Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court in Los Angeles County Super. Ct. No. CK53706. Valerie Skeba, Referee.
Donna Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, J.
This is the second appeal regarding the termination of the parental rights of appellant, Melody S., to her daughter, Carmen S. (Welf. & Inst. Code, § 366.26).
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
We previously granted judicial notice of our unpublished opinion, filed April 21, 2005, in the previous appeal, B185544. In that opinion, we found that Melody’s petition for modification was properly denied, and there was sufficient evidence to support severance of her parental rights, but a remand was necessary for compliance with the notice requirements of the Indian Child Welfare Act (ICWA).
Melody now appeals from the subsequent order on remand, finding that, upon notification to the tribes, ICWA does not apply. She contends that she should have had notice of, and representation by counsel at, the limited remand hearing. Respondent, the Los Angeles County Department of Children and Family Services (the Department), concedes error, based on In re Justin S. (2007) 150 Cal.App.4th 1426 (Justin S.). The remaining dispute concerns what this court should now order, upon remand.
FACTS AND PROCEDURAL HISTORY
1. Our Prior Opinion
We repeat part of our prior opinion, to show Melody’s pattern of behavior.
“When Carmen was born in August 2003, 19-year-old Melody tested positive for amphetamines. She was on probation and had been living in a group home. She had abused drugs since she was 13 or 14 years old, and was resistant to treatment in the past. Her parents are also drug abusers.
“Melody left the hospital with Carmen before the Department could become involved. She spent the next two months eluding the Department. She and Carmen spent two weeks at the home of a cousin, Patricia S., whom Melody viewed as an aunt. Melody’s much-older boyfriend, Javier B., also was at Patricia’s house. Javier was named on the birth certificate, but he is not Carmen’s father. Patricia took care of Carmen while Melody and Javier disappeared for hours and used drugs. Property of Patricia’s disappeared. Several weeks after Melody, Carmen, and Javier left Patricia’s house, Melody’s sister called the Department, to report that Melody lacked formula and diapers for Carmen when she dropped in on other family members.
“Melody also said that Javier was the father, at the courtroom proceedings in October 2003. However, she denied that fact to other people, and Javier was ruled out by genetic testing. Melody later said Carmen resulted from a one-night stand with a different man. When located, he said he only met Melody once and did not have sex with her. He requested a paternity test, but failed to make the necessary arrangements. On August 11, 2005, Melody gave the name of a third possible father. The judge did not believe her.
“Melody surfaced when she was arrested for drug possession on October 13, 2003. She left Carmen with Francis S., who ran an alcohol and drug treatment program. Francis took Carmen to the Department. She said that she did not know Melody well, but knew her brother, and had been searching for Melody and Carmen on ‘Skid Row.’ Melody admitted currently using drugs. Francis thought that Melody would leave Carmen with anyone so that she could get high. Francis had heard that Javier was a gang member with a history of violent crime.
“On October 17, 2003, the Department filed a juvenile dependency petition for Carmen. Carmen was ordered detained. Melody was in jail.
“According to a report of November 12, 2003, Melody’s whereabouts were unknown. She had been released from jail to a drug treatment program on October 23, 2003, and then left that program. Patricia wanted to raise Carmen. Melody’s sister thought that was a good idea.
“Melody was still missing at the time of the jurisdiction hearing on December 17, 2003. The petition was sustained. The Department was ordered to provide placement services but not family reunification services.
“Two days later, Melody was arrested on a new drug possession charge. According to a report of June 2004, her behavior greatly improved after February 28, 2004, when she was released from jail to a one-year drug treatment program. The program, Impact Options, required her to reside in a sober living home for at least 90 days. She also had to participate in group and individual drug counseling sessions, submit to drug testing, and attend 12 Step meetings, six nights per week. Since entering the program, she had negative drug tests, had exceeded the requirement for attendance at meetings, had taken numerous classes in parenting and anger management, and was working on completing her G.E.D. She had drug counseling but not individual therapy. Her parents’ current drug issues complicated the situation.
