In re Kira M.

Filed 2/28/07 In re Kira M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Jennifer M. appeals from orders terminating her parental rights with respect to her daughters, Kira M. and Morgan M. Jennifer 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), and she argues this court should grant an unqualified remand permitting the juvenile court to reconsider its orders terminating Jennifers parental rights.

We dismiss the appeal from the order terminating parental rights as to Kira because Jennifer did not timely file her notice of appeal in that case. With regard to Morgan, we agree the requirements of ICWA were not satisfied but we do not agree that Jennifer is entitled to an unqualified remand. We reverse and remand for the limited purpose of securing compliance with ICWA.

Factual and Procedural History

Because the sole issue on appeal concerns ICWA notice, we need not discuss at length the factual and legal grounds supporting the juvenile courts orders terminating Jennifers parental rights. Instead, we concentrate on facts relating to compliance with ICWA.

On January 14, 2004, the Humboldt County Department of Health and Human Services (Department) filed petitions alleging that Kira, then seven years old, and Morgan, then four years old, came within the jurisdiction of the juvenile court under subdivisions (b) and (c) of section 300 of the Welfare and Institutions Code.[1] Jennifer is the mother of Kira and Morgan. The children have different fathers.[2] In the petitions, the Department alleged the children were at risk of serious harm because Jennifer had mental health issues impairing her ability to care for, supervise, and protect her children.

The day before the petitions were filed, Jennifer was asked if she had any Indian heritage. She stated she thought she had Cheyenne or Cherokee heritage on her maternal grandmothers side and Arapaho heritage on her fathers side. The Department indicated in a detention report filed January 15, 2004, that ICWA may apply. On January 22, 2004, the Department initiated the process of notifying the Bureau of Indian Affairs as well as the Cherokee, Cheyenne, and Arapaho Tribes.

On April 30, 2004, the juvenile court sustained the first amended petitions and found that the minors came within the provisions of section 300, subdivision (b). The court set the matter for a disposition hearing.

At the disposition hearing on June 9, 2004, the Departments counsel reported that no response had been received from any of the tribes to the ICWA notices. The Department had previously filed a copy of the notice sent to the tribes but had not filed return receipts reflecting that the tribes had received the notice. Jennifers counsel argued that return receipts were required, and the court agreed it did not have jurisdiction unless the Department filed the return receipts. The court continued the disposition hearing.

In an addendum to the disposition report received by the juvenile court on June 28, 2004, the Department reported that it had initially mailed notices to the tribes on January 23, 2004. The Department stated it had learned at the previous hearing that the names on the original forms were incorrect. Therefore, in June 2004, a new letter was mailed to the tribes using the corrected information provided to the court by Jennifer. Registered mail receipts filed with the court reflect that the Department mailed the revised ICWA notices to the tribes on June 22, 2004.

The juvenile court received further addendum reports from the Department on July 8, July 22, August 13, and August 17, 2004. The purpose of these addendum reports, at least in part, was to report on the Departments progress in complying with ICWA notice requirements. As reflected in the final addendum report submitted by the Department on August 17, 2004, all tribes had responded to the revised notices and had indicated that Morgan and Kira were not eligible for enrollment. The Department filed the return receipts reflecting that the tribes received the revised notice, and it filed the letters received from all of the tribes, including the United Keetoowah Band of Cherokee Indians in Oklahoma, the Eastern Band of Cherokee Indians, the Cheyenne and Arapaho Tribes of Oklahoma, and the Cherokee Nation. The Department stated that ICWA does not apply. Notably, the Department never filed the revised notice, referred to by the Department as a letter, reflecting the correct names of relatives who may have had Indian heritage.

At the continued disposition hearing held on August 18, 2004, the juvenile court found that sufficient notice was provided to the tribes and that ICWA did not apply based on responses from the tribes that the minors were ineligible for enrollment and that the tribes would not intervene. The record does not reflect that anyone objected to this determination, nor does it reflect that anyone alerted the court to the fact that the revised notice or letter mailed to the tribes in June 2004 had not been provided to or filed with the juvenile court. The court ordered family reunification services for Jennifer and adopted the findings and orders set forth in the Departments disposition addendum report received by the court on August 17, 2004.

At the six-month review hearing, the juvenile court adopted the recommendations of the Department and continued reunification services for Jennifer. Following the twelve-month review, the juvenile court terminated reunification services and set the matter for a hearing under section 366.26.

Kiras paternal grandmother expressed a willingness to adopt both minors, and an adoption assessment was performed. The adoption caseworker opined that both children were adoptable. The preliminary assessment of Kiras paternal grandmother showed her to be an appropriate placement for the children.

