Opinion
D042124.
10-23-2003
In re MERCEDES T., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JOHN T., Defendant and Appellant.
John T. appeals the order declaring his daughter, Mercedes T., to be a dependent of the juvenile court and removing her from his custody. John does not assert the court wrongfully found Mercedes was described as a dependent by Welfare and Institutions Code section 300, or removed her from his care. Rather, he contends the order is voidable because the San Diego County Health and Human Services Agency (the Agency) did not comply with the notice requirements of the Indian Child Welfare Act, title 25 United States Code section 1900 et seq. (ICWA). He also seeks sanctions against the Agency because it "grossly failed its ministerial function as ordered by the juvenile court." We affirm the order and decline to order sanctions.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2002 the Agency removed Mercedes from the custody of her parents, John and Mary M., and filed a section 300 petition on her behalf because John sexually and physically abused one of Mercedess cousins. During the November 14 detention hearing, Mary said her maternal great-grandfather was a member of the Seneca Lake Tribe in New York. The court ordered the Agency to send appropriate notices to the Bureau of Indian Affairs (BIA) and the identified tribe, which the social worker did four days later.
Because the Seneca Lake Tribe is not an entity recognized by the BIA (Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs (67 Fed.Reg. 46328 (July 12, 2002)), we infer the social worker served notice on the Seneca Nation of Indians in New York as the closest recognized Indian entity.
The court also ordered the Agency to confirm it had all the relevant information about Marys possible Indian ancestry. On December 3, 2002, the social worker spoke with two of Marys relatives. One believed there was some "distant Indian heritage" and the other believed Marys paternal great-grandfather might have been Cherokee. Three days later, the social worker sent notice, by certified mail, to the BIA, the Seneca Nation of Indians in New York, the Tonawenda Band of Senecas in New York, the United Keetoowah Band of Cherokee Indians in Oklahoma, the Seneca-Cayuga Tribe of Oklahoma, and the Cherokee Tribe of Oklahoma that involuntary custody proceedings had begun on Mercedess behalf and she might be eligible for enrollment with either the Seneca or the Cherokee tribes.
The Agency requested we augment the record with letters from several of the Indian tribes stating Mercedes is not an Indian child and take judicial notice of a blank copy of the 1982 version of form SOC 319, titled Notice of Involuntary Child Custody Proceeding Involving an Indian Child. John requested we augment the record with the notices sent by the social worker to the Indian tribes and the BIA and the return receipt cards showing the tribes and the BIA received notice and to take judicial notice of the 1993 version of form SOC 319 and form SOC 318, titled Request for Confirmation of Childs Status as an Indian. No party objected to any of the requests and we have augmented the record and taken judicial notice as requested. We recognize the Supreme Court has stated postjudgment evidence may not, except in extraordinary circumstances, be used as a basis to reverse a termination of parental rights on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 413.) However, because this appeal is not from an order terminating parental rights and we are not reversing, augmenting the record and taking judicial notice here is not prohibited by In re Zeth S.
The jurisdictional and dispositional hearing was originally scheduled for December 11, 2002. However, the matter was continued several times. By the end of February 2003 the hearing had not been held, but the social worker had received responses from the Seneca Nation of Indians in New York, the Seneca-Cayuga Tribe of Oklahoma, the Cherokee Tribe of Oklahoma, and the United Keetoowah Band of Cherokee Indians in Oklahoma. The social worker also received two undated letters from the Eastern Band of Cherokee Indians. Each response stated Mercedes was not considered an Indian child. In April, the court made a true finding on the petition, removed Mercedes from her parents custody, and ordered reunification services.
DISCUSSION
I
A
John asserts the jurisdictional and dispositional findings should be reversed because the Agency did not provide notice to the BIA and the Indian tribes more than 10 days before the jurisdictional hearing and did not notice all the recognized Seneca or Cherokee tribes.
The ICWA was enacted to promote the stability and security of Indian tribes and families by establishing standards for removal of Indian children from their families and placement of those children in appropriate homes. (In re L.B. (2003) 110 Cal.App.4th 1420, 1423; 25 U.S.C. § 1902.) Among the procedural safeguards included in the ICWA is the provision for notice. (In re L.B., supra, 110 Cal.App.4th at p. 1423.) The ICWA requires the party seeking to place a minor in foster care to notify the Indian childs tribe, by registered mail, return receipt requested, of the pending proceedings and the tribes right to intervene. (25 U.S.C. § 1912(a).) The court may not hold a hearing to place a minor in foster care until 10 days have passed after the date the tribe or tribes received notice. (Ibid.) We may void the jurisdictional and dispositional orders if notice to the tribes or BIA is not given in accordance of provisions of the ICWA. (25 U.S.C. § 1914.)
