Opinion
F042223.
7-22-2003
In re A.S., a Person Coming Under the Juvenile Court Law. KINGS COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ANTHONY D., Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Denis A. Eymil, County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Anthony D. appeals a second time from the order terminating his parental rights. In an earlier opinion, case No. F039101, this court reversed the order terminating Anthonys parental rights on the basis that the Indian Child Welfare Act (ICWA), title 25 United States Code section 1912 et seq. notice requirements had not been satisfied. Anthony contends the Kings County Human Services Agency (the Agency) again failed to serve proper notice under the ICWA.
References to code sections are to title 25 of the United States Code unless otherwise specified.
Unfortunately, Anthony is correct. Despite the requirements of statutory and case law, as well as the law of the case, the Agency failed to comply with the ICWA notice requirements. Under the circumstances, we have no choice but again to reverse the order terminating Anthonys parental rights.
FACTUAL AND PROCEDURAL SUMMARY
The opinion in F039101 was issued on May 6, 2002. As set forth in that opinion, A.S. was adjudged a dependent of the Kings County Superior Court in May 1999. By the spring of 2001, A.S. had been unable to reunify with either parent, leading the juvenile court to schedule a hearing pursuant to section 366.26 of the Welfare and Institutions Code (.26 hearing). In August 2001, Anthony alleged new evidence was available that his maternal grandparents were members of a Cherokee tribe in Oklahoma.
The Agency sent a notice of the .26 hearing to "Cherokee Nation of Oklahoma." The notice sent to the Cherokee Nation was standard form JV-280 promulgated by the Judicial Council of California. The Agency received a written response stating that based upon the information provided, A.S. could not be traced in the tribal records. At the .26 hearing on August 31, 2001, the juvenile court determined that the ICWA did not apply and proceeded to terminate Anthonys parental rights.
Anthony appealed the August 2001 order terminating his parental rights, which appeal was resolved by our opinion in F039101. In that opinion, we noted that there are three federally recognized Cherokee tribes. We concluded that the Agency was required to give notice under the ICWA not only to the Cherokee Nation of Oklahoma but also to the United Keetoowah Band of Cherokee located in Oklahoma, and conceivably the Eastern Band of Cherokee Indians of North Carolina. We also stated in that opinion that the form of notice used by the Agency did not suffice for purposes of the ICWA.
Our opinion in F039101 specifically states that the ICWA is not satisfied unless there is strict adherence to section 1912(a) and the California Rules of Court, rule 1439(f)(1) regarding the form of notice. We specifically noted that compliance with the notice requirements of the ICWA "requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency," and the filing of a copy of the notice and proof of its service, along with the return receipt with the court. The order terminating Anthonys parental rights was reversed and the matter remanded with specific directions to serve notice pursuant to the ICWA on the tribes, the parents and the Secretary of the Interior or the Bureau of Indian Affairs (BIA) of the .26 hearing.
References to rules are to the California Rules of Court unless otherwise specified.
After remand, the Agency apparently sent some type of notice to the three federally recognized Cherokee tribes by registered mail, return receipt requested, of a .26 hearing scheduled for September 25, 2002. The record does not include the actual notice sent to any of the three tribes. The proof of service indicates that a notice of hearing was served on the three tribes by registered mail. No other document is listed on the proof of service as having been served. The notice served on other interested parties, including A.S., is Judicial Council form JV-280.
On September 25, 2002, counsel for Anthony asked that new counsel be appointed to represent Anthony because she had previously represented A.S.s prospective adoptive parents. New counsel was appointed for Anthony and a contested .26 hearing date was set. The deputy county counsel asked the juvenile court to find that the ICWA did not apply. When the court initially declined to do so because Anthonys counsel was not present, the deputy county counsel complained about the cost of serving ICWA notices by registered mail, return receipt requested, and opined that Anthony "knows very well his child is not an Indian child." Consequently, the juvenile court trailed the matter to later that day to permit new counsel to be present.
