Opinion
C043217.
10-10-2003
In re T.R. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. PATRICK R., Defendant and Appellant.
Patrick R. (appellant), the father of T.R., D.R., and F.R. (the minors), appeals from orders of the juvenile court denying his petitions for modification of previous court orders. (Welf. & Inst. Code, §§ 388, 395.)[] Appellant contends the juvenile court abused its discretion and denied him due process of law when it denied his petition for modification without an evidentiary hearing. Appellant also claims the court committed prejudicial error in failing to insure compliance with the notice provisions of the Indian Child Welfare Act of 1978 (the Act). (25 U.S.C. § 1901 et seq.) Agreeing with the latter claim only, we reverse and remand for further proceedings.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On August 3, 2000, the Sacramento County Department of Health and Human Services (DHHS) filed original juvenile dependency petitions pursuant to section 300 on behalf of seven-month-old T.R., two-year-old D.R., and three-year-old F.R. Those petitions alleged appellant and the mother of the minors had substance abuse problems that rendered them incapable of providing adequate care for the minors. The petitions also alleged appellant and the minors mother engaged in domestic violence with the minors present. Each petition averred the minor might be of Indian ancestry.
The report prepared for the detention hearing stated the Act might apply in that appellant had reported he was of "Cherokee/Sioux descent." At the conclusion of the detention hearing, the juvenile court noted that appellant might be "Cherokee and Choctaw through the paternal grandmother" and ordered DHHS to make further inquiry and provide "notice" pursuant to the Act. Thereafter, the social workers reports stated the Act might apply, identified the tribes involved as Cherokee and Choctaw, and noted that DHHS sent notices to "Cherokee Nation/Choctaw Nation" and to the Bureau of Indian Affairs (BIA).
At the August 28, 2000, jurisdiction hearing, the juvenile court ordered DHHS to provide "proof of receipt of notice by the Indian Tribe." Thereafter, DHHS filed copies of notices, letters, and certified mail receipts sent to the Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians, Jena Band of Choctaw Indians, Mississippi Band of Choctaw Indians, Choctaw Nation of Oklahoma, and the BIA.
At the September 5, 2000, jurisdiction hearing, the social worker told the juvenile court that DHHS had received proof of receipt of notices from all tribes except the Jena Band of Choctaw Indians. The court ordered DHHS to contact the Jena Band to determine whether it had received notice. Thereafter, DHHS reported to the court that it had received proof that the Jena Band of Choctaw Indians had received notice. Accordingly, at the September 18, 2000, jurisdiction hearing, the juvenile court determined that "all identifying [sic] American Indian Tribes, which the [minors] have been associated with have been notified of the court proceedings and as [of] this hearing no tribe has responded."
The juvenile court sustained the petitions and adjudged the minors dependent children. The court ordered DHHS to provide reunification services to appellant. Thereafter, appellant waived his right to receive services, and the court ordered them terminated. Subsequent social workers reports noted the Act did not apply.
Appellant visited with the minors regularly, and those visits went well. Adoption assessments concluded appellant had maintained regular contact with the minors and that the minors would benefit from maintaining contact. The report prepared for the section 366.26 hearing noted that appellant had had weekly supervised visits with the minors. According to that report, appellant had positive interactions with the minors, and they appeared to enjoy the visits. Appellant informed the social worker he wanted the minors placed with him.
In an August 25, 2002, assessment, psychologist Jayson Wilkenfield reported that T.R. and D.R. had moderate emotional and psychological bonds with appellant. F.R., on the other hand, had only "a rather superficial attachment" to appellant. Wilkenfield concluded in part as follows: "It would be my opinion that if [appellants] parental rights are terminated with respect to [T.R.] and [D.R.], these minors are likely to experience some, at least, short-lived emotional detriment but that both minors would likely be capable of establishing secure attachments with other nurturing adults if it is the decision of the Court to order permanent, alternative placements for them. It is not clear that [F.R.] would experience any significant emotional detriment if contact with her father were to be severed, as her behavior during this consultation suggested that her attachment to her father is relatively superficial. None of the three children would be expected to experience such a detriment to their emotional well-being that the effects wouldnt be outweighed by their living in stable, permanent homes where they are provided with consistent, nurturing care."
