Opinion
A123370
7-10-2009
In re VERONICA F., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. VERNON T., Defendant and Appellant.
Not to be Published in Official Reports
Vernon T. (father), the presumed father of Veronica F., appeals from the juvenile courts termination of his parental rights following a Welfare and Institutions Code section 366.26 permanency hearing (the .26 hearing). Father contends the order terminating parental rights must be reversed because the Alameda County Social Services Agency (the Agency) failed to comply with the notice requirements set forth in the Indian Child Welfare Act (ICWA) 25 United States Code, section 1901, et seq.
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code. For the reasons set forth in In re Edward S. (2009) 173 Cal.App.4th 387, 392, footnote 1, we adopt the practice of using the partys first name and last initial as required by California Rules of Court, rule 8.400(b)(2). Michelle F. (mother) is not a party to this appeal and is mentioned only where relevant to the issues raised in fathers appeal. (In re V.F. (2007) 157 Cal.App.4th 962, 966, fn. 2.)
We agree. We reverse the order terminating parental rights and remand the matter to the juvenile court for the limited purpose of ensuring compliance with the notice provisions of the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
We provide facts only as germane to fathers claim that the Agency failed to comply with ICWA notice requirements.
Jurisdiction, Detention, and the Six-Month Review Hearing
Veronica was born in July 2007 and tested positive for cocaine at birth. Later that month, the Agency filed a petition alleging Veronica came within section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). According to the petition, mother had a history of substance abuse and mental illness and father was "chronically and currently homeless." The court detained Veronica, sustained the petition at a combined hearing on jurisdiction and disposition in August 2007, and ordered family reunification services for father.
It does not appear the court asked father to complete a Parental Notification of Indian Status (form JV-130) when he appeared at the hearing on jurisdiction and disposition as required by California Rules of Court, rule 5.481(a)(2). Rule 5.481(a)(2) provides in relevant part, "At the first appearance by a parent . . . in any dependency case[] or . . . proceeding to terminate parental rights proceeding to declare a child free of the custody and control of one or both parents, or adoption proceeding; the court must order the parent . . . to complete Parental Notification of Indian Status. . . ." In its 12-month report, the Agency stated father completed form JV-130 on an unspecified date. Father does not contend the courts failure to have him complete form JV-130 at his first court appearance requires reversal.
In the Agencys six-month report, Veronicas social worker, Jeanetta Mack, stated
"ICWA does not apply to this dependency matter" based on the "[j]urisdictional report dated August 9, 2007[.]" At the six-month review hearing, the court adopted the "findings and orders" in the Agencys report and ordered an additional six months of family reunification services for father.
The ICWA Notice
In April 2008, Mack prepared and filed a Notice of Child Custody Proceeding for Indian Child (Notice) indicating Veronica is or may be eligible for membership in one of the Choctaw Indian tribes. Mack mailed the Notice to the Bureau of Indian Affairs (BIA) and to the following Choctaw tribal entities at the addresses below:
Choctaw Nation Oklahoma ICWA Representative P.O. Box Drawer 1210 Durant, Oklahoma 74702-1210 JENA Band Choctaw ICWA Representative P.O. Box 14 Jena, LA 71342 Mississippi Band of Choctaw Indians ICWA Representative P.O. Box 6365 Choctaw, MS 39350
In the Notice, Mack listed father as Veronicas "[b]iological [f]ather." She also indicated "[t]here has been a judicial declaration of parentage" and stated she was attaching Veronicas birth certificate. In the Notice, Mack left sections 5c through 5f — which requested information about Veronicas grandparents and great grandparents — largely blank. For example, Mack marked mothers biological mothers name "unknown" and provided no information about mothers biological mothers address, birth date or tribal membership information. Mack listed fathers biological mothers name and date of her death but did not list her former address, birth date and place, or any information about her tribal membership. The only information Mack provided for Veronicas great grandparents was the name of fathers biological grandmother and her date of death. Finally, Mack did not sign the declaration section which required her to declare under penalty of perjury that she included all information she had about Veronicas relatives in the Notice.
The birth certificate is not part of the record on appeal.
In late April 2008, the Jena Band of Choctaw Indians (Jena Band) informed the court that neither Veronica nor her relatives were eligible for membership.
12-Month Review
In the Agencys 12-month review report, Mack stated ICWA did not apply. Mack also noted, however, that "father stated [] his family has Choctaw heritage and is from Tulsa, Oklahoma. The paternal uncle, Melvin T. stated that the minors paternal great grandmother, Evelyn J. had Choctaw heritage." Mack reported she had sent the Notice to three federally recognized Choctaw tribal entities and that only one entity, the Jena Band, had responded. Following a contested hearing in July 2008, the court declared father was Veronicas presumed father. The court terminated reunification services and scheduled the . 26 hearing.
