Opinion
C043130.
11-26-2003
In re C.F. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. EDWINA B., Defendant and Appellant.
Appellant Edwina B., mother of the minors, appeals from an order entered after an appearance progress report wherein the juvenile court declined to place the minors in her home. (Welf. & Inst. Code, § 395.) Appellant contends the failure of the court and the Sacramento County Department of Health and Human Services (DHHS) to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) requires reversal. We agree but reject appellants contention that the juvenile courts orders are void.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
In July 1997 DHHS filed section 300 petitions, alleging the minors were at risk because of parental substance abuse. The detention hearing report indicated the parties had no Indian heritage.
The minors were initially detained. Thereafter, they were placed in appellants care and custody, and reunification services were ordered. On January 15, 1998, DHHS filed section 387 petitions on behalf of the minors, alleging the previous orders had been ineffective as appellant continued to use illegal drugs, was emotionally unstable, and had permitted the minors to have contact with her husband in violation of the courts order.
During the January 16, 1998, detention hearing, the court asked if there was any American Indian heritage, to which appellants counsel replied, "No, your Honor." At the conclusion of the hearing, however, appellants counsel told the court, "The mother does have some Indian. Her father was one-quarter Cherokee." The court responded, "Thank you. I will make a note of that." The minute order for the detention hearing stated the "[p]arents have been identified as being of Native American Heritage and the DHHS is to comply with ICWA requirements" and indicated the mother was Cherokee.
The social workers report prepared for the jurisdiction hearing stated: "The [Bureau] of Indian Affairs was contacted with a request for confirmation of the childrens status as Indian. As of dictation, confirmation has not been received." All of the social workers reports prepared thereafter indicate the ICWA does not apply. There was no further mention of the applicability of the ICWA or adequacy of notice provided in accordance therewith.
The minors have since continued as dependents of the juvenile court. On November 9, 2000, appellant requested her case be transferred to Hawaii, and on December 5, 2000, appellant informed the court she had moved there. At the August 27, 2002, section 366.3, subdivision (d) review hearing, DHHS requested and the court authorized Hawaii officials to perform an assessment to determine the suitability of placement in appellants home. After the December 26, 2002, appearance progress report, however, the court continued the minors as dependents and declined to place the minors in appellants home.
DISCUSSION
Appellant contends, and DHHS concedes, there is no evidence in the record that notice of the proceedings and of the right to intervene was given to all the appropriate Indian entities, and thus, there is insufficient evidence to determine whether the ICWA applies. We accept the concession and reverse to permit compliance with the ICWA.
We reject DHHSs contention that appellants failure to "address the juvenile courts order denying placement on its merits" renders her appeal "abandoned" and "moot." Appellant adequately raised the issue of compliance with the ICWA in her opening brief. To the extent DHHS contends that raising only an ICWA issue is inadequate to challenge a juvenile court order, it cites no authority for such a proposition.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1912.) The juvenile court and the welfare agency have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 1439(d).) An Indian child is "an unmarried person under the age of 18 who: [¶] (A) is a member of an Indian tribe, or [¶] (B) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (Cal. Rules of Court, rule 1439(a)(1).)
If there is reason to know the child may be a member of, or eligible for membership in, a federally recognized tribe or may be of Indian ancestry, the appropriate box on the petition must be checked. (Cal. Rules of Court, rule 1439(d)(1).) Under the ICWA, at any time after the petition is filed, if the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe or to the Bureau of Indian Affairs if the childs tribal affiliation is not known. (25 U.S.C. § 1912(a).) The California Rules of Court also require notice if the court has reason to know the child may be an Indian child. (Cal. Rules of Court, rule 1439(f).) "Determination of tribal membership or eligibility for membership is made exclusively by the tribe." (Cal. Rules of Court, rule 1439(g).) "[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child. [Citation.]" (In re Desiree F. (2000) 83 Cal.App.4th 460, 470 (Desiree F.).) Thus, the Indian status of a child need not be certain or conclusive to trigger the ICWAs notice requirements. (Id. at p. 471.)
Here, the social worker had information that the minors may have Cherokee Indian ancestry through their mother. This information was sufficient to trigger the notice provisions of the ICWA, requiring notice "to all tribes of which the child may be a member or eligible for membership." (Cal. Rules of Court, rules 1439(f)(3), 1439(d)(2).) The Federal Register, which lists the recognized Indian entities, contains three Cherokee entities: the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians of North Carolina, and the United Keetoowah Band of Cherokee Indians of Oklahoma. (61 Fed.Reg. 58211 (Nov. 13, 1996).) Therefore, notice to the three federally registered Cherokee tribes was required. (See In re Marinna J. (2001) 90 Cal.App.4th 731, 736-737, 740 (Marinna J.).)
There is no indication in the record that the social worker made any attempt to notify the Cherokee tribes. Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424;Desiree F., supra, 83 Cal.App.4th at p. 472.) Consequently, we must reverse the judgment and remand the matter to the juvenile court for compliance with the notice requirements of the ICWA.
Appellant claims that orders made by the juvenile court prior to compliance with the ICWA notice are void. We disagree. No one appealed the prior orders on the ground that DHHS failed to notice the Cherokee tribes or that other ICWA requirements were not met. Those orders are now final. While compliance with the provisions of the ICWA cannot be waived (Marinna J., supra, 90 Cal.App.4th at p. 739), the remedy for failure to comply is a petition to invalidate (25 U.S.C. § 1914). The petition may be brought by the Indian child, his or her parent, or the Indian tribe. (Ibid.) Invalidation may be ordered if compliance with the notice, placement, waiting period, and evidentiary requirements of the ICWA has not occurred. (Ibid .) However, this invalidation process means that the orders are not void but merely voidable at the election of the tribe or other petitioning party. (See Desiree F., supra, 83 Cal.App.4th at pp. 475-476.) More importantly, until the juvenile court has determined whether the ICWA applies and has found, based upon tribal response or other evidence, that the minor is an Indian child, the invalidation procedure does not apply. (25 U.S.C. § 1914.)
DISPOSITION
The December 26, 2002, orders of the juvenile court are reversed, and the matter is remanded to the juvenile court with directions to order DHHS to provide each of the three Cherokee tribes with proper notice of the proceedings under the ICWA. If, after receiving notice under the ICWA, no tribe indicates the minor is an Indian child within the meaning of the ICWA, then the juvenile court shall reinstate the December 26, 2002, orders. If, on the other hand, a tribe responds affirmatively, then the court must consider the issue pursuant to the procedural and evidentiary requirements of the ICWA.
We concur: BLEASE, Acting P.J., ROBIE, J.