Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. J213238. Jerry Walker, Temporary Judge. (Pursuant to Cal. Const., art. VI, §21.).
Diana W. Prince under appointment by the Court of Appeal for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel for Plaintiff and Respondent.
Jacquelyn E. Gentry under appointment by the Court of Appeal for Minor.
OPINION
MILLER, J.
W.W. (Father) appeals from the juvenile court’s April 4, 2008, order terminating his parental rights. He asserts that the San Bernardino County Department of Children’s Services (DCS) failed to comply with the requirements of the Indian Child Welfare Act, 25 United States Code, section 1901 et seq. (ICWA). Specifically, he argues that the notice that the DCS sent contained misspellings of the names of K.W.’s Indian ancestors and was therefore not meaningful.
FACTUAL AND PROCEDURAL HISTORY
On February 27, 2007, a petition was filed under Welfare and Institutions Code section 300 alleging that K.W. came within the jurisdiction of the juvenile court because (1) the mother could not provide care for her due to mother’s drug abuse (K.W. tested positive for amphetamines at the time of her birth), (2) Father could not provide care for her because he had an extensive criminal history involving illegal drugs and had a warrant outstanding for his arrest related to a conviction for possession of a controlled substance, and (3) because the mother’s parental rights had previously been terminated as to K.W.’s half-siblings.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In the detention report dated February 28, 2007, it was noted that the ICWA may apply as Father claimed ancestry in the “Blackfoot [sic]” tribe. K.W.’s mother denied any Indian ancestry. K.W. was removed from the parents and placed in the custody of DCS. The March 21, 2007, jurisdiction/disposition report indicated that notice had been sent to the Blackfeet tribe and the Bureau of Indian Affairs (BIA) on March 8, 2007. The social worker reported that she spoke to Father’s brother on March 6, 2007, and obtained information regarding Father’s Indian ancestry. Based upon information provided by Father’s brother, the JV-135 Notice of Involuntary Child Custody Proceedings was completed. Father was approximately 50 percent Blackfeet but was not enrolled. The paternal grandmother was identified by name, as were her date and state of birth and the fact that she was 50 percent Blackfeet, though not enrolled. The paternal great-grandmother, of 70 percent Blackfeet heritage, was also indentified by name, with a city and state of birth and a state and date of death. Father had yet to contact DCS.
Father appeared at the jurisdiction/disposition hearing on March 21, 2007, and reported Indian heritage in the Blackfeet tribe through his mother and grandmother. On March 26, 2007, K.W. was declared a dependent child of the court and Father was ordered to participate in reunification services. At that hearing, from which Father had been excused, counsel for DCS revealed to the court that the ICWA notice that had been sent out spelled the maternal great-grandmother’s name “Rhonda” instead of “Ronda.” The juvenile court determined that the misspelling of the paternal great-grandmother’s name was not material, and concluded that noticing under the ICWA was complete.
In a status review report filed September 10, 2007, it was recommended that reunification services to Father be terminated and that a section 366.26 hearing be set. Father had failed to contact DCS or K.W. and had not participated in his plan. The trial court was provided with a declaration of due diligence attaching letters from the BIA and the Blackfeet Tribe. The tribe indicated that none of the persons listed on the notice could be found on the tribal rolls and consequently K.W. was not an Indian child.
On November 2, 2007, Father appeared, in custody, for a six-month review hearing. The juvenile court terminated reunification services for Father and set a hearing under section 366.26. It also found that the ICWA does not apply in this case. A report prepared for the section 366.26 hearing indicated that Father had still not had any contact with K.W. and had not contacted DCS to request visits or to inquire about her. On November 7, 2007, he was sentenced to 16 months in state prison. On April 7, 2008, the juvenile court entered an order terminating Father’s parental rights to K.W. Father had waived transport and was not present at the hearing. Father filed his notice of appeal on May 27, 2008, listing the appealable orders as those on November 2, 2007, and April 7, 2008.
