In re Zechariah W.

Filed 8/2/07 In re Zechariah W. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Robin Miller Sloan, Judge. Reversed and remanded.

Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

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L.F. (mother) appeals from an order terminating parental rights to her child, Zechariah W. (minor), and choosing adoption as the permanent plan. (Welf. & Inst. Code, 366.26.)^[1] The parties agree the order must be reversed because the Department of Children and Family Services (DCFS) failed to provide adequate notice of the proceedings pursuant to the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C.  1901 et seq.) The DCFS urges this court to limit remand to consideration of the ICWA issue. Mother urges this court to reverse the order terminating parental rights, vacate the findings and orders of the juvenile court, and unconditionally remand the matter with specific directions, including a direction to conduct a new section 366.26 hearing. We reverse and remand with directions solely to ensure compliance with ICWA.

FACTS AND PROCEDURAL HISTORY

The DCFS detained the minor a few days after his birth in October 2003. A petition was filed on the minors behalf alleging that he tested positive for cocaine at birth, that mother had a positive test for cocaine on the same day and that father (Mark W.) failed to protect the minor although father knew or should have known of mothers drug use. The petition further alleged that mother had a 13-year history of substance abuse and used illicit drugs during her pregnancy and that father had a history of substance abuse as well and could not provide for the minor.

For the detention hearing, the DCFS reported to the juvenile court that a social worker had talked to the parents at the hospital shortly after the minors birth. Father told the worker he was not aware mother was still using drugs, and mother said she was willing to participate in a drug program to deal with her substance abuse. The social worker made an unannounced visit to the home a few days after mother left the hospital with the minor. The family was living in what appeared to be an abandoned home in the process of being refurbished. The home had no electricity and was very cold. The social worker took the minor into custody after the parents admitted they had lied about their substance abuse history and the worker saw there was no provision for the minors care. The juvenile court ordered the minor detained and ordered no breast feeding by mother. The court further ordered the DCFS to investigate ICWA issues for mothers possible relation to the Cherokee tribe.

The DCFS placed the minor with his paternal grandmother.

For the jurisdictional and dispositional hearing, the DCFS reported the minor was having withdrawal symptoms. Mother and father had extensive drug histories, including cocaine and marijuana use, and failed to complete any drug programs. Both parents were in denial about the extent of their substance abuse. The DCFS also reported that ICWA may or may not apply. Mother stated her great-grandmother was a full-blooded Cherokee who had died in California when mother was two years old. Mother did not know her great-grandmothers name, where she was born or whom she married. Mother recalled the name and birth date of her grandmother and thought she may have been born in Louisiana. She stated her mother was alive and a resident of Vallejo, California. The DCFS informed the court that it had sent notices on form Nos. 318 and 319 to the three federally recognized Cherokee tribes, the Bureau of Indian Affairs and the Department of the Interior. The report listed the names of addressees and the addresses where the notices were sent and attached copies of the notices and proofs of service.

The juvenile court found notice of the proceedings had been given to all appropriate parties as required by law and sustained the allegations of the petition as true. It declared the minor a dependent of the court and ordered him placed in care.

By the six-month hearing in June 2004, the minor had been removed from the paternal grandmothers care due to conflicts with mother and father. The new foster mother had expressed an interest in adopting the minor. The DCFS informed the juvenile court that mother and father had not visited the minor since his detention and they were not complying with their case plans. The court therefore terminated reunification services and set the matter for a permanency planning hearing in October 2004.

For various reasons, including the lack of completion of a home study, the permanency planning hearing was continued a number of times. During this period, mother was in custody, released and then in custody again. Neither mother nor father had any contact with the minor. The DCFS reported that the foster mother love[d] and adore[d] the minor and she maintained a pleasant and warm home for him and her own two children. The minor was in preschool and was healthy and happy.

The juvenile court ultimately held the permanency planning hearing in January 2007, which mother attended with counsel. For the hearing, the DCFS reported that neither mother nor father had visited the minor despite multiple opportunities and neither had ever submitted to a Live Scan. The home study for the foster mother had been completed and approved in April 2006. The social worker reported the minor had developed a positive relationship with the foster mother and prospective adoptive mother. He appeared to be highly attached to her and her children. The minor had lived with the foster mother virtually since birth, and the DCFS recommended that he remain in the foster mothers home.

The court terminated parental rights and ordered adoption as the permanent plan for the minor. Mother filed a timely notice of appeal from the order.

DISCUSSION

1. Defective ICWA Notice

The DCFS concedes that the ICWA notices were defective because the address used for one of the Cherokee tribes was incorrect and return receipts were never received from two tribes.

Specifically, notice to the tribes is required whenever a court has reason to believe the child may be an Indian child. (Former Cal. Rules of Court, rule 1439(f)(5), renumbered rule 5.664(f)(5) and amended, effective Jan. 1, 2007.) [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.)

