Dwayne P. v. Superior Court

• Decision Date: 30 October 2002
• Docket Number: No. D039556.,D039556.
• Citation: 126 Cal.Rptr.2d 639,103 Cal.App.4th 247
• Court: California Court of Appeals Court of Appeals
• Parties: DWAYNE P. et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; San Diego County Health and Human Services Agency, Real Party in Interest.

126 Cal.Rptr.2d 639

103 Cal.App.4th 247

DWAYNE P. et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent;

San Diego County Health and Human Services Agency, Real Party in Interest.

No. D039556.

Court of Appeal, Fourth District, Division 1.

October 30, 2002.

Review Denied January 15, 2003.

Timothy A. Chandler, Alternate Public Defender, Erika Hiramatsu, Timothy O. Brackney, Deputy Alternate Public Defenders, for Petitioner Rosemary P.

Roberto Quinones, Jr., Deputy Alternate Public Defender, and Kathleen Murphy Mallinger for Petitioner Dwayne P.

No appearance for Respondent.

John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, Gary C. Seiser, Kathryn E. Krug and L. David Casey, Deputy County Counsel, for Real Parties in Interest.

Joanne Willis Newton for California Indian Legal Services and Pauma Yuima Band of Mission Indians as Amici Curiae on behalf of Petitioner Dwayne P.

McCONNELL, J.

Dwayne P. and Rosemary P. seek review of the juvenile court's order terminating reunification services and scheduling a selection and implementation hearing under Welfare and Institutions Code ¹ section 366.26, subdivision (l) and California Rules of Court,² rule 39.1B. The parents contend the court committed reversible error by not complying with the notice requirements of the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.). The San Diego County Health and Human Services Agency (the Agency) counters that the ICWA is inapplicable because there was insufficient indication the children are Indian children, and in any event, under In re Pedro N. (1995) 35 Cal.App.4th 183, 41 Cal.Rptr.2d 819 (Pedro N.), this court lacks jurisdiction to proceed because the parents did not appeal the jurisdictional and dispositional order in which the juvenile court addressed the ICWA issue.

We conclude the ICWA notice requirement is applicable. Further, we respectfully disagree with Pedro N., and conclude that given the court's continuing duty throughout the dependency proceedings to ensure the requisite notice is given (rule 1439(f)(5)), and the protections the ICWA affords Indian children and tribes, the parents' inaction does not constitute a waiver or otherwise preclude appellate review. We grant the petitions with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Dwayne and Rosemary have twin sons, J.J. and J.D. At six months of age, J.D. was hospitalized for vomiting, decreased appetite and excessive sleepiness. Tests revealed he had two subdural hematomas and a humeral fracture. Doctors concluded his injuries were inflicted nonaccidentally.

The Agency took the twins into protective custody. On August 28, 2000, the Agency filed a petition on J.D.'s behalf under section 300, subdivision (e), alleging he had been physically abused.³ The Agency also filed a petition on J.J.'s behalf under section 300, subdivision (j), alleging he was at substantial risk of serious physical harm based on the nature of J.D.'s injuries.

In reports for the detention hearing and the combined jurisdictional and dispositional hearing, the Agency stated the ICWA "does or may apply," but the tribe was "not yet known." In paternity questionnaires, Dwayne claimed he may have Cherokee Indian heritage and Rosemary claimed Dwayne does have Cherokee Indian heritage.

At the September 2000 jurisdictional and dispositional hearing, Rosemary's counsel stated: "[Rosemary] does indicate that she [has] some Cherokee American Indian heritage, but she was not clear [as to] whether or not it was enough and whether or not she or somebody in her— on the maternal side is eligible for enrollment; so it appears [the ICWA] may be applicable. I'm not exactly sure."

The court found "that at this time ... the [ICWA] does not apply." However, the court asked the Agency to make inquiries regarding the information Rosemary provided. The ICWA is not mentioned further in the record aside from the Agency's statements in subsequent reports that it was inapplicable. The parents neither raised an objection to the ruling at the juvenile court, nor appealed the jurisdictional and dispositional order.