The court held separate section 366.26 hearings for each child. The explanation offered by the Department for separate hearings is that Morgans father, whose whereabouts were unknown, had to be noticed by publication, requiring a delay in the hearing date for Morgan. The Department requested that the hearings for both children be conducted on the same date, but the minors counsel argued it was not in Kiras best interest to delay the section 366.26 hearing. The juvenile court apparently agreed and conducted the section 366.26 hearing for Kira first. Accordingly, on December 22, 2005, the juvenile court found ICWA did not apply and terminated parental rights as to Kira. On January 18, 2006, the court found ICWA did not apply and terminated parental rights as to Morgan. The court found by clear and convincing evidence that it was likely the minors would be adopted.

Jennifer filed a notice of appeal on February 28, 2006, in the case involving Kira (Case No. JV040002). On that same date, she filed a notice of appeal in the case involving Morgan (Case No. JV040003).

Discussion

1. Untimely appeal as to Kira

An appeal from an order terminating parental rights must be filed within 60 days after the order is pronounced in open court. (Cal. Rules of Court, rule 8.400(d); In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1254.) The 60-day period begins to run from the date of the courts oral pronouncement even if the parent is not present at the section 366.26 hearing. (See In re Ryan R. (2004) 122 Cal.App.4th 595, 598-599.) In this case, the juvenile court pronounced its order terminating parental rights as to Kira at the section 366.26 hearing on December 22, 2005. Therefore, the last day for filing a notice of appeal from that order was February 20, 2006. Appellants notice of appeal was filed on February 28, 2006. The notice was untimely.[3]

If a timely notice of appeal is not filed, this court lacks jurisdiction to consider the appeal. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) Accordingly, we must dismiss the appeal of the juvenile courts order of December 22, 2005, as to Kira in superior court case No. JV040002. This disposition does not affect our consideration of the courts January 18, 2006, order terminating parental rights as to Morgan. The appeal is timely as to that order.[4]

2. ICWA Compliance

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).)

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. (2000) 83 Cal.App.4th 460, 474-475.) Notice must be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the act does not apply to the case. (Cal. Rules of Court, rule 5.664(f)(5).) 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, italics added.)

Here, the Department failed to comply with the second step of the procedure by neglecting to submit all of the required documentation to the court for its review. There is no record that the court received into evidence or was presented with a copy of the notice sent to the tribes in June 2004, after Jennifer provided corrected names of her relatives to the court.

The Department argues there was substantial compliance with ICWA despite its failure to file a copy of the second set of notice forms. It points out that it filed the January 2004 ICWA notices, that the tribes acknowledged receiving the June 2004 ICWA notices, and that one letter from a tribe responding to the June 2004 notice reflects the corrected name for the maternal grandmother. The suggestion is that we should assume the June 2004 notices satisfy ICWA requirements because a previously filed notice was adequate and because the tribes apparently were made aware of the proper names of the maternal relatives. We decline to make such an assumption, particularly in light of the Departments description of the second set of notices as letters, a characterization suggesting the notice was not provided on standardized forms for transmitting all available information about a dependent childs possible affiliation with a tribe.[5]

In In re Asia L. (2003) 107 Cal.App.4th 498, a panel of this court explained why it is important for a juvenile court to review the notification forms. When copies of the notification forms are not supplied to the juvenile court, it is unable to evaluate the sufficiency of the notices sent. . . . Absent the ability to review the forms . . . neither the trial court nor this court has the ability to evaluate whether the forms were defective. (Id. at pp. 508-509.) Lacking the ability to review the forms provided to the tribes in June 2004, we have now way to conclude that a tribe may have properly considered whether Morgan has Indian heritage through her maternal relatives. While the record supports a conclusion the tribes received some form of notice, we cannot confirm that the June 2004 notice contained all available information about Morgans Indian heritage. Indeed, we cannot even confirm that it was sent on a proper, authorized form.

We are compelled to reverse the order terminating parental rights as to 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.) Upon remand, if the juvenile court determines that ICWA notice was proper and that no Indian tribe seeks to intervene or otherwise indicates Morgan is an Indian child as defined by ICWA, the juvenile court shall reinstate its order of January 18, 2006.[6] If, on the other hand, an Indian tribe determines that Morgan is an Indian child under ICWA, the court shall reconsider its decision and conduct further proceedings in accordance with ICWA and applicable state law.
3. Scope of remand

Jennifer contends that a limited remand to correct ICWA notice is improper and that this court should issue an unqualified remand permitting the juvenile court to reconsider its order terminating parental rights. We disagree.

The propriety of limited reversals in ICWA cases was considered at length in In re Francisco W. (2006) 139 Cal.App.4th 695. There, the Court of Appeal rejected the contention that limited reversals in such cases violate principles of appellate and juvenile dependency law. The court stated: 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. Thus, the child is afforded the protection of the juvenile court, and, at the same time, his or her case is processed to cure the ICWA error, which is more expeditious than a full rehearing of all section 366.26 issues. Indeed, a new section 366.26 hearing would be subject to another appeal; by not following our [limited reversal] practice we could easily age a child out of adoptability into long-term foster care, which is the least favored permanent plan. (In re Francisco W., supra, 139 Cal.App.4th at p. 705.)

