Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. JD15725
ELIA, J.Appellant challenges the orders of the juvenile court denying his Welfare and Institutions Code section 388 petition and terminating his parental rights to Shawna D. He contends that there was inadequate compliance with the notice provisions of the Indian Child Welfare Act. We remand for notice to the Cherokee tribes and the Bureau of Indian Affairs. By separate order filed this day, we deny appellant's petition for writ of habeas corpus.
Background
Appellant is the father of Shawna D. who was placed in protective custody within a few days of her birth in November 2004. At the time, her older half-siblings, the children of her mother Ms. W., were the subjects of a dependency case which was pending a contested jurisdiction hearing.
Ms. W. told the social worker that she did not have any American Indian heritage. The report for the November 2004 hearing said that appellant "believed that his great grandmother had some Cherokee Indian Heritage, however he does not know her name. He stated that his paternal grandmother Ms. Anita M[.] was born on a reservation. He believes that his father, Mr. Donald James D[.], and his maternal grandmother, Ms. Judy Ann W[.], may also be possibly of Cherokee descent. He does not believe that either of them were registered with their tribe." The juvenile court ordered that the Department of Family and Children's Services (Department) give notice pursuant to the Indian Child Welfare Act (ICWA).
The Department sent ICWA notices to the Bureau of Indian Affairs (BIA), the United Keetowah Band of Cherokee Indians and the Cherokee Nation of Oklahoma. The notices indicated possible Indian heritage through Judy Ann W., Anita M., and Donald D. The notices stated that Anita M. had been born on a reservation in Oklahoma. Copies of these notices were filed with the court on December 6, 2004. The juvenile court continued the jurisdiction hearing and, on December 16, new notices were sent to the tribes, this time including the Eastern Band of Cherokee Indians in North Carolina.
A January 4, 2005, addendum included mail receipts from the Eastern Band of Cherokee and the BIA. The response from the BIA said that there was insufficient information to substantiate Shawna's eligibility for membership in any federally recognized tribe. The response from the Eastern Band of Cherokee said that it would not consider Shawna to be an Indian child in relation to that tribe. The response from the Cherokee Nation of Okalahoma said it did not consider Shawna to be an Indian child in relation to that tribe. A January 19, 2005, addendum included the receipt from the United Keetoowah Band of Cherokee and the response from the Eastern Band of Cherokee, which said that Shawna was not an Indian child in relation to those tribes.
On February 10, 2005, the juvenile court found Shawna to be a dependent of the court and made various orders. The court asked, "Do we need to wait on an Indian Child Welfare Act finding or do we have what we need . . . ." Counsel for the Department said that the Department was "still waiting for some information."
A social worker who was as an expert on the ICWA met with appellant in February 2005 and prepared a report for the case plan review hearing. At that hearing, on March 22, appellant, who had himself been the subject of a juvenile court dependency petition, when asked what information he might have, said, "Well, it's not what I think I have. I have not really got the names of my grandparents, which was in my sister's case. It was determined that, you know, there wasn't I guess substantial enough evidence to show that I do have heritage in my sister's case . . . . I was hoping they could dig deeper or find out more information . . . instead of going on, you know, my sister's information." The court said that it would set "a specific hearing on the Indian Child Welfare Act. And we'll have the social worker pull together all the information that we have available to us about your possible Native American heritage. [¶] And when we get that, you take a look at it and you tell us if you know anything else."
Reviewing the Department's files, the social worker found more family information. This information included the names of other relatives, Dolly Ann L., Loyd (or Lloyd) W., and Bob L., who were Shawna's paternal great grandmother and two paternal great grandfathers. The social worker included this information in new notices sent in April 2005 to the BIA, the United Keetoowah Band of Cherokee, the Eastern Band of Cherokee, and the Cherokee Nation of Okalahoma. In her May 2005 report, the social worker included copies of these notices and return receipts. By the time of the May 17, 2005, hearing, there had been no response from these notices and the juvenile court found that proper notice under the ICWA had been given.
In the July 2005 report recommending termination of appellant's reunification services, the social worker attached responses from each of the Cherokee tribes. The April 2005 letter from Eastern Band of Cherokee said that Shawna was not registered and was not eligible for enrollment. The May 9, 2005, letter from the United Keetoowah Band of Cherokees said that based on the information provided, it did not consider Shawna to be eligible for enrollment because there was no evidence that she was descended from anyone on the Keetowah Roll. The June 2005 letter from the Cherokee Nation said that Shawna could not be traced in their tribal records through any of the named relatives.