An August 29, 2002, letter from appellants counselors recommended commencement of unsupervised visits for appellant and the minors. That letter noted the significant progress appellant had made in developing his parenting skills. The counselors also urged that appellant be provided the opportunity to reunify with the minors. DHHS, on the other hand, now opined that adoption was the most suitable permanent plan for the minors.
On December 3, 2002, appellant filed petitions for modification, requesting the reopening of reunification services. In each of those petitions, appellant averred as follows: "[Appellant] alleges the following changes of circumstances or new evidence regarding the child:
"1. The father has been testing clean on a regular basis.
"2. The father has consistently visited with the children.
"3. The father has completed an anger management course.
"4. The father has been attending AA and NA meetings. [¶] . . . [¶]
"[Appellant] requests the following modifications of prior orders as being in the childs best interest because:
"1. Since the time the father waived reunification services, he has consistently been trying to improve all areas of his life on his own. It is in the childs best interest to reopen reunification services so that the father is able to complete all aspects of the areas which led to dependency. Due to the fathers clean and sober life style, it is likely that the father can provide a safe and nurturing environment to the children. This environment would be in their best interest in order to be able to be raised in their biological home. Furthermore, [appellant] has acknowledged his past problems with substance abuse and anger control, and has been able to abstain from the use of illicit drugs. Due to the above factors it is in the childrens best interest to reopen reunification services."
On December 4, 2002, the juvenile court denied the petitions without a hearing. The court found the petitions failed to state new evidence or a change of circumstances. Moreover, according to the court, the petitions failed to show how the requested modifications would promote the best interests of the minors.
DISCUSSION
I
Appellant contends the juvenile court abused its discretion and denied him due process of law when it denied his petition for modification without an evidentiary hearing. Relying on evidence suggesting a bond between appellant and the minors, and asserting that he showed new evidence or changed circumstances, appellant argues he made a prima facie showing in support of a full hearing on the petition. Appellant also claims the record reflects that the minors would benefit from continuing their relationship with appellant, especially in light of the improvements he had made.
Section 388 provides in part: "(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioners relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. [¶] . . . [¶] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held . . . ."
A dependency order may be modified if the parent or other person shows a change of circumstance or new evidence and that the proposed modification may be in the best interests of the minor. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 414-419 (Jasmon O.).) The petitioning party has the burden of showing by a preponderance of the evidence that the modification is warranted. (In re Audrey D. (1979) 100 Cal.App.3d 34, 43; In re Fred J. (1979) 89 Cal.App.3d 168, 174.) The juvenile courts determination on a modification request is within its discretion. Such a determination will not be disturbed absent a showing of a clear abuse of that discretion. (Jasmon O., supra, at p. 415; cf. In re Corey (1964) 230 Cal.App.2d 813, 832 [wards of court, similar provision, § 778].) Discretion is abused only when it is exercised "`in an arbitrary, capricious or patently absurd manner that result[s] in a manifest miscarriage of justice." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
As his petition shows, appellant was making efforts, and it is commendable that he had decided on his own initiative to participate regularly in services. However, as appellant also suggested in his petition, he had not completed his services but apparently was continuing to participate in substance abuse programs. Moreover, he wanted an additional period of services rather than custody of the minors.
Appellants showing amounts to one of changing, rather than changed, circumstances. Moreover, appellants petition did not aver specifically, with reference to the minors characteristics and situations in foster care, how their best interests might be promoted if the juvenile court granted the proposed modification. It is not enough merely to suggest, as appellant did in his petitions, that it was important for the minors to be raised in their "biological home" and that it would be beneficial to the minors if appellant could complete his program.