We reject the notion that a limited reversal prevents the juvenile court from reacting to changed circumstances. As the court in Francisco W. observed, [t]he Legislature recently addressed the problem of postjudgment changes in circumstances affecting a childs adoptability by enacting section 366.26, subdivision (i)(2). [Citation.] This provision allows a child who has not been adopted after three years to petition the juvenile court to reinstate parental rights, thereby allowing a different permanent plan to be chosen. [Citation.] (In re Francisco W., supra, 139 Cal.App.4th at p. 709.) [S]ection 366.26, subdivision (i)(2) provides the juvenile court with adequate opportunity to restore parental rights if the circumstances demand it. (In re Francisco W., supra, 139 Cal.App.4th at p. 709.) In short, limited reversals in ICWA notice cases do not threaten to make dependent children legal orphans in those cases where circumstances have changed since the date of the section 366.26 hearing. (In re Francisco W., supra, 139 Cal.App.4th at p. 710.)

Jennifers reliance on In re Isayah C. (2004) 118 Cal.App.4th 684 is misplaced. In re Isayah C. did not involve ICWA notice. In that case,the juvenile court removed a minor from the custody of a non-offending, incarcerated father without finding he was unable to make arrangements for the minors care. (Id. at pp. 693, 699-700.) The Court of Appeal reversed the juvenile courts dispositional orders and remanded the matter to the trial court. However, recognizing its decision was based on the facts as they stood at the time of the dispositional hearing, the appellate court acknowledged it could not  simply unwind a juvenile case and presume that circumstances cannot have changed in the interim. . . . [Citation.] (Id. at p. 701.) Accordingly, the appellate court left it to the sound discretion of the juvenile court to determine the proper custody arrangements for the dependent child in light of the current state of affairs. (Ibid.)

Here, we are not necessarily unwinding a juvenile court case and ordering a disposition different from that ordered by the juvenile court. Instead, we are ensuring compliance with a procedural requirement under ICWA. To the extent ICWA is determined to be inapplicable, there is nothing to unwind, and the order terminating parental rights will be reinstated. To the extent ICWA applies, then the juvenile court will have an opportunity to reconsider the order terminating parental rights and consider changed circumstances affecting the minors adoptability.

Disposition

The appeal of the December 22, 2005, order terminating parental rights as to Kira in superior court case No. JV040002 is dismissed as untimely. The January 18, 2006, order terminating parental rights as to Morgan in superior court case No. JV040003 is reversed, subject to reinstatement upon a determination that ICWA is inapplicable after the notice requirements of ICWA have been satisfied.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Siggins, J.

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

[2] Because the children have different fathers , the juvenile court assigned different case numbers to each child (JV040002 and JV040003). Kiras father is deceased. The whereabouts of Morgans father were unknown, and he never appeared in the case despite diligent efforts to find him.

[3] As we were preparing to file this opinion, the court received an application from Jennifer for leave to amend the notice of appeal to include the minor, Kira. Jennifer admits that the notice of appeal was untimely as to the December 22, 2005, order terminating parental rights, but she seeks to amend the notice of appeal as to Morgan, which is timely, to include Kira. In support of her application, she cites case law allowing amendment of a notice of appeal to include parties initially omitted from the notice. (See Beltram v. Appellate Department (1977) 66 Cal.App.3d 711, 715.) These cases are inapposite. Kira was not a party to the January 18, 2006, order that was the subject of the timely notice of appeal involving Morgan. Rather, Kira was a party to a separate, earlier order in a different juvenile court case. Regardless of whether any party has suffered prejudice, we may not amend the notice of appeal to encompass an earlier order in a different case. Accordingly, we have denied Jennifers application by separate order.

[4] It would obviously be preferable to consider the appeal as to both children in order to avoid the possibility that we would reverse the juvenile courts orders as to one but not both children, a result that could place the children on different tracks toward a permanent placement. Unfortunately, because we lack jurisdiction to consider the order terminating parental rights as to Kira, we have no choice in the matter. Nevertheless, Jennifer is not without a remedy to the extent ICWA applies. Upon remand, if the juvenile court determines that ICWA applies in Morgans case, then it may be concluded that ICWA applies in Kiras case, too, because Kira and Morgan share the same maternal relatives identified as possibly having some affiliation with a federally recognized tribe. In the event it is determined ICWA applies, Jennifer could move to invalidate the termination of parental rights as to Kira pursuant to rule 5.664(n) of the California Rules of Court.

[5] The Department also claims that, while the second set of notice forms were not filed with the court, they were provided to the parties in discovery and that the only change from the first set of notice forms was the maternal grandmothers name. Because this assertion is not supported by the record, we disregard it.

[6] Our remand does not necessarily require the Department to send out new ICWA notice to the tribes. If the juvenile court determines that the notice sent to the tribes in June 2004 satisfied ICWA requirements, there is no need to provide further ICWA notice.