Opinion
D042745.
11-25-2003
V. D., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
V. D. (the father) seeks review of juvenile court orders denying him reunification services and setting a hearing under Welfare and Institutions Code section 366.26. He contends the court prejudicially erred by not complying with notice requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). We agree and grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Isaiah D. was born in May 2003, testing positive for cocaine. His mother, Tammy C. (the mother), also tested positive for cocaine and she and the father admitted using the drug a few days before Isaiahs birth. The Agency petitioned on Isaiahs behalf under section 300, subdivision (b), alleging he and the mother had tested positive for cocaine, the mother admitted using cocaine during her pregnancy and had lost four other children to the dependency system, and the father admitted cocaine use.
The mother reported she thought the fathers relatives had American Indian heritage. The detention report stated the ICWA does or may apply. At the detention hearing the court ordered paternity testing and found the ICWA may apply. Isaiah was detained out of the home.
In the jurisdictional/disposition report, the social worker said she asked the paternal grandmother (the grandmother) for information about possible Indian heritage. The grandmother said she did not think anyone in her family was registered with a tribe, but she would call the social worker when she had further information.
On June 24 the court found the father is Isaiahs biological father. In a July 25 report the social worker reported the father stated he thought his family had Cherokee and Choctaw Indian heritage, but he did not know any of the family members names, birthdates or enrollment numbers. The grandmother also said she thought there was Cherokee and Choctaw heritage, and told the social worker she would ask family members for more information. The social worker provided the mother with a letter and an Indian information form to give to the grandmother and asked her to have the form returned as soon as possible. She left telephone messages for the mother and the grandmother about the form.
At the August 13, 2003, jurisdictional/dispositional hearings the court found Isaiah is a child described by section 300, subdivision (b) and would be in danger of risk if returned home. It ordered services would not be offered to the mother under section 361.5, subdivision (b)(10) [termination of prior reunification services], (11) [prior termination of parental rights of sibling or half sibling], and (13) [drug use history], and services would not be offered to the father under section 361.5, subdivision (a) because they would not be in Isaiahs best interests. It placed Isaiah in the home of a non-relative extended family member.
The father petitions for review of the courts orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 39.1B.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
The father contends the court prejudicially erred in not providing notice under the ICWA. We agree. 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 ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) 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 (BIA). (Ibid.)
Here, the Agency acknowledges the court erred in failing to provide notice under the ICWA, but argues under the circumstances of the case the error is harmless. It requests this court take judicial notice of a juvenile court minute order of November 4, 2003, when the court set a second section 366.26 hearing for February 3, 2004, "to give proper ICWA notice." On the same date, the court ordered the section 366.26 hearing originally scheduled for December 9, 2003, would remain. The Agency argues this additional time will allow it to cure the notice deficiency and claims the request to take judicial notice is not barred by In re Zeth S. (2003) 31 Cal.4th 396, where the California Supreme Court reversed an appellate court decision that allowed augmentation of the record. It argues here, unlike in Zeth S., consideration of the evidence is for the purpose of affirming the courts orders, the evidence is a certified copy of a court minute order, and it is relevant to the issue raised by the petitioner.
Even were we to take judicial notice of the minute order, it does not show the failure to comply with ICWA notice requirements was harmless error. It is not relevant to the issue of whether there has been compliance with notice requirements, but shows only that a second section 366.26 hearing has been scheduled "to give proper notice." The ICWA requires notice be given of the pending proceedings and the right of intervention to the tribe or, if the tribe is unknown, to the BIA "where the court knows or has reason to know that an Indian child is involved . . . ." (25 U.S.C. § 1912(a).) The court had reason to know Isaiah might be an Indian child. The statute requires "[n]o foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice . . . ." (Ibid.) The setting of a second section 366.26 hearing at a later date does not render harmless the error in failing to provide notice before the jurisdictional/dispositional hearings.
DISPOSITION
Let a writ of mandate issue directing the juvenile court to vacate its August 13, 2003, disposition order setting a section 366.26 hearing and to conduct further proceedings to determine if the Agency has now complied with the notice requirements of the ICWA. If after proper inquiry and notice a tribe exercises a right to intervene, the court is directed to conduct a new dispositional hearing. If a tribe does not exercise a right to intervene, the court is authorized to reinstate the previous disposition order. This opinion is final immediately as to this court. (Cal. Rules of Court, rule 24 (b)(3).)
WE CONCUR: HUFFMAN, Acting P. J., NARES, J. --------------- Notes: All statutory references are to the Welfare and Institutions Code.