.26 Report and Hearing
In the .26 report, Mack recommended terminating fathers parental rights and freeing Veronica for adoption. Mack contended the ICWA did not apply, but noted the court had not yet made "an ICWA finding[.]" At the .26 hearing, the court concluded: (1) the Agency complied with ICWAs "inquiry and notice requirements;" and (2) Veronica was not an Indian child pursuant to ICWA. The court then terminated fathers parental rights.
DISCUSSION
Fathers sole contention on appeal is the order terminating parental rights must be reversed because the Agency failed to comply with ICWAs notice requirements. Specifically, father argues: (1) the Notice failed to include known information about Veronicas grandparents and great grandparents; and (2) the Notices to the Mississippi Band of Choctaw Indians (Mississippi Band) and the Choctaw Nation of Oklahoma (Choctaw Nation) were not addressed to the proper person and place designated by the tribe.
I. The Agencys Contentions Regarding Fathers Right to Appeal Fail
First, the Agency contends father forfeited "the ICWA notice issue" by failing to raise it in the court below. We disagree. The forfeiture rule does not apply to ICWA notice issues. "The generally accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal. [Citation.] `As this court has held, "[t]he notice requirements serve the interests of the Indian tribes `irrespective of the position of the parents and cannot be waived by the parent." [Citation.] A parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court. [Citation.]" (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195 (Alice M.).)
Next, the Agency seems to contend the courts ICWA finding is not appealable. The Agency argues the court ruled in January 2008 that ICWA did not apply and fathers failure to seek a modification of that ruling prevents him from raising the ICWA notice issue on appeal. To support this argument, the Agency relies on In re Joseph P. (2006) 140 Cal.App.4th 1524, 1531-1532 (Joseph P.). In that case, the mother claimed Tejon heritage; the father said he could be one of the few surviving members of a federally-recognized tribe. (Id. at p. 1527.) In response, the Kern County Department of Human Services sent ICWA notices. The BIA indicated ICWA did not apply and the court concluded the case was "`not an ICWA case." (Ibid.) Eleven months later, however, at the .26 hearing, father claimed for the first time that he was Mohican. The juvenile court "observed it had not heard anything that would justify changing the previous finding" and terminated the fathers parental rights. (Joseph P., supra, at p. 1526.)
On appeal, the father contended the court should have suspended the .26 hearing and sent a new ICWA notice to the Mohican tribe. (Joseph P., supra, 140 Cal.App.4th at p. 1526.) The Joseph P. court rejected this argument and held the fathers failure to challenge the courts initial ICWA determination barred him from raising the ICWA issue on appeal. (Id. at p. 1531.) As the court explained, the fathers "late claim of Mohican Indian heritage did not compel the court to find a new reason to believe [his] children may be Indian. Here, the department complied with the notice requirements and no tribe, Mohican or otherwise, had come forward to identify the children as Indian." (Ibid.) In dicta, the court noted that a party seeking to modify an ICWA ruling may file a section 388 petition to "pursue relief . . . from a prior determination that the ICWA did not apply." (Joseph P., supra, at p. 1531.)
Joseph P. is distinguishable. In that case, it was "undisputed that the departments notice efforts complied with ICWA requirements." (Joseph P., supra, 140 Cal.App.4th at p. 1527.) Here, and in stark contrast to Joseph P., the central and only issue is whether the Agency complied with ICWA notice requirements. That the court here concluded in January 2008 that ICWA did not apply is irrelevant because the Agency did not serve the Notice until April 2008. Father does not contest the courts January 2008 determination that ICWA did not apply. Father contests the courts December 2008 conclusion — made after the Agency sent the Notice in April 2008 — that ICWA did not apply. As a result, we reject the Agencys argument that father is precluded from appealing the courts determination, made at the .26 hearing, that the Agency complied with ICWA notice requirements.
II. The Agency Was Required to Comply with ICWA Notice Requirements
The Agency contends it did not need to comply with ICWA notice requirements because father did not "establish[] his biological paternity." ICWA defines a "parent" as any "biological parent or parents of an Indian child. . . ." (25 U.S.C. § 1903(9).) The definition of "parent" does not include an "unwed father where paternity has not been acknowledged or established." (25 U.S.C. § 1903(9); see also In re Daniel M. (2003) 110 Cal.App.4th at 703, 708 (Daniel M.).)
Here, the court determined father was the presumed father of Veronica (Fam. Code, § 7611). The Agency concedes father held Veronica "out to the community as his own, and signed the birth certificate." We are mindful that a man may be a presumed father within the meaning of Family Code section 7611 without being a biological father and without taking an "official action" to establish paternity. Here, however, the Agency does not contend father never took any "official action" to establish his paternity of Veronica. (Daniel M., supra, 110 Cal.App.4th at p. 708.) As a result, we conclude fathers status as Veronicas presumed father triggered the ICWA notice provisions. (See In re Mary G. (2007) 151 Cal.App.4th 184, 213 (Mary G.) [agency ordered to comply with ICWA notice provisions for a presumed father]; D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 208 [granting presumed fathers petition for writ of mandate and ordering department of health and human services to provide ICWA notices regarding presumed fathers family].)