Later that day, Anthonys new counsel informed the juvenile court that he was not prepared to argue the ICWA issue. Counsel also informed the court that Anthony had not been interviewed by the Agency about his Indian heritage. The deputy county counsel stated that the only reason the first termination of parental rights order had been reversed is because the Agency had not served all three federally recognized tribes with notice of the .26 hearing. The court noted that it did not have a form "SOC 318" before it because the form had not been attached to the proof of service. The deputy county counsel stated it would be attached in "further cases." There was no indication from the social worker, or the deputy county counsel, that form SOC 318 was sent to any tribe as part of the notice after remand, nor was there any affirmative representation that any other document was sent to the tribes. Over objection from Anthonys counsel, the juvenile court found that the ICWA did not apply but did order that a form SOC 318 be provided to Anthonys new counsel so he could review it with his client and perhaps provide further ancestral information.
At the contested .26 hearing on January 3, 2003, Anthony attempted to testify regarding his Indian heritage. The court juvenile ruled that the issue of Indian heritage could not be raised. Anthonys parental rights were terminated for the second time on January 3, 2003.
Anthony appeals from the January 3, 2003, order terminating his parental rights contending that the Agency failed to comply with the ICWA notice requirements and that the juvenile court erred in ruling on the ICWA issue, over counsels objection, without affording new counsel an opportunity to prepare.
DISCUSSION
There is virtually no evidence in the record that the Agency complied with this courts opinion in F039101 by serving the three federally recognized tribes, the BIA and Anthony with the correct ICWA notices. Although the deputy county counsels comments during the hearing after remand indicate that she did not thoroughly read our earlier opinion in F039101, we stated in that opinion that the form of notice used by the Agency was defective and that the failure to notice all three federally recognized Cherokee tribes invalidated the notice.
We must presume the standard forms promulgated by the State of California, Health and Welfare Agency, were not prepared and served after remand because no such forms appear in the record, the proofs of service do not list these forms as having been served, the juvenile court noted that it did not have any such forms before it and there was no representation on the record that these forms were, in fact, served after remand.
Nearly three years ago this court published In re Desiree F. (2000) 83 Cal.App.4th 460 (Desiree F.) in which we were required to invalidate numerous orders in a juvenile dependency case because of the failure of the Kings County Human Services Agency to comply with the ICWA notice requirements. (Id. at pp. 477-478.) We noted therein that the failure to comply with ICWA notice requirements was particularly egregious in light of the fact that "compliance requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency, for the benefit of county welfare agencies." (Id. at p. 475.) We also specifically stated in Desiree F. that all tribes in which the child may be eligible for membership must be noticed. (Id. at pp. 475-476.)
Despite the publication of the Desiree F. opinion in August 2000, one year later, in conjunction with A. S.s case, the Agency failed to use the standard forms to notify the tribes and failed to notify all tribes in which A.S. may be eligible for membership. This failure on the part of the Agency led to this courts opinion in F039101 reversing the August 31, 2001, order terminating Anthonys parental rights and remanding the matter for further hearings consistent with the opinion. Our opinion in F039101 specifically stated that the form of notice used by the Agency in A.S.s case did not suffice for ICWA purposes, and we directed the Agency, again, to the standard forms promulgated by the state.
We find the failure to comply with the ICWA even more egregious in A.S.s case than the failure to comply in Desiree F. The deputy county counsel assigned to A.S.s case is the same person who handled the Desiree F. case. After our decision in Desiree F., this deputy county counsel, in particular, should have been fully aware of the notice requirements of the ICWA.
On remand, the Agency failed yet again to comply with the ICWA notice requirements.
ICWA Notice Requirements
Once the Agency was aware that A.S. may be an Indian child, it was obligated to comply with section 1912(a) and notify the tribe or, if the tribe was unknown, the Secretary of the Interior, of the pending proceedings. (Desiree F., supra, 83 Cal.App.4th at pp. 469-470.) The Indian status of the child need not be certain to invoke the notice requirements of the ICWA. (Id. at p. 471.)
