as: 133 Cal.App.4th 1246, 35 Cal.Rptr.3d 427)
of Appeal, First District, Division 2, California.
re I.G., a Person Coming Under the Juvenile Court Law.
Francisco County Department of Human Services, Plaintiff and Respondent,
C. et al., Defendants and Appellants.
for Partial Publication.
Pursuant to California Rules of Court, rules 976(b) and 976.1,
this opinion is certified for publication with the exception of
Valerie E. Sopher, El Cerrito, under appointment by the First
District Appellate Project's Independent Case System, for Appellant Mother.
Janice A. Jenkins under appointment by the First District Appellate
Project's Independent Case System, for Appellant Father.
Dennis J. Herrera, City Attorney, Kimiko Burton-Cruz, Joseph Sandoval, Deputy
City Attorneys, for Respondent.
Appellants Bonnie C. (Mother) and Russell G. (Father) appeal from
denying rehearing of an order approving the placement of their
minor child, I.G., with a maternal cousin, K.W. They argue
that the court abused its discretion by placing I.G. with
K.W. rather than with her paternal aunt, who they maintain
had placement preference under Welfare and Institutions Code [FN1] section
361.3. Mother and Father also claim that the Department failed
to comply with the Indian Child Welfare Act (25 U.S.C.
Unless otherwise noted, all further statutory references are to the
Welfare and Institutions Code.
The San Francisco County Department of Human Services (the Department)
moves to dismiss the appeal on the basis that the
issues are moot. The Department also filed a motion to
introduce additional evidence on appeal pursuant to Code of Civil
Procedure section 909, and for judicial notice. We address these
with the appeal.
By our order dated August 23, 2005, we took the
motions to dismiss, for judicial notice and for consideration of
additional evidence under submission to be decided with this appeal.
We grant the motion for judicial notice of two documents
filed with the superior court. (Evid.Code, § 452,
In the unpublished portion of this opinion we conclude that
the trial court did not abuse its discretion by placing
I.G. with K.W. However, in the published portion we agree
with Mother and Father that there has been a failure
to comply with ICWA requiring remand.
AND FACTUAL BACKGROUND
The factual and procedural background of this case is detailed
in our unpublished opinion (A105430 (Jan. 24, 2005)). We set
forth here only the background relevant to the issues raised
I.G., born in 2001, initially was found to come within
the provision of section 300, subdivisions (b) (failure to protect)
and (j) (abuse of sibling). The petition described Mother's substance
abuse, emotional problems, criminal history (including convictions for child cruelty
and drug-related offenses), and Mother's failure to reunify with six
other dependent children. The Department detained I.G. two days after
her birth, and the court ordered her continued detention on
May 24, 2001. Over the next 27 months, I.G. was
placed at various times with both parents, Mother, and in
out-of-home placements. Reunification services for Father were terminated on February
The Department again detained I.G. on August 26, 2003, due
to allegations that Mother abandoned I.G. and had an untreated
substance abuse problem. Father filed
a section 388 petition on October 2, 2003, seeking to
place I.G. with T.G., Father's sister. On October 11, 2003,
the Department placed I.G. *1250
with K.W., a maternal cousin in Compton.
[FN3] Counsel for I.G. moved to decrease visitation. The court
granted the motion on October 27, 2003, and ordered monthly
visitation for both parents, with transportation costs paid for by
the Department. The court denied Father's section 388 petition. On
January 12, 2004, the court terminated reunification services for Mother.
The Department's conduct in moving I.G. out of the county,
allegedly in violation of a standing order of the juvenile
court, was the subject of a contempt proceeding in the
Following the hearings on Father's section 388 petition and the
section 387 disposition, the juvenile court acknowledged that T.G. was
"a relative entitled to preferential consideration under section 361.3," but
denied the petition on the basis that it was not
in the best interests of I.G. at that time. The
court continued I.G.'s placement with K.W., and continued the monthly
visitation schedule for both parents.
