In re L.D.

Filed 4/10/07 In re L.D. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this appeal, the mother of a dependent child challenges the order terminating her parental rights and freeing the child for adoption. The mothers appeal rests on her claim that the juvenile court committed reversible error in failing to assure compliance with the notice requirements of the Indian Child Welfare Act (ICWA). More specifically, she asserts that ICWA required notice of the dependency proceedings to both Apache and Navajo tribes, but that only the Apache nation was notified. For reasons explained below, we reject the mothers ICWA claim on the merits. We therefore affirm the order terminating parental rights.

PROCEDURAL HISTORY

The child whose interests are at issue in this appeal is L.D., who was born in November 2002. L.s mother is appellant Virginia C. (appellant). Her presumed father, Rick D., is not a party to this appeal.[1] Given the narrow issue before us, we include here only a brief recitation of the procedural history of this case. In connection with our analysis of the legal issues, we set forth in greater detail the events that bear on the Indian Child Welfare Act.

Petition: These proceedings were instituted in January 2005 by the Santa Clara County Department of Family and Childrens Services (Department). The Department filed a petition on L.s behalf under section 300 of the Welfare and Institutions Code.[2] As alleged in the petition, L. was placed in protective custody after her parents were arrested for domestic violence.

Detention: At hearings held in January 2005, the juvenile court detained L. Information about the fathers Apache heritage was first adduced at this hearing.

Jurisdiction/Disposition: The juvenile court conducted a jurisdiction/disposition hearing on March 7, 2005. The Department submitted a jurisdiction report and an addendum; both included information concerning ICWA notices. At the hearing, the parents submitted to jurisdiction, with amendments as stated on the record. The juvenile court found that the allegations of the petition, as amended, were true. The court therefore declared L. a dependent child, and it ordered reunification services for both parents. Starting in April 2005, L. was placed with her paternal grandmother, Martha Q.

Reunification Period In 2005, the court conducted a series of review hearings, which were held in May, June, August, and November. During this time, appellant was accessing reunification services and generally complying with her case plan. In August 2005, after considering responses from various Apache tribes, the court found that ICWA did not apply.

Supplemental Petition In December 2005, the Department brought a supplemental petition, which alleged that the paternal grandmother had moved into the paternal grandfathers residence, where L. was allowed unauthorized contact with both of her parents. In January 2006, the court sustained the supplemental petition. In March 2006, the court terminated reunification services to both parents and set the matter for a selection and implementation hearing. (See 366.26.)

Permanency Planning Following a contested hearing in July 2006, the court terminated parental rights as to both parents and it freed L. for adoption.

Appeal In August 2006, appellant brought this appeal from the order terminating her parental rights to L. We granted her request to augment the appellate record to include relevant documents that were not initially designated.

ISSUES ON APPEAL

Appellants sole argument on appeal is that the juvenile court committed reversible error by failing to assure compliance with the notice requirements of the Indian Child Welfare Act. The Department disputes appellants claim and also asserts forfeiture. The dependent child, L., joins the Department in defending the juvenile courts orders.

DISCUSSION

As a framework for our analysis, we begin with an overview of the Indian Child Welfare Act. Against that backdrop, we analyze the specific contentions raised here.

I. The Indian Child Welfare Act

The Indian Child Welfare Act is a federal law, which is recognized and applied in California. We summarize both the federal and state aspects of the ICWA.

A. Federal Law

Congress enacted the Indian Child Welfare Act in 1978. (See 25 U.S.C. 1901 et seq.) The ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families. (In re H.A. (2002) 103 Cal.App.4th 1206, 1210.) The ICWA was enacted to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. 1902; see, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.)

1. Framework: Statutory and Regulatory Provisions

The Act defines an Indian child as an unmarried person under the age of 18 who is (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C.A. 1903(4).) The Act also contains procedural safeguards, including notice requirements. (25 U.S.C. 1912; see In re Marinna J. (2001) 90 Cal.App.4th 731, 734.)

The Department of the Interior has issued implementing regulations for the ICWA. (See 25 C.F.R. 23.1-23.83 (1994).) In addition, the Bureau of Indian Affairs (BIA) has published detailed guidelines for the assistance of state courts in implementing the ICWA. (See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67586 (Nov. 26, 1979); see generally, Abbott, et al., Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2005 supp.) The Indian Child Welfare Act, 9.4, pp. 408-409.) The BIA guidelines are not binding on California courts, but they are entitled to great weight. (See In re H.A., supra, 103 Cal.App.4th at p. 1211.) The Guidelines instruct that the ICWA, the Guidelines themselves, and any state statutes or regulations designed to implement the act shall be liberally construed in favor of a result that is consistent with the congressional preference of deferring to tribal judgment on matters concerning Indian children. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255, citing 44 Fed.Reg. at p. 67586.)

