In re M.C.

Filed 12/10/08 In re M.C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from orders of the Superior Court of Kern County. Robert Anspach, Judge.

Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

A.C.L. (hereafter appellant), the mother of the five children who are the subject of these dependency proceedings, appeals from the orders setting a hearing to consider termination of parental rights. She contends that the Kern County Department of Human Services (the Department) failed to give sufficient notice to the Bureau of Indian Affairs and the Pascua Yaqui Tribe, and that the juvenile court erroneously found compliance with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C.  1900 et. seq.). We agree to the extent that the matter must be conditionally reversed and remanded to the juvenile court for further proceedings as outlined in this opinion.

FACTS AND PROCEEDINGS

Appellant is the mother of the five minors--M.C., R.L., A.L., J.L. and J.R., all of whom were born between 1998 and 2007. According to appellant, M.C.s father is a man named Freddy who lives in El Salvador. John L. is the presumed father of M.C., R.L., and A.L. J.L.s alleged father is one Julio R. Jason R. is the alleged father of J.R. In March 2001 and December 2002, the Department received child neglect referrals regarding the three children born at that time.[1] Services were not provided to the family.

In May 2006, the Department filed dependency petitions regarding M.C., R.L., and A.L. because appellant had left them with their maternal grandparents, who had a history of child abuse and domestic violence. The maternal grandparents no longer desired to care for the minors and maintained they did not know appellants whereabouts. After the children were taken into protective custody, appellant made contact with a Department social worker. Appellant said she left the children with her parents because she had lost the residence she shared with the children. She denied allegations that she was using drugs and that she had left the children with her parents for weeks.

After the Department initiated dependency proceedings, appellant obtained housing, tested negative for illegal drugs, and registered for child neglect counseling. Appellant maintained she had Indian ancestry through the Pascua Yaqui Tribe. The Department gave notice pursuant to ICWA.[2] The Department addressed the notice to the tribe in the following manner:

Pascua Yaqui Tribal Council

Assistant Attorney General

4725 W Calle Tetakusim, BLDG B

Tucson, AZ 85746

The notice included appellants mothers maiden name, her address and date of birth, and indicated that she was born in California. In the Additional information box on the form of notice, the Department gave the names of appellants cousin and an aunt, and noted that the aunt may have lived on a reservation. The form of notice also included names and addresses of the childrens maternal grandparents and the names of the maternal great-grandparents.

On May 19, 2006, the Office of the Attorney General of the Pascua Yaqui Tribe issued a letter to the Department. The letter stated: The Pascua Yaqui Tribes Enrollment Department has indicated that [M.C., R.L., and A.L.], the minor children, [A.C.L.], the mother, and John [L.], the father, are not members of the Pascua Yaqui Tribe, nor do they have applications for membership pending. [] Based upon the information provided and the current enrollment records, the Tribe will not intervene in this matter. Florina Valencia signed the letter on behalf of Tamara Walters, Assistant Attorney General of the Tribe. The letterhead address of the Office of the Attorney General matched the address on the Department form of notice, with the exception of the Zip Code. The notice listed the Zip Code as 85746 and the letterhead listed the Zip Code as 85757. A tribal enrollment verification form dated May 16, 2006 sent with the letter stated:

The Enrollment Department has applied the appropriate measures in researching the individuals Yaqui ancestry. The individual has been found to be a non-member and the department has no record of this person.

Notes: Maternal Grandparents and Great Grandparents are all non-members.

On June 7, 2006, M.C., R.L. and A.L. were returned to appellant, and the court dismissed the petitions.

Subsequently, the Department received five more child neglect referrals. A social workers visit on December 13, 2007 revealed a dirty house such that it was a safety hazard to the children, and on that date appellant admitted smoking marijuana and using methamphetamine.

On December 17, 2007, the Department filed petitions alleging all five children were described by Welfare and Institutions Code section 300, subdivision (b)[3] as there was a substantial risk they would suffer serious physical harm or illness as a result of appellants failure to adequately supervise them; her willful failure to provide them with adequate food, clothing, and shelter; and her inability to provide regular care for them due to her substance abuse. The petitions specifically alleged the children were at risk of harm due to domestic violence between appellant and Jason R., because the home was so dirty that it presented a safety hazard to the children, and because appellant smoked marijuana in November 2007 and used methamphetamine in October 2007.