In January 2006, during the six-month review hearing, the Department filed a subsequent petition pursuant to Welfare and Institutions Code section 342 and the court held a contested jurisdiction hearing on that petition in April 2006. During those April proceedings the social worker told the court that appellant's mother had recently told her that she might have a roll number that had not previously been provided to the Department. The social worker said, "She hasn't provided new names. . . . She hasn't provided that to myself. I've asked her. I asked her. I was trying to follow up with that." Counsel for the Department said that all three tribes and the BIA had responded that, based on the information that the family had provided, all three tribes said that they did not find Shawna to be an Indian child. Counsel said "it would be redundant to try to send out notices again with the same information." Counsel asked the court to find that the ICWA did not apply. The court said that as to ICWA notice issues "we want to be punctilious, to dot the I's and cross the T's." The court said that it would make the finding if there was no objection. No counsel objected. The court said, "I certainly find full compliance with the Indian Child Welfare Act under the circumstances." The court sustained the subsequent petition and resumed the six-month review hearing that had been suspended after the section 342 filing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. Section 342 provides, "In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. This section does not apply if the jurisdiction of the juvenile court has been terminated prior to the new allegations. . . ."
On April 25, 2006, during the resumed six-month review hearing, counsel for the Department said that there was "some new information." The day before, appellant's mother had given the social worker "information concerning enrollment numbers for the Cherokee tribe" in Tahlequah, Okalahoma. Counsel said that the information was "significant because it may mean then that [appellant] is eligible for enrollment, which may then – may mean that Shawna is eligible for enrollment, but we need some time to follow up on this, since this is all very new."
Counsel for appellant said that "[appellant] walked in with that yesterday morning and turned it over to [the social worker] . . . and he has indicated to me that he and his mother and particularly his mother have been in an ongoing search through libraries and various other things to come up with this as soon as possible." The court said that it thought that the issue had been put to rest when there had been no objection to the finding of compliance with the ICWA noticing provisions. Counsel for appellant said that "there was no gamesmanship intended" and that although she had "put [the ICWA issue] on the back burner," all counsel had been aware that appellant and his mother were "in an ongoing search and attempt to try and get enough information to be able to trace [tribal eligibility] back." Counsel for the Department said that she wanted to be "very cautious about how we proceed" because ICWA notice cases "keep getting overturned on appeal." Counsel for the Department asked the court to adjourn for the afternoon to let the social worker follow up on the new information with the tribe by phone. The court agreed to the adjournment saying that it had not known about these most recent efforts but that the court would "bend over backwards to make sure everyone's rights are fully protected."
The next day, the social worker presented the court with a memorandum concerning ICWA notice. The social worker sent a memo by fax to Stacia Goodnight in the Indian Child Welfare Office of the Cherokee Nation tribe in Oklahoma. The memo referenced the earlier notices that had been sent and also gave "tribal roll numbers" for Judy or Julia Ann W. and Martha W. The social worker explained in her memo to the juvenile court that at a home visit on March 30, 2006, appellant's mother had said that she was applying for an "Indian Card through the Cherokee Tribe." She told the social worker that she needed a signature to apply for the card. The social worker asked appellant about this in court. On April 24, appellant gave the social worker a paper on which someone had written these names and numbers, relating to Shawna's maternal great grandmother and maternal great-great grandmother. Goodnight replied that "based on the birthdate formerly provided for Julia Ann W[.] . . . this was not a match for the Julia Ann W[.] on the Dawes Roll which the tribe uses for establishing tribal heritage." The social worker asked appellant to check with his mother for the correct birthdates for Julia Ann W. and Martha W.
On April 26, the court told the parties that it was very important "even at this late date" that the parties give the social worker "anything in writing that would help to shed light on this matter." The court said that counsel for the Department had said that appellant's mother would be served with a subpoena duces tecum to provide anything she might have on the issue of possible tribal membership and to "find out what she has to say under oath on this issue." Appellant told the court that his mother had been told that she needed to get her birth certificate certified by the county in order to get her tribal membership and that she was doing so.
The social worker continued to provide Goodnight with family heritage information as it became available. She sent two more memos to the Cherokee Nation tribe. On May 24, 2006, the social worker wrote appellant to tell him that she had "provided all information given to me, at this point, in regard to potential Native American ancestry to the Cherokee tribe. I have not heard back from you further in regard to this since the last court hearing on 5/9/06. If you have located any additional information in regard to this issue please provide it to me." Responses on tribal letterhead did not change that tribe's assessment that Shawna would not be considered an Indian child in relation to the Cherokee Nation.