Mother and Father filed a motion for rehearing. The juvenile
court indicated that T.G. was "a preferred relative under [section]
subd.] (b)(2). Mother's cousin [K.W.] is not." Nevertheless, the court
held that "the commissioner was obligated to make an independent
determination utilizing the criteria set forth in [section] 361.3 to
determine which placement would be in [I.G.'s] best interest, regardless
of whether one of the placements was a preferred relative
and the other was a non-preferred relative." The court denied
the application for rehearing, noting that "[a]lthough [T.G.] may be
a 'preferred relative' under [section] 361.3 [, subd.] (c)(2), she
is not the better placement for [I.G.]."
In our January 24, 2005 opinion in case number A105340,
we ordered the juvenile court to set a section 366.26
[FN4] On February 7, 2005, the juvenile court held a
hearing in this matter. As indicated at that hearing, "we
are on calendar for a settlement conference on a number
of issues, including a 388, parental visitation, and a 366.26
hearing." The court indicated that "We have had brief discussions.
I think that we all are on the same page
at this point, and I want to reiterate what the
agreement is and make the orders so that people are
comfortable with it." The court granted the section 388 petition
filed by I.G.'s paternal aunt, T.G., changing I.G.'s placement from
the home of K.W. to T.G.'s home in Concord. The
court ordered that the parents continue to have monthly visits
with I.G., supervised by T.G., and weekly telephone calls. Finally,
pursuant to our opinion, it issued an order setting the
section 366.26 hearing for June 15, 2005.
Mother filed a petition for extraordinary writ under California Rules
of Court, rule 38.1 seeking to vacate the order setting
the section 366.26 hearing. We denied that petition on the
merits in our unpublished opinion in case number A109292, filed
May 17, 2005.
Motion to Dismiss
of I.G. with K.W.
See footnote *, ante.
Compliance with ICWA
Mother and Father argue
that the prior placement order must be vacated because the Department
failed to comply with the notice provisions of ICWA (25 U.S.C. § 1902).
They do not identify any order in which the court addressed compliance
with ICWA. Instead, noting that the issue of compliance with ICWA may
be raised at any time, they assert that the "Department and juvenile
court violated the ICWA because there is no evidence that the social worker
made any further inquiry or, at the very least, sent notice to the Bureau
of Indian Affairs.... This is not a case of adequate proof of notice before
the juvenile court, but of no notice at all."
Department first received information that Mother might have Native American
heritage in April 2003. Mother told a social worker in Reno, Nevada
that she was part Native American, which she claimed was "part of
the reason" for her alcohol problem. "[W]hen the juvenile
court knows or has reason to believe the child may be an Indian child,
notice must be given to the particular tribe in question or the Secretary.
(25 U.S.C. § 1912(a); [citations].) ... [I]t was
actually the duty of the [Department] to notify the Tribe or the Secretary
[of the Interior] of the filing of the petition by registered mail, return
receipt requested. (25 U.S.C. § 1912(a).)" (In
re Desiree F. (2000)
83 Cal.App.4th 460, 471, 99 Cal.Rptr.2d 688.) Rule 1439(f) of the
California Rules of Court [FN7]
mandates the following notice procedure: "(1) Notice ... must
be sent ... by registered or certified mail with return receipt requested,
and additional notice by first class mail is *1252
recommended. (2) Notice to the tribe must be to the tribal chairperson
unless the tribe has designated another agent for service. (3) Notice
must be sent to all tribes of which the child may be a member or eligible
for membership. (4) If the identity or location of the parent or
Indian custodian or the tribe cannot be determined, notice must be sent
to the specified office of the Secretary **431
of the Interior, which has 15 days to provide
notice as required...." Subdivision (g)(1) provides that "A
tribe's determination that the child is or is not a member of or eligible
for membership in the tribe is conclusive." (Rule 1439(g).)