Appellant and John L. were present at the December 18, 2007 detention hearing, and the court appointed counsel to represent them. Jason R. was not present. John L. declared he had no Indian ancestry. Appellant again asserted that she did have Indian ancestry and claimed the tribes were Yaki and Juanijo. Appellant and John L. denied the allegations of the petitions. The court found John L. to be the presumed father of M.C., R.L. and A.L. The Department made an offer of proof regarding J.L.s paternity, and the social workers jurisdiction report stated that Julio R. was J.L.s alleged father and that Jason R. was J.R.s alleged father. The court detained the children, granted John L. visits with his children every other week for two hours, and granted appellant visits with her children twice weekly for one hour. The court also scheduled a jurisdiction hearing for January 29, 2008.

On January 4, 2008, the Department mailed an ICWA notice to the Pascua Yaqui Tribe, the Bureau of Indian Affairs, John L., and appellant. The Department again sent notice to the tribe at the correct street address but the notice bore the incorrect Zip Code and, instead of being addressed to the Attorney General, it was addressed to Chairperson/ICWA Rep. The notice included the same information about the maternal grandmother, but references to appellants cousin and aunt were omitted from the Additional information box on the form of notice and the notice did not name the maternal great-grandparents.

At a January 29, 2008, jurisdiction hearing, the juvenile court made findings including the following:

Appropriate notice has been given to [the mother and fathers].

Also, appropriate notice has been given to the Bureau of Indian Affairs and the Pascua Yaqui tribes.

.

Each of these children resides in the county of Kern.

Each of these children are 300(b) children as described by the Code.

Allegations of B-1 [willful or negligent failure of mother to adequately supervise or protect children] and B-3 [substantial risk of physical harm to children due to mothers substance abuse] are found to be true and correct.

The court ordered that family reunification services be provided to appellant and to John L. The court ordered both parents to participate in counseling for domestic violence, substance abuse, and parenting skills and to submit to random drug tests. The court made visitation orders as to John L. and appellant. The court scheduled a hearing under section 366.21, subdivision (e) for July 29, 2008

On February 7, 2008, appellant filed a notice of intent to file writ petition, as well a writ petition itself, claiming the courts January 29, 2008 order setting a hearing to consider termination of parental rights ( 366.26) was based on untrue allegations by the social worker. On April 1, 2008, this court filed an order treating appellants notice of intent to file writ petition as a notice of appeal because the January 29, 2008 order was directly appealable and not the proper subject matter for a writ proceeding ( 395, subd. (a), Cal. Rules of Court, rule 8.416). On the same date, appellant filed a formal notice of appeal from the orders of January 29, 2008.

DISCUSSION

Appellant contends that the Department gave insufficient notice to the Bureau of Indian Affairs and the Pascua Yaqui Tribe. Specifically, she claims (1) the Department failed to investigate or interview appellant and her family members regarding their claimed Indian ancestry; (2) the notices lacked the identifying details listed in 25 Code of Federal Regulations section 23.11(d) that would enable the tribe to determine whether a minor is an Indian child;[4] (3) the notices contained inaccuracies[5] (3) the second set of tribal notices were addressed to Chairperson/ICWA Rep rather than to the designated agent for service, i.e., Tamara Walters, Assistant Attorney General; (4) the tribal notices listed an incorrect Zip Code; (5) the juvenile court failed to review the information concerning the adequacy and timing of the notices and the responses of the tribe; and (6) the Department failed to provide the juvenile court with copies of the executed return receipts and/or responses from the tribe at the time of the January 29, 2008, hearing.

In California, it is well established that ICWA exists to protect the interests of Indian children and promote the stability and security of Indian tribes and families. ICWA does so by establishing certain minimum federal standards, both procedural and substantive, in state dependency proceedings. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) ICWAs procedural protections include strict notice requirements to the Indian childs tribe or, if the tribe is unknown, to the Bureau of Indian Affairs where the court knows or has reason to know that an Indian child is involved (25 U.S.C. 1912(a)); the right of an Indian childs tribe to intervene in the state proceedings or assume jurisdiction (25 U.S.C. 1911(b) & (c)); and the right to petition to invalidate prior state court orders not in compliance with ICWA (25 U.S.C.  1914).