2. Operation: Notice Requirements

Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; accord, In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.)

In broad brush, the ICWA requires notice when there is reason to know that a child affected by certain custody proceedings may be an Indian child. (25 U.S.C.  1912(a).) Notice must be given to the childs tribe. If the tribe is unknown, notice must be given to the BIA as agent for the Secretary of the Interior. (Ibid.; 25 C.F.R.  23.11(a) & (b) (1994).) Notice is mandatory, regardless of how late in the proceedings a childs possible Indian heritage is uncovered. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1424.) The notice must contain sufficient information to be meaningful. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.)

B. California Law

California recognizes the ICWAs notice requirements, both in statutes and by court rule. (See 290.1-297, 360.6; Cal. Rules of Court, rule 5.664 (Rule 5.664).) In addition, state agencies have adopted procedures intended to satisfy those requirements.

1. Statutory Provisions

The Welfare and Institutions Code requires that notice of various dependency proceedings shall be given to specified persons in the prescribed manner. ( 290.1, subd. (a)(10); 290.2, subd. (a)(10); 291, subd. (a)(8); 292, subd. (a)(7); 293, subd. (a)(8); 294, subd. (a)(7); 295, subd. (a)(9); 297, subd. (c).) As relevant here, the statute requiring notice of the permanency planning hearing provides: If the court knows or has reason to know that an Indian child is involved, notice shall be given in accordance with Section 224.2. ( 294, subd. (i).) The referenced section states that notice shall be sent to the minors parents or legal guardian, Indian custodian, if any, and the minors tribe. ( 224.2, subd. (a).) It further provides: Notice, to the extent required by federal law, shall be sent to the Secretary of the Interiors designated agent, the Sacramento Area Director, Bureau of Indian Affairs. (Id., subd. (a)(4).)

2. Rule 5.664

Rule 5.664 of the California Rules of Court implements the notice provisions of the federal law. Effective January 2007, it replaced the predecessor rule, Rule 1439 of the California Rules of Court. Rule 5.664 applies in juvenile dependency proceedings brought under Welfare and Institutions Code, sections 300 et seq.

Under Rule 5.664, whenever the the court knows or has reason to know that the child is or may be an Indian child, the tribe must be notified of the pending petition and of its right to intervene in the proceedings. (Rule 5.664(f).) The notice requirements apply to every hearing unless and until it is determined that the act does not apply to the case. (Rule 5.664(f)(5).) Under the terms of the rule, the ICWAs applicability is triggered by information suggesting that the child is an Indian child. (Rule 5.664(d)(4)(A); In re Samuel P., supra, 99 Cal.App.4th at p. 1265.) Thus, the Indian status of the child need not be certain to invoke the notice requirement. (In re H.A., supra, 103 Cal.App.4th at p. 1211; see Rule 5.664(d); In re Samuel P., at p. 1265.)

3. Agency Procedures and Forms

To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, [the child welfare 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 5.664(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 minors status. (In re Marinna J., supra, 90 Cal.App.4th at p. 739, fn. 4.)

That suggested two-step procedure, now mandatory, is accomplished through the use of prescribed forms. In October 2004, the California Department of Social Services adopted form SOC 820, entitled Notice of Involuntary Child Custody Proceeding Involving an Indian Child (Juvenile Court). Effective January 2005, the Judicial Council of California adopted the SOC 820 for mandatory use, identified as form JV-135. (See Rule 5.664(f)(1); see generally, Abbott, et al., Cal. Juvenile Dependency Practice, supra, The Indian Child Welfare Act, 9.1, 9.54, pp. 405-406, 470.1.) There is a second Judicial Council form, JV-130, entitled Parental Notification of Indian Status, which the parent or guardian must be ordered to complete at that persons first appearance in a dependency case. (Rule 5.664(d)(3).)

II. Application

With that overview in mind, we turn to the case at hand. At issue is appellants contention that the juvenile court was required to give ICWA notice to the Navajo nation, as well as Apache tribes.

A. Procedural Background

We begin with a detailed description of the relevant factual underpinnings: the available information that was provided concerning L.s Native American heritage, the ICWA notices that were given and the responses that were received, and the juvenile courts findings concerning the Indian Child Welfare Act.

