Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Tari Super. Ct. Nos. J066359, J066360, L. Cody, Judge
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Respondent.
Noel A. Klebaum, County Counsel, Linda L. Stevenson, Assistant County Counsel, for Plaintiff and Respondent.
COFFEE, J.
Rose W. (mother) appeals from orders in which the juvenile court denied her request for custody of or expanded visitation rights with her children, Heather and Kevin, at a contested six-month review hearing. She contends that because the Ventura County Human Services Agency (HSA) failed to comply with the notice requirements of the Indian Child Welfare Act, section 1901 et seq. of title 25 of the United States Code (ICWA), this court must vacate all findings and orders made by the juvenile court since the detention hearing or, in the alternative, vacate all orders made by the court at the six-month review hearing. We remand to the juvenile court with directions to comply with the notice provisions of the ICWA and otherwise affirm.
FACTS AND PROCEDURAL HISTORY
On September 20, 2006, HSA filed separate petitions against mother and father for the protection of their seven-year-old daughter, Heather, and five-year-old son, Kevin. (Welf. & Inst. Code, § 300, subds. (b) & (g).) The petition against mother alleged that she had a history of mental and/or emotional problems that periodically rendered her unable to provide adequate care for the children. It also alleged that father had been arrested and charged with domestic violence. The children were removed from the parents’ custody and placed in foster care on September 21, 2006. The court ordered reunification services for mother and father.
On September 21, 2006, father executed a Parental Notification of Indian Status (JV-130 form) indicating that he has Cherokee Indian ancestry. In late September or early October 2006, HSA sent notice of an October 12 hearing to the Bureau of Indian Affairs and numerous Cherokee tribes. On October 4, HSA filed a Notice of Involuntary Child Custody Proceedings for an Indian Child (JV-135 form) with the court. The JV-135 form lacked any information regarding father's Indian ancestry.
On October 10, 2006, HSA filed amended petitions alleging that father and mother had engaged in domestic violence in the presence of the children. HSA's report for the October 12 hearing indicated that both children confirmed that parents argued and fought in their presence. Both children had expressed anger at mother for eating their food. Mother had weekly, monitored visits with the children. The children initially resisted visiting mother because they feared her. Mother sometimes acted inappropriately during visits. For example, she took Heather's money and removed a form that Kevin needed for school from his backpack. On October 12, the court ordered that mother's visits and telephone contact with the children be supervised.
HSA prepared a November 7, 2006, report indicating that mother did not want the children to obtain counseling because prior counseling for Heather had been unsuccessful. Mother missed two consecutive visits with the children. HSA terminated another visit early because mother insisted on discussing the case with the children; on leaving, mother took all of the children's cookies with her.
Before mother's contested jurisdictional hearing, HSA prepared memoranda dated November 3 and November 8, 2006. The memoranda described letters from several Indian bands or nations which had indicated that the children were not eligible for enrollment as, or considered to be, Indian children. Their letters stated that their ICWA determination had been based on information provided by HSA. At the beginning of mother's November 9 contested jurisdictional hearing, the court concluded that the ICWA did not apply.
After the social worker testified, the court continued the hearing to November 15, 2006, so that mother could present testimony. On November 15, the court indicated that the JV-135 forms provided to the tribes had not "included enough information concerning the grandparents through whom the [children might] have Indian ancestry." Because mother and father were not present on November 15, the court continued the hearing to the next day. When mother did not attend on November 16, the court proceeded without her and found the allegations of the amended petitions to be true. It found that mother had made minimal progress toward alleviating or mitigating the causes requiring the children's placement; that father had made no progress toward doing so; that father had been arrested for domestic violence on August 29; and that the children had witnessed the incident. The court set a six-month review. It also set a three-month review to monitor mother's reunification with the children.
HSA sent another JV-135 form to the Bureau of Indian Affairs and to several Cherokee tribes or bands on November 20, 2006. The revised JV-135 form added some information concerning the children's paternal Indian ancestors, but reported that all information pertaining to father was "unknown."
Before HSA prepared its three-month progress report, mother told the social worker that she did not intend to participate in the case plan. Mother's visits with the children were inconsistent. She still sometimes acted inappropriately during visits. Father was incarcerated and had supervised visits with the children twice a month.
