information in the third notice
was the same as the information sent in the second notice.
The
agency received responses from the Secretary of Interior, the BIA, and 13 more
tribes. They reported that David was not
enrolled or eligible for membership in their respective tribes. The BIA marked the following box: “The notice received contains insufficient or
limited information to determine Tribal Affiliation [citation]. When additional information becomes
available, please forward the Notice to the appropriate Tribe(s).â€
After
the agency had sent the third ICWA notice, mother advised the agency that her
great-aunt Alberta had new
information about her American Indian ancestry.
The agency contacted Alberta. She informed the agency that David’s
great-great-great-great- grandmother, Lula R., had Cherokee Tribe ancestry and
a Dawes Roll number.
On
February 2, 2012, the agency sent out a fourth ICWA notice with the information
contained in the previous notice as well as the family tree that included Lula
R. and the Cherokee Dawes Roll number.
The notice also included handwritten notes containing further
information about Lula’s immediate relatives, e-mail among family members
discussing efforts to uncover information about Lula, and a printout from
accessgeneology.com showing that the Dawes Roll number Alberta gave to the
agency was traced to a Lula of Cherokee descent. This notice was sent to the Secretary of the
Interior, the BIA, and all three federally recognized Cherokee Tribes.
The
BIA and three Cherokee Tribes responded that David was not an Indian child and
was not eligible for membership or enrollment in their respective tribes.
At
the hearing on February 10, 2012, the juvenile court sustained the allegations
in the agency’s petition and found David to be a person described by section
300, subdivisions (b) and (j). The court
continued the contested dispositional hearing.
The
parties at the continued dispositional hearing on March 16, 2012, stipulated
that the testimony on the ICWA with regards to David’s brother would be entered
into evidence for David. At the continued
contested hearing on April 13 and April 17, 2012, the juvenile court heard,
among other things, the evidence regarding the tribes’ responses to the ICWA
notices. On April 17, 2012, the court
found that the ICWA did not apply to David.
The
continued contested dispositional hearing continued on April 24, 2012. The juvenile court declared David to be a
dependent of the court, formally removed him from parental custody, bypassed
section 366.26 hearing.
In
April 2012, David and his brother were placed in a prospective adoptive
home. The family was committed to
adopting both David and his brother and David was doing well in their care. Mother continued to visit David but David did
not develop a parental relationship with her.
Father had visited David only once in the past seven months.
At
the section 366.26 hearing on August 16, 2012, the juvenile court found that
David was adoptable and terminated parental rights.
Mother filed a timely
terminating parental rights.
Mother
argues that the juvenile court erred when it terminated her parental rights
without complying with the ICWA. She
acknowledges that the agency sent out numerous ICWA notices but maintains that
many of the notices sent were inadequate and no notice was sent to one of the
federally recognized Chippewa Tribes.
In
1978, Congress enacted the ICWA 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.) The ICWA recognizes that “ ‘the tribe has an
interest in the child which is distinct from but on a parity with the interest
of the parents.’ †(Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30,
52.) “The ICWA presumes it is in the
best interests of the child to retain tribal ties and cultural heritage and in
the interest of the tribe to preserve its future generations, a most important
resource. [Citation.] Congress has concluded the state courts have
not protected these interests and drafted a statutory scheme intended to afford
needed protection.†(
460, 469.)
The ICWA confers on
tribes the right to intervene at any point in state court dependency
proceedings. (25 U.S.C. § 1911(c);
at p. 473.) “Of course, the tribe’s
right to assert jurisdiction over the proceeding or to intervene in it is
meaningless if the tribe has no notice that the action is pending.†(In re
Junious M. (1983) 144 Cal.App.3d 786, 790-791.) “Notice ensures the tribe will be afforded
the opportunity to assert its rights under the [ICWA] irrespective of the
position of the parents, Indian custodian or state agencies.†(In re
Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)
To implement the notice
requirement, the ICWA provides that “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.†(25 U.S.C. § 1912(a).) If the tribe is unknown, the notice must be
given to the BIA, as agent for the Secretary of the Interior. (25 U.S.C. § 1912(a); 25 C.F.R. § 23.2;
1, 4, superseded by statute on another issue.)
The ICWA notice to a
tribe “shall include the following information, if known: [¶]
(1) Name of the Indian child, the
child’s birthdate and birthplace.
[¶] (2) Name of Indian
tribe(s) in which the child is enrolled or may be eligible for enrollment. [¶] (3)
All names known, and current and former addresses of the Indian child’s
biological mother, biological father, maternal
and paternal grandparents and great grandparents or Indian custodians,
including maiden, married and former names or aliases; birthdates; places of
birth and death; tribal enrollment numbers, and/or other identifying
information. [¶] (4) A copy of the petition, complaint or other
document by which the proceeding was initiated.†(25 C.F.R. 23.11(a) and (d); see also Welf.
& Inst. Code, § 224.2, subd. (a)(5)(C).)
