In re Karla C.

• Decision Date: 10 November 2003
• Docket Number: No. D042048.,No. D042060,D042048.,D042060
• Citation: 113 Cal.App.4th 166,6 Cal.Rptr.3d 205
• Court: California Court of Appeals Court of Appeals
• Parties: In re KARLA C., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Karl C. et al., Defendants and Appellants.

6 Cal.Rptr.3d 205

113 Cal.App.4th 166

In re KARLA C., a Person Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Karl C. et al., Defendants and Appellants.

No. D042048.

No. D042060

Court of Appeal, Fourth District, Division One

November 10, 2003

Joseph T. Tavano, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant Karl C.

Mary Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant Roberta C.

John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, Katharine R. Bird, Deputy County Counsel, for Plaintiff and Respondent.

Suzanne Evans, under appointment by the Court of Appeal, San Diego, for minor.

McCONNELL, P.J.

In this consolidated matter, Karl C. and Roberta C. appeal the order declaring their daughter, Karla C., a dependent of the juvenile court under Welfare and Institutions Code¹ section 300, subdivision (b), and removing her from parental custody. The parents contend the order must be reversed because the court's finding the notice requirements of the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.) were satisfied is unsupported by the evidence. Particularly, the parents complain that although the evidence shows the San Diego County Health and Human Services Agency (the Agency) sent some type of notice to the Indian tribe in question, there is no evidence of the notice's contents because the Agency did not file a copy of it with the court.

We join the weight of authority in holding the ICWA notice must be filed with the court. Moreover, here the error may not be deemed harmless as there is no suggestion in the appellate record that the notice sent to the tribe contained required information. Accordingly, we reverse the order with directions.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2003² Roberta, Karl and six-week-old Karla were living in a hotel. A police officer went to their room in response to a domestic violence report. Roberta told the officer she and Karl had been on a several-day methamphetamine binge during which physical violence occurred. The officer took Karla into protective custody, and on January 31 the Agency filed a petition on her behalf under section 300, subdivision (b), naming Karl as the alleged father.

In a paternity questionnaire, Karl stated he may have American Indian heritage. At the February 4 detention hearing, Karl advised the court his mother told him he had some Blackfeet Indian heritage,³ and he would "seek to get more information in that regard." The court ordered paternity testing for Karl on February 7, ordered Roberta to attend the Substance Abuse Recovery Management System (SARMS) program, and ordered the Agency to notify the Blackfeet Tribe of the proceedings.

Karl missed his February 7 appointment for paternity testing. On February 25, the court ordered him to submit to paternity testing the following day. The court also set a contested jurisdiction and disposition hearing for March 18.

The court conducted a settlement conference on March 13, at which time Roberta chose to proceed to trial by submitting the jurisdiction and disposition issues on the Agency's reports. Karl requested a continuance of the matter until the results of his paternity testing were available so his status could be changed from alleged father and he would have standing to participate. The Agency opposed a continuance and advised the court the test results would not be available for several more weeks. The court denied Karl's request, explaining that if his paternity were established it would set a special hearing and he could petition for modification under section 388.

In its report for the jurisdiction and disposition hearing, the Agency noted it sent notice of the proceedings to the Bureau of Indian Affairs (the Bureau) in Sacramento and the Blackfeet Tribal Business Council (the Council) in Montana. Attached to the report are certified mail receipts showing the Bureau and the Council received the notices; the notices, however, are not attached to the report. The record also includes a form response from the Bureau stating it had "[i]nsufficient information identifying a federally recognized tribe," and "[i]t is important to be able to trace back to the year 1900 with names, birth dates and/or birthplaces of ancestors to help in establishing a biological link with the original ancestral tribal member(s)." The Council did not respond. Based on this evidence, and Karla's counsel's oral statement the "tribe was noticed,"⁴ the court found the ICWA inapplicable.

The Agency's report also stated neither parent showed any interest in visiting Karla. Further, Karl was uncooperative with the social worker and believed he needed no services, and Roberta tested positive for drugs and was dropped from the SARMS program for failing to keep in contact. Although SARMS was willing to admit Roberta to a residency program, she instead intended to live with her mother who also had a drug problem.

The court found the allegations of the petition true by clear and convincing evidence, sustained the petition, declared Karla a dependent child and removed her from Roberta's custody. The court ordered Roberta to attend SARMS and otherwise comply with her case plan. Further, the court gave the Agency discretion to allow overnight visitation between Roberta and Karla, or initiate a 60-day trial visit between them, contingent on the concurrence of Karla's counsel and an affidavit of Roberta's service provider regarding her ability to protect the child. The court also ordered that a special hearing be set when the paternity test results were in, and vacated the contested jurisdiction and disposition hearing set for March 18.

On April 2, the court received the results of the paternity test, showing Karl is Karla's biological father. The court changed Karl's status to biological father, and later to presumed father.

DISCUSSION

I

Adequacy of the ICWA Notice

A

The ICWA, enacted by Congress in 1978, is intended 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 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." (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. [Citations.] `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.' [Citation.] `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.' [Citation.]" (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253, 126 Cal.Rptr.2d 639 (Dwayne P.).) Under the ICWA, the tribe determines whether the child is an Indian child and its determination is conclusive. (Id. at p. 255, 126 Cal.Rptr.2d 639.) For purposes of the ICWA, an Indian child is defined 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); Cal. Rules of Court, rule 1439(a)(1)(A) & (B).)

"[W]here 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's identity is unknown, the notice must be given to the Bureau as agent for the Secretary of the Interior. (Ibid.) "Since the failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, notice requirements are strictly construed." (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267, 121 Cal.Rptr.2d 820.) When proper notice is not given under the ICWA, the court's order is voidable. (25 U.S.C. § 1914; Dwayne P., supra, 103 Cal.App.4th at p. 260, 126 Cal.Rptr.2d 639.)

B

The parents contend the court erred by finding the ICWA inapplicable. They assert the Agency was required to file a copy of the notice it sent to the Blackfeet Tribe, and without the notice before the court, it had no evidence from which to conclude the notice was adequate.⁵

Notice under the ICWA must, of course, contain enough information to constitute meaningful notice. The Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979)) (Guidelines), which are designed to implement the ICWA, require that the notice include, among other things, the name of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name and address of the petitioner's attorney; and a statement of the right of the tribe to intervene in the proceeding. (Guidelines, at p. 67588.)

Moreover, the Guidelines require that an original or a copy of each ICWA notice be filed with the juvenile court along with any return receipts. (Guidelines, 44 Fed.Reg., at p. 67588 (Nov. 26, 1979).) The commentary for the Guidelines explains notices must be filed "so there will be a complete record of efforts to comply with the [ICWA]." (Id., at p. 67589.)

"The Guidelines are not binding on state courts. [Citation.] However, `cases that have resolved notice questions have followed the Guidelines in giving a broad reading to the obligation to give notice and redressing notice violations....' [Cit...