In re Virginia R.
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
In re VIRGINIA T. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. STEVEN T., Defendant and Appellant. | D049029 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Reversed with directions.
Steven T. appeals after the juvenile court ordered permanent plans of legal guardianship for his minor daughters Virginia T. and Ashley T. and another permanent planned living arrangement for his minor son Darrell T. under Welfare and Institutions Code section 366.26. (Statutory references are to the Welf. & Inst. Code unless otherwise specified.) Steven contends the court erred by giving complete discretion to Virginia and Ashley's legal guardians to determine the frequency and duration of his visitation. He further contends the court and the San Diego County Health and Human Services Agency (Agency) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).
We conclude the court's visitation order failed to specify the frequency and duration of Steven's visits with the minors. We further conclude the court and Agency did not comply with ICWA's notice requirements. Accordingly, we reverse the judgment and remand the matter for a new visitation order that specifies the frequency and duration of visits and for proper ICWA notice.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, 10-year-old Virginia, nine-year-old Ashley and four-year-old Darrell (collectively the minors) became dependents of the juvenile court under section 300, subdivisions (a) and (b) and were removed from the custody of their parents, Steven and Kim M., because of the parents' substance abuse and domestic violence. The court placed the minors in foster care and ordered the parents to comply with reunification services.
Kim has Indian heritage in connection with the Mesa Grande Band of Indians (Mesa Grande Tribe) and Steven has Indian heritage in connection with the San Juan Capistrano and the San Pasqual Band of Diegueno Indians (San Pasqual Tribe). Throughout the proceedings, Agency sent the required notice forms (SOC 318 - Request for Confirmation of Child's Status as Indian, and SOC 319 - Notice of Involuntary Child Custody Proceeding Involving an Indian Child) by registered mail to both tribes as well as to the Bureau of Indian Affairs (BIA). The inquiries and notices did not list the parents' birthplaces and contained no information about the maternal and paternal grandparents. The record contains no proof of service accompanying forms SOC 318 and 319, and no return receipts for the mailing regarding the jurisdiction hearing.
The San Pasqual Tribe indicated the minors were Indian children within the meaning of ICWA. It requested protection of the minors in accordance with ICWA and placement of them in an Indian home. However, because there were no appropriate Indian homes available for all three minors, they were placed in non-Indian foster homes.
By the 12-month review hearing, the parents had failed to reunify with the minors. The court found, by clear and convincing evidence, " active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and these efforts have proved unsuccessful." The court also found " beyond a reasonable doubt . . . and based in part upon the testimony of a qualified Indian expert, the continued custody of these children by the parents . . . is likely to result in serious emotional and/or physical damage to the children." Additionally, there was " good cause to place the children in a foster home not in accordance with" ICWA placement preferences. The court terminated reunification services and set a section 366.26 selection and implementation hearing.
The minors' foster parents wanted to adopt Virginia and Ashley, but believed the San Pasqual Tribe would not allow them to do so. The foster parents were willing to be appointed as Virginia and Ashley's legal guardians and to provide a permanent planned living arrangement for Darrell. The San Pasqual Tribe agreed with Agency's recommendations for these permanent plans.
At a selection and implementation hearing, the court ordered guardianships for
DISCUSSION
I
Steven contends the court improperly delegated to Virginia and Ashley's legal guardians complete discretion to determine the frequency and duration of his visits with the girls. He asserts the order essentially allows the guardians to determine not when but whether visits will occur. We agree.
Preliminarily, Agency claims Steven has forfeited this issue by not raising it in the trial court. Ordinarily, the failure to assert a right in a timely manner results in forfeiture of the ability to claim error as grounds for reversal on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) However, application of the forfeiture rule is not automatic, and forfeiture may be excused when a case presents an important issue. (Ibid.; In re M.R. (2005) 132 Cal.App.4th 269, 272.) Here, because the case requires reversal and remand for proper ICWA notice, the juvenile court will have the opportunity to clarify its visitation order. Thus, we address Steven's claim despite his failure to object.
The juvenile court must make visitation orders in both long-term care placements and legal guardianships unless it finds visitation would be detrimental to the physical or emotional well-being of the child. (§ 366.26, subd. (c)(4)(C); In re M.R., supra, 132 Cal.App.4th at p. 274.) The court may not delegate authority to the guardian to decide whether visitation will occur, but may allow the guardian to decide the time, place and manner in which visits will take place. (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1164.)
Here, the court's visitation order improperly delegated to the guardians the authority to determine the frequency and duration of Steven's visits. (In re M.R., supra, 132 Cal.App.4th at p. 274 [frequency and duration of visits cannot be left to the discretion of a legal guardian].) Although the order presumes Steven has a right to visit, that right is illusory without specification of how often and how long those visits should be. On remand, the juvenile court must specify Steven has a right to visit Virginia and Ashley, and must also specify the frequency and duration of those visits. (Id. at pp. 274-275.)