In February 2001 the court sustained the Agency's petitions. At the twelve-month review hearing, the court terminated reunification services and set a selection and implementation hearing under section 366.26. The parents' petitions for extraordinary writ relief followed, in which they raised for the first time the argument that the court erred by not giving notice under the ICWA. This court issued an order to show cause and stayed the section 366.26 hearing. The Agency responded and we heard argument. After argument, we requested and received supplemental briefing from the parties on the issue of federal preemption. We have also granted the application of California Indian Legal Services and Pauma Yuima Band of Mission Indians, a federally-recognized Indian tribe, to file an amici curiae brief in support of Dwayne's petition.

DISCUSSION

I

Applicability of the ICWA Notice Requirement

A

In 1978 Congress enacted the ICWA 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 recognizes that "`the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents.'" (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 52, 109 S.Ct. 1597, 104 L.Ed.2d 29.) "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. [Citation.] Congress has concluded the state courts have not protected these interests and drafted a statutory scheme intended to afford needed protection." (In re Desiree F. (2000) 83 Cal. App.4th 460, 469, 99 Cal.Rptr.2d 688.)

The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings. (25 U.S.C. § 1911(c); In re Desiree F., supra, 83 Cal.App.4th at p. 473, 99 Cal.Rptr.2d 688.) "Of course, the tribe's right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending." (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791, 193 Cal.Rptr. 40.) "Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies." (In re Kahlen W. (1991) 233 Cal. App.3d 1414, 1421, 285 Cal.Rptr. 507.)

To implement the notice requirement, ICWA provides that "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." (25 U.S.C. § 1912(a), italics added.) If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs (the Bureau), as agent for the Secretary of the Interior. (25 U.S.C. § 1912(a); 25 C.F.R. § 23.2 (2002); In re Edward H. (2002) 100 Cal.App.4th 1, 4, 122 Cal.Rptr.2d 242.) "No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the ... tribe or the [Bureau]." (25 U.S.C. § 1912(a).)

The ICWA defines an Indian child as an unmarried person under the age of 18 who is: 1) a member of an Indian tribe; or 2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) Rule 1439, which implements the ICWA in California courts, incorporates the ICWA definition for Indian child without modification. (Rule 1439(a)(1)(A) & (B); In re Santos Y. (2001) 92 Cal.App.4th 1274, 1301, 112 Cal.Rptr.2d 692.)

The ICWA notice requirement is not onerous. "[Compliance 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." (In re Desiree F., supra, 83 Cal.App.4th at p. 475, 99 Cal.Rptr.2d 688.) When proper notice is not given under the ICWA, the court's order is voidable. (25 U.S.C. § 1914.)

B

The parents contend they raised the possibility their children are Indian children within the meaning of the ICWA, and the court prejudicially erred by not complying with its notice requirement. The Agency counters that the court had no reason to know the children were Indian children as defined by the ICWA. The facts are undisputed, and the issue is one of statutory interpretation that we review independently. (Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95,107-108, 73 Cal.Rptr.2d 523.)

"The Indian status of the child need not be certain to invoke the notice requirement. [Citation.]" (In re Desiree F., supra, 83 Cal.App.4th at p. 471, 99 Cal.Rptr.2d 688; In re Kahlen W., supra, 233 Cal.App.3d at p. 1422, 285 Cal.Rptr. 507; In re Junious M., supra, 144 Cal. App.3d at p. 793, 193 Cal.Rptr. 40.) "Enrollment is not required ... to be considered a member of a tribe; many tribes do not have written rolls. [Citations.] While enrollment can be one means of establishing membership, it is not the only means, nor is it determinative. [Citation.] Recently enacted ... section 360.6 codifies the state Legislature's intent that the ICWA applies to children who are eligible for membership in an Indian tribe, even if not enrolled.... [R]ule 1439(g)(2) also specifically provides that `information that the child is not enrolled in the tribe is not determinative of status as an Indian child.'" (In re Desiree F., supra, 83 Cal. App.4th at pp. 470-71, 99 Cal.Rptr.2d 688.) Moreover, a child may qualify as an Indian child within the meaning of the ICWA even if neither of the child's parents is...