John asserts the tribes did not receive notice 10 days before the jurisdictional hearing scheduled for December 11, 2002. However, whether the tribes were served with notice 10 days before that date is irrelevant because the court did not hold a hearing to place Mercedes in foster care until April 29, 2003. Therefore, we examine the record to see whether the BIA and the Indian tribes received notice 10 days before April 29, 2003.
The social worker sent notice to the Seneca Nation in New York and the BIA on November 18, 2002. On December 6, the social worker sent additional notices, by certified mail, return receipt requested, to the BIA, and the Seneca Nation of Indians in New York, and new notices to the Tonawenda Band of Senecas in New York, the United Keetoowah Band of Cherokee Indians in Oklahoma, the Seneca-Cayuga Tribe of Oklahoma, and the Cherokee Tribe of Oklahoma that involuntary custody proceedings had begun on Mercedess behalf. The return receipt requested cards show the Seneca Nation in New York received notice in November 2002, the United Keetoowah Band of Cherokee Indians in Oklahoma and the Cherokee Nation of Oklahoma received notice in December, the Tonawanda Band of Senecas received notice in January 2003, and the BIA received notice in March. The Seneca-Cayuga Tribe did not return a dated receipt card, but did return the card showing service had been accomplished. Because notice was sent in early December 2002 and the other tribes received notice by early March 2003 we infer, in the absence of any indication in the record to the contrary, that notice was received by that tribe more than 10 days before April 29, 2003. Because each tribe and the BIA received notice more than 10 days before the April 29 jurisdictional and dispositional hearing, John has not shown reversible error.
Because the Seneca Nation in New York returned a card dated November 22, 2002, it did not need to respond to the social workers December inquiry. In any event, that tribe returned an undated receipt card, presumably from the December notice.
In any event, errors in giving notice to the BIA and the Indian Tribes under the ICWA are harmless when the tribe expressly states the child is not an Indian child and it will not intervene. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 471-472.) Here, the Seneca Nation in New York, the Seneca-Cayuga Tribe of Oklahoma, the Cherokee Nation in Oklahoma, and the United Keetoowah Band of Cherokee Indians in Oklahoma each expressly stated at least two months before the dispositional hearing that Mercedes was not an Indian child. The Eastern Band of Cherokee Indians stated in two undated letters that Mercedes was not an Indian Child. The Tonawanda Band of Senecas had sufficient time to intervene and, by its silence, we infer it has chosen not to do so. Consequently, even if the Agency sent untimely notice, there was no reversible error.
John asserts the notice was insufficient because the Agency did not notice all the recognized Seneca or Cherokee tribes. However, other than the Seneca Nation of New York, which received notice in November 2002, neither Mary nor her relatives identified any tribe by name. When the parent does not identify a specific tribe to which he or she or his or her family may be affiliated, there is no ICWA violation if the Agency does not serve all the tribes of the Indian nation so long as the Agency also serves the BIA with notice that the child may be an Indian child. (In re Edward H. (2002) 100 Cal.App.4th 1, 4.) Here, the Agency served the BIA with notice multiple times that Mercedes might be a member of the Seneca nation, the Cherokee nation, or both nations. The fact that the social worker did not serve all three registered Cherokee tribes with notice is not a ground for reversal.
Moreover, even though the record shows the social worker did not serve all the Cherokee tribes with notice, the three federally recognized Cherokee tribes (the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee, and the United Keetoowah Band of Cherokee Indians (In re C. D. (2003) 110 Cal.App.4th 214, 226)) said Mercedes was not an Indian child, rendering any error harmless. (In re Desiree F., supra, 83 Cal.App.4th at pp. 471-472.) There are only three registered Seneca tribes (Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs (67 Fed.Reg. 46328, supra)), and the social worker served notice to all of them.