In this case, the DCFS sent form Nos. 318 and 319 to the three federally recognized Cherokee tribes. Notice should have been sent to those tribes by way of their listed tribal agents and addresses listed in the federal register in effect at the time. (66 Fed. Reg. 65725 (filed Dec. 20, 2001).) Mother asserts there were defects in all three addresses to which the DCFS sent notice and there is only one signed receipt from one of the tribes. The DCFS concedes the address of one of the Cherokee tribes was incorrect and return receipts were never received from two of the tribes. Sending an ICWA notice to the wrong address is error, and the error is prejudicial when, as is admittedly the case here, there is no conclusive evidence in the record that the tribe received actual notice. (In re Mary G. (2007) 151 Cal.App.4th 184, 211; In re H. A. (2002) 103 Cal.App.4th 1206, 1213.) ICWA notice requirements are strictly construed. When proper notice is not given under ICWA, the courts order is voidable. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.) The order terminating parental rights, therefore, must be reversed.

2. Limited Reversal Appropriate

The contested issue here is whether this court should reverse the order terminating parental rights, subject to reinstatement by the juvenile court once compliance with ICWA is shown. Mother asserts when there has been an ICWA notice error at a termination hearing, the judgment terminating parental rights must be reversed for a full remand. We disagree.

When the sole error on appeal is failure to comply with ICWA notice requirements, the appropriate response is issuance of a limited reversal in which we order the judgment to be reinstated if no tribe intervenes after proper notice is given. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704.) A limited reversal is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice. (Ibid.) Such an approach allows the juvenile court to retain jurisdiction over the dependent child and determine the one remaining issue given that the parties already have litigated all other issues at the section 366.26 hearing. (Francisco W., supra, at p. 705.) In this manner, the child obtains the protection of the juvenile court while the case at the same time is processed to cure the ICWA error, a procedure more expeditious than a full rehearing of section 366.26 issues. (Francisco W., at p. 705.) Therefore, [i]f the only error requiring reversal of the judgment terminating parental rights is defective ICWA notice and it is ultimately determined on remand that the child is not an Indian child, the matter ordinarily should end at that point, allowing the child to achieve stability and permanency in the least protracted fashion the law permits. (Id. at p. 708.)

Mother argues against a limited remand, noting two other courts have disapproved of limited remands for ICWA notice in termination of rights cases. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784-786; In re Brooke C. (2005) 127 Cal.App.4th 377, 383-386.) Neither case helps mother. As mother admits, Nicole K. concluded that if the child were found on remand not to be an Indian child after notice was provided, the juvenile court could reinstate the prior orders. (Nicole K., supra, at pp. 785-786.) In Brooke C., the appellate court affirmed the jurisdictional and dispositional orders, with directions to the juvenile court to order appropriate ICWA notice, and it granted the mother leave to petition to invalidate the prior orders if it was determined ICWA applied to the proceedings. (Brooke C., supra, at p. 386.) Although the court indicated the only order which would be subject to reversal for failure to give notice would be an order terminating parental rights, the court concluded no such order existed in the proceedings before it. (Id. at p. 385.) The courts comment was therefore merely dictum. A case is not authority for a proposition the court did not consider. (In re I.S. (2002) 103 Cal.App.4th 1193, 1198.)

Mother asks this court to direct the juvenile court to appoint counsel for mother and provide noticed hearings for her and the other parties upon remand. In her reply brief, mother states her appellate counsel has been advised that parents in Los Angeles are not receiving notice from the courts on remanded section 366.26 hearings in ICWA cases because of a glitch in the computer system. We agree that mother, as an appellant-parent, is entitled to receive notice of, and representation by counsel for, the remand hearing. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435-1436.) As Justin S. notes, a parent is permitted to litigate the ICWA notice issue to protect the tribes interest in the proceedings and because it is in the best interest of the dependent child. [A] parent in a dependency appeal for insufficient ICWA notice must not be left out of the continued litigation of the notice issue upon a limited remand to ensure compliance with the ICWA. (Id. at p. 1435.) Therefore, the appellant-parent must be given the opportunity to participate in the proceedings on remand and must be provided counsel since such participation would be of limited benefit without the assistance of counsel. (Id. at p. 1436.)

Mother also requests this court to direct the presiding judge of the juvenile court to conduct subsequent proceedings on remand to afford an  expeditious and diligent  resolution of this case. We trust the proceeding will be conducted as expeditiously as possible upon remand without such a direction, and the case will proceed pursuant to the applicable provisions of the Welfare and Institutions Code and the California Rules of Court. (See In re Justin S., supra, 150 Cal.App.4th at pp. 1436-1437.)

DISPOSITION

We reverse the order terminating parental rights and remand the case to the juvenile court with directions to order the DCFS to make reasonable efforts to obtain the relevant information regarding the minors ancestors and to provide proper notice under ICWA. If, after proper notice, a tribe claims that the minor is an Indian child and seeks to intervene in the juvenile court proceedings, the juvenile court shall vacate its prior orders and proceed in conformity with ICWA, the Welfare and Institutions Code, and the California Rules of Court. If no tribe claims the minor is an Indian child, or if no tribe seeks to intervene, the order terminating mothers parental rights shall be reinstated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

RUBIN, Acting P. J. BOLAND, J.

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