The abovementioned
information must be provided by the agency to the tribes to the extent that the
information is known and available. (
duty to inquire about, and attempt to obtain, all possible information about
the child’s family history. (
1116.)
II. Jurisdiction
and Forfeiture
The
juvenile court made its finding at the dispositional hearing on April 17, 2012,
that the ICWA did not apply. At the
hearing, mother did not challenge the adequacy of the ICWA notice, and she did
not appeal from the dispositional order.
The agency maintains that this court does not have jurisdiction over
this appeal because mother is essentially challenging the dispositional order
and her notice of appeal that was
filed on August 20, 2012, is untimely.
(See Slone v. Inyo County Juvenile
Court (1991) 230 Cal.App.3d 263, 267 [held that Congress did not intend
that the ICWA should “preempt the subject matter jurisdiction of any state
court or confer new subject matter jurisdiction upon any state courtâ€].) Even if this court has jurisdiction, mother,
according to the agency, has forfeited raising this issue because she did not
ever claim in the lower court that the ICWA notice was inadequate.
California
Rules of Court, rule 8.406(a) requires filing the notice of appeal within 60
days, and the rule is jurisdictional. (
1479, 1488.) Here, mother filed her
notice of appeal on August 20, 2012, within 60 days of the court’s order on
August 16, 2012, terminating parental rights.
We thus have subject matter jurisdiction over this appeal.
The agency maintains that
mother cannot challenge the ICWA ruling because a parent may not challenge
prior orders in dependency matters when the statutory time for filing the
appeal has passed. (See e.g.,
Cal.App.4th 1391, 1396 [the mother’s appeal from the order terminating the
father’s reunification services could not challenge an earlier order denying
the mother reunification services].)
Furthermore, the agency points out that mother’s notice of appeal
referred to the order terminating parental rights and did not mention the ICWA
findings and therefore the present challenge to the ICWA is not within the
scope of mother’s appeal.
It is true that the
dispositional order in a dependency proceeding is directly appealable and the
general rule is that a parent may not attack the validity of a prior appealable
order for which the statutory time for filing an appeal has passed. (In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1150; In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) Such a rule is necessary to promote finality
and expedition of decisions concerning children and their interests in securing
stable homes. (In re Meranda P., at pp. 1150-1152.)
The Fifth District has
applied the foregoing rule to a challenge to the ICWA notice. In In
re Pedro N. (1995) 35 Cal.App.4th 183, the social services department had
sent notice to the BIA but, even after learning the name of a federally
recognized tribe at the dispositional hearing, failed to notify that
tribe. (In re Pedro N., at p.
187.) The Fifth District held that
because “the mother could have challenged the court’s decision to proceed
[allegedly without proper ICWA notice] at the dispositional hearing and did not
do so,†she was “foreclosed from raising the issue now on appeal from the order
terminating her parental rights.†(
Subsequently, courts have
disagreed with In re Pedro N., supra, 35
Cal.App.4th 183, and have held that improper ICWA notice is a continuing error
that may be raised on appeal at any time.
(See, e.g., Dwayne P. v. Superior
Court (2002) 103 Cal.App.4th 247, 261 (Dwayne
P.); In re Justin S. (2007) 150
Cal.App.4th 1426, 1435; In re Alice M. (2008)
161 Cal.App.4th 1189, 1195; In re Z.N. (2009)
181 Cal.App.4th 282, 297.) These courts
have concluded that parents cannot properly be deemed to have waived the
tribe’s rights under the ICWA. (
at p. 471 [“There is nothing either in the ICWA or the case law interpreting it
which enables anyone to waive the tribe’s right to notice and the right to
intervene in child custody mattersâ€]; In
re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408 [“ ‘Because the notice
requirement is intended, in part, to protect the interests of Indian tribes, it
cannot be waived by the parents’ failure to raise it’ â€]; In re Nikki R. (2003) 106 Cal.App.4th 844, 849 [“Case law is clear
that the issue of ICWA notice is not waived by the parent’s failure to first
raise it in the trial courtâ€].)
731, clarified: “[I]t would be contrary
to the terms of the [ICWA] to conclude . . . that parental inaction could
excuse the failure of the juvenile court to ensure that notice . . . was provided
to the Indian tribe named in the proceeding.â€
(Id., at p. 739
The
court in Dwayne P., supra, 103
Cal.App.4th 247 explained: “When the
court has reason to know Indian children are involved in dependency
proceedings, as here, it has the duty to give the requisite notice itself or
ensure the social services agency’s compliance with the notice
requirement. [Citations.] In our view, the court’s duty is sua sponte,
since notice is intended to protect the interests of Indian children and tribes
despite the parents’ inaction.
[Citation.]†(
We agree with
that hold that a parent’s delay in challenging the compliance with the ICWA
notice requirements does not result in forfeiture of the issue. Here, as already stressed, the notice of
appeal from the order terminating parental rights was timely and mother may
challenge the agency’s compliance with the ICWA notice requirements. Thus, mother’s notice of appeal, contrary to
the agency’s argument, was sufficient even though it simply referred to the
order terminating parental rights and did not mention that it was challenging
compliance with the ICWA. (See Cal.