“The report further indicated that, since her release from jail, Melody had been visiting Carmen regularly at Patricia’s home. Carmen was a normal, happy baby, who had lived most of the time with Patricia since she was three months old. Patricia monitored the visits, despite problems with hostility from Melody and Melody’s mother. Melody requested reunification services, although she still had no housing for Carmen. The Department recommended six more months of family reunification services and a formal case plan.
“At the June 16, 2004 hearing, the Department was ordered to provide family reunification services to Melody and to liberalize her visits. Melody was ordered ‘to attend a Department-approved program of drug rehabilitation with random testing; parent education; and individual counseling to address case issues, mental health and past history of abuse. And you’re to make sure you attend and complete the current drug rehabilitation program.’ Melody said she understood. The following month, six more months of reunification services were ordered.
“A report of December 17, 2004, showed that Carmen continued to thrive with Patricia, and Melody continued to participate in counseling and meetings at her treatment program. She still did not have individual therapy. Also, she had been inconsistent with drug testing. She had eight negative tests, but missed five tests between June and November of 2004. She had moved from the sober living house to her parents’ home and then on to a different sober living house. She had visited Carmen frequently. The visits were monitored by Patricia, who still wanted to adopt Carmen. Patricia reported that she sometimes supplied transportation for the visits, had to prompt Melody to feed and change Carmen, and was concerned that Melody sometimes became frustrated with Carmen. Also, Melody missed some visits and failed to confirm others in advance.
“The December 17 report concluded: ‘Although the mother appears sincere in trying to turn her life around, it is apparent that due to the mother’s childhood, upbringing, criminal and/or drug history, the mother is [in] no position to care for Carmen at this time. She needs to focus on herself and stabilize her life. In addition, the mother appears to have a tendency to be immature [and] has unrealistic expectations about being a parent. Mother has only partially complied with the court orders. Mother has not been consistent in drug testing and has not enrolled in individual counseling to address all of these issues. In addition, Mother has not provided a stable living environment. Mother has not been consistent with her visits and has not appropriately bonded to her child, Carmen.’ Therefore, the Department recommended termination of family reunification services for Melody, and adoption with Patricia as the permanent placement for Carmen.
“At proceedings on December 17, 2004, the case was continued for a contested hearing on termination of family reunification services.
“A report for the January 19, 2005 hearing recommended a termination of family reunification services. Melody’s situation had deteriorated. The house manager at her sober house had called sheriff’s deputies after Melody become loud and disrespectful when she was asked to change rooms. Melody planned to leave the sober house after 30 days. She was four hours late for her visit with Carmen on Christmas Day. Staff at the Impact Options program planned to recommend that Melody return to jail, as she had not been consistent during her 10 months in the program, and had outbursts and behavioral problems with staff.
“At the proceedings on January 19, 2005, Melody withdrew her contest, and her family reunification services were terminated.
“On March 25, 2005, Melody filed her first petition for modification pursuant to section 388. She alleged that she now had a job and a home for Carmen, and had developed a positive bond with Carmen. Her attached declaration described recent positive changes. At the beginning of February 2005, Melody went to live with Francis. Francis provided a home environment where Melody could stay away from drugs, unlike the home of Melody’s parents. Carmen and Melody could live together at Francis’s home. Instead of returning to jail, Melody was now participating in a diversion program, New Directions. She was working at a pizza restaurant, had obtained a California driver’s license, and purchased a car. Her declaration was supported by a declaration from Francis and other documents.
“Section 388, subdivision (a) permits modification of a prior juvenile court order ‘upon grounds of change of circumstance or new evidence . . . .’ Melody appealed the denial of her second modification petition, but not this first one.
“On April 25, 2005, the trial court granted a hearing on Melody’s section 388 petition, and ordered the Department to address it with a report.
