In re Suzanna L.

• Decision Date: 10 December 2002
• Docket Number: No. E031146.,E031146.
• Court: California Court of Appeals Court of Appeals
• Parties: ln re SUZANNA L., a Minor. Romelia W., Petitioner and Respondent, v. Edward L., Objector and Appellant; Alan W., Respondent.

127 Cal.Rptr.2d 860

104 Cal.App.4th 223

ln re SUZANNA L., a Minor. Romelia W., Petitioner and Respondent, v. Edward L., Objector and Appellant; Alan W., Respondent.

No. E031146.

Court of Appeal, Fourth District, Division 2.

December 10, 2002.

Certified for Partial Publication.^*

Monica Vogelmann, under appointment by the Court of Appeal, and Richard Pfeiffer for Objector and Appellant.

Christopher R. Abernathy for Petitioner and Respondent and for Respondent.

Sharon M. Jones, Ventura, under appointment by the Court of Appeal, for Minor.

OPINION

RICHLI, J.

Edward L. and Romelia W. are the parents of Suzanna L. When they divorced, Romelia was given sole custody. Edward was allowed monitored visitation; however, he visited only sporadically for a year or so, and then not at all. Thereafter, Romelia married Alan W. In this action, the trial court granted Romelia's petition to terminate Edward's parental rights, based on abandonment, so Alan could adopt Suzanna.

Edward contends the trial court violated the Indian Child Welfare Act (ICWA) because he, and hence Suzanna, were part Indian, yet proper notice was not given to their tribe. We agree. In the published portion of this opinion, we will hold that the ICWA's notice provisions applied, even if, under the "existing Indian family doctrine," its other provisions did not. On remand, the trial court must require proper notice. In the unpublished portion of this opinion, however, we find no other prejudicial error. Accordingly, if, after proper notice has been given, the trial court determines that the ICWA does not otherwise apply, it must reinstate its order terminating Edward's parental rights.

I FAILURE TO GIVE NOTICE PURSANT TO THE INDIAN CHILD WELFARE ACT

Edward contends the trial court erred by proceeding in the absence of proper notice pursuant to the ICWA.

A. Additional Factual and Procedural Background.

On April 12, 2000, Romelia filed a petition to free Suzanna from Edward's custody and control. (Fam.Code, § 7800 et seq.) No ICWA issue was presented until June 29, 2001, when Edward's counsel stated to the court: "... I just found out yesterday that my client is half Indian, half Cherokee Indian." She added: "[A]ccording to the research we've done, there should be a special Indian social worker appointed in the case." The trial court ordered Edward's counsel to file a written request for any action she wanted taken.

On July 9, 2001, Edward filed an "Objection to the [A]doption [o]f the [M]inor [B]ased on [H]is Indian Ancestry." In it, he asserted that he was "50% Indian as both of his [maternal] grandparents are full[-]blooded Indians...." He added that he was "maybe 50% Cherokee or Ya[qu]i Indian." He provided copies of his mother's and his mother's sister's birth certificates, which indicated that one or both of their parents (Edward's grandparents) were Indian. He asked the court to "allow sufficient time for the Bureau of Indian Affairs to investigate the matter."

On July 10, 2001, the Department of Children's Services (the Department) advised the trial court that it was going to "send the appropriate requests to the tribes." It added that the "tribes in question" were the "Papago (four separate bands), Cherokee (three separate bands), and Yaqui (possibly one band)." It requested a continuance.

On July 13, 2001, the trial court stated: "[S]hould the child fall under the provisions, the tribe could or could not choose to intervene. [¶] [The Department is] recommending a continuance because they're going to contact the [tribes]. And they're going to request of the tribes to see what they're going to do. [t] So I think that we're going to have to put it over." Counsel for the W.'s replied, "I concur.... Continue it, let Social Services do their thing, and ... if the tribe wants to come here and assert their rights ..., then the [c]ourt can decide how to act at that point." Edward's counsel said, "I completely concur." The trial court set a status conference for October 19, 2001.

