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In re Charles J.

California Court of Appeals, Second District, Fifth Division
Mar 11, 2008
No. B202569 (Cal. Ct. App. Mar. 11, 2008)

Opinion


In re CHARLES J., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CHRISTINA D., Defendant and Appellant. B202569 California Court of Appeal, Second District, Fifth Division March 11, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court No. CK56222 of Los Angeles County, Valerie Skeba, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

John Cahill, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel for Plaintiff and Respondent.

TURNER, P. J.

I. INTRODUCTION

Christina D., the mother, appeals from a July 19, 2007 reinstated parental rights termination order (Welf. & Inst. Code, § 366.26) following a limited remand for compliance with the Indian Child Welfare Act. (25 U.S.C. § 1901 et seq.) The mother contends there was, once again, noncompliance with the Indian Child Welfare Act notice requirements. We affirm the parental rights termination order.

All further statutory references are to the Welfare and Institutions Code except where otherwise noted.

II. BACKGROUND

On July 13, 2006, the juvenile court terminated the mother’s parental rights. She appealed. On January 31, 2007, we reversed the parental rights termination order and remanded the matter for the sole purpose of complying with the notice provisions of the Indian Child Welfare Act. (In re Charles J. (Jan. 31, 2007, B193793) [nonpub. opn.].) The parties had stipulated to a reversal with directions that the Department of Children and Family Services (the department) give notice to the Peoria tribes, the Bureau of Indian Affairs in Sacramento, and the Secretary of the Interior.

Following remand, on April 6, 2007, “Notice of Involuntary Child Custody Proceedings for an Indian Child” (notice) was sent by certified mail to the Bureau of Indian Affairs in Sacramento, the Bureau of Indian Affairs in Washington, D.C., and the Peoria Tribe of Indians of Oklahoma. There is no evidence in the record of any return receipt. In a letter dated April 9, 2007, the Peoria Tribe of Indians of Oklahoma stated that based on the information provided, the mother and maternal grandmother were not enrolled members of the tribe. However, the response stated, “To determine the possibility of eligibility for enrollment more information is required ([i.e.,] family tree, full legal name listing first, middle and last names).” On May 21, 2007, the juvenile court found Indian Child Welfare Act notice had not been given as required by law.

A second notice was sent by certified or registered mail, return receipt requested, on June 15 or 18, 2007. The notice stated that, in addition to Peoria heritage, the mother also might have Cherokee ancestry. Return receipt was received from: the Bureau of Indian Affairs in Sacramento; the Peoria Tribe of Indians of Oklahoma; the United Keetowah Band of Cherokee Indians; and the Eastern Band of Cherokee Indians. In a letter dated June 27, 2007, the Cherokee Nation stated it had no relationship with the child.

On June 21, 2007, a department social worker, Beth Ellis, met with the mother and the maternal grandmother “to review” the family’s Indian heritage. (See § 224.3, subd. (c).) A third notice was sent by certified mail on June 27, 2007. Return receipts were received from: the Bureau of Indian Affairs in Sacramento; the Peoria Tribe of Oklahoma; the Cherokee Nation of Oklahoma; the United Keetoowah Band of Cherokee Indians; and the Eastern Band of Cherokee Indians.

On July 19, 2007, the juvenile court found there had been proper notice to the Indian tribes and the Indian Child Welfare Act did not apply. The juvenile court reinstated the parental rights termination order. The mother was not present at the hearing but was represented by counsel. The mother’s counsel raised no objection.

III. DISCUSSION

A. Overview

The mother claims the parental rights termination order must be reversed a second time because the department failed to provide proper notice as required by the Indian Child Welfare Act. We address both the forfeiture issues and the merits. We affirm.

B. Forfeiture

The department cites two cases from the Fourth District Court of Appeal for the proposition the mother has forfeited her notice objection by failing to raise it in the juvenile court following remand for the express purpose of Indian Child Welfare Act compliance. (In re Amber F. (2007) 150 Cal.App.4th 1152, 1155-1156; In re X.V. (2005) 132 Cal.App.4th 794, 800-805 .) We decline to follow the cited cases. We conclude that applying the forfeiture rule in this instance is inconsistent with the Legislative intent and mandate concerning Indian child custody proceedings. (See § 224; 25 U.S.C. §§ 1901, 1902.) The notice requirement exists for the benefit of the child and the Indian tribes. (In re P.A. (2007) 155 Cal.App.4th 1197, 1210; In re Gerardo A. (2004) 119 Cal.App.4th 988, 993-994; In re H.A. (2002) 103 Cal.App.4th 1206, 1210; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Moreover, the juvenile court’s duty to comply with the notice requirement is sua sponte. (In re Nikki R. (2003) 106 Cal.App.4th 844, 849; In re H.A., supra, 103 Cal.App.4th at p. 1211.) Consequently, a lack of notice claim is not forfeited by a parent’s failure to raise it in the juvenile court. (In re Nikki R., supra, 106 Cal.App.4th at p. 849; In re Jennifer A. (2002) 103 Cal.App.4th 692, 706; In re Samuel P., supra, 99 Cal.App.4th at p. 1267; In re Marinna J. (2001) 90 Cal.App.4th 731, 733, 739; but see In re S.B. (2005) 130 Cal.App.4th 1148, 1159-1160 [parent can waive his or her independent right to invalidate prior actions for lack of notice].) As the Court of Appeal explained in In re Samuel P., supra, 99 Cal.App.4th at page 1267: “The purposes of the notice requirements of the [Indian Child Welfare Act] are to enable the tribe to determine whether the child is an Indian child and to advise the tribe of its right to intervene. The notice requirements serve the interests of the Indian tribes ‘irrespective of the position of the parents’ and cannot be waived by the parent. [Citation.]” We conclude a parent cannot forfeit a lack of notice claim upon a remand limited to compliance with the Indian Child Welfare Act.