“The Department’s new report recommended denial of the petition. Carmen was thriving with Patricia. Melody believed she had found stability at Francis’s home, but she had been using drugs for years, had not made a consistent effort in drug programs, and still had not obtained individual counseling. Also, her angry outbursts were a concern where a young child was involved. She had attended some sessions at the new program but had absences to make up. She still had not followed the case plan’s requirements of current testing and individual therapy. Between April 2004 and February 2005, she had 16 clean drug tests, but failed to show up on six occasions. Also, the case plan required her to complete the Impact Options program, but she changed to the New Directions program when she was threatened with a return to jail.
“The Department also filed a section 366.26 report. It showed that Patricia still wanted to adopt Carmen. She was 43 years old, had already raised three children, and had provided a stable and secure environment for most of the child’s life. Melody recognized that Patricia was an excellent caretaker, but wanted Carmen to live with her at Francis’s house. She and her parents visited Carmen frequently, although Melody was sometimes late, and sometimes became angry with Patricia. To reduce tension, the location of the visits had been changed to the Department’s office. Melody admitted that she had used heroin intravenously from October 2003 through December 2003. The report recommended a termination of Melody’s parental rights, due to her long history of abuse, problems with staff at the Impact Options program, angry outbursts, failure to enroll in individual counseling, and failure to show up for some of the drug tests.
“Carmen lived continuously with Patricia after November 2003, except for a brief period when Carmen was transferred to foster care, after Patricia grew tired of the problems caused by Melody and her mother, including, in particular, a false report by Melody’s mother to the child abuse hotline.
“At the May 19, 2005 proceedings, the court was particularly concerned about Melody’s noncompliance with drug testing. It denied the section 388 petition, but indicated that she could resubmit another when she made more progress. The section 366.26 hearing was continued for a home study.
“According to a July 20, 2005 report, Carmen would soon be two years old, and had lived almost exclusively with Patricia since she was three months old. Patricia and her husband wanted to adopt her. Melody still lived with Francis, and consistently visited Carmen. The visits occurred at a park near the Department’s office and were monitored by the Department’s caseworker or an aide. The caseworker had observed that Carmen had a close bond with Melody, in addition to her bonds with Francis and Francis’s husband. Melody was now drug testing twice a week, had enrolled in individual counseling, and had completed the New Directions treatment program. The Department still believed that it was not in Carmen’s best interest to return her to Melody’s care, due to Melody’s history of drug use, and the fact Carmen was thriving with Patricia in the only home she had ever known.
“On July 20, 2005, the case was continued for a contested section 366.26 hearing.
“On August 3, 2005, Melody filed her second petition for modification. She alleged that she was working, had a residence for Carmen at Francis’s house, had completed her case plan, was in individual counseling, was currently drug testing, and had increased her bond with Carmen during the visits. She was avoiding her own mother due to the mother’s current use of drugs. She was concerned that marital discord between Patricia and her husband would be detrimental to Carmen. Attached documentation verified that she had completed the New Directions program, was participating in individual psychological therapy, and tested negatively on seven occasions in June and July 2005.
“On August 11, 2005, the court denied the section 388 petition without a hearing. It ruled that there was no substantial change since the earlier section 388 petition, and ‘less than two months of clean tests is not sufficient to support a 388.’ The matter was continued for completion of the home study. The study approved adoption in Patricia’s home.
“On September 26, 2005, the court took into evidence some of the prior reports, heard testimony from Melody, and terminated her parental rights pursuant to section 366.26.”
Specifically regarding the ICWA issue, our prior opinion indicated:
“At proceedings on June 16, 2004, Melody stated that her father’s mother had some Cherokee Indian blood. That statement prompted the court to give the Department until July 29, 2004, to comply with ICWA.
“According to the Department’s July 29, 2004 report, Melody’s father, Raymond S., said that he had Cherokee heritage through his mother, Eron S. He also said that Eron S.’s maiden name was Eron K., she was born and raised in Lehigh, Oklahoma, and her father was named Israel K. Raymond did not think that either Eron S. or Israel K. were registered with the tribe.
