Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK21323. Marilyn Kading Martinez, Juvenile Court Referee.
Marilyn M. Mordetzky, by appointment of the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Mother Trina C. appeals from the court’s placement order for her children. Respondent Department of Children and Family Services concedes the dependency court erred. We remand for further proceedings.
DEPENDENCY PROCEEDINGS BELOW
In January 2007, the Department of Children and Family Services filed under section 300 of the Welfare and Institutions Code a petition that alleged mother’s physical abuse of her children and domestic violence with their father endangered the children’s welfare. The department took the six children ranging in age from 11 years to a newborn from the family home and placed them with foster parents.
After the department detained the children, mother told it the children might have Cherokee or Blackfoot heritage from her side of the family. Based on mother’s suspicion, the court ordered the department to provide notice under the Indian Child Welfare Act (ICWA) of the children’s involvement in dependency proceedings. (25 U.S.C. § 1901 et seq.) The department complied, sending notices of the court’s upcoming pretrial resolution and settlement hearing to the Cherokee and Blackfoot tribes and governmental agencies involving Native American affairs.
At the scheduled hearing on February 20, 2007, 12 days after the department sent its notices, the court announced no tribe or agency had replied. Stating the tribes and agencies had 60 days to respond, the court set for April 9, 2007, a nonappearance progress hearing for any forthcoming replies. (Welf. & Inst. Code, § 224.3, subd. (e)(3) [court must allow tribes at least 60 days to respond].) Meanwhile, during the hearing the court accepted mother’s and father’s pleas of no contest to the petition and ordered the children to remain in foster care. (Welf. & Inst. Code, § 352, subd. (b) [disposition hearing must be held within 60 days of detention unless “exceptional circumstances” exist].) The court also ordered mother and father to participate in counseling and parenting classes, and directed the department to allow them visitation with their children. Concluding the hearing, the court stated it would reconsider its rulings if any tribe notified the court that it planned to intervene in the proceedings. Mother appeals from the court’s placement order.
DISCUSSION
Mother contends the department’s notices to the tribes and governmental agencies were defective because they were untimely. Consequently, according to mother, the court erred by proceeding with the February 20 hearing before receiving the tribes’ and agencies’ responses. The department concedes the error.
Although the parties agree error occurred, they disagree about the proper remedy. The department asserts we should remand the matter to the dependency court to allow the department to send proper notice, with the direction of future proceedings turning on the replies the department receives. Mother accepts the department’s concession, but asks for more. She contends we must also vacate the court’s existing findings and orders because the court lacked authority to issue them before receiving the tribes’ and agencies’ responses.
Case law is inconclusive. In re Brooke C. (2005) 127 Cal.App.4th 377 (Brooke C.), held that inadequate notice under the Indian Child Welfare Act voids only an order terminating parental rights; orders short of termination remain in effect after remand under Brooke C. while the department provides proper ICWA notice. (Brooke C. at p. 385.) Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779 (Nicole K.), stands, however, at odds with Brooke C. In Nicole K. the dependency court had not terminated parental rights, but the appellate court nevertheless vacated an order terminating reunification services and setting a hearing to consider terminating parental rights. (Nicole K. at pp. 784-785.)
Whether we follow Brooke C. or Nicole K. seems to be six of one, a half dozen of another. The department concedes that if a tribe decides to intervene, the tribe has the right to petition the court to vacate its rulings -- in which case it will not matter if we do not vacate the rulings upon remand. (25 U.S.C. § 1911, subd. (c) [tribe may intervene at any point in the proceeding].) Mother, on the other hand, acknowledges that if no tribe intervenes, the court may reinstate its rulings -- in which case it will not matter if we do vacate the rulings.
We perceive the more restrained, and thus more prudent, remedy is to remand this matter to the dependency court without vacating its findings and orders. We know of nothing about the court’s rulings that set them in stone to mother’s detriment. To the contrary, at the February 20 hearing the department was providing reunification services to her and father and had not moved to terminate their parental rights. (Cf. Nicole K., supra, 146 Cal.App.4th at pp. 784-785 [appellate court vacated orders terminating reunification services and setting hearing to consider terminating parental rights].) Moreover, keeping the court’s rulings in place provides certainty to the children about where and with whom they will be living while their parents pursue reunification. Vacating those orders injects uncertainty into the children’s lives without any evident gain to mother, and thus we decline to do so.
Finally, mother contends the notices to the governmental agencies were flawed because they stated with seeming certainty that the children’s suspected tribal heritage was Blackfeet or Cherokee, when her family was unsure to which tribes their Native American ancestors belonged. Mother fears the notices will encourage the governmental agencies to unduly restrict their investigation to the Blackfeet and Cherokee, instead of investigating other possible tribes. The department does not address mother’s particular contention in its letter brief conceding error. But mother’s point seems well taken, and thus we see no reason to doubt her confidence that the department’s notices to the governmental agencies upon remand will reflect the uncertainty of the children’s tribal ancestry.
DISPOSITION
The matter is remanded to permit respondent Department of Children and Family Services to comply with the notice requirements of the Indian Child Welfare Act.
WE CONCUR: COOPER, P. J., FLIER, J.