In re Nathaniel D.

Filed 10/16/06 In re Nathaniel D. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Referee. Reversed and remanded with directions.

In this juvenile dependency case, we hold the court abused its discretion by denying a motion by the dependent child's father, Allen D., to continue a hearing so it could be determined whether his child, Nathaniel D., is eligible for membership in an Indian tribe. At the time of the hearing, there was specific evidence of Nathaniel's eligibility, but the court denied the motion to continue and reinstated the judgment terminating the parental rights of Allen and of Nathaniel's mother, H.D. (together the parents). We reverse and remand for a hearing on Nathaniel's current status in relation to the Indian Child Welfare Act (ICWA).^[1]

FACTUAL AND PROCEDURAL BACKGROUND

This is the third time an appeal involving now five-year-old Nathaniel has been before this court on issues involving the ICWA. Nathaniel and H.D. tested positive for drugs at the time of his birth in 2000. He became a dependent child in October 2001 because of domestic violence between the parents. At the time of Nathaniel's detention, Allen indicated the paternal great-grandmother was a member of a Cherokee Tribe, but the court found the ICWA did not apply.

During the following 18-month dependency period, the San Diego County Health and Human Services Agency (the Agency) provided reunification services to the parents, but they were not successful in overcoming the problems that led to Nathaniel's dependency. On January 20, 2004, the court terminated their parental rights.

Nathaniel was diagnosed with mild cerebral palsy. He also has asthma, eczema, mild mental retardation and delayed speech and motor skills. However, the adoption assessment concluded he is adoptable because of his young age, sociability and general attractiveness.

The parents appealed termination of their parental rights, and the Agency conceded error in the court finding the ICWA did not apply. In an opinion filed October 8, 2004, we reversed and remanded, directing the juvenile court to order compliance with ICWA notice requirements and directing that if a tribe claimed Nathaniel is an Indian child, to proceed in conformity with the ICWA, but if there was no response or if no tribe claimed he is an Indian child, to reinstate the judgment terminating parental rights. (In re Nathaniel D. (Oct. 8, 2004, D043822) [nonpub. opn.].)

In the meantime, the social worker reported the paternal great-grandmother might have been a member of a Cherokee Tribe. The social worker sent notice to the appropriate entities. However, when the parents appeared for a hearing on the ICWA issue, the juvenile court found they lacked standing to participate, denied their requests for a continuance, found proper ICWA notice had been provided and the ICWA does not apply, and reinstated the judgment terminating parental rights.

The parents again appealed and, upon stipulation, we reversed the judgment and remanded to the juvenile court, directing it to appoint counsel for the parents and to allow them to participate in a hearing on the ICWA issue. (In re Nathaniel D. (Oct. 6, 2005, D046615) [nonpub. opn.].) We again instructed that if after proper inquiry and notice a tribe claimed Nathaniel is an Indian child, to proceed in conformity with the ICWA, but if no response is received or no tribe claims he is an Indian child, to reinstate the judgment.

On December 28, 2005, the social worker reported the Agency had sent ICWA notice and attached copies of the notice that was sent to the three federally recognized Cherokee Tribes, the Blackfeet Tribe and the Bureau of Indian Affairs (BIA). Mail receipts indicated notice was received that month.

In January 2006, the social worker reported Allen recently had provided names and enrollment numbers of his ancestors in the "North Carolina Cherokee Tribe." Allen said the information is available in archives in Washington, D.C. At a hearing on January 11, the parents appeared with counsel. After testimony by Allen, the court ordered him to provide all relevant information about his Indian heritage and, at the request of the Agency, continued the matter for 90 days.

In a report dated April 12, 2006, the Agency requested the court find proper ICWA notice had been provided. Attached to the report were responses stating Nathaniel is not eligible to register as a member of the Eastern Band of Cherokee Indians or with the United Keetoowah Band of Cherokee Indians in Oklahoma, a response from the Blackfeet Tribe requesting additional information, and the social worker's response to the Blackfeet Tribe, stating she had enclosed the requested information.

