In re Elizabeth L.

Filed 8/30/07 In re Elizabeth L. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Craig L., the father of Elizabeth L. and the presumed father of Morgan C., appeals from orders terminating his parental rights. He contends the juvenile court failed to secure compliance with the notice requirements of the Indian Child Welfare Act (25 U.S.C.  1901 et seq.) (ICWA). He further argues that, to the extent ICWA applies, the juvenile court failed to comply with ICWAs substantive requirements, including the requirement that an order terminating parental rights with respect to an Indian child must be supported by the testimony of a qualified expert witness. We reverse and remand for the limited purpose of securing compliance with ICWAs notice requirements.

Procedural History

Because the issues on appeal relate solely to ICWA compliance, we need not discuss at length the factual and legal grounds supporting the juvenile courts orders terminating Craigs parental rights. Instead, we focus on the juvenile courts compliance with ICWA.

On August 25, 2006, the Lake County Department of Social Services (Department) filed a petition alleging that Elizabeth, then 16 months old, and Morgan, then a newborn, came within the jurisdiction of the juvenile court under subdivisions (b) and (g) of section 300 of the Welfare and Institutions Code.[1] The Department alleged the children were at risk of serious physical harm as a result of the inability of the mother, Gina C., to provide regular care for the children. According to the petition, Morgan had tested positive for methamphetamine at birth. It was further alleged that Gina had refused to participate in substance abuse treatment services despite being informed by the Department that her failure to do so could result in having her children taken away from her. As a consequence of substandard living conditions and Ginas substance abuse, the Department had previously removed from Ginas care five of her seven children. The Department also alleged that the father, Craig, had refused to participate in substance abuse treatment services and that he was then incarcerated and unable to arrange for the childrens care.

The juvenile court sustained the petition at a jurisdiction hearing on September 18, 2006. On October 16, 2006, the court concluded the disposition hearing and adopted the findings and orders attached to the Departments disposition report. The court found that Craig was not entitled to reunification services under section 361.5, subdivision (b)(12) because he had suffered a prior conviction for a violent felony. The court also found that Gina was not entitled to reunification services because she had not made reasonable efforts to treat the problems that had led to the removal of the minors five half-siblings. ( 361.5, subd. (b)(10) & (11).) At the conclusion of the disposition hearing, the court set the matter for a section 366.26 permanency planning hearing.

The juvenile court terminated Craigs and Ginas parental rights at the permanency planning hearing on January 29, 2007. Craig timely appealed the orders terminating his parental rights.

ICWA Inquiry, Response, and Process

The Departments efforts to comply with ICWA began on August 24, 2006, when a social worker inquired of Gina whether she or Craig had any Indian heritage. She responded they had none. A report prepared for the jurisdiction hearing held on September 18, 2006, indicated that ICWA did not apply.

On September 28, 2006, a Department supervisor spoke with Gina, who stated she had relatives enrolled in the Cherokee tribe. Gina said she had not been aware of her Indian heritage at earlier dependency proceedings. The supervisor asked Gina to write down the relatives names, birth and death dates, places of birth and death, and their tribal enrollment numbers and to bring the information to the disposition hearing.

At the disposition hearing on October 2, 2006, county counsel informed the court it was his understanding Gina had brought no information regarding her Indian ancestry, despite being requested to do so. Gina responded that she had the name of her grandfather, who was Indian. She also stated her great-grandfather was Indian. The matter was continued at Ginas request for reasons unrelated to compliance with ICWA.

At the continued disposition hearing on October 11, 2006, Craig testified he had a maternal great-grandmother, Polly Rose, who was a full-blooded Cherokee Indian. He stated she was born between 1840 and 1850 in Indian territory in what is now either Arkansas or Oklahoma. He said he did not know her date of death or her tribal number, although he indicated she was one of the first women that went to the first Indian college in Northeastern Oklahoma. Craig stated he had no other information at the time but claimed his family was trying to get the tribal number for his great-grandmother as well as the exact date of her birth and death. The court continued the disposition hearing to a later date.

The following day, on October 12, 2006, the Department mailed ICWA notice on Judicial Council form JV-135 to the ICWA representative for the Cherokee Nation. The notice was also served on the Bureau of Indian Affairs office in Muskogee, Oklahoma. The notice contained the known information about Craigs great-grandmother but included no information about the Indian lineage of the mother, Gina.

At the continued disposition hearing on October 16, 2006, [i]n an abundance of caution, county counsel called a witness, Alana Scarbrough, whom he offered as an ICWA expert. County counsel appears to have called Scarbrough to testify as a qualified expert witness to support foster care placement of an Indian child. (See 25 U.S.C.  1912(e);  361, subd. (c)(6); Cal. Rules of Court, rule 5.664(i)(1) & (j)(1).) Scarbrough, a supervisor at the Department, testified that she had reviewed the file and believed that continued custody with the parents would pose a very high risk to the children.

