Opinion
C087104
07-25-2018
R.Q., Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-JV-DP-2016-0000539)
Petitioner R.Q., mother of the minors E.Q. and N.Q., seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the order of the juvenile court made at the 12-month review hearing terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing. Petitioner contends, and real party in interest San Joaquin County Human Services Agency (the Agency) concedes, there was inadequate compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We accept the concession and shall issue a peremptory writ of mandate directing the juvenile court to vacate its ICWA findings and to conduct further ICWA compliance proceedings.
References to rules are to the California Rules of Court.
PROCEDURAL BACKGROUND
The petition raises issues of noncompliance with the notice provisions of the ICWA. The underlying facts of the dependency are not at issue and we do not recite them.
A Welfare and Institutions Code section 300 petition was filed on behalf of the minors on November 22, 2016. On November 18, 2016, petitioner had informed the Agency that there was possible Native American heritage in the Apache Indian tribe on the maternal side of her family and completed the ICWA-010 forms. On December 6, 2016, petitioner's completed ICWA-020 forms, which showed possible Apache Indian ancestry, were filed with the court.
On February 8, 2017, the Agency filed ICWA notices (ICWA-030 form) for both minors with the court. The ICWA notices were sent to Apache Tribe of Oklahoma, Jicarilla Apache Nation, Fort Sill Apache Tribe of Oklahoma, Mescalero Apache Tribe of the Mescalero Reservation, San Carlos Apache Tribe of the San Carlos Reservation, White Mountain Apache Tribe of the Fort Apache Reservation, Tonto Apache Tribe of Arizona, Yavapai-Apache Nation of the Camp Verde Indian Reservation, and the Bureau of Indian Affairs (BIA). The ICWA notices sent by the Agency, however, used incorrect addresses and incorrect designated ICWA agent names for each of the tribes. The Agency did not send the ICWA notice to the Fort McDowell Yavapai Nation, formerly known as the Fort McDowell Mohave-Apache Community.
See In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1447 and 50 Fed.Reg. 6055 (Feb. 13, 1985). See also the Constitution of the Fort McDowell Yavapai Nation (Nov. 12, 1999) <https://www.fmyn.org/wp-content/uploads/FMYN-Constitution.pdf> [as of July 25, 2018], archived at <https://perma.cc/CRV4-5B9A>.
On April 12, 2017, the Agency filed a Declaration of Efforts to Identify Tribal Affiliation with letters from the responding tribes and certified mail receipts attached. Responses were received from the Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos Apache Tribe, and Yavapai-Apache Nation, and each tribe indicated that the minors were not members or eligible for tribal membership. Responses were not received from the BIA, Fort Sill Apache Tribe, Tonto Apache Tribe, or the White Mountain Apache Tribe. The Agency indicated that 60 days had passed since the tribes were noticed and requested that the juvenile court make a ruling on the ICWA. On May 4, 2017, the juvenile court found that the ICWA did not apply to the minors.
At the May 3, 2018 contested dependent review hearing, the juvenile court terminated reunification services and set a hearing under Welfare and Institutions Code section 366.26 for then four-year-old minor E.Q. only.
DISCUSSION
Petitioner challenges the juvenile court's order terminating reunification services based on improper ICWA notice resulting from use of the incorrect addresses and agent names on the ICWA notices sent to the tribes. The parties agree that this error was harmless as to the tribes that responded. The parties also agree, however, that remand is required to permit new notices be sent to the proper addresses and agents for the tribes that did not respond, and to send the ICWA notice to the Fort McDowell Yavapai Nation, to which notice had not been sent. We agree.
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), 1911(c), 1912.) If, after the petition is filed, 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. (25 U.S.C. § 1912; Welf. & Inst. Code, § 224.2; rule 5.481(b).) When the court knows or has reason to believe a child is an Indian child within the meaning of the ICWA, notice on a prescribed form must be given to the proper tribe or to the BIA, and the notice must be sent by registered mail, return receipt requested. (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2; In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906; In re Z.N. (2009) 181 Cal.App.4th 282, 297.) 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; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
At the commencement of this case, petitioner stated she had possible Apache Indian ancestry. Unfortunately, the ICWA notices sent by the Agency used incorrect addresses and incorrect designated ICWA agent names for the eight Apache tribes to which it sent notice. In addition, the Agency did not send notice at all to the Fort McDowell Yavapai Nation, formerly known as the Fort McDowell Mohave-Apache Community. Although, despite the incorrect addresses and agents, five of the Apache tribes responded, there was no indication that the Fort Sill Apache Tribe of Oklahoma, Tonto Apache Tribe of Arizona, or White Mountain Apache Tribe of the Fort Apache Reservation received the ICWA notices. Thus, new ICWA notices must be sent to those tribes, at the correct addresses and addressed to the proper agent. Additionally, the ICWA notice needs to be sent to Fort McDowell Yavapai Nation.
DISPOSITION
The petition for extraordinary writ is granted. Let a peremptory writ issue directing the juvenile court to vacate its findings that adequate ICWA notice was given and that the ICWA does not apply. The juvenile court is further directed to order the Agency to send proper ICWA notice to the Fort Sill Apache Tribe of Oklahoma, Tonto Apache Tribe of Arizona, White Mountain Apache Tribe of the Fort Apache Reservation, and Fort McDowell Yavapai Nation, and to file all the ICWA return receipts and responses with the juvenile court. The juvenile court is then directed to enter updated ICWA findings prior to proceeding with a Welfare and Institutions Code section 366.26 hearing. The decision is final forthwith as to this court. (Rule 8.490(b).) The request for stay of the juvenile court proceedings is denied.
BUTZ, Acting P.J. We concur: MURRAY, J. HOCH, J.