Opinion
D041084.
7-16-2003
In re T.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.C., Defendant and Appellant.
S.C., (the mother) appeals a judgment terminating her parental rights to her son, T.C. She contends the judgment is invalid because proper notice was not given under the Indian Child Welfare Act (ICWA) and the juvenile court erred in not determining whether the ICWA applied to the dependency proceedings. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 28, 2000, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of then 17-month-old T.C., five-year-old F.C. and eight-year-old R.C. under Welfare and Institutions Code section 300, subdivision (b), alleging the family home was filthy and unsafe.
F.C. and R.C. are not subjects of this appeal.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
The report for the detention hearing stated: "In a previous case of this family, it has been found by the court that ICWA does not apply as to the minors." The report also stated:
"The mother is affiliated with the Santa Ysabel Band of Indians, but that tribe does not recognize the minors as eligible for membership. The mother has been accompanied to court, in the last case, by an ICSS [Indian Child Social Services] worker from Southern Indian Health due to the mothers connection with the Sycuan Band of Indians which is through the maternal grandmother, now deceased."
The report indicated the mother and father had been married in a Lakota Indian ceremony. On a paternity inquiry, the mother indicated the fathers Indian heritage is "Blackfoot [from] Montana."
At the detention hearing on September 28, 2000, the court found the ICWA does not apply in the case and ordered the children detained out of the family home and visitation for the parents. On October 5, 2000, the Agency amended the petition, adding that T.C. and F.C. had tested positive for methamphetamine. A second detention report stated:
"The [ICWA] has not applied to these minors in a previous case. The mother is described as a member of the Santa Ysabel Band of Indians, but that tribe does not recognize the minors as eligible for membership. She also has an affiliation with the Sycuan Band of Indians, which is undefined. . . ."
In the jurisdictional/dispositional report the social worker stated the mother identifies herself as a member of the Santa Ysabel Band.
At the jurisdictional/dispositional hearing on October 23, 2000, the court asked why the ICWA does not apply. When the Agency stated the children were not eligible for membership with the Santa Ysabel Band, the court responded the issue "just looks like its shouting for attention, but if youre satisfied." No one indicated anything further was required under the ICWA and the parents submitted to the allegations. The court found them true, removed custody from the parents and ordered them to participate in reunification services. A copy of the minute order was sent to the Indian Child Social Services (ICSS) office in Alpine.
In a report for the six-month review hearing, the Agency again stated the ICWA does not apply. A letter dated April 4, 2001, from the Santa Ysabel tribal spokesman stated the Santa Ysabel Band recognizes the children to be the children of the mother, who is a tribal member. The tribal secretary told the social worker she had the childrens applications for tribal membership, and the enrollment committee would meet in a month to a month and a half. The ICSS social worker stated she did not believe the children have sufficient "blood quantum" for enrollment.
At the six-month review hearing on April 23, 2001, the court continued T.C. in foster care and continued services. A copy of the order was sent to the ICSS office.
In the 12-month report, the social worker stated the ICWA may apply in the case. No answer had been received to inquiries asking the Santa Ysabel band if the children were eligible for enrollment. On September 28, 2001, the Agency sent by, registered mail return receipt requested, to the Bureau of Indian Affairs, the Southern Indian Health Council and the Indian Health Counsel, the State of California Health and Welfare Agency Department of Social Services Form SOC 319, "Notice of Involuntary Child Custody Proceedings Involving Indian Child," that includes notice of the proceedings and the tribes right to intervene.
At the 12-month hearing on November 5, 2001, the court continued T.C. in foster care and continued services for the parents. A copy of the order was mailed to the ICSS office.
In the 18-month review report on April 4, 2002, the social worker stated the ICWA does or may apply. She said the "tribe must state that the children are eligible for membership in order for the ICWA to apply. The tribe has been made aware of this but have sent no further correspondence. This means the ICWA does not apply in this case."
For the May 7, 2002 18-month hearing, the social worker reported receiving a letter from the Santa Ysabel Band on April 24, stating the children "are not eligible for membership in the tribe and . . . the tribe does not wish to intervene." A representative of Southern Indian Health was present at the hearing. The court found returning T.C. to the parents custody would be detrimental, continued him a dependent child, terminated reunification services and set the matter for a section 366.26 hearing.
In an assessment report filed August 29, 2002, the social worker stated although the cases history indicates the ICWA has not applied, on August 13 a representative of Southern Indian Health called to state "as of 8/2/2002 the . . . children will be recognized by the Santa Ysabel Band of Diegueno Indians. . . ." Attached to the report was a fax sent from the enrollment chairwoman of the Santa Ysabel Band on August 14, stating the mother is an enrolled member and:
"[R.C.], [T.C.] and [F.C.] are recognized members of the Santa Ysabel Band of Diegueno Indians.