C. Sufficiency Of The Evidence

Pursuant to section 224.2, subdivision (a)(5), as amended effective January 1, 2007 (Stats. 2006, ch. 838, § 31), the Indian Child Welfare Act notice must include specified identifying information if known. (See also 25 C.F.R. § 23.11(a) & (d) (2007); 25 U.S.C. § 1952.) The department has an affirmative duty to inquire of relatives to gather this information. (§ 224.3, subd. (c).) The trial court’s finding that Indian Child Welfare Act notice was adequate is reviewed for substantial evidence. (In re J.T. (2007) 154 Cal.App.4th 986, 991; In re E.H. (2006) 141 Cal.App.4th 1330, 1333.)

The mother argues the June 15, 2007 notice failed to comply with section 224.2, subdivision (a)(5). We need not consider this contention because, as discussed below, the mother properly concedes the required notice was subsequently given. With respect to the June 27, 2007 notice, the mother concedes, “[T]his third . . . notice contain[ed] full information on relatives who are claimed to have Native American heritage [and] was sent to the Cherokee tribes and the Peoria tribe on June 27, 2007 . . . .” Substantial evidence supports that concession.

The mother argues, however, that under section 224.3, subdivision (e)(3) and California Rules of Court rule 5.664(f)(6) (repealed, eff. Jan. 1, 2008), the tribes had 60 days to respond, and the juvenile court’s July 19, 2007 findings were premature. The mother concludes: “The finding that the [Indian Child Welfare Act] was not applicable to this case was erroneous, because the tribes were given insufficient time to determine if [the child] was enrolled or eligible to be enrolled in any tribe. No response from any tribe to the . . . notice mailed on June 27, 2007, is a part of the record. Unless a tribe has participated in or expressly indicated no interest in the proceedings, the failure to comply with the [Indian Child Welfare Act] notice requirements constitutes prejudicial error and requires a remand to the juvenile court. [Citations.]”

Section 224.3, subdivision (e)(3) states: “If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that the Indian Child Welfare Act . . . does not apply to the proceedings, provided that the court shall reverse its determination of the inapplicability of the Indian Child Welfare Act and apply the act prospectively if a tribe or the Bureau of Indian Affairs subsequently confirms that the child is an Indian child.” Consistent with section 224.3, subdivision (e)(3), the juvenile court should make the Indian Child Welfare Act applicability finding at a hearing held not less than 60 days after the notices have been sent. (Jennifer T. v. Superior Court (Dec. 28, 2007, mod. Jan. 24, 2008, B197412) __ Cal.App.4th __, __ [71 Cal.Rptr.3d 293, 299]; In re Justin S. (2007) 150 Cal.App.4th 1426, 1437.) Here, the juvenile court failed to observe the 60-day waiting period.

We have taken judicial notice of the juvenile court file in this matter. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) We find that more than 60 days has passed since the Indian tribes and the Bureau of Indian Affairs were given notice of the juvenile court proceeding; further neither a tribe nor the Bureau of Indian Affairs has indicated that the child is an Indian child. The contention concerning the failure to wait the mandatory 60 days is now moot. (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1417; In re Cassandra B. (2004) 125 Cal.App.4th 199, 210.) Therefore, we affirm the order terminating the mother’s parental rights.

IV. DISPOSITION

The July 19, 2007 order terminating parental rights is affirmed.

We concur: ARMSTRONG, J., KRIEGLER, J.


Summaries of

In re Charles J.

California Court of Appeals, Second District, Fifth Division
Mar 11, 2008
No. B202569 (Cal. Ct. App. Mar. 11, 2008)
Case details for

In re Charles J.

Case Details

Full title:LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Mar 11, 2008

Citations

No. B202569 (Cal. Ct. App. Mar. 11, 2008)