January 2005

Information Received At the initial detention hearing held on January 14, 2005, the father was present, along with his mother, Martha Q. (the paternal grandmother). At the hearing, the father indicated that he had Apache Indian lineage on his mothers side, from his great-grandfather.[3] The court asked the father and the paternal grandmother to provide the social worker with specified information about their ancestor, explaining that federal law requires notification to tribes if we believe a child may have Indian heritage.

At the continued initial hearing, held on January 18, 2005, the paternal grandmother gave the court some information about her great-grandfather, including his name, his approximate birth year, and her presumption that his birthplace was in New Mexico. The court asked the Departments counsel to pass that information along to the social worker, saying: We do need to provide notice. I believe its to the Apache tribe. The paternal grandmother then interjected: Its either Apache or Navaho, but his grandfather told him it was Apache. The court responded: So his grandfather told him it was Apache. [] Im going to order that notice be given to the Apache tribe.

Courts Finding The minute order from the hearing on January 18th indicates that the court made an inquiry concerning ICWA, and that the Act may apply.

Notices Sent On January 25, 2005, the Department sent notices of involuntary child custody proceedings to the parents, to the Bureau of Indian Affairs (BIA), and to 10 Apache tribes. The notices reflect the paternal grandmothers claim that the paternal great-great-great-grandfather is of Nat[iv]e American Indian descent, possibly Apache.

February/March 2005

Department Reports As described in the Departments jurisdiction/disposition report, the paternal grandmother told the social worker that her great great grandfather is of Native American Indian descent, but [that she] did not know what tribe. The social worker notified all ten of the Apache tribes and the Bureau of Indian Affairs. The report also repeats the information given to the court by the father, who related his grandfathers statement that the family was of Apache descent. Attached to the jurisdiction report were copies of receipts from the BIA and from six Apache tribes, along with the response from a seventh tribe, the Tonto Apache Tribe of Payson, Arizona, which stated that L. was neither enrolled nor eligible for enrollment in that tribe. The Departments addendum report includes additional receipts and responses from Apache tribes.

Courts Finding The minute order from the March 7th hearing states that the court made an inquiry concerning ICWA, that the Act may apply, and that proper notice was given.

May 2005

Notices Sent On May 16, 2005, the Department again sent notices of involuntary child custody proceedings pursuant to the Indian Child Welfare Act, which provided information concerning the upcoming review hearing. Notices were sent to the parents, to the BIA, to the nine Apache tribes that had not submitted a response to the initial notice, and to one additional tribe, the Fort Sill Apache Tribe of Oklahoma. The notice repeats the paternal grandmothers claim that the paternal great-great-great-grandfather is of Native American Indian descent, possibly Apache.

Department Report The Department submitted an interim review report for a hearing held May 20, 2005. It states: The Indian Child Welfare Act does or may apply. As of the date of the report, eight Apache tribes had responded, affirmatively reporting that L. is not a tribal member nor is she eligible for enrollment. The Department had not received responses from the Fort McDowel Yavapai or from the BIA.

Statementsat the Hearing At the hearing on May 20th, the judge observed: At the last hearing March 7, the court indicated notice was proper. Were still waiting for letters from the Bureau of Indian Affairs and Fort Sill Tribe. The judge continued, if we dont hear from them before the next hearing well need to re-notice those three entities, B.I.A., Fort McDowel and Fort Sill. The Departments counsel then stated: Your honor, I think since we have specific tribes identified I dont know that we noticed the B.I.A. The court replied: Thats fine, but at least those other two.

June/July 2005

Notices Sent On June 22, 2005, the Department gave ICWA notices concerning a review hearing set for June 24th, which were sent to the parents, to the BIA, and to the two remaining Apache tribes.

Department Report The Department submitted an interim review report for the June hearing, which indicates that ICWA does or may apply. That report relates the social workers attempts to prompt a response from two tribes, Fort McDowel Yavapai and Fort Sill Apache Tribe of Oklahoma, and from the BIA. So far as the appellate record reflects, no mention of ICWA was made at the June hearing.

August 2005

Department Report In connection with a hearing set for August 12, 2005, the Department submitted a status review report. Like the Departments earlier reports, it states that ICWA does or may apply. However, in a section of the report immediately following that statement, the Department lists the 10 noticed tribes and the BIA, and as to each with one exception it states that L. is not ICWA eligible. The one exception is the Fort McDowel Yavapai; according to the report, that community is no longer affiliated with the Apache tribe, and therefore, notice is not required. The report further states: Also, since all tribes have responded, the Bureau of Indian Affairs was not noticed.