The affirmative duty of the Agency and the juvenile court to inquire whether the children may be Indian children additionally is set forth in rule 1439(d). The Department of the Interior Guidelines and rule 1439 provide that the notice given to the Secretary of the Interior shall be given to the BIA. (Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979)) (Guidelines); rule 1439(e).)
Section 1912(a) provides that in any involuntary proceeding concerning a child that may be an Indian child, notice of the pending proceedings and the right to intervene shall be given to the parents of the child and the Indian tribes to which the child may belong. The Guidelines specify that in any involuntary child custody proceeding, the ICWA notice shall be sent to the tribes and to the parents. (Guidelines, p. 67588.) The commentary to this provision of the Guidelines states that the ICWA requires notice to the parents of their rights under the ICWA so that they can exercise their rights in a timely manner. (Id. at p. 67589.) Although the Guidelines are not binding on this court, they are entitled to great weight. (Desiree F., supra, 83 Cal.App.4th at p. 474.) The better practice would be to serve the ICWA notice on the parents, in this case Anthony, as well as the tribes and the BIA.
Form of Notice
The record reflects that after remand, on July 30, 2002, the social worker prepared and served some form of notice on the three federally recognized Cherokee Indian tribes and the BIA. The proof of service specifies only that a notice of the .26 hearing was sent to the tribes; the notice itself was not attached. To satisfy the notice requirements under the ICWA, standard form SOC 319 promulgated by the state must be completed and served on the tribes, along with a copy of the Welfare and Institutions Code section 300 petition. (In re H.A. (2002) 103 Cal.App.4th 1206, 1211.) The Guidelines further specify that the proof of service of the notice, copies of the notice, and of any other document served on the tribe, as well as return receipts, shall be filed with the court. (Guidelines, p. 67588.) This court has held in a published opinion that the proof of service, documents served and return receipts must be filed with the juvenile court. (In re H.A., supra, 103 Cal.App.4th at p. 1215.) We also reminded the Agency in our opinion in F039101 that a copy of the notice should be attached to the proof of service and filed with the juvenile court.
Copies of standard forms SOC 318 and SOC 319 promulgated by the State of California Health and Welfare Agency are attached as appendix A, post.
We cannot and will not presume service of the required notice and other documents on the tribes when the proofs of service have specific boxes to check indicating that the Welfare and Institutions Code section 300 petition or other documents are being served, neither the box denoting the petition or other documents is checked, no listing of documents served was set forth in the proof of service other than that an unspecified notice was served, and no copy of the notice is attached to the proof.
The Code of Federal Regulations sets forth specific information that is to be provided to the tribes in order to enable them to determine if a child is an Indian child. (25 C.F.R. § 23.11.) Both the Agency and the juvenile court have an affirmative duty to inquire whether a child is or may be an Indian child (rule 1439(d)) and this information is required to be provided to the tribes if available. (25 C.F.R. § 23.11(d).) Among the information that must be provided to tribes, if available, is the childs name, birthdate and birthplace (city and state); all names known and current and former addresses of the childs biological mother, biological father, maternal and paternal grandparents and great-grandparents, including maiden, married, or former names and aliases, birthdates, and places of birth or death; and any other identifying information. (25 C.F.R. § 23.11(d).) A diligent effort must be made to provide the tribes with this information. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 705.)
Form SOC 318 is the form for setting forth all the information regarding a childs ancestry that is required by the Code of Federal Regulations and that must be provided to tribes, if available, in order to assist them in making a determination as to whether a child is an Indian child. (25 C.F.R. § 23.11(d).) That form specifically states that if any requested information is unknown or not applicable, the form should so specify for each item of information requested. Although form SOC 318 may have been prepared and served upon tribes in this case, there is no evidence of this in the record.
