Opinion
B167354.
7-16-2003
MANUEL G., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Parties in Interest.
Ronald Muntean, for Petitioner. No appearance, for Respondent. Lloyd W. Pellman, County Counsel, and Kathleen Dougherty Felice, Senior Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services. Law Offices of Lisa E. Mandel and Lisa Huerta, for Real Party in Interest Roberta G.
INTRODUCTION
This petition arises out of a dependency proceeding involving the minor Roberta G. The childs father, Manuel G., filed the petition pursuant to rule 39.1B of the California Rules of Court to challenge the trial courts order terminating reunification services and setting the matter for a September 10, 2003 Welfare and Institutions Code section 366.26 hearing. The crux of the petition is that the Los Angeles County Department of Children and Family Services (Department) failed to give proper notice of the termination proceedings to certain Indian tribes, as required by the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) Department concedes the error. We therefore only briefly recite the dispositive facts.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Roberta G. (born in April 2002) was detained on June 25, 2002. In regard to petitioner, Department alleged substance abuse as well as neglect in permitting the childs mother, a known substance abuser, to have unmonitored access to the child.
Roberta G.s mother is not a party to this writ proceeding.
On several subsequent occasions, Department was informed of Roberta G.s possible Indian ancestry. The detention report recites petitioner showed the social worker the childs birth certificate which indicated she was Navajo. Petitioner also told the social worker that Roberta G.s mother had told him she was part Indian and from New Mexico. Lastly, petitioner told the social worker "he is Mexican American and the child is Mexican American Indian. [He] is not certain whether the child is registered."
At the June 25, 2002 detention hearing, the court ordered Department to investigate whether Roberta G. was American Indian and directed it to contact the Navajo tribe. The court repeated this order when Roberta G.s mother was later arraigned on the petition.
On July 16, 2002, a "Notice of Involuntary Child Custody Proceedings Involving an Indian Child" was sent by first class mail to the Division of Social Services, Navajo Children and Family Services, in Arizona. In violation of the statutory commands, the notice did not contain a copy of the petition and was not sent by registered mail with return receipt requested.
A July 18, 2002 report from Department indicated Roberta G.s mother had told the social worker "she was not registered with an Indian tribe, did not know if any of her family members were registered, but that she had been told by [her] maternal grandmother . . . that she [the mother] had Navajo blood." The social worker telephoned the "vital records section of the Navajo nation in Arizona" but learned that "using the mothers name & date of birth," the mother was not registered.
On July 22, 2002, the court sustained the section 300 petition and again ordered Department to give notice to the Navajo tribe.
On July 23, 2002, Department sent another notice to the Arizona Division of Social Services.
On August 15, 2002, the court conducted the contested disposition hearing and granted petitioner reunification services.
The March 2003 "Status Review Report" made no reference either to the notices sent in July 2002 or any responses to them. The second page of the report included the conclusory statement: "The Indian Child Welfare Act does not apply."
On May 14, 2003, the court found that petitioner was not capable of complying with the case plan and that there was no substantial likelihood his daughter could be returned to him within an additional six months. The court therefore terminated his reunification services and set the matter for a section 366.26 hearing on September 10, 2003. The court directed Department to furnish the court with a copy of any response(s) received to the July 2002 notices and to notify the Bureau of Indian Affairs of the upcoming hearing.
This petition followed.
DISCUSSION
The ICWA provides: "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior, Bureau of Indian Affairs] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding." (25 U.S.C. § 1912(a), italics added.)
The Indian status of the child need not be certain in order to trigger the notice requirement. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110.) The requirement comes into play whenever a state court has reason to believe the child may be of Indian ancestry. (Cal. Rules of Court, rule 1439(f)(5).) The ICWA unequivocally requires that notice to the Indian childs tribe includes both actual notice of the juvenile dependency proceedings and notice of the tribes right to intervene. (In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1421, 285 Cal. Rptr. 507.)
By letter dated June 19, 2003, Department concedes that the May 14, 2003 orders terminating reunification services and setting the matter for a section 366.26 hearing must be reversed because the notice requirements of the federal statute were not met. Department states: "As ICWA notice requirements were not met, the case should be remanded to give [Department] the opportunity to notify the Navajo Nation and the Area Director of The Bureau of Indian Affairs." The Department urges, however, that we reverse and remand "for the sole purpose of providing proper notice under ICWA with directions to reinstate the findings and orders of the juvenile court if no tribe indicates Roberta [G.] is an Indian child." (Ibid.) Department also requests we issue an immediate remittitur. Counsel for Roberta G. has filed a letter stating her agreement with Departments response. Counsel for petitioner has filed no opposition to Departments proposed disposition. We will follow Departments suggested approach.
We deem the Departments letter to be the respondents brief pursuant to California Rules of Court, rule 13(a)(2), and therefore consider the matter fully briefed.
DISPOSITION
Let a peremptory writ of mandate issue compelling respondent court: (1) to set aside its May 14, 2003 orders terminating reunification services and setting the matter for a section 366.26 hearing and (2) to order compliance with the notice provisions of the ICWA. If, after proper inquiry and notice, no response is received from a tribe indicating Roberta G. is an Indian child, all previous findings and orders shall be reinstated. If a contrary response is received, the trial court is to proceed in accord with all pertinent statutory provisions. The remittitur is to issue forthwith. (Rule 26(c)(1), Cal. Rules of Court.)
We concur: EPSTEIN, J., and CURRY, J.