HSA's April 23, 2007, six-month review report indicated that mother's visits remained inconsistent and she was unresponsive to the children during visits. HSA referred mother for a psychological evaluation, which she declined, and to parent education classes and general counseling. Mother did not provide HSA with proof of participation in those services. Mother had indicated she would begin individual counseling after her children were returned to her. Father had participated in his case plan. He visited the children consistently and behaved appropriately during visits. HSA recommended an additional six months of services for both parents.
Both parents attended the April 23, 2007, proceeding and requested contested hearings. The court continued the matter to May 30. In a May 30 progress memorandum, HSA reported that mother's visits remained problematic and inconsistent. HSA recommended supervised visits for mother due to her lack of progress. HSA reported that father actively participated in his service plan, attended all scheduled visits, and interacted appropriately with the children. HSA recommended that his visits be liberalized.
On May 30, 2007, the court trailed the hearing to the next day. Father had resolved his contest. The court then continued mother's contest to June 19. During the June 19 hearing, mother testified regarding her refusal to take domestic violence and parenting classes and participate in counseling. She also explained why her visits had been inconsistent. The social worker testified regarding the children's demeanor during mother's visits. The court ordered HSA to continue to provide reunification services and supervise mother's visits with the children. At the request of HSA's counsel, the court found that the ICWA did not apply to the proceedings.
DISCUSSION
Mother contends that because HSA failed to comply with the notice requirements of the ICWA, this court must vacate all findings and orders that the juvenile court has issued since the detention hearing or, in the alternative, vacate the orders that it issued at the six-month review hearing. HSA concedes that it failed to comply with the ICWA notice requirements but argues that the lack of such notice does not warrant the remedy that mother seeks. We conclude that a limited remand is warranted in this case.
In arguing that the inadequate ICWA notice invalidates the juvenile court's orders, mother relies on Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 785. In Nicole K., the Third District of this court directed the juvenile court to vacate orders terminating reunification services and scheduling a permanency planning hearing because those orders had been issued without adequate ICWA notice. In In re Brooke C. (2005) 127 Cal.App.4th 377, Division Two of this district discussed an inadequate ICWA notice in the context of a dispositional order and reached a different result.
The Brooke C. court concluded that an ICWA notice error is not jurisdictional, and therefore ordered a limited remand to the juvenile court for the agency to comply with ICWA notice requirements, with directions to the juvenile court depending on the outcome of such notice. (In re Brooke C., supra, 127 Cal.App.4th 377, 385-386.) After acknowledging the split of authority on this issue, Brooke C. relied on the thorough analysis set forth in In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410, stating:
“Antoinette S. reviewed the California constitutional and statutory provisions granting the juvenile court original jurisdiction in dependency proceedings. It concluded that the statements in the cases to the effect that the juvenile courts had no jurisdiction when the notice provisions of the ICWA are not met ‘appear[] to have been simply a shorthand way of saying the ICWA violations under consideration in those cases constituted serious legal error. Indeed, the statements regarding “no jurisdiction” are only dicta. In each case, the reviewing court reversed or remanded because the lack of notice was prejudicial error-any additional language regarding “jurisdiction” was mere surplusage. [Citations.]’ [Citation.] The court in Antoinette S. concluded that violation of the notice required by the ICWA is not jurisdictional error, observing that to hold otherwise would deprive the juvenile court of all authority over the dependent child, requiring the immediate return of the child to the parents whose fitness was in doubt. [Citation.] [¶] Applying this legal reasoning and following the majority of the cases, the only order which would be subject to reversal for failure to give notice would be an order terminating parental rights. [Citation.] No such order exists in these proceedings. Accordingly, all jurisdictional and dispositional orders, including the order . . . appeal[ed], remain in effect.” (In re Brooke C., supra, 127 Cal.App.4th 377, 384-385.)
More recently, in In re Veronica G. (2007) 157 Cal.App.4th 179, the First District agreed with the reasoning of In re Brooke C. and In re Antoinette S. and with their view that ICWA notice violations warrant reversal only where parental rights have been terminated. (Veronica G., at pp. 187-188.) Because parental rights were not terminated here, the appropriate remedy is to remand this matter to the juvenile court for ICWA compliance.
The orders are affirmed and the matter is remanded to the juvenile court with directions that the juvenile court shall direct HSA to comply with the notice provisions of the ICWA, if it has not already done so. After proper notice under the ICWA, if Heather and Kevin are determined to be Indian children and the ICWA applies to these proceedings, mother is then entitled to petition the juvenile court to invalidate any orders that violated the ICWA. (See 25 U.S.C. § 1914.)
We concur: GILBERT, P.J., YEGAN, J.