Courts Finding At the hearing held August 12, 2005, the Departments counsel stated: I believe that the Court can now make a finding that the Indian Child Welfare Act does not apply. The court responded: Thats correct. I was waiting for two letters, Fort Sill and Fort McDowell, but there is some indication that Fort McDowell is no longer affiliated with the Apache tribe. Based on that, the Court will find today that ICWA does not apply. The minute order reflects the same finding, that ICWA does not apply.

B. Contentions

Appellant complains that the Navajo tribes should have been notified of the dependency proceeding, and that the failure to do so requires reversal. The Department challenges appellants claim on the merits, arguing that the court was entitled to reject the paternal grandmothers mere mention of the Navajo tribe as not sufficiently reliable to meet the minimum standard for triggering notice to a specific tribe.

In addition, the Department asserts that appellant forfeited her ICWA violation claim. In reply, appellant argues that forfeiture is a discredited doctrine in the ICWA notice context.

C. Analysis

Before considering the ICWA notice issues, we first address and reject the forfeiture claim raised by the Department.

1. The ICWA claims are not forfeited.

The Department urges us to follow In re Pedro N. (1995) 35 Cal.App.4th 183. There, the court stated, the mother could have challenged the courts decision to proceed at the dispositional hearing and did not do so. We therefore conclude she is foreclosed from raising the issue now on appeal from the order terminating her parental rights. (Id. at p. 189.)

Several subsequent cases have disagreed with the holding in Pedro N. (See, e.g., In re Marinna J., supra, 90 Cal.App.4th at p. 739; In re Nikki R. (2003) 106 Cal.App.4th 844, 849; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th 247, 261; see also, e.g., In re S.B. (2005) 130 Cal.App.4th 1148, 1159, and cases cited therein.) We find the analysis of these later cases persuasive. We therefore decline to apply Pedro N. here.

The generally accepted rule is that the forfeiture doctrine will not bar consideration of an ICWA notice issue on appeal. (In re Marinna J., supra, 90 Cal.App.4th at p. 739.) This conclusion is consistent with the protections afforded in [the ICWA] to the interests of Indian tribes. (Ibid.) The notice requirement is designed to protect the interests of the tribe; to the extent a notice defect impairs the tribes ability to participate, another party cannot waive it. (In re Nikki R., supra, 106 Cal.App.4th at p.849.) Put another way, notice is intended to protect the interests of Indian children and tribes despite the parents inaction. (Dwayne P.v. Superior Court, supra, 103 Cal.App.4th at p. 261.) For that reason, the parents inaction does not constitute a waiver or otherwise preclude appellate review. (Id. at p. 251.)

Applying the foregoing general rule here, we shall address appellants claim on the merits.

2. As to the Navajo tribes, ICWAs notice requirements were not triggered.

The circumstances that give rise to ICWAs notice requirements are set forth in the federal and state statutes, as well as in Rule 5.664, all as interpreted in case law. Within these authorities, there are semantic differences in articulating what triggers the ICWA notice requirements. Those differences notwithstanding, the juvenile court here had no reason to know that L. might be a Navajo Indian child.

a. Legal Standard

We look first to the governing statutes for guidance in determining what circumstances trigger the requirement of ICWA notice. Both the federal and state statute require notice where the court knows or has reason to know that an Indian child is involved. (25 U.S.C.A. 1912(a); 224.2, subd. (a).) But the ICWA does not define reason to know [and] [n]either do the controlling federal regulations. (In re S.B., supra, 130 Cal.App.4th at p. 1158.) We therefore consult the governing state rule. According to Rule 5.664, there is probable cause for the court to believe the child is an Indian child when information suggesting that status is presented. (Rule 5.664(d)(4)(A).) The BIA Guidelines likewise use the word suggest. (See Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 255, citing 44 Fed.Reg. at p. 67586.) Thus, the applicable rule imposes substantively the same criteria as the Guidelines for determining when notice is necessary. (Dwayne P., at p. 256, citing the predecessor to Rule 5.664, Cal. Rules of Court, former rule 1439.)

Combining the measures articulated in the statutes and in the rule, we conclude that the juvenile court has reason to know that a dependent minor may be an Indian child when information is presented suggesting that status. Synonyms for the term suggest include imply, hint, intimate and insinuate. (Dwayne P., at p. 258, quoting American Heritage Dict. (college ed. 1981) p. 1287.)

b. Application

Applying the foregoing standard to the record in this case, we conclude that ICWAs notice requirements were not triggered here as to the Navajo tribes. While the juvenile court plainly had reason to know that L. may be an Apache Indian child, the record does not support the same conclusion concerning her status as a Navajo Indian child.

