In re Jennifer A.

Decision Date12 November 2002
Docket NumberNo. G030368.,G030368.
Citation127 Cal.Rptr.2d 54,103 Cal.App.4th 692
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re JENNIFER A., a Person Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent, v. E. K., Defendant and Appellant; Tony A., Real Party in Interest and Respondent.

Stephanie M. Davis, under appointment by the Court of Appeal, Marina Del Rey, for Defendant and Appellant.

Lawrence A. Aufill for Real Party in Interest and Respondent.

Benjamin P. de Mayo, County Counsel, and Thomas F. Morse, Deputy County Counsel, for Plaintiff and Respondent.

Paoli & Paoli and Sylvia L. Paoli, under appointment by the Court of Appeal, La Mirada, for the Minor.

OPINION

MOORE, J.

In this mother appeals from the dispositional order removing her daughter from her custody and awarding custody to the child's father. The mother claims the juvenile court violated the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). She argues it erred in going forward with the dependency proceedings when no evidence of service of notice on the appropriate tribes, receipt of notice by the tribes, or any response from the tribes had been filed with the court. The social services agency and the father, on the other hand, contend the ICWA notice provisions are inapplicable because the child ultimately was placed in her father's custody, not in the custody of a foster parent, and the ICWA does not apply to intrafamily disputes.

However, the child was initially removed from her mother and temporarily placed in emergency shelter care and then in foster home care. The fact that the court later ordered the child placed in the custody of her father did not nullify the ICWA notice provisions applicable in involuntary proceedings. Moreover, the marital dissolution exception to the application of the ICWA is itself inapplicable. The mother and father are not married and this is not a custody dispute arising out of a marital dissolution, but rather a proceeding born out of concern for the safety of the child.

We agree with the mother that the social services agency failed to provide to the juvenile court information on which the court could base a decision as to whether proper notice had been given to the Indian tribes and whether the post-notice procedural provisions of the ICWA apply. It also made no determination as to whether, if those provisions apply, the mother has waived their application. We therefore reverse and remand for such determinations.

I FACTS

On January 7, 2002, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition, asserting Jennifer A. came within the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b)1. Jennifer, then 11 years old, had been living with her mother. According to SSA, Jennifer was frequently left alone with her two-year-old nephew and her mother used methamphetamine on a regular basis.

The detention hearing was held on January 8, 2002, at which time Jennifer was detained at an emergency shelter home. According to her father, the court asked at the detention hearing whether the mother or father had Indian heritage. The mother said she believed she was of Cherokee heritage and the father indicated he believed he was of Yaki heritage. The court ordered SSA to investigate Jennifer's possible Indian heritage and to provide notice to the appropriate tribes. The court also set the matter for trial on January 30, 2002.

On that date, SSA filed its jurisdiction/disposition report in which it stated the ICWA might apply. It reminded the court that Jennifer's mother had stated she might have Cherokee heritage and Jennifer's father had stated he might have Yaki heritage. SSA also stated it had sent notice to both tribes and to the Bureau of Indian Affairs (BIA).

Trial commenced on January 30, 2002, as scheduled. No evidence concerning notice to the tribes or the BIA was presented. The mother states no mention of either the ICWA or any notices was made during the oral proceedings, and the father and SSA generally agree with her characterization of the facts.

When trial commenced, Jennifer continued to live in an emergency shelter home. Jennifer's father, who was not married to her mother, was willing to take Jennifer into his home, but Jennifer did not want to live with him. SSA recommended that Jennifer be declared a dependent child of the court. The court ruled that Jennifer came under Welfare and Institutions Code section 300, subdivision (b) and set the dispositional hearing for February 20, 2002.

In advance of that hearing, SSA filed a report stating Jennifer had been placed in a foster home. SSA recommended against Jennifer being returned to her mother at that time, and stated Jennifer still did not want to live with her father. It recommended that she remain in foster home care, with regular visits with both parents. By order dated February 22, 2002, the court ordered Jennifer declared a dependent child of the Orange County Juvenile Court under Welfare and Institutions Code section 360, subdivision (d). It also ordered that Jennifer's father have custody of her, under the supervision of SSA. The court set the six-month review hearing for August 14, 2002.

Jennifer's mother filed an appeal from the February 22, 2002 dispositional order. She claims the juvenile court erred in failing to apply the notice and other procedural requirements of the ICWA.

II DISCUSSION
A. Applicability of ICWA Notice Requirements
1. Title 25 United States Code section 1912(a)

Title 25 United States Code section 1912(a) provides: "In any involuntary proceeding in a State court, 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 child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention .... No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe...."

According to Jennifer's mother, the requirements of this section were not met. Because SSA's jurisdiction/disposition report informed the court that both the mother and the father claimed to have Indian heritage, the court had "reason to know that an Indian child [was] involved," and was therefore required to ensure compliance with the ICWA notice requirements.2 Despite this, the mother points out, no copies of notices are contained in the superior court file. There is no proof, she says, that notice was sent by registered mail, return receipt requested, or assuming notice was sent, that the contents of the notice informed the tribes of the proceedings and of their right to intervene.

2. Foster care placement

SSA contends any violation of the ICWA notice requirements was harmless error, for a couple of reasons. For one, it emphasizes the portion of Title 25 United States Code section 1912(a) providing that "[n]o foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by ... the tribe...." SSA maintains the proceedings need not have been delayed on account of notice because there was no foster care placement at issue, inasmuch as the court put Jennifer in the custody of her father.

But this argument ignores the fact that the issue of possible foster care placement was squarely before the juvenile court. In advance of the dispositional hearing, SSA filed a report recommending that Jennifer remain in foster home care. SSA asks us to fixate on the result of the proceedings, i.e., the order that Jennifer be placed in the custody of her father, rather than on the possibility that the court could have ordered continued foster home care. The distinction was addressed in a decision of our sister state court in State ex rel, Juvenile Department of Multnomah County v. Cooke (1987) 88 Or.App. 176, 744 P.2d 596, 598.

In that case, the appellate court stated: "Although the court could have ordered the [child] placed in foster care after finding jurisdiction in this case, it did not do so. Therefore, plaintiff says, the court did not need to follow ICWA procedures and will not need to do so unless there is a later attempt to change the placement of the [child]. In short, plaintiff argues, the actual rather than the potential result of the proceeding should determine the role which the ICWA plays in it. [¶] Plaintiffs argument would require the court to speculate about the outcome of a juvenile proceeding in order to determine what role [the] ICWA would play and would encourage the agency to base its recommended disposition on issues other than the [child's] best interests. It would allow the court and the agency to become deeply involved in the [child's] family while ignoring the requirement that they consider the [child's] cultural heritage. They could avoid providing the required procedural protections until almost the very end of the process, making the ultimate decision a fait accompli." (State ex rel. Juvenile Department of Multnomah County v. Cooke, supra, 744 P.2d at pp. 597-598.)

Jennifer had already been placed in temporary foster home care and SSA recommended that the foster home care continue. At the time the court made its order, it was unknown whether, in the months to come, Jennifer might have been placed in permanent foster home care or whether her mother's parental rights might ultimately have been terminated. Certainly this was an "involuntary proceeding" within the meaning of Title 25 United States Code section 1912(a), and SSA, as the party seeking temporary foster home care, had the obligation to comply with the ICWA notice requirements.

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