DISCUSSION
Prior to addressing the ICWA notice issue raised by Father, we must address DCS’s allegation, based upon In re Miracle M. (2008) 160 Cal.App.4th 834 (Miracle M.) that Father failed to appeal the order wherein the juvenile court found that the ICWA did not apply within 60 days of its issuance and therefore since ICWA compliance is the only issue raised, the appeal is untimely. In Miracle M. the court stated, “DCFS correctly points out Mother did not file a timely appeal from the finding on May 12, 2006, in which the court made a determination that ICWA did not apply in this case. DCFS correctly notes that Mother cannot appeal from an order or finding that is not even mentioned in her notice of appeal . . . [Citations.]” (Miracle M., at p. 846.) The court did not conclude that the appeal was not timely filed, however. Rather, it went on to discuss the appellant mother’s position, concluding that her ICWA arguments constituted harmless error. (Miracle M., at p. 847.) This is problematic because if the appeal was indeed not timely filed, the court had no jurisdiction to decide the appeal and it should have been dismissed. (In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1488; see also Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1454.) “[A] notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.” (Cal. Rules of Court, rule 8.400(d)(1).) Further, “‘“[a]n appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.” [Citations.]’ [Citation.]” (In re Cynthia C., supra, at p. 1488.)
The question before us then, is whether the trial court’s determination that the ICWA does not apply is the appealable order. The Welfare and Institutions Code characterizes the juvenile court’s action, not as an order, but as a determination. (§ 224.3, subds. (e)(3) & (f).) That fact notwithstanding, the determination in this case was made at the hearing in which the juvenile court set a hearing under section 366.26. Father could have challenged the juvenile court’s determination by filing a writ petition. (§ 366.26, subd. (l); In re Tabitha W. (2006) 143 Cal.App.4th 811, 568-570.) He did not do so. Ordinarily, that would preclude him from raising the issue in a subsequent appeal. (In re Tabitha W., at pp. 568-570; see also In re Pedro N. (1995) 35 Cal.App.4th 183, 189-191.) However, we are here dealing with the ICWA, which provides that any parent from whose custody an Indian child was removed may petition a court of competent jurisdiction to invalidate a termination of parental rights if that action is shown to violate the ICWA notice provisions. (25 U.S.C., § 1914; § 224, subd. (e).) Further, section 224.2, subdivision (b), provides that “[n]otice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter” unless it is concluded that the ICWA does not apply in accordance with section 224.3. A determination that the ICWA does not apply must be based upon “proper and adequate notice.” (§ 224.3, subd. (e)(3).) Thus, although Father might be precluded from claiming that the juvenile court erred when it determined, on November 2, 2007, that the ICWA does not apply in this case, he is not precluded from claiming that notice should have been sent with respect to the April 7, 2008, hearing at which his parental rights were terminated and from which he timely filed a notice of appeal. (Compare Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.)
In In re Suzanna L. (2002) 104 Cal.App.4th 223, 232 (Suzanna L.), this court implicitly rejected the reasoning in In re Pedro N., supra, when it adopted the contrary conclusion reached by the court in In re Marinna J. (2001) 90 Cal.App.4th 731.
Next, citing Miracle M., supra, 160 Cal.App.4th at page 847 and In re S.B. (2005) 130 Cal.App.4th 1148, 1159-1160, DCS urges us to find that Father has waived his right to claim noncompliance with the ICWA noticing rules because he failed to object to the notice on the ground that it had inaccurate spelling in the juvenile court. The problem with this argument is that in Suzanna L., supra, 104 Cal.App.4th 223, this court held that “‘[t]he notice requirements serve the interests of the Indian tribes “irrespective of the position of the parents” and cannot be waived by the parent. [Citation.]’ [Citations.] Thus, ‘where the notice requirements of the [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.’ [Citation.]” (Id. at pp. 231-232.) In In re S.B., supra, we distinguished Suzanna L. on the ground that in In re S.B. the tribe had appeared and had not sought to invalidate actions taken prior to its having received notice. (In re S.B., at pp. 1159-1160.) Thus, applying the waiver doctrine to the parent could not have been harming the interests of the tribe. The court in Miracle M., supra, was faced with a similar situation. In the instant case, however, the tribe has not appeared, perhaps because the notice was not sufficient. Under these circumstances, applying the waiver doctrine to Father could be detrimental to the interests of the tribe, which we must protect under the ICWA.