The possibility of Navajo lineage was mentioned by only one person the paternal grandmother who was not a party to the proceedings, and who apparently lacked independent knowledge about the familys Native American heritage. At the initial detention hearing in January 2005, the paternal grandmother professed unawareness of any Native American heritage on her side of the family. At the continued hearing held four days later, after checking family records, she provided limited information about her great-grandfather, including his name and approximate birth year. The court then expressed the need to provide notice. I believe its to the Apache tribe. The paternal grandmother stated: Its either Apache or Navaho, but his grandfather told him it was Apache. The court confirmed its understanding that the source of the information the fathers grandfather told him it was Apache. On that basis, the court ordered notice to the Apache tribe only.

On this record, we cannot say that the juvenile court erred in concluding that there was no need to notice the Navajo tribe.

We first consider the source of the information, a non-party: The paternal grandmother was not a party to the proceedings, and neither the Guidelines nor [the rule] expressly include relatives as a source of information that would give the court reason to believe that a minor is an Indian child. (In re O.K. (2003) 106 Cal.App.4th 152, 156-157, citing rule 1439(d)(2), see now, rule 5.664(d)(2).)

We next consider the nature of the information that she imparted. As the O.K. court stated: Furthermore, even if the paternal grandmother was a party, she did not inform[] the court [citation] that the minors were Indian children, i.e., that they were either members of a tribe or the biological children of tribal members and eligible for membership. (In re O.K., supra, 106 Cal.App.4th at p. 157, citing Guidelines, 44 Fed. Reg. at p. 67587.) It is true that the circumstances listed under the Guidelines and [the rule] are not exclusive, and we can certainly envision circumstances under which information from a close relative concerning a childs Indian ancestry would be sufficient to trigger the notice requirements of the ICWA. [] However, we conclude with little difficulty that such is not the situation here, not because the paternal grandmother was only a relative, but because the information she provided was insufficient to give the court reason to believe that the minors might be Indian children. (Ibid.) The same is true in this case. Here, at the initial detention hearing, the paternal grandmother was completely unaware of any Native American heritage, saying: I really dont know. By contrast, the father stated that he had looked into it, whereas his mother had not, and he was unambiguous in stating that their lineage was Apache. (Cf., id. at pp.157, 158 [statement that the father may have Indian in him was not based on any known Indian ancestors but rather on a nebulous assertion about the fathers region of origin; it did not constitute information that would reasonably suggest that the minors had any known Indian heritage for purposes of triggering the ICWA notice requirements].)

In sum, under the circumstances presented here, the juvenile court did not have reason to know that L. is or may be a Navajo Indian child. (Rule 5.664(f).) Thus, as to that tribe, ICWAs notice requirements were not triggered. Furthermore, we observe, notice was given to the BIA in this case. As has been said, proper notice to some but not all possible tribes in which a dependent child may be eligible for membership does not violate the ICWA provided the agency also gives notice to the Bureau of Indian Affairs. (In re Edward H. (2002) 100 Cal.App.4th 1, 4.)

CONCLUSION

Based on the source and the nature of the information provided about possible Navajo heritage, the juvenile court was under no obligation to give notice to the Navajo nation under the Indian Child Welfare Act.

Disposition

The order terminating appellants parental rights is affirmed.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] At the initial detention hearing in January 2005, the juvenile court found Rick D. to be L.s presumed father; it later confirmed that finding against a competing paternity presumption. We refer to him hereafter as the father.

[2] Further unspecified statutory references are to the Welfare and Institutions Code.

[3] On the question of the fathers heritage, this exchange took place:

THE COURT: Let me ask you, Mr. D[.], does your family have Indian heritage, Native American heritage?

THE FATHER: Yeah, we do, but were not registered.

THE COURT: Thats okay. What heritage do you have?

THE FATHER: Apache Indian.

THE COURT: Apache. And do you believe that to be true, maam?

MS. Q[.]: I really dont know.

THE COURT: Okay. Have you heard your family might have Apache heritage?

THE FATHER: No, she never looked into it, but I did.

THE COURT: You looked into it, okay. Who in your family do you think was Apache?

THE FATHER: My grandfather. Her father.

THE COURT: Okay. So your maternal grandfather?

MS. Q[.]: My dad?

THE FATHER: Actually, it would be my great-grandfather.