At the conclusion of Scarbroughs testimony, county counsel told the court he thought the ICWA information came up a little late in the proceedings. The juvenile court stated, Im not sure that ICWA would apply here. But out of due caution, there does appear to be sufficient evidence to support ICWA findings for the children. The court acknowledged the parents might have Indian lineage but stated the evidence supports the fact that neither parent is or has been a member of any particular tribe, and theres been no showing that either of the children [has] ever been a member or . . . part of the . . . the membership, in a particular tribe. The court went on to point out that Gina already had her parental rights terminated with respect to five of her children. The court reiterated, While the evidence supports standard ICWA findings, I dont believe ICWA applies in the particular case. Craigs counsel explained to the court that Craig had never had any children removed from his care and that he had identified his great-grandmother as a Cherokee Indian. The court responded there was no evidence the parents or children any way socially, legally have been members, have been part of an Indian community. And simply having some great-grandmother or grandmother or other relative thats a tribal member doesnt necessarily bring ICWA into play. The minute order dated October 16, 2006, reflects that the court found that ICWA did not apply.

Following the disposition hearing on October 16, 2006, there appears to have been no further inquiry into the Indian lineage of Craig or Gina. The record contains no return receipts reflecting that the October 12, 2006, ICWA notice was received by any of its intended recipients. There is otherwise nothing in the record reflecting that either the Cherokee Nation or the Bureau of Indian Affairs received the ICWA notice or responded in any fashion to that notice. In the report prepared for the section 366.26 hearing on January 29, 2007, the Department stated that ICWA did not apply. The Department did not explain what efforts, if any, had been made to comply with ICWA since the disposition hearing concluded on October 16, 2006. The juvenile court made no mention of ICWA during the section 366.26 hearing.

Discussion

1. ICWA Notice Requirements

a. The Notice Requirement Was Triggered.

In 1978 Congress enacted [ICWA] to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. [Citation.] [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.  [Citation.] [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. [Citation.] (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)

Under ICWA, [i]n 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 childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (25 U.S.C.  1912(a); see also In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) The juvenile court and the social services agency have an affirmative duty to inquire whether a child is or may be an Indian child. (Cal. Rules of Court, rule 5.664(d).)

The Department claims there was insufficient evidence for the juvenile court to have reason to know  that an Indian child was involved. The Department cites the paucity of concrete information as well as the lack of evidence showing that either Elizabeth or Morgan was an Indian child as that term is defined in ICWA and related statutes and rules. ICWA defines Indian child to mean an unmarried person under the age of 18 who (1) is a member of an Indian tribe, or (2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C.  1903(4); Cal. Rules of Court, rule 5.664(a)(1).) The juvenile court explained there was no evidence the children were part of an Indian community, and it further stated that merely having a grandparent, great-grandparent, or other relative that is a member of a tribe does not necessarily bring ICWA into play.

While it is true that merely having an Indian relative does not make a minor an Indian child under ICWA, a court may not dispense with ICWAs notice requirements based upon its conclusion that a juvenile does not satisfy the definition of Indian child. Notice must be sent whenever there is reason to believe the minor may be an Indian child. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) The Indian status of the child need not be certain to invoke the notice requirement. [Citation.] (Ibid.) [T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)

Further, it is not for the juvenile court to determine whether a minor is an Indian child. That decision rests exclusively with the tribe. (In re Desiree F., supra, 83 Cal.App.4th at p. 470.)  A tribes determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.  [Citation.] (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 255.)

Here, there was more than adequate information to suggest the children had Indian ancestry. The parents provided the available information to the Department within two months after the Department filed its section 300 petition in August 2006. Under the circumstances, the juvenile court was obligated to secure compliance with ICWAs notice requirements until it could be properly determined ICWA did not apply.

b. ICWA Notice Was Insufficient.

Craig contends the notice provided by the Department was insufficient to satisfy ICWA. We agree.

ICWA and the cases applying it require that there be actual notice to the tribe both as to the proceedings and as to the right to intervene. (See In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) The ICWA notice requirements are not satisfied unless there is strict adherence to the law. (In re Desiree F., supra, 83 Cal.App.4th at pp. 474-475.) The juvenile courts failure to secure compliance with the notice provisions of ICWA is prejudicial error requiring reversal and remand. (In re Samuel P., supra, 99 Cal.App.4th at p. 1267.) The notice requirements cannot be waived by the parent. (Ibid.) In addition, even where the notice requirements of [ICWA] were violated and the parents did not raise that claim in a timely fashion, the waiver doctrine cannot be invoked to bar consideration of the notice error on appeal. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.)