At a hearing on April 12, 2006, the court asked if there were any objections to finding ICWA notice was provided and the ICWA did not apply. Allen's counsel stated: "We don't dispute that the notices submitted by the Agency comply; however, [Allen] informs me that he is in the process of applying for himself and also Nathaniel with the Cherokee Tribe." Allen's counsel, supported by H.D., requested the court defer its decision on whether the ICWA applies in the case to allow Allen to receive a response from the Cherokee Tribe.

The court denied the request for a continuance, found proper ICWA notice had been given and the ICWA did not apply, and reinstated the judgment terminating parental rights.

DISCUSSION

I

We first consider the Agency's motion to augment the record on appeal. On September 6, 2006, while this appeal was pending, the Agency moved to augment the record with the following information: copies of the notice and mail receipts sent to the tribes and the BIA in February 2006; a response from the Cherokee Nation of Oklahoma (the Cherokee Nation), dated April 20, 2006, indicating Nathaniel can be traced in tribal records; and the application received on his behalf concerning his eligibility for enrollment in the Cherokee Nation. Also included was the social worker's report, dated August 24, 2006, stating Allen told her he had applied for membership in the Cherokee Nation, it had accepted his application, and the Agency had mailed an application for membership on Nathaniel's behalf. The motion was not opposed by any party.

We earlier denied Allen's motion to augment the record with some of this material, but, on further consideration, we now grant the Agency's motion to augment the record. The evidence supports our decision that the court abused its discretion by denying Allen's motion to delay its decision on whether the ICWA applies in the face of specific evidence that Nathaniel may be eligible for membership in an Indian tribe. The material included in the motion to augment can be separated into two parts. Clearly, accepting evidence of the ICWA notice that was sent in February 2006 is not prohibited by In re Zeth S. (2003) 31 Cal.4th 396. There, our Supreme Court held the appellate court erred by accepting evidence of subsequent events presented through unsworn statements of counsel and using that evidence for the purpose of reversing the judgment. (Id. at pp. 410, 411-413.) Here, evidence of ICWA notice the Agency sent to the tribes and the BIA was relevant to the issue before the juvenile court. The transcript of the hearing indicates evidence of the ICWA notice, including Allen's additional information, was before the court at the April 12 hearing. It is not in the form of unsworn testimony and was presented for the purpose of upholding, rather than reversing, the judgment.

We conclude the other evidence included in the motion, the response from the Cherokee Nation dated after the April 12, 2006 hearing, the application concerning Nathaniel's eligibility for enrollment, and the social worker's August 24, 2006 report, must be made part of the record also. The evidence is relevant to the issue that was before the court at the April 12 hearing and it contains important, specific, detailed information indicating that Nathaniel may be eligible for membership in an Indian tribe, information we cannot ignore. The evidence in question in In re Zeth S., supra, 31 Cal.4th 396 was unsworn and was offered by counsel. (Id. at p. 404.) The evidence here is different. It is not evidence of a changed circumstance or condition, but is documentary evidence of Nathaniel's eligibility for tribal membership. "[T]he state has a 'strong' interest in the expeditiousness of dependency proceedings, and its interest in the finality of such proceedings is 'stronger still.'" (Id. at pp. 412-413.) Because it is in Nathaniel's best interests for this court to have all relevant current information before it when making a decision concerning his future and considering the evidence now should prevent a later potential disruption of a final judgment. We grant relief from the late filing of the motion and grant the Agency's motion to augment the record.

II

Allen and H.D. contend the court abused its discretion by denying Allen's motion to delay its decision regarding whether the ICWA applies. We agree that under the very unusual circumstances of this case, the court abused its discretion.

The juvenile court may grant a continuance only upon a showing of good cause. "[T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status . . . ." (Welf. & Inst. Code, § 352, subd. (a).) "Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

The ICWA requires "where the court knows or has reason to know that an Indian child is involved, the party seeking foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C., § 1912(a).) Notice to the tribe provides it the opportunity to exercise its right to intervene. (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) "[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child." (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) "A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive." (Cal. Rules of Court, rule 1439(g)(1).)