Substantial compliance with the notice requirements of ICWA may
be sufficient under certain circumstances. (In
re Christopher I. (2003)
106 Cal.App.4th 533, 565, 131 Cal.Rptr.2d 122.) "The failure
to provide the necessary notice requires this court to invalidate actions
taken in violation of the ICWA and remand the case unless the tribe has
participated in or expressly indicated no interest in the proceedings.
re Desiree F., supra,
83 Cal.App.4th at p. 472, 99 Cal.Rptr.2d 688.)
All subsequent undesignated rule references are to the California Rules
The Department is required to
file with the 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. (2001)
90 Cal.App.4th 731, 739-740, fn. 4, 109 Cal.Rptr.2d 267.) Notice to the
Bureau of Indian Affairs is required only if "the identity or location
of the parent or Indian custodian or the tribe cannot be determined...."
(Rule 1439(f)(4); see 25 U.S.C. § 1912(a).)
The Department has filed a motion to consider additional evidence
on appeal on this issue. This additional evidence consists of
copies of letters and forms sent by the Department to
various Indian tribes and to the Bureau of Indian Affairs,
the responses to these letters, as well as the transcript
of a November 30, 2004 hearing at which the court
mentioned ICWA issues.
On our own motion, we take judicial notice of the
transcript of the November 30, 2004 hearing. (Evid.Code, § 452,
At the November 30, 2004 hearing, the court indicated that
"There were some possible Indian Child Welfare Act noticing issues.
The Department has sought to correct those issues by re-noticing.
Part of our off-the-record discussions included a somewhat informal discussion
regarding Mother's interest in attempting to determine whether or not
she is related culturally to any of the existing tribes
at this point. I have suggested to counsel and I
will suggest to ... Mother if she is further interested,
if she has other tribes to *1253
notice, we will be happy to notice them for her,
meaning the Department.... So at this point I think the
noticing issues have been addressed. So I am a hundred
percent clear, if ... Mother has other tribes she wishes
to have noticed, those tribes will be identified and given
to [the Department] and they will be noticed also."
The Department maintains that the juvenile court made an "implied
finding" that ICWA did not apply, and that the additional
evidence it seeks to be considered on appeal constitutes substantial
evidence supporting this "implied" ruling. In In
re Nikki R.
(2003) 106 Cal.App.4th 844, 131 Cal.Rptr.2d 256, the court considered
a similar situation. There, the social worker had likewise sent
notices to one Native American tribe and the Bureau of
Indian Affairs (BIA), and received negative responses to the queries
of whether the minor was an Indian child in relation
to the tribe and whether any other tribe to which
the child might belong could be identified. On appeal, the
Orange County Social Services Agency filed a motion to take
additional evidence, consisting of the notices to the tribe and
the BIA, and their responses. The court held: "It is
a trial court function to receive evidence of [the Department's]
notice efforts and to determine if they measure up to
ICWA standards.... [¶]
[The Department's] apparent practice of holding onto the evidence of
its notice efforts and revealing it only when an issue
arises on appeal is unacceptable. 'Making the appellate court the
trier of fact is not the solution.'..." (Id.
at pp. 852-853, 131 Cal.Rptr.2d 256, citing In
re Jennifer A.
(2002) 103 Cal.App.4th 692, 703, 127 Cal.Rptr.2d 54.)
Here, the Department seeks to introduce evidence of notice to
various tribes and the Bureau of Indian Affairs. The record
does not demonstrate that any of these documents were introduced
in evidence in the juvenile court. Consequently,
we deny the Department's motion to consider this additional evidence.
Whether or not we consider the court's statements at the
November 30, 2004 hearing to be "implied finding[s]," the court
did not have sufficient evidence before it to make a
finding that ICWA did not apply.