To satisfy the notice provisions of [ICWA] and to provide a proper record for the juvenile court and appellate courts, [a social service 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. [Citation.] 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 minors status. (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.)

Although the Department argues that most all of the information provided to it was contained in the notice, it effectively concedes that ICWA notice requirements were not satisfied. For example, the Department concedes that the notice contained no information about the mothers Indian ancestry. The Department also concedes the notice was not mailed to all Cherokee tribes or to the correct entities, addresses, and tribal agents.

ICWA notice requirements were also not satisfied in that the record contains no return receipts reflecting actual receipt of the notice. Nowhere in the record is there any indication suggesting the tribes received actual notice of the proceedings or of their right to intervene. Further, once it is determined that ICWA applies, a juvenile court must not proceed with a hearing until at least 10 days after those entitled to be notified of the proceedings have received notice. (Cal. Rules of Court, rule 5.664(h).) Here, the court proceeded with the disposition hearing and concluded ICWA was inapplicable just four days after the (defective) notice was mailed.

We are compelled to reverse the orders terminating parental rights as to Elizabeth and Morgan and remand for compliance with the requirements of ICWA and applicable state law. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1254.) As further explained below, this reversal is limited to securing compliance with ICWA. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 704-710.) The limited reversal approach is well adapted to dependency cases involving termination of parental rights in which we find the only error is defective ICWA notice. This approach allows the juvenile court to regain jurisdiction over the dependent child and determine the one remaining issue. The parties already have litigated all other issues at the section 366.26. hearing, and it is not necessary to have a complete retrial. (Id. at p. 705.)

2. Compliance with Substantive Requirements of ICWA

Craig contends that, to the extent ICWA applies, the juvenile court erred by relying on the testimony of a witness lacking sufficient qualifications to be a qualified expert witness under ICWA. He further argues that the court used the wrong standard under ICWA to support removal of the children from the parents and to terminate parental rights.

In In re S.B. (2005) 130 Cal.App.4th 1148, 1156-1158, the court differentiated among three types of ICWA provisions, which the court called notice provisions, substantive provisions, and the enforcement provision. We considered the notice provisions of ICWA in the previous section of this opinion. Under the substantive provisions, among other things, the court must find based at least in part on the testimony of qualified expert witnesses, that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child. [Citation.] For a foster care placement, this must be proven by clear and convincing evidence. [Citation.] For termination of parental rights, it must be proven beyond a reasonable doubt.  [Citation.] [] . . . [U]nder the enforcement provision, on the petition of the Indian child, a parent from whose custody an Indian child has been removed, or the Indian childs tribe, any court of competent jurisdiction must invalidate any action for foster care placement or termination of parental rights that violated the notice provisions or any of the substantive provisions. [Citation.] (Id. at p. 1157.)

We should first make clear that any purported compliance by the juvenile court with the substantive provisions of ICWA did not render the error in complying with the notice provisions harmless. Although the Department never explicitly makes a harmless error argument, it comes close in the conclusion to its brief. There, the Department states: While this court may disagree with the trial judges decision that there was not sufficient evidence to have reason to believe that the children were Indian children, other than with respect to notice, the court complied with all other substantive requirements of [ICWA]. We strongly reject the suggestion that inadequate ICWA notice may be overlooked if a juvenile court follows the substantive requirements of ICWA. [T]he tribes 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 [ICWA] irrespective of the positions of the parents, Indian custodian or state agencies. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.) A tribes right of intervention would be rendered meaningless if a court could ignore notice requirements and simply proceed to terminate parental rights after complying with ICWAs substantive requirements, such as the need for the testimony of a qualified expert witness.

Because we conclude the juvenile court did not secure compliance with the notice provisions of ICWA, we need not address Craigs arguments regarding compliance with the substantive provisions of ICWA. On the one hand, if upon remand it is determined the minors are Indian children, then ICWA applies and the orders terminating parental rights must be vacated, without regard to whether the juvenile court purportedly fulfilled the substantive requirements of ICWA in making those orders. On the other hand, if the minors are not Indian children, then ICWA does not apply and the issue of whether the court complied with the substantive requirements of ICWA becomes moot. In either case, it is irrelevant whether the juvenile court complied with ICWAs substantive provisions.

Disposition

The January 29, 2007, orders terminating parental rights are vacated and the matter is remanded to the juvenile court with directions to order compliance with the notice provisions of ICWA. If, after proper inquiry and notice, no response is received from a tribe indicating a minor is an Indian child, all previous findings and orders shall be reinstated with respect to that minor. If a tribe determines that a minor is an Indian child, the court shall conduct a new section 366.26 hearing with respect to that child in conformity with ICWA and applicable state law.

_________________________

McGuiness, P.J.

We concur:

_________________________

Siggins, J.

_________________________

Horner, J.*

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

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