On October 18, 2001, the Department reported: "We are in the process of obtaining information on the Indian ancestry of the minor.... Our results as of this date are as follows:

"Cherokee tribe: Tahlequah, OK-Not on rol[l]

"Cherokee tribe: North Carolina-Not on rol[l]

"Papagos and Yaquis: No response." (Capitalization omitted.)

The court continued the matter to January 25, 2002.

On January 25, 2002, Edward's counsel said: "We've talked to the social worker and she had indicated she was going to be sending a request to the [c]ourt for another extension because the Yaquis had not responded, neither have the Papago...." The court denied a further continuance.

It ordered the matter trailed to January 28, 2002.

On January 28, 2002, Edward's counsel stated: "... I have an objection to this case even being ready for trial because we never got back information from the Indian tribes...." The trial court ordered her to brief the issue. It set the trial for January 30, 2002.

Edward filed a brief asserting that he was a Papago Indian. He did not clearly indicate what he believed the effect of this should be. He did argue that "[t]he [federal law has exclusive jurisdiction over this matter...." He also argued that "[s]ince the [s]tate law does not prescribe what constitutes a member of a tribe the federal government would have exclusive jurisdiction over the issue of Indian ancestry." The W.'s responded with a brief claiming that, back on July 13, 2001, when it had granted a continuance, the trial court had "denied the jurisdictional objection and ruled that the tribes could participate at their election."

When trial began, on January 30, 2002, the court said to Edward's counsel: "You raised the issue but you haven't asked me for any relief. What's your request?" Edward's counsel asked the court to "dismiss this case based on the federal jurisdiction of the federal court over the matter...." Minor's counsel objected, "[O]nce they've been put on notice, ... it is up to the tribe ... if they want to assert that. If they don't, we proceed...." The trial court then ruled: "[T]here's a fairly common, well-known procedure for invoking the jurisdiction of the Indian tribes and for obtaining a stay o[f] the proceedings so they can invoke their jurisdiction. You haven't done that. Your motion is denied."

B. Analysis.

1. Statutory Background.

"The ICWA (25 U.S.C. § 1901 et seq.) was enacted in 1978, out of an increasing concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of child welfare practices that separated large numbers of Indian children from their families and tribes, and placed them in non-Indian homes through state adoption, foster care, and parental rights termination proceedings. [Citations.] ...

"The stated purpose of the ICWA is to `protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster care or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.' [Citation.]" (In re Santos Y. (2001) 92 Cal. App.4th 1274, 1299, 112 Cal.Rptr.2d 692, fn. omitted.)

The ICWA defines a "child custody proceeding" so as to include any proceeding for either "`termination of parental rights[,]' which shall mean any action resulting in the termination of the parentchild relationship" or "`adoptive placement[,]' which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." (25 U.S.C. §§ 1903(1)(ii), 1903(1)(iv).) Thus, a proceeding to terminate parental rights under Family Code section 7800 et seq. is a "child custody proceeding" within the meaning of the ICWA. (In re Crystal K. (1990) 226 Cal.App.3d 655, 660-666, 276 Cal.Rptr. 619.) The ICWA defines "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe...." (25 U.S.C. § 1903(4).)

The ICWA also "lays out a dual jurisdictional scheme. Section 1911(a) establishes exclusive jurisdiction in the tribal courts for proceedings concerning an Indian child `who resides or is domiciled within the reservation of such tribe[ ]'.... Section 1911(b), on the other hand, creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for ... termination of parental rights are to be transferred to the tribal court, except in cases of `good cause,' objection by either parent, or declination of jurisdiction by the tribal court." (Mississippi Band Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 36 109 S.Ct. 1597, 104 L.Ed.2d 29, fn. omitted.) Moreover, if a proceeding for termination of parental rights is pending in state court, "the Indian child's tribe shall have a right to intervene at any point in the proceeding." (25 U.S.C. § 1911(c).)

The ICWA provision most critical in this case—the notice provision—states: "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 ... 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. If the identity or location of ... the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to...