From the time this case began, Allen indicated he might have Indian heritage. At the detention hearing in August 2001, he and H.D. filled out paternity questionnaires on which they stated he has or might have Indian ancestry with a Cherokee Tribe. Nevertheless, Allen's counsel told the court he did not believe the ICWA applied even though the paternal great-grandmother was a Cherokee tribal member. The juvenile court, following counsel's lead, found the ICWA did not apply.

Subsequently, the social worker learned from the paternal grandfather that the paternal great-grandmother was part Cherokee Indian through her father. In September 2004, after the judgment terminating parental rights had been reversed and remanded to the juvenile court, the Agency sent ICWA notice that reflected this new information. Then, in January 2006, after no tribe verified Nathaniel's tribal membership on the basis of the information provided, Allen informed the social worker he had located additional information about his Indian heritage, including names and enrollment numbers for four of his ancestors in a Cherokee Tribe. At the request of the Agency, the court then continued the matter for 90 days to allow the social worker to provide notice that included the new information and to give sufficient time to respond. For the April 12, 2006 hearing, the social worker reported she had provided ICWA notice to the three federally recognized Cherokee Tribes, the Blackfeet Tribe, and the BIA. Responses from two of the three Cherokee Tribes indicated Nathaniel is not eligible to enroll in those tribes. The Blackfeet Tribe requested more information. At the hearing, although Allen indicated the possibility that he and Nathaniel were eligible to enroll in a Cherokee Tribe, the court denied his motion for a continuance to allow him to complete the application and give time for the tribe to respond. It found the ICWA did not apply.

Then, in a letter dated April 20, the Cherokee Nation informed the social worker that Nathaniel's ancestry can be traced in tribal records through two of his family members for whom Allen had supplied enrollment numbers, the paternal great-great-grandmother, Gertrude W., and the paternal great-grandfather, John W. The letter further informed the social worker that Nathaniel's direct lineage to an enrolled member makes him eligible for enrollment and affiliation with the Cherokee Nation. A membership application was enclosed for Nathaniel, which the Agency filled out and mailed to the Cherokee Nation on his behalf.

This court has seen countless juvenile dependency cases in which there was a suggestion of Indian heritage early in the case only to have the suggestion never substantiated and the child never determined eligible for tribal membership. This case presents a rare circumstance indeed. The quality of the information supplied, including names and enrollment numbers of family members, is at a level of specifity and detail we rarely see. Regretfully, the parents did not supply the information at an earlier point in the proceedings, but waited for more than four years after Nathaniel was taken from their custody and two years after their reunification services and visitation with him had ended. Nathaniel is now five years old and has waited for a permanent home for a very long time.

" '[T]o maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child. [Citation.]' " (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257.) The irony of this situation is that if we were now to affirm the judgment terminating parental rights and a permanent plan were selected for Nathaniel, the stability and permanence we seek for him could later be undermined. There appears to be a distinct possibility that the Cherokee Nation will determine Nathaniel is eligible for enrollment. If it then decides to intervene in the case, a placement that was chosen as a permanent home for him could be destabilized. We do not want to place Nathaniel in a position where the stability we want to achieve for him is disrupted.

We hold the juvenile court abused its discretion by denying Allen's request for a continuance at the April 12, 2006 hearing and remand for a hearing on Nathaniel's current status regarding the ICWA. In the interim, we urge all parties to expedite the proceedings to resolve the matter as promptly as possible so that Nathaniel may be provided the stability of the permanent home he needs and deserves.

DISPOSITION

The judgment reinstating termination of parental rights is reversed. The juvenile court is directed to hold a new hearing on Nathaniel's current status regarding the ICWA. If no tribe claims Nathaniel is an Indian child, the judgment terminating parental rights shall be reinstated. If Nathaniel is deemed to be an Indian child, the court shall proceed in conformity with the ICWA. But if no tribe intervenes in the matter, the court is authorized to reinstate the judgment terminating parental rights.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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^[1] Because we reverse on the basis that the court abused its discretion in denying the motion for a continuance, we do not discuss the parents' contentions that proper ICWA notice was not shown at the hearing and, if the issue is deemed waived or forfeited, Allen received ineffective assistance of counsel.