“The Department sent notices, by registered mail, to Melody, Javier B., the Secretary of the Interior, the ‘Cherokee Nation ICWA’ in Tahlequah, Oklahoma, and the Bureau of Indian Affairs in Sacramento. The notices included the names and addresses of Melody (Carmen’s mother), Javier B. (Carmen’s alleged father), and Melody’s mother and father (Carmen’s maternal grandmother and grandfather). Birthdates were given for Melody, both alleged fathers (see fn. 2, ante), and Melody’s father, but not Melody’s mother. Places of birth were given for Melody, her father, and Eron S., but not for Melody’s mother. In the space for paternal great-grandparents, the notice said that Eron S., maiden name Eron K., birthplace Lehigh, Oklahoma, belonged to the Cherokee tribe. Eron’s father, Israel K., was not mentioned. A ‘Remarks’ space, for other identifying information, was blank, as was a space that requested the name of a Cherokee ancestor from Oklahoma ‘who might have been enrolled in the final roll prepared in 1906 by the Dawes Commission.’ The Bureau of Indian Affairs immediately responded with a letter, which indicated that the information was insufficient, as it needed a history from the family ‘back to the year 1900 with names, birth dates and/or birthplaces of ancestors to help in establishing a biological link with the original ancestral tribal member(s).’ (Original boldface.)
“It appears that since Eron S. was related to Carmen on Melody’s side, she was a maternal and not a paternal great-grandparent.
“At the July 29, 2004 proceedings, the court reviewed the notices, and found that appropriate notice had been given.
“Subsequently, a letter was received from Karen Black, ‘Indian Child Welfare’ for the Cherokee Nation in Tahlequah, Oklahoma. Ms. Black said that the ‘Indian Child Welfare Program’ had examined tribal records based on the information provided, and could not trace the child through the listed adult relatives. The list included question marks for the dates of birth of Melody’s mother and Eron S.
“As Israel K. was in the direct lineal line of ancestors, it is possible that information about him will facilitate the tribe’s inquiry. (See In re Karla C. [(2003)] 113 Cal.App.4th [166,] 175.) If asked, Raymond S. may know the birthdates of Eron S. or Israel K. It further appears that Melody’s mother’s date of birth and birthplace can easily be obtained by asking her for that information. On remand, the notices must include Israel K.’s name, and any further identifying information that is available through questioning both of Melody’s parents.”
Our prior opinion went on to find that, in addition to providing notice about Israel K. to the Cherokee Nation in Oklahoma, the Department was to notify the two other Cherokee tribes that are recognized by the Bureau of Indian Affairs. We further instructed the Department to send notice to the tribal agent designated for service by the Bureau of Indian Affairs and to provide the Area Director of the Bureau of Indian Affairs with the location, mailing address, and telephone number of the court and all parties receiving notification.
2. Events Following Remand for ICWA Compliance.
Proceedings resumed in the dependency court on July 7, 2006. Melody was not present. Her counsel told the court: “I’m not sure that it’s appropriate to appoint me because there’s really nothing, if it’s ICWA notices, that my talents as an attorney could help the mother, other than to alert you that the mother is registered, according to her.” The court asked, “With which tribe?” Counsel did not know. The court ordered the Department to notify the three Cherokee tribes and to re-interview Melody, to find out if she had a registration number. The case was continued to August 30, 2006.
Neither Melody nor her counsel were present at any of the subsequent proceedings. Counsel for the Department and counsel for Carmen were always present, and counsel for one of the possible fathers was sometimes present.
Just before the August 30, 2006 proceedings, the Department’s caseworker, Ms. Beth Ellis, informed the court that she had attempted to call Melody at the telephone number Melody provided on her notice of appeal in September 2005. Ellis was told that Melody did not live there, but was in contact with the people who did live there. Those people did not have an address either for Melody or her parents.