To establish the right to an evidentiary hearing, a parent must make a prima facie showing of changed circumstances and that modification may promote the best interests of the minor. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672, 673 (Daijah T.).) "A `prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) In Daijah T., this court concluded that "[b]ecause [the mothers] section 388 petition sufficiently alleged changed circumstances and further alleged some evidence that the best interests of the minors would be promoted by their reunification with their siblings, the trial court erred in denying her an evidentiary hearing on her section 388 petition." (Daijah T., supra, 83 Cal.App.4th at p. 675.)
The record reflects appellant was offered various services by DHHS but he chose not to accept them. In the meantime, the minors were adjusting well to foster care, and as time went on their prospective adoptive parents decided to seek approval to adopt them. On this record, the juvenile court reasonably could conclude, as it impliedly did, that the possibility of reunification with appellant would be disruptive to the minors and therefore not in their best interests.
In In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-532 (Kimberly F.), cited by appellant, the appellate court warned against the juvenile courts simply comparing the situation of the natural parent with that of a caretaker in determining a section 388 petition. It termed such an approach the "`simple best interest test." (Kimberly F., supra, 56 Cal.App.4th at p. 529.) Instead, the appellate court found that determining a childs best interests under section 388 required an evaluation of a number of factors, including the seriousness of the reason for the dependency action, the existing bonds between parent and child and caretaker and child, and the nature of the changed circumstances. (Kimberly F., supra, 56 Cal.App.4th at pp. 529-532.) The court suggested it was unlikely a parent who lost custody because of a drug problem could prevail on a section 388 petition, whereas in a "dirty house" case, which was present in Kimberly F., the chances of success were greater. (Kimberly F., supra, 56 Cal.App.4th at pp. 531, fn. 9, 532.) In Kimberly F., the court concluded the decision to deny the section 388 petition was based largely and improperly on the juvenile court judges adoption of the "`narcissistic personality rationale" that the judge applied to the mother there. (Kimberly F., supra, 56 Cal.App.4th at pp. 524-525, 527, 533.)
In this case, in denying appellants section 388 petition, the juvenile court did not discuss the factors analyzed in Kimberly F., supra, 56 Cal.App.4th 519. However, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency action, the relationship between appellant and the minors, and the nature of the alleged changed circumstances, was before the court. On the record before it, the court concluded that contrary to appellants claim, the petition failed to demonstrate even the prima facie showing required for an evidentiary hearing. Whether reviewed de novo, or by using the abuse of discretion standard, we see no error in that determination.
In Jasmon O., supra, 8 Cal.4th 398, cited by DHHS and appellant, our Supreme Court upheld a termination of parental rights order. In doing so, the court stressed the importance of stability and permanence in the life of a minor. (Id. at pp. 419, 431.) The court stated that "when a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the courts discretion to decide that a childs interest in stability has come to outweigh the natural parents interest in the . . . child. [Citation.]" (Id. at p. 419.)
This case is similar to In re Elizabeth M. (1997) 52 Cal.App.4th 318 (Elizabeth M.). In that case, the juvenile court denied the mothers section 388 petition without an evidentiary hearing on several grounds, including the lack of a showing of changed circumstances or any demonstration that a change would be in the best interests of the minor. (Elizabeth M., supra, 52 Cal.App.4th at p. 322.) The Court of Appeal affirmed, noting the absence of any showing by the mother that a change in placement would have promoted the minors best interests. (Id. at pp. 323, 325.)
In In re Josiah S. (2002) 102 Cal.App.4th 403 (Josiah S.), the Court of Appeal reversed a summary denial of a section 388 petition, primarily because the juvenile court had refused to conduct a contested postpermanency planning review hearing. (Josiah S., supra, 102 Cal.App.4th at pp. 415, 420.) The parent there included detailed information in support of her petition. (Id. at p. 419.) Here, by contrast, appellant included only a limited amount of documentation with his petitions, consisting of drug testing results, although he had the opportunity to present more material if he had chosen to do so.