On May 31, 2006, the social worker submitted a memo to the court stating that appellant had not provided her with any further family information. Counsel for the Department said that the court had sufficient evidence to determine that the ICWA did not apply. The court admitted into evidence a letter to appellant's mother, who was present, from the Registration Department of the Cherokee Nation. The letter said that appellant's mother's "request for certification" was unacceptable because state-certified birth records had to be provided, rather than county birth records. The letter asked appellant's mother to "use form enclosed to receive the correct birth certificate" and to resubmit the form.
After taking the matter under submission, the juvenile court terminated reunification services and set the matter for a hearing under section 366.26 to select a permanent plan for Shawna. Counsel who had been representing appellant in juvenile court filed on appellant's behalf a petition for extraordinary writ challenging the findings and orders of the juvenile court in setting the section 366.26 hearing. (In re Shawna D., H030278) Appellant contended in the writ that the juvenile court lacked substantial evidence that Shawna would be at risk in his care. He contended, alternatively, that he did not receive reasonable reunification services and should have been granted additional services and that the court abused its discretion in failing to require more frequent visitation. The writ raised no ICWA notice issues. In a 20-page opinion, this court denied the writ petition.
On December 11, 2006, the juvenile court denied appellant's section 388 motion. On January 2, 2007, the court held a contested section 366.26 hearing and found that Shawna was adoptable and that no exceptions to termination applied. The juvenile court terminated appellant's parental rights.
ICWA Notice
Appellant contends, "There was inadequate compliance with the notice requirements of the Indian Child Welfare Act." ICWA and the cases applying it require that there be actual notice to the tribe both as to the proceedings and as to the right to intervene. (See In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) The ICWA notice requirements are not satisfied unless there is strict adherence to the law. (In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475.) The juvenile court's failure to secure compliance with the notice provisions of ICWA is prejudicial error requiring reversal and remand. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) The notice requirements cannot be waived by the parent. (Ibid.) In addition, even "where the notice requirements of [ICWA] were violated and the parents did not raise that claim in a timely fashion, the waiver doctrine cannot be invoked to bar consideration of the notice error on appeal." (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.)
Appellate counsel has filed in this court a petition for writ of habeas corpus or mandate contending that any failure by trial counsel to raise meritorious objections to inadequate compliance with the notice requirements of the ICWA would be a denial of effective assistance of counsel.
Respondent argues that a waiver of forfeiture should be deemed to have occurred in this case, not because of trial counsel's failure to raise the issue in the trial court, but because of trial counsel's failure to raise the issue in the petition for extraordinary writ she filed from the orders terminating services for reunification and setting a hearing under section 366.26. We consider Marinna J. to apply to the situation here. Furthermore, respondent concedes that section 366.26, subdivision (l), which precludes review on appeal from a termination of parental rights of issues that had not been substantively addressed by a petition for extraordinary writ, has not been extended to bar consideration of ICWA notice issues raised for the first time on appeal from a section 366.26 hearing.
"To satisfy the notice provisions of [ICWA] and to provide a proper record for the juvenile court and appellate courts, [the Department] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the Department] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status." (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.)
The report for the November 2004 hearing said that appellant "believed that his great grandmother had some Cherokee Indian Heritage, however he does not know her name. He stated that his paternal grandmother Ms. Anita M[.] was born on a reservation. He believes that his father, Mr. Donald James D[.], and his maternal grandmother, Ms. Judy Ann W[.], may also be possibly of Cherokee descent. He does not believe that either of them were registered with their tribe." Based on this information, ICWA notices were sent to the BIA, the United Keetowah Band of Cherokee Indians, the Cherokee Nation of Oklahoma, and the Eastern Band of Cherokee Indians in North Carolina.
Appellant focuses on the new information, in April 2006, that appellant's mother had uncovered about Shawna's ancestors, including the name of and possible birthdates for appellant's maternal great-grandmother, Martha W., who had not previously been identified in any of the notices, and the Dawes Roll numbers for her and her daughter, Julia (or Judy) Ann W., who had been previously identified. Appellant contends that the failure to give proper notice of this important new ancestor information to the United Keetoowah Band of Cherokee and the Eastern Band of Cherokee, and "other deficiencies with regard to ICWA notice, resulted in a degree of non-compliance which cannot be considered harmless in this case."