"The above children have been raised on the reservation since birth and they know reservation life well.
"It is the tribes request that the children be placed in guardianship and no adoption take place, since the mother has been working to get herself and her home ready to take full responsibility for her children."
At a hearing on September 17, 2002, the court asked for clarification on the ICWA issue, noting the Santa Ysabel Band had taken inconsistent positions on whether it would participate. A representative from Southern Indian Health was present. The Agencys attorney stated the children were initially not eligible for membership, but have since become eligible and the ICWA would apply. He acknowledged the tribes preference for guardianship.
On October 1, 2002, at a hearing on the fathers visitation and the foster parents applications for defacto parent status, the court referred to two letters. One was from the Santa Ysabel Band, requesting the foster parents not be allowed in the hearings. The other, signed by Lanae Pfiffner, ICSS caseworker from Southern Indian Health, requested the foster parents not be present at visits and stated because the Santa Ysabel Band has recognized the children as members, "it is our wish that the courts will declare that the [ICWA] does apply and they pursue guardianship rather than adoption." At the hearing, Ms. Pfiffner expressed concern that the ICWA issue had not been addressed and the childrens counsel questioned the tribes inconsistent positions. When the court asked if the children are tribal members, Ms. Pfiffner said that they are not enrolled and are not eligible for membership, but that they are recognized members. The mother stated the tribe was voting on a casino and there was an issue about the required blood quantity for enrollment. The Agencys counsel asked the court to confirm that the ICWA did not apply, but the court did not address the issue.
At a pretrial status conference on October 21, 2002, Ms. Pfiffner was identified by the court officer as the "ICWA representative" and by the mothers counsel as "the tribe representative." The Agency protested the ICWA did not apply because the tribe would not say the children were eligible for membership and asked for an offer of proof as to Ms. Pfiffners testimony. The mothers counsel said Ms. Pfiffner had relevant information as the tribal social worker and had observed visitation.
At the section 366.26 hearing on October 28, 2002, the parents, paternal grandmother and Ms. Pfiffner were present. The parties had resolved that the permanent plans for R.C. and F.C. would be guardianship under the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A). The Agency continued to recommend adoption for T.C. The parents submitted on the reports and no one raised the ICWA issue. The court found by clear and convincing evidence T.C. was likely to be adopted if parental rights were terminated and none of the exceptions to adoption in section 366.26, subdivision (c)(1) were present in his case. The court found adoption in his best interests, terminated parental rights and referred him for adoptive placement.
DISCUSSION
The mother contends the judgment terminating her parental rights must be reversed because the ICWA requirements for notice were violated and the court erred in not determining whether T.C. is an Indian child under the ICWA.
I. Notice Requirements
Congress enacted the ICWA in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) " The tribe has an interest in the child which is distinct from but on a parity with the interest of the parents. [Citation.]" (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 52.)
Section 1911 of the ICWA provides that a tribe may intervene in state court dependency proceedings. (25 U.S.C. § 1911(c).) Notice to the tribe provides it the opportunity to exercise its right to intervene. (In re Junious M. (1983) 144 Cal. App. 3d 786, 790-791.) The ICWA provides "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 their right of intervention." (25 U.S.C. § 1912(a).) If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs. (Ibid.)
The notice requirements of the ICWA are implemented in California through California Rules of Court, rule 1439. Rule 1439(f) provides that after the filing of a section 300 petition if the court knows or has reason to know that the child is or may be an Indian child "the parent and Indian custodian of an Indian child, and the Indian childs tribe must be notified of the pending petition and the right of the tribe to intervene in the proceedings." "Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child." (Rule 1439(f)(5).) "The court and the county welfare department have an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child." (Rule 439(d).) If the court has reason to know the child may be an Indian child it shall proceed as if he or she is an Indian child and proceed with dependency proceedings observing Welfare and Institution Code timeliness requirements while at the same time complying with the ICWA and the rule. (Rule 1439(e).) If the child may be of Indian ancestry, but not eligible for membership in a federally recognized tribe, "notice of the proceedings to the Bureau of Indian Affairs and further inquiry regarding the possible Indian status of the child are the only requirements." (Rule 1439(e).) "Compliance [with notice requirements] 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." (In re Desiree F. (2000) 83 Cal.App.4th 460, 475.)
All rule references are to the California Rules of Court.
"One 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." (In re Desiree F., supra, 83 Cal. App. 3d at p. 470.) "A tribes determination that the child is or is not a member of or eligible for membership in the tribe is conclusive." (Rule 1439(g)(1).)