Rules of Court, rule 8.100(a)(2).)
The agency contends that
mother is simply arguing that the investigation was inadequate and is not
claiming that the agency failed to notify potentially affected tribes. The agency maintains that the holding that a
parent cannot forfeit a challenge to the ICWA notice does not apply to the
present case. We disagree with this
characterization of mother’s challenge.
In this appeal, mother asserts that the agency failed to provide any
notice to the Lac du Flambeau Tribe and that the notice provided to other
tribes was sufficiently deficient as to deprive the tribes of any meaningful
notice.
Accordingly, we conclude
that we may consider mother’s challenge to the ICWA notice even though she did
not appeal the dispositional order and she did not object on this basis in the
juvenile court. We have jurisdiction,
however, to reverse only the order terminating mother’s parental rights, and
not any earlier orders. (See
334, 342.)
Mother
contends that the juvenile court erred in finding that the agency complied with
the notice requirements of the ICWA and asserts that this alleged error must
result in automatic reversal.
Specifically, mother contends that the agency failed to send any notice
to the Lac du Flambeau Tribe and the St. Croix Tribe
of Wisconsin.
name="_ftnref4" title="">[4] She also contends that the first notice
provided to the Blackfeet Tribe did not provide all of the family-identifying
information available to the agency and that the second and/or third notice
sent to the 14 Chippewa Tribes was inadequate.
She maintains that the agency should have sent the fourth notice to all
of the tribes.
“Deficiencies in an ICWA
notice are generally prejudicial but may be deemed harmless under some
circumstances.†(In re E.W. (2009) 170 Cal.App.4th 396, 402; In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) “[W]here notice has been received by the
tribe, . . . errors or omissions in the notice are reviewed under the
harmless error standard.†(
harmless where the tribe declares that the child is not a tribal member. (In re
E.W., at p. 403.)
Mother
argues that the agency should have sent the fourth notice with the Dawes Roll
number of Lula to the 14 Chippewa Tribes and to the Blackfeet Tribe. This argument lacks merit. The additional information provided in the
fourth notice was that David might be related to someone of Cherokee
descent. This information did not
provide any additional information linking David to the Chippewa Tribes or to
the Blackfeet Tribe. These tribes received
adequate notice and were given all the relevant information available to the
agency. After receiving all of the
relevant information the agency had, these tribes responded that David was not
a member of their tribe and was not eligible to be a member. Accordingly, mother cannot demonstrate that
the omission of information about a possible linkage to the Cherokee Tribe in a
notice to non-Cherokee Tribes was prejudicial.
Mother
claims no notice was provided to the Lac du Flambeau Tribe and the St. Croix
Tribe of Wisconsin and the notice provided to the Blackfeet Tribe was
incomplete and inaccurate to a point of rendering it meaningless. The Blackfeet Tribe, unlike the 14 Chippewa
Tribes, received only the first notice and did not receive the additional and
correct information contained in the second and third notice. “Notice is meaningless if no information or
insufficient information is presented to the tribe.†(In re
S.M., supra, 118 Cal.App.4th at p. 1116.)
The first notice contained the correct
information regarding David, mother, and father, but incorrectly listed
mother’s father as her grandfather. The
notice also erroneously listed a person with mother’s last name as father’s
paternal grandfather. The notice did not
provide information about the parents of mother and father.
The agency concedes that the
corrected notice should have been sent to the Blackfeet Tribe and that notice
should have been sent to the Lac du Flambeau Tribe and the
St. Croix Tribe of Wisconsin. The
agency asserts that any deficiency was harmless because adequate notice was
sent to these tribes on behalf of David’s brother, K.H.; David and K.H. have
the same biological parents. At the
hearing in the juvenile court, the parties stipulated that the information
regarding tribal affiliation was the same for both David and K.H. and that the
evidence regarding K.H. was admissible regarding David. In October 2011, the Lac du Flambeau Tribe, the St. Croix Tribe of Wisconsin, and the Blackfeet Tribe
stated that K.H. was not an enrolled member of their respective tribe and that
he did not meet the requirements for membership. Mother does not mount any challenge in this
appeal to the adequacy of the notice provided to the Lac du Flambeau Tribe, the
St. Croix Tribe of Wisconsin, or the Blackfeet Tribe on behalf of K.H. Furthermore, the BIA received the third and
fourth notices; the BIA did not find David to be an Indian child.
In the present case, the
agency sent notices on behalf of David or K.H. to the BIA and to all of the tribes
that the family indicated might have potential relations to David. The BIA and numerous tribes responded by
indicating that David and his brother were not a member or eligible for
membership in that tribe. Thus, this
record indicates any deficiency in the notice was harmless and any further
notice provided would not result in a finding that David has any tribal
affiliation.
judgment is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.
to the Welfare and Institutions Code.
opinion, In re K.H., A135809, we
granted the agency’s motion to dismiss K.H.’s untimely appeal.