II
Steven contends Agency failed to comply with ICWA's notice provisions because it did not provide the Mesa Grande Tribe with required and available family information nor did it file a proof of service of ICWA notice to that tribe. Thus, Steven asserts, the court erred by finding the minors were not Indian children within the meaning of ICWA with respect to the Mesa Grande Tribe.
A
When a court " knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene or obtain jurisdiction over the proceedings by transfer to the tribal court. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.664, subd. (f)(5); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) " '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.' [Citation.] '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.' [Citation.]" (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) The tribe determines whether the child is an Indian child within the meaning of ICWA, and its determination is conclusive. (Id. at p. 255.)
Notice under ICWA must contain enough information to constitute meaningful notice. " The Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979)) (Guidelines), which are designed to implement . . . ICWA, require that the notice include . . . the name of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name and address of the petitioner's attorney; and a statement of the right of the tribe to intervene in the proceeding. (Guidelines, at p. 67588.)" (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) Notice must be sent by registered or certified mail, with return receipt requested, to all tribes of which the child may be a member or eligible for membership. (Cal. Rules of Court, rule 5.664, subds. (f)(1), (f)(3); In re Brooke C. (2005) 127 Cal.App.4th 377, 384.) An original or a copy of each ICWA notice must be filed with the juvenile court along with any return receipts (Guidelines, supra, 44 Fed.Reg. at p. 67588) " so there will be a complete record of efforts to comply with [ICWA]." (Id. at p. 67589.)
Notice under ICWA must also include, if known, " (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child's parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (25 C.F.R. § 23.11(d)(3) (2003); 59 Fed.Reg. 2248 (eff.
The burden is on the Agency " to inquire about and obtain, if possible, all of the information about a child's family history" (In re C.D. (2003) 110 Cal.App.4th 214, 225), and the juvenile court has an affirmative duty to assure the Agency has complied. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) " [Because] the failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, notice requirements are strictly construed." (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) When proper notice under ICWA is not given, the court's order is voidable. (25 U.S.C. § 1914; In re Karla C., supra, 113 Cal.App.4th at p. 174.)
B
Preliminarily, Agency asserts Steven forfeited any argument as to the claimed deficiencies in the ICWA notice forms by not objecting in the trial court. We disagree. " [T]he issue of ICWA notice is not waived by the parent's failure to first raise it in the trial court." (In re Nikki R. (2003) 106 Cal.App.4th 844, 849; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257-258.)
C
The evidence shows, and Agency concedes, the ICWA notices contained a dearth of family information and some of the return receipts were not filed with the court. Nevertheless, Agency asserts, any ICWA notice error was harmless because the minors were treated as Indian children under ICWA throughout the proceedings with respect to the San Pasqual Tribe. Agency further asserts there is no likelihood of a different outcome had the Mesa Grande Tribe received proper notice. However, on this record, we cannot say the defective ICWA notice was harmless error.
As Agency and minors' counsel point out, the Guidelines instruct that if a child is a member of one tribe, that tribe shall be designated the Indian child's tribe even though the child is eligible for membership in another tribe. (Guidelines, supra, 44 Fed.Reg. at p. 67584, § B.2(e).) Although the San Pasqual Tribe recognized the minors as Indian children within the meaning of ICWA, and the minors were raised on the San Pasqual Indian Reservation, nothing in the record indicates the minors were members of the San Pasqual Tribe, thereby foreclosing another tribe from intervening. Because the Mesa Grande Tribe was not provided proper notice, it was prevented from conducting a meaningful search and precluded from presenting its position as to the minors' status with that tribe. (See In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Without the Mesa Grande Tribe's participation, there could be no determination of which tribe was the minors' " one tribe."
The interests of ICWA are implicated here because the Mesa Grande Tribe did not have an adequate opportunity to intervene in the proceedings and seek placement of the minors in an Indian home. We decline to speculate as to whether the Mesa Grande Tribe would have intervened or would have been excluded from the proceedings as Agency suggests. (See In re J.N. (2006) 138 Cal.App.4th 450, 461.) Rather, out of an abundance of caution, and with little risk to the stability of the minors' permanent plans, we remand the matter to the juvenile court for the sole purpose of requiring compliance with ICWA notice. (In re Karla C., supra, 113 Cal.App.4th at pp. 178-179; In re Francisco W. (2006) 139 Cal.App.4th 695, 705, 711.)
DISPOSITION
The judgment is reversed and the court is directed to issue a new visitation order specifying the frequency and duration of visits. The court is also directed to comply with the notice provisions of ICWA with respect to the Mesa Grande Tribe. If, after proper inquiry and notice, the Mesa Grande Tribe does not intervene, the juvenile court shall reinstate the judgment. If the Mesa Grande Tribe intervenes, the court is ordered to conduct a new selection and implementation hearing in accordance with ICWA. (See In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112; In re Francisco W., supra, 139 Cal.App.4th at p. 711.)
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
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