In re MacKenzie W.

Filed 2/7/07  In re MacKenzie W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Harold F. Bradford, Judge.  (Ret. judge of the Alpine Super. Ct., assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)  Reversed.

            Karen J. Dodd under appointment by the Court of Appeal for Defendant and Appellant.

            Joe S. Rank, County Counsel and Anna M. Deckert, Deputy County Counsel for Plaintiff and Respondent.

            Konrad S. Lee, under appointment by the Court of Appeal, for Minor.

Tamara W. (Mother) appeals from the juvenile court's order reinstating the March 17, 2005, order terminating her parental rights.  She asserts that the Riverside County Department of Public Social Services (DPSS) once again failed to comply with the requirements of the Indian Child Welfare Act, 25 United States Code, section 1901 et seq. (ICWA).  Specifically, she argues that DPSS failed to provide the required notice to all of the tribes that Mother identified and that the notice that it sent contained incorrect and incomplete information and was therefore not meaningful.

Facts and Procedural History

            This is the second appeal of this case on the same issue.  We have taken judicial notice of the records and of our opinions in case numbers E036959, E037579 and E038125 and will adopt and incorporate by reference the statement of facts and procedural background in our single opinion in the latter two cases for background information regarding this case.  At this point we will simply reference that the child was originally removed from Mother's care on April 16, 2003, and was detained because Mother could not provide for her needs, and had a history of drug abuse and mental illness.  In her prior appeals, Mother sought reversal of an order denying her motion for reconsideration of an order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26,^[1] as well as the reversal of an order terminating her parental rights.  We affirmed the order denying Mother's motion for reconsideration.  However, we determined that the record failed to establish that DPSS and the juvenile court had complied with the ICWA notice requirements.  We therefore reversed the order terminating Mother's parental rights and directed the juvenile court to order DPSS to provide notice to the Bureau of Indian Affairs (BIA) and all appropriate tribes in accordance with the ICWA and its implementing regulations.

            DPSS prepared an addendum report dated January 5, 2006, recommending that the juvenile court set a hearing sixty days later to allow it to send notice under the ICWA as required by our opinion filed December 22, 2005.  On January 18, 2006, DPSS filed a form JV-180 requesting the juvenile court to set a hearing to determine whether notice had been provided in accordance with the ICWA as ordered by this court.  The juvenile court set a hearing for that purpose on March 15, 2006.  Mother was not provided with notice of the hearing as the proof of service listed her address as unknown.

            In the meantime, on February 1, 2006, Mother filed a form JV-180 of her own seeking to have an order that DPSS provide notice to the tribes under the ICWA and also seeking a new trial to allow her to present additional evidence.  In her request she identified affiliations with the Algonquin, Blackfeet, Cherokee and Crow tribes.  Pursuant to this request a hearing was set for March 3, 2006, at 10:00 a.m.  Mother was notified of that hearing.

            On March 2, 2006, DPSS filed an addendum report requesting that the juvenile court reinstate the previous order terminating parental rights because notice had been provided and no tribe had indicated that MacKenzie is an Indian child.  Attached to this report was a form JV-135 notice of involuntary child custody proceedings for an Indian child as well as a copy of the juvenile dependency petition, certified mail receipts and return receipts, and letters from three tribes indicating MacKenzie is not an Indian child under their rolls.

            On March 3, 2006, it appears from the reporter's transcript that the juvenile court held the hearing prior to its scheduled time of 10:00 a.m. and did not wait for Mother to arrive.  The hearing was continued to March 15, 2006 at 8:00 a.m.

            On March 15, 2006, Mother was not present.  The juvenile court found that MacKenzie does not come under the provisions of the ICWA and reinstated the March 17, 2005, order terminating parental rights over the objection of Mother's counsel.  Mother's petition was denied.  Mother appealed from the March 15, 2006, order.

Discussion

            Mother makes a single assertion of error on appeal, that despite our prior order DPSS did not send notice to the tribes in accordance with the provisions of the ICWA and the juvenile court therefore erred when it reinstated the prior order terminating parental rights.  She claims that the ICWA was not complied with because (1) DPSS failed to notify all of the tribes identified by Mother as having possible ancestral ties to MacKenzie and (2) because the notice that DPSS did send was incomplete and contained significant errors.  We will consider each of these contentions.

            The record establishes that the notice prepared by DPSS on January 23, 2006, was sent to the BIA, Indian Child and Family Services in Temecula, California, the Secretary of the Interior, the Blackfeet Tribe of the Blackfeet Reservation, the Choctaw Nation, the Citizen Potawatomi Nation, the Blackfeet Tribal Business Council, the Mississippi Band of Choctaw Indians, the Forest County Potawatomi, the Pokagon Band of Potawatomi Indians of Michigan and the Prairie Band Potawatomi Nation.  Mother argues that in her section 388 petition filed February 1, 2006, she identified the Cherokee and Crow tribes as additional possible affiliations.  She also asserts that she had previously provided the juvenile court and DPSS with information that the Algonquin nation had historically stretched from Canada to the Adirondack Mountains in New York State.  Mother argues that the juvenile court should have required DPSS to provide notice to the Crow tribe (she unexplainably does not mention the Cherokee tribes that she identified at the same time and which also were not provided with notice) and also to each of the seven federally recognized Indian tribes in New York State before determining that the ICWA did not apply.

            DPSS cites In re Joseph P. (2006) 140 Cal.App.4th 1524 for the proposition that its notice to the BIA was sufficient to support a finding that proper notice was provided with respect to any subsequently identified tribes.  Indeed, that case does hold that once notice has been sent to the BIA in compliance with the ICWA, the parent's subsequent naming of a particular tribe does not trigger any additional requirement that the identified tribe be notified absent, at minimum, some indication of the basis upon which the parent is now claiming heritage in that particular tribe.  (Id. at pp. 1531-1532.)  Mother's section 388 petition contained no such explanation, nor has she appealed from its denial.  Thus, she has not demonstrated that the juvenile court erred because it failed to require notice to the new tribes identified in Mother's February 1, 2006, section 388 petition.

            DPSS further asserts that Mother claimed that she was descended from the Algonquin tribe, which is not a federally recognized tribe. (68 FR 68180-68184.)  A tribe must be federally recognized as eligible for services in order for it to be necessary to notify it under the ICWA.  (25 U.S.C. §§ 1903, subd. (8) and 1912, subd. (a).)  As we concluded in our prior opinion in E037579 and E038125, even if the Algonquin tribe is not federally recognized, the information provided by Mother triggered a duty to, at minimum, provide notice to the BIA.  The ICWA states that if the identity of child's tribe (necessarily this means a federally recognized tribe) cannot be determined, notice must be provided to the BIA.  (25 U.S.C. § 1912, subd. (a).)  DPSS provided such notice.  Intuitively the mere fact that there currently are recognized tribes within the area associated with the historical boundaries of a particular tribe's territory does not trigger a requirement under the ICWA that all such tribes be notified.  Mother has cited to no statute, regulation or case law holding otherwise.  If the parent cannot identify the name of the child's tribe, notice to the BIA is sufficient under the ICWA.  (Ibid.)  Mother has failed to demonstrate that the juvenile court erred because it failed to require DPSS to provide notice to each of the federally recognized tribes in New York State.

            Mother next argues that the notice sent by DPSS was inadequate because it was incomplete and contained errors.  In providing the notice required by the ICWA, â€