In addition to the telephone number Ellis tried, Melody’s notice of appeal showed a handwritten address on Stamy Road in La Mirada. Unfortunately, no notice was mailed to that address, apparently because Ellis was told that Melody did not live there. An entirely different address for Melody, on Coates Avenue in Los Angeles, appears on the Department’s report for the August 30 hearing. That report was signed by a different caseworker, Walter White, on August 16, 2006. The source of that address is not shown, but no notice was sent to Melody there, either.
At the August 30 proceedings, the court was annoyed that the Department had not proceeded more quickly with notifying the tribes. The caseworker was ordered to be in court on September 1. On that date, multiple personnel from the Department were present in the courtroom. The court discharged the order to show cause, but carefully explained the requirements for notifying the Cherokee tribes. The case was then continued to October 12, 2006.
According to the caseworker’s report for the October 12 proceedings, new ICWA notices had not been sent due to problems finding a family member who would provide information about Melody’s Indian heritage. Patricia said she had repeatedly urged Melody’s parents to contact the caseworker. They had not done so and had changed their telephone number. Patricia did not have an address for them, but thought Melody was living with them. Meanwhile, Carmen continued to thrive in Patricia’s home. Patricia and her husband were eager to finalize the adoption and were concerned that Carmen might be taken away from them.
Shortly before the proceedings on October 12, the caseworker advised the court that Patricia had just given her the current address of Melody’s parent’s, along with the workplace of Melody’s father. The caseworker also had located, in the case folder, the birthplace and date of birth of Melody’s mother. With that new information, she could now send out adequate ICWA notices.
At the October 12 proceedings, the court imposed monetary sanctions, with a 30-day stay, finding that the Department had “dragged its feet” on sending out the notices.
On November 8, 2006, the caseworker reported that there was new information about Melody’s possible Indian heritage based on the research efforts of Melody’s aunt. It now appeared that the tribal connection was the “Chickasaw and/or Choctaw,” and not the Cherokee. Melody’s father was still evading the caseworker’s efforts to contact him.
As of October 19, 2006, the caseworker had sent notices of the pending hearing on November 9, 2006 to: the Jena Band of Choctaw Indians, Mississippi Band of Choctaw Indians, Choctaw Nation of Oklahoma, the Chickasaw Nation, the Bureau of Indian Affairs in Sacramento, and the Bureau of Indian Affairs in Washington D.C. Notice was also sent to Melody at an address on Painter Avenue in Whittier. According to the notices, that address was where Melody and her parents currently lived. We assume the caseworker was relying on the information provided by Patricia.
The certified mail receipt for the notice to Melody at the Painter Avenue address was signed by an unknown person, “Richard Cardenas.”
As of November 8, 2006, notices had been sent to the Choctaw and Chickasaw tribes, but not to the Cherokee tribes specified in this court’s prior opinion. The latter notices were going to be mailed “forthwith.” The Jena Band of Choctaw Indians had already sent back a negative response about membership in that tribe.
At the proceedings on November 9, 2006, “in order to avoid any further appellate issues,” the court issued an order to show cause and sanctions for failure to notice the Cherokee Tribes, stayed to December 5, 2006.
As of December 5, 2006, notices had been mailed to the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians. The notices specify the Painter Avenue address as the current address of Melody and her parents. The United Keetowah Band of Cherokee Indians and the Chickasaw Nation had already returned negative responses.
At the December 5 proceedings, the court lifted the sanctions, found that ICWA did not apply, and reinstated the order terminating parental rights.
Over five months later, on May 9, 2007, Melody filed a notice of appeal. Typed on that notice, with a line through them, are the Painter Avenue address and a telephone number. Handwritten on the document appear a different telephone number and a new address on Mills Avenue in Whittier.
Despite the long delay, Melody’s briefing maintains that the notice of appeal was timely because the referee’s ICWA findings and termination order were not served on her. Respondent does not contest that point.
We further note that the proofs of service on appellant’s opening and reply briefs show Melody’s name, but are blank for her address.