Appellant points out that, as to the United Keetowah Band of Cherokee, the notice sent in April 2005 was addressed to P.O. Box 189, Park Hill, Oklahoma, although the proof of service on the notice itself states that it was sent to P.O. Box 370 in Park Hill. However, in March 2005 an updated list of proper names and addresses for service on the tribes gives an address in Tahlequah, Oklahoma for the United Keetowah Band. Appellant asserts that it was error to send the notice to the old address. Citing Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, appellant argues that this error was not harmless. In Nicole K., the appellate court ordered the juvenile court to vacate a scheduled section 366.26 hearing in light of the fact that ICWA notice to one tribe was mailed to an incorrect address. In Nicole K., no response was received from the tribe, so there was no conclusive evidence that the tribe had received actual notice of the dependency proceedings. (Id. at pp. 782-783.) Here, unlike in Nicole K., a letter response to the April 2005 notice was received from the United Keetowah Band. Appellant recognizes this distinction but argues that here, "it is not clear from the record that the notice was received by, or that the response came from, the proper persons." Appellant points to "inconsistencies and confusions regarding the names and addresses of the people receiving and responding to the notice" arguing that these "create uncertainty as to whether the notice was actually properly received."
More persuasively, appellant argues that "the main basis of appellant's claim is the fact that, when appellant' mother discovered new information about the child's ancestors, including a possible Dawes Roll number, and told the social worker about it, the social worker provided the new information only to the Cherokee Nation tribe, and not to the United Keetoowah Band. Appellant argues that the omission was prejudicial error, because the United Keetoowah Band had been identified as a tribe with which appellant's ancestors were potentially affiliated, and it uses the Dawes Roll to trace tribal lineage, as does the Cherokee Nation tribe, and there was no apparent legitimate reason why it should not have been provided with the new information."
As it must, respondent recognizes that "the Cherokee Nation and the U[nited] K[eetoowah] B[and] share a seminal tribal roll, the Dawes Roll." Respondent argues, however, "the grandmother was obviously trying to enroll herself into the Cherokee Nation of Oklahoma" and that the "paternal grandmother was not seeking enrollment in the U[nited] K[eetoowah] B[and]." The problem with this argument is that it leaves to the paternal grandmother determinations that are the tribes' to make. She was working with the information that Shawna's ancestry was Cherokee from Okalahoma. A grandmother may "not necessarily [be] knowledgeable about tribal government or membership." (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257.) Her efforts to establish a link with the Cherokee Nation should not be used to exclude other Cherokee tribes from the determination of tribal eligibility. Each tribe has the sole authority to determine its own membership. (Cal. Rules of Court, rule 5.664(g); Dwayne P. v. Superior Court, supra, 103 Cal.App.4th 247, 255.) The failure to provide the new information to the other Cherokee tribes, especially the United Keetowah Band, was error.
Appellant argues that "because the notice error occurred at and potentially affected the outcome of the permanency review hearing, which is a pivotal hearing in the statutory dependency scheme, and therefore potentially resulted in an erroneous setting of the hearing under section 366.26, the Court should in this case conditionally reverse not only the orders under section 366.26, but also the orders made at the permanency review." However, the reason the waiver doctrine is invoked to bar consideration of the notice error on appeal is to protect the interests of Indian tribes. (In re Marinna J., supra, 90 Cal.App.4th 731, 739.) After new notices are sent, if any tribe responds affirmatively, it has the "right to intervene at any point in the proceeding." (25 U.S.C.A. § 1911, subd. (c).) A conditional reversal of the order terminating parental rights is sufficient under the circumstances of this case to protect the interests of the tribes.
Disposition
The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions that the Department of Family and Children's Services provide proper notice to all three Cherokee tribes and the Bureau of Indian Affairs. The Department is directed to file proof of receipt of such notice by the tribes and the Bureau of Indian Affairs, along with a copy of the notice and any responses. If, after receiving notice as required by the ICWA, no response indicates that Shawna is an Indian child, or the responses received indicate that she is not an Indian child within the meaning of the ICWA, the order terminating parental rights shall be immediately reinstated. If any tribe determines that Shawna is an Indian child within the meaning of the ICWA, the juvenile court shall conduct further proceedings applying the provisions of the ICWA, Welfare and Institutions Code section 360.6, and rule 5.664 of the California Rules of Court.
WE CONCUR: RUSHING, P. J., PREMO, J.