The juvenile court was required by statute (§ 388) to focus on the minors best interests in deciding whether to grant an evidentiary hearing on the petition for modification. Those interests consist of the minors needs for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Childhood cannot wait for a parent to establish readiness for parenting. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Here, the social worker suggested it was critical for these young minors to achieve stability. All were adjusting well in the homes of foster parents. Apparently appellant was still working on the problems that had contributed to the dependency proceedings. On this record, it is not surprising the court ruled impliedly that even if appellant proved all of his factual allegations at an evidentiary hearing, appellants showing would be insufficient to justify modifying the courts previous order. (Cf. Edward H., supra, 43 Cal.App.4th at pp. 591, 594.)
Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellants request for an evidentiary hearing on his petition. The courts implicit conclusion that the minors needs for stability compelled denial of the petition without an evidentiary hearing and that denial served their best interests was reasonable and is supported by the record. (Cf. Edward H., supra, 43 Cal.App.4th at p. 594.) In sum, appellant failed to make a prima facie showing, as required by section 388, that a modification might promote the best interests of the minors. (Compare In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 with In re Heather P. (1989) 209 Cal.App.3d 886, 891.) There was no denial of due process, abuse of discretion, or other error in the courts decision. (Cf. Daijah T., supra, 83 Cal.App.4th at pp. 673-675.)
II
Appellant claims the juvenile court erred prejudicially in failing to comply with various notice requirements of the Act.
In 1978 Congress passed the Act, which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children "in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." (25 U.S.C. § 1902; Mississippi Choctaw v. Holyfield (1989) 490 U.S. 30 .)
To effectuate the purposes of the Act, "`child custody proceeding[s]" (25 U.S.C. § 1903(1)) involving, among other proceedings, the "`foster care placement" of an Indian child (25 U.S.C. § 1903(1)(i)), are subject to special federal procedures. "`[F]oster care placement" means "any action removing an Indian child . . . for temporary placement . . . ." (25 U.S.C. § 1903(1)(i).)
Among the procedural safeguards imposed by the Act is the provision of notice to various parties. Section 1912(a) of title 25 of the United States Code provides as follows: "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 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 proceedings shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . . . ." (Italics added.)
The Act provides for invalidation of dependency proceedings for violation of the notice provision in an action brought by the Indian child, parent, Indian custodian, or the Indian childs tribe. (25 U.S.C. § 1914.) The Act also contains various evidentiary and other requirements that may be different from state law and procedure. (25 U.S.C. §§ 1912(d) & (f), 1915.)
A major purpose of the Act is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." (25 U.S.C. § 1901(3).) For purposes of the Act, "`Indian child means any unmarried person who is under age eighteen and is either (a) 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[.]" (25 U.S.C. § 1903(4).)
In support of his claims, appellant cites In re Kahlen W. (1991) 233 Cal.App.3d 1414 (Kahlen W.). In that case, the court stated: "Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. Specifically, the tribe has the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings. Without notice, these important rights granted by the Act would become meaningless." (Id. at p. 1421.)
In Kahlen W., a social services employee spoke with two different groups of Miwok Indians in an attempt to determine the minors status. In granting the writ sought by the mother of the minor, the appellate court held the department had failed to notify the tribe of its right to intervene in the proceedings, as required by the Act. (Kahlen W., supra, 233 Cal.App.3d at pp. 1418, 1420, 1424, 1426.)
The court rejected the departments contention that the record showed substantial compliance with the notice provisions of the Act. It noted that all pertinent authority plainly required "actual notice to the tribe of both the proceedings and of the right to intervene." (Kahlen W., supra, 233 Cal.App.3d at pp. 1421, 1422, italics omitted.) Mere "`awareness" of the proceedings is not sufficient under the Act. (Id. at p. 1422.)