DISCUSSION
Under Justin S., supra, 150 Cal.App.4th at page 1435, “a parent in a dependency appeal for insufficient ICWA notice must not be left out of the continued litigation of the notice issue upon a limited remand to ensure compliance with the ICWA.” The Department therefore concedes that “reversal of the order terminating parental rights is necessary because appellant was not represented by counsel nor given notice of the ICWA-notice hearings.” Indeed, when we issued our previous opinion, we assumed that, since Melody prevailed on the appeal, she or her counsel would be present at the proceedings on remand. (Ibid.)
Even though the need for a second ICWA remand is conceded, there are numerous troubling aspects to this case.
“As a matter of respect for the children involved and the judicial system, as well as common sense, it is incumbent on parents on remand to assist the Agency in ensuring proper notice is given.” (In re X.V. (2005) 132 Cal.App.4th 794, 804.) There are indications that Melody and her parents did exactly the opposite here. Another problem is that Melody’s counsel told the court at the first hearing after remand that counsel’s continued presence was not necessary. Moreover, Melody failed to apprise the court of her current address, after investigation showed that she did not live at the address shown on her notice of appeal. Furthermore, the Department’s most current information was that Melody lived at the Painter Avenue address, and Melody was sent notice there for the November 9, 2006 hearing.
Even so, participation by Melody and/or her counsel in the remand proceedings was necessary to ensure compliance with ICWA. (Justin S., supra, 150 Cal.App.4th at pp. 1435-1436.) That participation does not require removal of Carmen from Patricia’s home, or renewed notices to the tribes. What is necessary is that Melody and/or her counsel must have the opportunity to address deficiencies, if any, in the notices that have already been sent.
Melody also complains that there should have been 60 days between the sending of notice and the lack of a response from any tribes that failed to respond. (See Justin S., supra, 150 Cal.App.4th at pp. 1436-1437.) That time period will have been far exceeded, by the time the case is once again before the juvenile court.
Melody argues that the Department must interview her parents and make “a good faith effort to contact her for remanded proceedings.” She ignores her statutory duty to provide the court with her permanent mailing address. (§ 316.1, subd. (a).) Pursuant to section 224.2, subdivision (a)(1), if an Indian child may be involved, notice is to be sent to the child’s parent “by registered or certified mail with return receipt requested. Additional notice by first-class mail is recommended, but not required.” Upon remand, notice in the form required by section 224.2, subdivision (a)(1) shall be sent to Melody at her last known address, which is the address on Mills Avenue in Whittier that is written on her May 2007 notice of appeal, unless Melody notifies the court of a new address. Such notice shall also be sent to Melody’s trial counsel, Ms. Eva Chick.
Section 316.1, subdivision (a) provides in pertinent part: “Upon his or her appearance before the court, each parent or guardian shall designate for the court his or her permanent mailing address.”
Respondent asks us to order Melody to contact the Department and fully cooperate with the Department’s efforts to provide proper ICWA notice. We make no such order, as it will be sufficient if notice pursuant to section 224.2, subdivision (a)(1) is sent to Melody at her last known address.
DISPOSITION
The order terminating Melody’s parental rights is conditionally reversed. The matter is remanded to the juvenile court, with directions to promptly hold a hearing, at which Melody is represented by counsel to determine whether the ICWA applies. The hearing shall include all of the responses received from the noticed tribes, and any additional information obtained by further inquiry of Melody and her parents, if they make themselves available to the Department, following notice to Melody at her last known address by registered or certified mail with return receipt requested. If no tribe has responded indicating that Carmen is an Indian child, or the responses indicate that Carmen is not an Indian child within the meaning of the ICWA, the order terminating parental rights shall be immediately reinstated. If any noticed tribe has determined that Carmen is an Indian child, the juvenile court shall conduct further proceedings applying the appropriate provisions of ICWA, the Welfare and Institutions Code, and the California Rules of Court. (Justin S., supra, 150 Cal.App.4th at pp. 1437-1438.)
We concur: RUBIN, Acting P. J. EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.