B
John, citing In re Desiree F., supra, 83 Cal.App.4th 460, asserts the juvenile court had no jurisdiction to address the merits of the case because inadequate notice under the ICWA divests the juvenile court of "jurisdiction" to address the merits of a dependency proceeding. (Id. at p. 474; see also In re Jonathan D. (2001) 92 Cal.App.4th 105, 110.) However, " [t]here is a wide difference between a want of jurisdiction, in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial court is not void, although it may be subject to direct attack on appeal. [Citation.]" (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409-1410.) Subject matter jurisdiction is the inherent authority of the court to address the case or matter before it. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691.) A court has subject matter jurisdiction if the state Constitution or statutes empower it to adjudicate the type of case involved. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003) ¶ 3:2, p. 3-2.)
A superior court convened as and exercising the special powers of a juvenile court has jurisdiction to make determinations relating to dependent children. (In re Lisa R. (1975) 13 Cal.3d 636, 643.) A case comes before the juvenile court when an authorized party files a petition alleging that a child is within the description of one or more of the categories set forth in section 300, each of which describes a situation in which the child requires the supervision of the juvenile court. (§§ 325, 362.)
Here, the court that heard this matter is authorized to hear juvenile matters, and the Agencys petition alleged a child needed the courts protection. Because the court was empowered to address the type of case pleaded, it had subject matter jurisdiction. Violation of the 10-day period of notice required by the ICWA does not divest the court of subject matter jurisdiction. (In re Antoinette S. , supra, 104 Cal.App.4th at pp. 1410-1411.) To conclude otherwise would cause the court to lose jurisdiction over dependent children, returning them to persons who, at a minimum, have demonstrated temporary unfitness to parent, which would be an unjust result. (Ibid.) John has not shown the alleged defects in notice divested the juvenile court of subject matter jurisdiction. At most, the court could not have held the jurisdictional and dispositional hearings until 10 days after the tribes and the BIA were served with notice.
C
John asserts the court erred in finding that proper notice under the ICWA had been given because it did not have written proof that the tribes received proper notice. In In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, footnote 4, the court stated the social services agency should provide the juvenile court with a copy of the notice sent, the return receipt, and any response by the tribe. Following In re Marinna J., some courts have held the failure to provide the return receipts and notices is reversible error because the courts were unable to evaluate whether the forms were adequate. (In re Asia L. (2003) 107 Cal.App.4th 498, 508, 509; In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215; In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703.)
However, two years after the Third District Court of Appeal decided In re Marinna J., supra, 90 Cal.App.4th 731, it held that while providing the return receipts and the notices to the court would be a sound practice and would avoid appellate complaints about notice under the ICWA, neither the ICWA nor the California Rules of Court require the Agency to do so. (In re L.B., supra, 110 Cal.App.4th at p. 1425, fn. 3; In re Levi U. (2000) 78 Cal.App.4th 191, 195, 199.) Instead, the social workers statement that he or she sent the notice, containing all relevant information, is sufficient evidence that notice has been properly given, unless documentary evidence shows to the contrary. (In re L.B., supra, 110 Cal.App.4th at p. 1425; In re Levi U., supra, 78 Cal.App.4th at p. 198.) We agree with the analysis in In re L.B. and In re Levi U. In the absence of evidence to the contrary, the social workers statement that the worker has done his or her duty and sent the notices containing the required information is sufficient evidence upon which the court may base a notice finding. Here, because the social worker asserted she had served the BIA and the Seneca Nation in New York in November 2002 and our record shows she served the BIA, the Seneca Nation of Indians in New York, the Tonawenda Band of Senecas in New York, the United Keetoowah Band of Cherokee Indians in Oklahoma, the Seneca-Cayuga Tribe of Oklahoma, and the Cherokee Tribe of Oklahoma in December with notice that Mercedes might be an Indian child, the record sufficiently demonstrates notice was sent.
D
John asserts the Agency sent deficient notice because it did not speak with maternal relatives and, as result, could not complete the proper forms or provide the history of maternal relatives believed to be Indian. However, the social worker spoke with two maternal relatives within three weeks after the court ordered her to do so. John does not assert other relatives with material information existed but were not interviewed.
Because Marys mother and one sister were schizophrenic, we infer the social worker believed neither could provide useful information. John does not assert either had material information.
John correctly points out the social worker used the 1982 version of form SOC 319, titled Notice of Involuntary Child Custody Proceeding Involving an Indian Child, to send notice to the tribes and the BIA. We are perplexed as to why she used an outdated form; a newer version of the form was prepared in December 1993. Regardless, using the older form did not interfere with the tribes ability to determine whether Mercedes was an Indian child. Although the two forms are different, they provide the tribe with the same information: the name, birthdate, birthplace, and possible tribal affiliation for the minor, mother, and father; any other names used by the parents; whether the minor has been temporarily placed in the custody of the Welfare Department or an Indian custodian and, if so, the name of the custodian; information about the upcoming dependency proceeding; and a contact at the social services agency. Because the relevant information was provided to the tribes, we do not reverse because the social worker used an outdated form.