Kahlen W. emphasized that notice is mandatory and that ordinarily failure in the juvenile court to secure compliance with the Acts notice provisions is prejudicial error. The only exceptions lie in situations where "the tribe has participated in the proceedings or expressly indicated [it has] no interest in the proceedings." (Kahlen W., supra, 233 Cal.App.3d at p. 1424; but see In re Junious M. (1983) 144 Cal.App.3d 786, 794 , fn. 8.)
The Kahlen W. court rejected a suggestion by the department that its noncompliance with the notice provisions of the Act was a result of the mothers failure to cooperate by not providing the department with the roll number and by not timely communicating her ancestry. (Kahlen W., supra, 233 Cal.App.3d at p. 1424.) As the court pointed out, the Act is intended to protect the interests of the tribe as well as those of the minors parents. (Id. at p. 1425.) Moreover, the minor is entitled to the protection of the Act irrespective of the actions of the parents. (Ibid.) Finally, the court rejected the claim that by her silence the mother waived her rights under the Act. (Ibid.)
California Rules of Court, rule 1439(f) provides in part: "(3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership. [¶] (4) If the identity or location of the parent or Indian custodian or the tribe cannot be determined, notice shall be sent to the specified office of the Secretary of the Interior, which has 15 days to provide notice as required. [¶] (5) 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."
California Rules of Court, rule 1439(g) provides in part: "Determination of tribal membership or eligibility for membership is made exclusively by the tribe. [¶] (1) A tribes determination that the child is or is not a member of or eligible for membership in the tribe is conclusive."
In this case, early on in the proceedings DHHS and the juvenile court received information from appellant that he had Indian heritage in one or more of the following tribal entities: Cherokee, Sioux, and Choctaw. At that point, DHHS was obliged to ascertain the names of all Cherokee, Sioux, and Choctaw tribes and send proper notices to them. Alternatively, the juvenile court was obliged to direct DHHS to do so. The court did so. However, inexplicably DHHS sent notice only to two of the three Cherokee tribes, and sent no notice to any Sioux tribal entities.
The Act requires the agency to notify "the Indian childs tribe" of the proceedings if "the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) Here, the juvenile court had reason to know the minors were Indian children of Cherokee, Sioux, and Choctaw heritage. The Act continues: "If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the [BIA] . . . ." (Ibid.)
The Federal Register lists those Indian tribal entities eligible to receive services under federal law. That list contains three Cherokee entities: Cherokee Nation, Oklahoma; Eastern Band of Cherokee Indians of North Carolina; and United Keetoowah Band of Cherokee Indians of Oklahoma. Moreover, the list contains the names of three Choctaw tribes: Choctaw Nation of Oklahoma; Jena Band of Choctaw Indians, Louisiana; and Mississippi Band of Choctaw Indians, Mississippi. Finally, the list contains 14 Sioux tribes.[] (65 Fed.Reg. 13298 (Mar. 13, 2000).) Accordingly, there was no mystery concerning the identity and location of the minors possible tribal affiliations. Since the identity and location of the possible Indian entities was known to DHHS, there was no justification under the Act for failing to give those tribes notice of these proceedings.
Those tribes are: (1) Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; (2) Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; (3) Flandreau Santee Sioux Tribe of South Dakota; (4) Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; (5) Lower Sioux Indian Community of Minnesota Mdewakanton Sioux Indians of the Lower Sioux Reservation in Minnesota; (6) Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; (7) Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; (8) Santee Sioux Tribe of the Santee Reservation of Nebraska; (9) Shakopee Mdewakanton Sioux Community of Minnesota (Prior Lake); (10) Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Reservation, South Dakota; (11) Spirit Lake Tribe, North Dakota; (12) Standing Rock Sioux Tribe of North and South Dakota; (13) Upper Sioux Indian Community of the Upper Sioux Reservation, Minnesota; and (14) Yankton Sioux Tribe of South Dakota. (65 Fed.Reg. 13298 (Mar. 13, 2000).)