Substantial compliance with notice requirements is not sufficient. " Actual notice to the tribe of both the proceedings and of the right to intervene " is required. (In re Marinna J. (2001) 90 Cal.App.4th 731, 735; In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1422.) Unless a tribe has participated in or expressly indicated it does not wish to participate in the proceedings, a failure to comply with ICWA notice requirements is prejudicial error. (In re Desiree F, supra, 83 Cal.App.4th at p. 472; In re H.A. (2002) 103 Cal.App.4th 1206, 1213.)
Here, any irregularity in the notice requirements was not prejudicial because the Santa Ysabel Band clearly had actual notice. It first indicated it did not wish to intervene in the proceedings, then changed its position and determined the children were recognized tribal members and requested they be placed in guardianship, rather than be adopted. Ms. Pfiffner, the ICSS social worker was identified as representing the tribe. She was present at several of the hearings and wrote to express the Santa Ysabel Bands wishes regarding visitation and guardianship. The Santa Ysabel Band was in communication with the Agency throughout the case and indicated it had notice of the proceedings, of the possibility parental rights would be terminated, and of its right to intervene and to participate. Before the six-month hearing in April 2001, the tribal spokesman wrote to the Agency, stating the children are recognized to be the children of the mother, who is a tribal member. The social worker reported she had spoken with the tribal secretary, who stated she had membership applications for the children. The Santa Ysabel Band informed the social worker on April 24, 2002, that the children were not eligible for membership in the tribe and the tribe did not wish to intervene. On August 14, 2002, it wrote to indicate it had changed its position and would recognize the children as members and requested they be placed in guardianship. On September 30, 2002, Ms. Pfiffner wrote a letter reiterating that position.
These communications show the Santa Ysabel Band clearly had actual notice of the proceedings and of its right to intervene. Any irregularities or delays in the provision of notice under the ICWA were harmless error under the circumstances of the case.
II. Finding on Application of the ICWA
The mother also contends the court erred in not finding whether the ICWA applied to these dependency proceedings. Courts have disagreed as to whether a court is required to make an explicit finding as to whether the ICWA applies. In In re Levi U. (2000) 78 Cal.App.4th 191, 199, the court ruled an explicit finding was not required in that it was apparent in that case that the juvenile court had found it inapplicable. In In re Jennifer A. (2002) 103 Cal.App.4th 692, 705 and in In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413, the court suggested the juvenile court should make an explicit finding, noting that in In re Levi U., supra, the court had correctly made an implicit finding the ICWA was inapplicable, and "the point of the matter is the court must decide, one way or the other, whether the ICWA applies, so it can proceed in compliance therewith when appropriate." (In re Jennifer A., supra, 103 Cal.App.4th at pp. 705-706, fn. 5; In re Antoinette S, supra, 104 Cal.App.4th at p. 1413.)
Here, the court implicitly found the ICWA was not applicable. At the detention hearing it made a pro forma finding the ICWA did not apply. At subsequent hearings, the finding of inapplicability was implicit. At the jurisdictional/dispositional hearings, the mother and Ms. Pfiffner were present. Neither objected to the Agencys assertion that the children were not eligible for membership in the Santa Ysabel Band and the court made findings and orders without any reference to the ICWA. Similarly, at subsequent review hearings, when the court indicated it had considered the social workers reports, which included references to communications with the Santa Ysabel Band, its failure to refer to the ICWA signified an implicit finding it did not apply. At the pretrial conference on October 21, the mother and Ms. Pfiffner were present. No one disagreed when the Agencys counsel remarked that this was a non-ICWA case. The mother and Ms. Pfiffner were again present at the section 366.26 hearing one week later. No one raised the issue of the ICWA and the court made its findings without addressing it. Although it would have been preferable for the court to have made an explicit finding, we do not find prejudicial error because a finding the ICWA did not apply was implicit when the court made its orders without referring to the ICWA.
Moreover, even assuming error in the lack of an explicit finding, the parties have waived the issue by not raising it in the juvenile court. The Santa Ysabel Band had clear actual notice of the proceedings and no party, including Ms. Pfiffner, raised the issue at a hearing, or objected to not proceeding according to ICWA requirements. Generally, a party may not raise an issue not addressed in the trial court. (In re Riva M. (1991) 235 Cal. App. 3d 403, 411-412.) "Any other rule would " permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not. " [Citations.] " (Id. at p. 412, quoting In re Christian J. (1984) 155 Cal. App. 3d 276, 279.) By not objecting in the juvenile court, the parties have waived any error in the court not explicitly finding whether the ICWA applied to the proceedings.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., and AARON, J.