ICWAs substantive protections include a requirement that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful (25 U.S.C.  1912(d) [active efforts finding]). Additionally, ICWA prohibits termination of parental rights in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child (25 U.S.C. 1912(f) [detriment finding]). The most important substantive requirement imposed on state courts is that of 25 United States Code section 1915(a), which, absent good cause to the contrary, mandates that adoptive placements be made preferentially with (1) members of the childs extended family, (2) other members of the same tribe, or (3) other Indian families. (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 36.)

In this case, appellants claim of error relates to the procedural requirement of notice. She argues that ICWAs notice provision protects the interests of the tribe and gives the tribe an opportunity to intervene, a right which the tribe may exercise at any stage of the proceeding (25 U.S.C. 1911(c); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253). She adds that a tribe cannot intervene, however, if the notice does not contain sufficient information to enable the tribe to determine whether a minor is an Indian child. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.)

The purpose of ICWAs notice requirement is to enable tribes to investigate and determine whether a child is an Indian child. (In re Pedro N. (1995) 35 Cal.App.4th 183, 186-187.) If a tribal affiliation, within the meaning of the ICWA, can be established, ICWAs substantive protections take effect. As recited above, on May 19, 2006, the Office of the Attorney General of the Pascua Yaqui Tribe issued a letter to the Department stating that the M.C., R.L., A.L., John L., and appellant were not tribal members and that the tribe would not intervene in the matter.

Nothing in the instant record suggests that appellant enrolled herself and her children as members of the Pascua Yaqui Tribe after receipt of the May 16, 2006 verification form from the tribal enrollment department and receipt of the May 19, 2006 letter from the office of the tribal attorney general. Nevertheless, respondent concedes there were notice errors, including the absence of evidence establishing that the notices sent on January 4, 2008 were received by the tribe or the Bureau of Indian Affairs at least ten days prior to the January 29, 2008 hearing. We note that the record does not contain a response from the tribe to the 2008 notice, and that the 2006 notice related only to the three oldest children.

Section 224.2, subdivision (d) clearly states:

No proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs, except for the detention hearing, provided that notice of the detention hearing shall be given as soon as possible after the filing of the petition initiating the proceeding and proof of the notice is filed with the court within 10 days after the filing of the petition. With the exception of the detention hearing, the parent, Indian custodian, or the tribe shall, upon request, be granted up to 20 additional days to prepare for that proceeding. Nothing herein shall be construed as limiting the rights of the parent, Indian custodian, or tribe to more than 10 days notice when a lengthier notice period is required by statute.

The failure to provide ICWA notice to the designated agent or address, without evidence of actual notice, cannot be considered harmless error. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1201, citing Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)

Respondent reasonably acknowledges that a conditional reversal and limited remand is appropriate if the errors are not deemed harmless on appeal. Because we cannot deem the errors harmless, we must reverse and remand to the juvenile court with the directions that follow.

DISPOSITION

We reverse the setting orders of January 29, 2008, and remand the matter to the juvenile court with directions to order the Department to comply with the notice provisions of ICWA, the relevant case law interpreting ICWA, and the views expressed in this courts opinion, and to file all required documentation with the juvenile court for the courts inspection. If, after proper notice, a tribe claims the minors are Indian children, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, no tribe claims the minors are Indian children, the orders of January 29, 2008 should be reinstated.

____________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

_________________________________

GOMES, J.

_________________________________

KANE, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] The first referral named only minor M.C.; the second referral named M.C., R.L. and A.L.

[2] The notice was Judicial Council form JV-135, entitled, Notice of Involuntary Child Custody Proceedings for an Indian Child (Juvenile Court).

[3] Further statutory references are to the Welfare and Institutions Code except where otherwise noted.

[4] 25 Code of Federal Regulations, section 23.11(d) provides that notices should include the following information, if known: [] (1) Name of the Indian child, the childs birthdate and birthplace. [] (2) Name of Indian tribe(s) in which the child is enrolled or may be eligible for enrollment. [] (3) All names known, and current and former addresses of the Indian childs biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information. []  Here, the only information given in the 2008 notice about appellants extended maternal family was her parents address, birth date, and birthplace (which was listed as California). However, the names of appellants grandparents were included in the first notice filed in May 2006.

[5] For example, the notice for A.L. incorrectly stated his date of birth; the notice for J.L. stated his birthplace was unknown and incorrectly stated his father was John L.; and the notice for J.R. also incorrectly stated his father was John L.