In In re Edward H. (2002) 100 Cal.App.4th 1, 4, cited by both parties, the father of the minor informed a social worker he believed he belonged to the Choctaw Tribe. The agency sent notices of the dependency proceedings to the BIA and two Choctaw tribal entities; it omitted to send notice to a third Choctaw entity. The Court of Appeal held that proper notice to some but not all possible tribes does not violate the Act as long as the agency also gives notice to the BIA. (Ibid.) In support of its decision, the court noted the identity of the actual Choctaw Tribe was unknown to the father. (Id. at p. 5.) Distinguishing our opinion in In re Marinna J. (2001) 90 Cal.App.4th 731 (Marinna J.), the court also noted no notice was sent to the BIA in that case. (In re Edward H., supra, 100 Cal.App.4th at p. 6.)
In re Edward H. is distinguishable on its facts. There, proper notice was given to the BIA. (In re Edward H., supra, 100 Cal.App.4th at p. 6.) As we have seen, here apparently some notice was sent to the BIA, but it is clear notice was not sent to all named tribes. In any event, to the extent In re Edward H. is inconsistent with our opinion in Marinna J., supra, 90 Cal.App.4th 731, we follow the latter.
This court has held that "[n]either the Act nor the various rules, regulations, and case law interpreting it require [a child services department] or the juvenile court to cast about, attempting to learn the names of possible tribal units to which to send notices, or to make further inquiry with BIA." (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) In that case, however, we observed that when a party proffers the name of a tribe, there is a duty to notify that tribe. There, "the lack of any information suggesting anyone in the family had a specific tribal affiliation constituted a determination that neither appellant nor the minor was eligible to become a tribal member." (Id. at p. 198.) Here, on the other hand, such information was provided.
The record in this case reveals no notices of the proceedings were sent to the United Keetoowah Band of Cherokee Indians of Oklahoma or to any of the Sioux tribes in violation of the Acts notice requirements. Lacking proper notice, the proceedings did not produce a valid action by the juvenile court.[] The Act clearly places the duty on the party seeking to effectuate a custody change to notify known tribes. (25 U.S.C. § 1912(a).)
We note the Acts requirement that DHHS provide notice to the Indian entities directly instead of relying on the BIA to do so in cases in which the identity and location of the minors possible tribal entity are known does not place a heavy burden on DHHS. Here, it was simple to determine from the list of recognized Indian tribes the entities to which DHHS was required to give notice.
To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, DHHS should follow a two-step procedure. First, it should identify and verify with appellant any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Cal. Rules of Court, rule 1439(f).) As part of that step, DHHS should attempt to ascertain all relevant data from appellant and any relatives of appellant whose names he may supply to DHHS. Second, DHHS should provide to the juvenile court a copy of the notice sent and the return receipt, as well as correspondence received from any Indian entity relevant to the childs status. If for some reason the correct identity or location of the tribe cannot be determined, then the same procedure should be used with respect to providing notice to the BIA.
Failure to provide notice was prejudicial because it is apparent not all of the Indian entities noted above received notice of the proceedings in this case. "[A]ll cases applying the Act unequivocally require actual notice to the tribe . . . ." (Kahlen W., supra, 233 Cal.App.3d at p. 1422, italics omitted.) In sum, "[t]he juvenile courts failure to secure compliance with the notice provisions of the Act is prejudicial error." (Id. at p. 1424.)
DISPOSITION
The orders of the juvenile court denying the petitions for modification are reversed, and the matter is remanded to the juvenile court with directions to order DHHS to provide each of the three Cherokee tribes and all Sioux tribes with proper notice of the proceedings under the Act. If, after receiving notice under the Act, no tribe indicates the minor is an Indian child within the meaning of the Act, then the juvenile court shall reinstate the orders denying the petitions for modification. 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 Act.
We concur, SCOTLAND, P.J. and MORRISON, J.