We now turn to Father’s contention. He claims that the ICWA was not complied with because the notice that DCS sent contained misspellings of the paternal grandmother’s and great-grandmother’s first and last names. In the March 21, 2007, report the social worker spelled the paternal grandmother’s name “Myra R[.] H[.] W[.]” and the paternal great-grandmother’s name as “Rhoda H[.]” However, on the JV-135 form, the paternal great-grandmother’s name was spelled “Rhonda.” At the March 21, 2007, hearing the court reporter transcribed Father’s identification of his mother as “Mira R[.] H[.]” and his grandmother as “Rhoda H[.]” When counsel on behalf of DCS indicated they had “Rhonda” as the name, the court reporter took down Father’s response as “Rhoda knowledge.” Clearly this is a mistranscription. However, whether Father intended to say Rhoda no N or Roda no H or, less likely, Ronda no H, is not at all clear. What seems certain is that “Rhonda” was not correct. The record contains no further evidence that any exact spellings were provided.
In providing the notice required by the ICWA, “It is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the one[s] with the alleged Indian heritage. [Citation.] Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) “The social worker has ‘a duty to inquire about and obtain, if possible, all of the information about a child’s family history’ required by 25 Code of Federal Regulations part 23.11(d)(3). [Citation.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116; see also In re Louis S. (2004) 117 Cal.App.4th 622, 630; § 224.3, subd. (a); and Cal. Rules of Court, rule 5.481.) Notices containing misspelled names are insufficient for ICWA compliance because they deprive the tribe of the ability to conduct a meaningful inquiry. (In re Louis S., supra, 117 Cal.App.4th at p. 631.)
The problem with Father’s assertions about the spellings of the paternal grandmother’s first name and the last names is that they are based solely upon the court reporter’s transcription of the names. There is no indication that Father spelled the names for the court, nor is there any other indication in the record that the court reporter’s spellings are the correct spellings. More to the point, there is simply no evidence that the names were misspelled in the notice that was sent to the Blackfeet Tribe and the BIA. The appellant bears the burden of demonstrating the existence of reversible error on appeal. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.)
The same argument cannot be made for the spelling of the paternal great-grandmother’s first name however. All of the evidence in the record demonstrates that K.W.’s family identified her as Rhoda not Rhonda. The social worker spelled the name “Rhoda” in her report of her conversation with Father’s family. The court reporter transcribed Father’s statement as “Rhoda.” The notice sent by DCS gave the name as “Rhonda” and the letter returned from the tribe indicated that “Rhonda” could not be located on the tribal rolls. This is not simply a case of a misspelling but of the wrong name being listed. If indeed the paternal great-grandmother’s name was Rhoda or Roda and not Rhonda or Ronda, we are not convinced that the tribe could have located her on its rolls based upon the information provided. This is admittedly a close case and we are mindful of the need to avoid unnecessary delay in dependency proceedings. However, given that this is Father’s first appellate challenge to the ICWA notice, and given that Rhoda and Rhonda are different names, we feel constrained by the law to reverse the juvenile court’s order terminating Father’s parental rights for the limited purpose of ensuring compliance with the ICWA noticing requirements.
DISPOSITION
The order terminating Father’s parental rights is reversed. We order a limited remand as follows: The juvenile court is directed to order DCS to send notice in compliance with the ICWA and related federal and state law, specifically including the proper spellings of the names of K.W.’s ancestors. If, after proper notice, a tribe claims that K.W. is an Indian child, the juvenile court shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with the ICWA and all related federal and state law. If no tribe makes such a claim, the juvenile court shall reinstate the original order terminating Father’s parental rights.
We concur: RAMIREZ, P. J., RICHLI, J.