In re E.G. (2009) 170 Cal.App.4th 1530, 1533 (E.G.), upon which the Agency relies, is inapposite. In that case, the department of health and human services detained the minor. The detention report identified two alleged fathers, A.J. and C.H., for the minor. (Id. at p. 1532.) The mother claimed possible heritage in two tribes and A.J., one of the alleged fathers, claimed possible heritage in two additional tribes. (Ibid.) The department sent ICWA notices to the tribes claimed by the mother, but not to the tribes identified by A.J. (Ibid.) A paternity test determined A.J. was not the minors biological father and the court determined the minor was not an Indian child. (Id. at pp. 1532-1533.)
The appellate court concluded the departments failure to send notices "to the tribes claimed by alleged father A.J." was not erroneous because "[a]n alleged father may or may not have any biological connection to the child. Until biological paternity is established, an alleged fathers claims of Indian heritage do not trigger any ICWA notice requirement because, absent a biological connection, the child cannot claim Indian heritage through the alleged father. Since A.J. was excluded as a biological father of the child, no notice was required under ICWA." (E.G., supra, 170 Cal.App.4th at p. 1533.) Here, and in contrast to E.G., father was Veronicas presumed — not alleged — father, and he had not been "excluded" as her biological father. As a result, E.G. has no application here.
Even if a presumed father is not entitled to ICWA notice, we would not alter our conclusion in this case because the Agency is estopped from arguing otherwise. In the Notice, Mack listed father as Veronicas "[b]iological [f]ather" but then noted "[t]here has been a judicial declaration of parentage." Upon learning of fathers claim of Choctaw heritage, the Agency did not ask him to undergo paternity testing, nor did the Agency contend an ICWA notice was unnecessary because biological paternity had not been established. Instead, the Agency prepared and sent the Notice to the Choctaw tribes. The Agency cannot, for the first time on appeal, contend it was not required to comply with ICWA notice provisions because father did not establish biological paternity. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846 `"[A] party is precluded from urging on appeal any point not raised in the trial court . . ." (Bracket in original.) "`It would seem . . . intolerable to 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." (Porter v. Golden Eagle Ins. Co. (1996) 43 Cal.App.4th 1282, 1291, quoting Lindsay-Strathmore I. Dist. v. Superior Ct. (1920) 182 Cal. 315, 338.)
III. The Deficiencies in the Notice Were Prejudicial
We now turn to the substantive issue: whether the Agency complied with ICWA notice requirements. "ICWA notice requirements are strictly construed. [Citation.] The notice sent to the . . . Indian tribes must contain enough information to be meaningful. . . . ¶ It is essential to provide the Indian tribe with all available information about the childs ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703 (Francisco W.); see also § 224.2, subd. (a)(5)(A)-(G) [describing what information the notice must include].)
Father contends the Agency knew the following information about his family but did not include it in the Notice: (1) his family was from Tulsa, Oklahoma; (2) the names of Veronicas uncle and paternal grandfather; and (3) information about where Veronicas paternal grandfather lived before his death. Father also notes that Mack did not sign the declaration of the Notice which required her to state under penalty of perjury that she provided all information known to her.
Father is correct. Although father told Mack that his family was from Tulsa, Oklahoma before the jurisdiction/disposition hearing, Mack did not include that information in the Notice. She also knew the names of Veronicas uncle and paternal grandfather but did not include that information in the Notice. Finally, Mack knew — but did not include — information about where Veronicas paternal grandfather lived before his death. If a social worker knows or has reason to know "that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, . . . and extended family members . . . ." (§ 224.3, subd. (c).)
Here, we cannot conclude the Notice included all information known to the Agency about Veronicas family. We reject the Agencys contention that it had no information pertaining to Veronicas "biological paternal family" as well as its claim that it was somehow impossible for Mack to complete the declaration section of the Notice. Where, as here, the Notice fails to include information on the person who is alleged to be the source of Indian heritage, the notice is inadequate because "the tribes could not conduct a meaningful search with the information provided." (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) "Notice is meaningless if no information or insufficient information is presented to the tribe." (Ibid., fn. omitted.)