The Agency is required to use SOC 319 when noticing the tribes and the BIA. (In re C.D., supra, Cal.App.4th at p. 223.)
John also complains the social worker provided insufficient information to the tribes and the BIA about the maternal relatives because she did not send form SOC 318. The BIA guidelines provide that notice to the tribe shall include the Indian childs name, birthdate, and place of birth; the tribe in which the child is or could be a member; and the name, birthdate, birthplace, tribal enrollment number, or other identifying information about the childs parents, grandparents, and great-grandparents. (25 C.F.R. § 23.11(a), (b) (2003).) Form SOC 318 provides a place for the social worker to provide information about the minors grandparents or great-grandparents potential Indian heritage, including whether those persons were on the 1906 final roll or the roll of 1924 for the Cherokee Tribe; if any family member was alive in 1906 or 1924 who could have been on those rolls; and whether any family member received services from the BIA, attended an Indian school, received medical treatment from an Indian health clinic or public service hospital, or lived on federal trust land, a reservation, or a rancheria. However, the only maternal relative identified as possibly having Indian heritage was Marys great-grandfather, who was Mercedess great-great-grandfather. The guidelines do not require information about the minors great-great-grandparents to be provided. There is no evidence in this record that Mary or any of her relatives knew any information about Mercedess grandparents or great-grandparents. Under these circumstances, the Agency was not required to send form SOC 318, because it had no information that Mercedess grandparents or great-grandparents had Indian heritage. (In re C.D., supra, 110 Cal.App.4th at p. 225.) Because the Agency provided the tribes with the known information about Mercedes, Mary, and John on form SOC 319, John has not demonstrated reversible error. The Agency sent sufficient notice to the BIA and the Seneca and Cherokee tribes.
II
John urges us to sanction the Agency because he asserts that entity "grossly failed its ministerial function as ordered by the juvenile court." He asserts the Agency committed contempt of court under section 213 and urges us to impose sanctions under Code of Civil Procedure section 177.5, because the Agency knowingly violated a lawful court order without good cause or substantial justification by not acting in a timely fashion to provide notice and using an outdated form.
The record does not show the Agency acted in a dilatory manner. On November 14, 2002, the court ordered the Agency to send appropriate notice to the BIA and identified tribes, and learn as much as possible about Mercedess Indian heritage. The social worker sent notice to the BIA and the Seneca Nation in New York, the only tribe identified at that time, two working days later. Nineteen days later, the social worker spoke with two of Marys relatives to obtain information about Mercedess possible Indian heritage. Three days after speaking with those relatives and learning Mercedes had possible Cherokee heritage, the social worker sent notice to two of the three recognized Cherokee tribes, the three recognized Seneca tribes, and the BIA. These periods of time are not unduly extended, particularly because of the Thanksgiving holiday. The social worker followed the courts order by speaking to the maternal relatives in a timely fashion and serving the BIA and the tribes more than 10 days before the dispositional hearing.
As November 14, 2002, was a Thursday, two of the intervening days were weekend days.
We are perplexed as to why the social worker used an outdated form to send notice to the tribes and the BIA. However, doing so is not an exercise of willful disobedience of a court order under section 213, because the same information that would have been provided on the current form was provided on the outdated form. The social worker had no need to send form SOC 318 because there was no evidence one of Mercedess grandparents or great-grandparents had or might have had Indian heritage. Sanctions are not warranted.
Although we do not impose sanctions in this case, we urge the Agency to be meticulous about its notice under the ICWA, promptly talk to all relatives identified, provide any information requested on form SOC 318, if known, and notice all recognized tribes of any given Indian nation as soon as possible. As this court recently noted, "[t]he ICWA notice requirement is not onerous. [C]ompliance requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency, for the benefit of county welfare agencies. [Citation]." (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.) Because providing all relevant information in a timely fashion would "head off numerous appellate complaints of non-compliance with the ICWA" (In re L.B., supra, 110 Cal.App.4th at p. 1425, fn. 3), the Agency would be well served to comply with the literal requirements of ICWA.
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., and HUFFMAN, J.