The failure of the Agency to comply with section 1912(a) is prejudicial error. (Desiree F., supra, 83 Cal.App.4th at p. 472.) The juvenile court was obligated to stay all proceedings for a minimum of 10 days after receipt of proper notice by the tribe or the BIA. (25 U.S.C. § 1912(a).) Given the absence of proper notice, the juvenile court erroneously proceeded to terminate Anthonys parental rights. The failure to provide proper notice requires this court to invalidate actions taken in violation of the ICWA and remand the case. (Desiree F., supra, 83 Cal.App.4th at pp. 471-472.)
Any responses received to inadequate ICWA notices cannot be determinative of the childs Indian status. At a minimum, a diligent effort must be made to obtain the information needed to complete forms SOC 318 and SOC 319 fully. (In re Jennifer A., supra, 103 Cal.App.4th at p. 705.) If that information is unknown after diligent inquiry is made, the forms should so state. The proofs of service should identify the documents that are served in conjunction with form SOC 319. At a minimum, the proofs of service should reflect service of forms SOC 319 and SOC 318 and copies of the Welfare and Institutions Code section 300 petition on all three federally recognized tribes, the BIA, Anthony, and Anthonys counsel, by first class mail, return receipt requested. The proofs of service and all documents served, as well as the return receipts and any responses, must be filed with the juvenile court. (In re H.A., supra, 103 Cal.App.4th at p. 1215.)
On remand, the juvenile court must direct the Agency to serve completed form SOC 319, SOC 318, a copy of the Welfare and Institutions Code section 300 petition and any other required attachments and information specified in the Code of Federal Regulations, by way of registered mail, with a return receipt requested. (Desiree F., supra, 83 Cal.App.4th at pp. 475-476; In re H.A., supra, 103 Cal.App.4th at p. 1215.) All proceedings must be stayed for a minimum of 10 court days after receipt of proper notice and for an additional 20 days if so requested by the tribes or the BIA. (In re H.A., supra, 103 Cal.App.4th at p. 1213; Guidelines, p. 67588.)
After proper notice is given, if any tribe, or the BIA, comes forward and asserts that A.S. is an Indian child, the juvenile courts judgment terminating Anthonys parental rights is deemed vacated for failure to comply with the ICWA. (25 U.S.C. §§ 1912(a), 1914.)
If, after proper notice is given to the tribes and the BIA, and the requisite time period has expired, neither an Indian tribe nor the BIA has come forward and identified A.S. as an Indian child or requested an extension of time, or sought to intervene in these proceedings, we are not compelled to invalidate the judgment terminating Anthonys parental rights. (Desiree F., supra, 83 Cal.App.4th at pp. 471-472.)
Conclusion
We are not unaware that over four years have passed since A.S. was adjudged a dependent of the court. That we are required to reverse and invalidate prior orders of the Kings County court is, unfortunately, the result of the egregious failure of the Agency and the juvenile court to comply with the clear provisions of the ICWA and this courts prior opinion in F039101. In Desiree F. we expressed the hope that Kings County would promptly give the requisite statutory notice in all future cases. (Desiree F., supra, 83 Cal.App.4th at p. 477.) A.S.s case, sadly, presents abundant evidence that this courts decisions, as well as statutory requirements, are ignored to the detriment of the children the Agency and juvenile court are charged with protecting. Should there be any failure, without a reasonable excuse, to comply promptly and fully with the dictates of this opinion, we strongly suggest the juvenile court impose sanctions against the Agency, county counsels office and the social worker and deputy county counsel assigned to A.S.s case.
DISPOSITION
The order dated January 21, 2003, terminating parental rights is reversed. On remand, the juvenile court first is to insure that proper notice has been given under the ICWA. The juvenile court then is to determine whether any tribe has concluded that A.S. is eligible for membership in the tribe. Provided proper notice has been given as detailed herein, and no tribe has concluded A.S. is eligible for membership, the juvenile court shall reinstate its order as to Anthony. Alternatively, the juvenile court shall proceed according to the dictates of the ICWA.