The Agencys final contention is that its failure to include this information in the Notice is harmless error because the Jena Band responded that father was not eligible for membership and the two other tribal entities did not respond to the Notice within the 60-day time period set forth in section 224.3, subdivision (e)(3). Father concedes the Notice was properly addressed to the Jena Band, but contends the Notice to the Mississippi Band and the Choctaw Nation was improperly addressed to the ICWA Representative, not to the tribal chairperson or the tribes designated agents. For example, Father states the Notice to the Mississippi Band of Choctaw Indians was required to be addressed to "`Maurice Calistro, Director" and the Notice to the Choctaw Nation of Oklahoma should have been addressed to "`Gregory E. Pyle, Chief."
"`Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service." (In re J.T. (2007) 154 Cal.App.4th 986, 994 (J.T.), quoting § 224.2, subd. (a)(2); see 71 Fed.Reg. 43788 ["Indian Child Welfare Act; Receipt of Designated Tribal Agents for Service of Notice"].) The agents designated by tribes to accept ICWA service are published in the Federal Register. (25 C.F.R. § 23.12 (a), (d).) "The purpose of the requirement that notice be sent to the designated persons is to ensure that notice is received by someone trained and authorized to make the necessary ICWA determinations, including whether the minors are members or eligible for membership and whether the tribe will elect to participate in the proceedings." (J.T., supra, 154 Cal.App.4th p. 994.)
We cannot conclude the Agencys failure to address the Notice to the tribal chairperson or the designated agent was harmless error. Contrary to the Agencys assertion, the record does not contain any "conclusive evidence" that the Mississippi Band or the Choctaw Nation received actual notice of the proceedings. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 (Nicole K.).) The return receipt for the Mississippi Band was signed by Patsy Tubbs and the return receipt for the Choctaw Nation was signed by an individual with the initials, "B.C." These return receipts fail to demonstrate that the tribal chairperson or the tribes designated agent received the Notice. (See Mary G., supra, 151 Cal.App.4th at p. 211; Nicole K., supra, at p. 784 ["Although the record contains a signed return receipt for the misaddressed ICWA notice, the record is devoid of any evidence that the signature was that of `a representative of the United Keetoowah Band"]; see also In re H.A. (2002) 103 Cal.App.4th 1206, 1213 [department sent the notice to the San [sic] Ynez Tribal Health Clinic, not the tribes chairperson or its designated agent for service of process].)
This is not a situation like the one in In re N.M. (2008) 161 Cal.App.4th 253 where appropriate notice was given to various Indian tribes and where the tribes failure to respond enabled the juvenile court to determine the ICWA did not apply. (Id. at p. 265. As a result, we conclude the Agencys failure to comply with ICWA notice provisions was prejudicial error. Having reached this result, we need not address fathers contention that the Agency sent the Notice to the Choctaw Nation to the wrong post office box. Accordingly, we deny the Agencys request for judicial notice of the relevant pages of the Federal Register and the list provided by the State Department of Social Services on the California government website as of March 5, 2008 because they are not relevant to the issues on appeal.
III. Limited Remand is Necessary to Enable the Juvenile Court to Comply with the ICWA
We now consider the appropriate remedy. Numerous courts have reversed orders terminating parental rights where the court failed to comply with ICWA notice requirements and remanded for the limited purpose of ensuring compliance with the ICWA. (Justin L. v. Superior Court (2208) 165 Cal.App.4th 1406, 1410 ["Remand for the limited purpose of ICWA compliance is all too common"]; Alice M., supra, 161 Cal.App.4th at p. 1203; J.T., supra, 154 Cal.App.4th at p. 994; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1268; Francisco W., supra, 139 Cal.App.4th at p. 706.)
As the Francisco W. court explained, "The limited reversal approach is well adapted to dependency cases involving termination of parental rights in which we find the only error is defective ICWA notice. This approach allows the juvenile court to regain jurisdiction over the dependent child and determine the one remaining issue. The parties already have litigated all other issues at the [.26] hearing, and it is not necessary to have a complete retrial. Thus, the child is afforded the protection of the juvenile court, and, at the same time, his or her case is processed to cure the ICWA error, which is more expeditious than a full rehearing of all [.26] issues. . . ." (Francisco W., supra, 139 Cal.App.4th at p. 705.)
We adopt the Francisco W. courts reasoning here and remand the case to the juvenile court for the limited purpose of ensuring compliance with the ICWA.
DISPOSITION
The order terminating fathers parental rights is reversed. The case is remanded to the juvenile court with directions to comply with the notice provisions of the ICWA. If, after providing notice, the court determines Veronica is an Indian child, the court shall proceed in conformity with the ICWA. If, however, after proper inquiry and notice, the court determines Veronica is not an Indian child, the order terminating fathers parental rights and selecting adoption as the permanent plan shall be reinstated. (Alice M., supra, 161 Cal.App.4th at p. 1203; Francisco W., supra, 139 Cal.App.4th at p. 705; see also D.B., supra, 171 Cal.App.4th at p. 208.)
We concur:
Simons, J.
Needham, J.