As earlier noted, I.G.
was originally detained by the Department in 2001 when she was two days
old. Now she is four and a half years old, and still there is no
permanent placement plan yet ordered. When we filed our prior decision
in case number A105340 on January 24th of this year, we ordered *1254
the juvenile court to set a section 366.26 hearing. We were recently
informed, in connection with a writ proceeding filed by Mother [FN9],
THAT THE SECTion 366.26 hearing has finally been set for december 5th
of this year, almost
11 months after we
ordered the juvenile court to conduct such a hearing. It is well
recognized that timeliness is of vital importance in juvenile dependency
matters because delay usually does not serve a child's interests. (See
In re Emily L.
(1989) 212 Cal.App.3d 734, 743, 260 Cal.Rptr. 810.) Only last year
our Supreme Court reminded juvenile and appellate courts of this state
of "the strong countervailing interest, expressed by the Legislature
itself, that dependency actions be resolved expeditiously. [Citations.]
)" (In re
Jesusa V. (2004) 32
Cal.4th 588, 625, 10 Cal.Rptr.3d 205, 85 P.3d 2.) The delay in these
proceedings is inexcusable.
That writ was denied by our order dated October 5,
Additionally, now we have an ICWA problem, apparently occasioned by
the inattention of both the Department and the juvenile court
to the stringent requirements of that federal law. We are
most mindful of the potential adverse impact from any deficiency
in complying with ICWA given the fact that noncompliance can
invalidate the actions of the juvenile court, including placement orders.
(25 U.S.C. § 1914
[tribe may petition to invalidate action on showing of violation
of notice requirements]; In
re Desiree F., supra,
83 Cal.App.4th at p. 475, 99 Cal.Rptr.2d 688 [trial court
orders invalidated at the request of the tribe because notice
had not been given in compliance with ICWA]; rule 1439(n)(2)
[final decree of adoption may be set aside for noncompliance
with ICWA].) Consequently, we agree with those courts that have
emphasized the importance of strict compliance with ICWA notice requirements
and, if necessary, have remanded the matter for the juvenile
court to ensure that proper notice is given. (In
re Karla C.
(2003) 113 Cal.App.4th 166, 178-179, 6 Cal.Rptr.3d 205; In
re Nikki R., supra,
106 Cal.App.4th at pp. 855-856, 131 Cal.Rptr.2d 256; In
(2002) 103 Cal.App.4th 1206, 1214, 128 Cal.Rptr.2d 12.)
Noncompliance with ICWA has been a continuing problem in juvenile
dependency proceedings conducted in this state, and, by not adhering
to this legal requirement, we do a disservice to those
minors whose welfare we are statutorily mandated to protect. The
virtual epidemic of cases where reversals have been required because
of noncompliance with ICWA was noted by one of our
Fourth District, Division Three colleagues almost three years ago: "In
at least five opinions published in the last two months,
appellate courts have admonished juvenile courts and social services agencies
for giving the ICWA notice provisions short shrift. [Citations.]" (In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1417, 129 Cal.Rptr.2d 15, dis. *1255
opn. of Moore, J.) Since then, reversals continue, seemingly at
an unabated rate. (See In
re Jonathon S.
(2005) 129 Cal.App.4th 334, 28 Cal.Rptr.3d 495; In
re Glorianna K.
(2005) 125 Cal.App.4th 1443, 24 Cal.Rptr.3d 582; In
re Merrick V.
(2004) 122 Cal.App.4th 235, 19 Cal.Rptr.3d 490; In
re Elizabeth W.
(2004) 120 Cal.App.4th 900, 16 Cal.Rptr.3d 514; In
re Gerardo A.
(2004) 119 Cal.App.4th 988, 14 Cal.Rptr.3d 798; In
(2004) 118 Cal.App.4th 1108, 13 Cal.Rptr.3d 606; In
re Louis S.
(2004) 117 Cal.App.4th 622, 12 Cal.Rptr.3d 110; In
re Karla C., supra,
113 Cal.App.4th 166, 6 Cal.Rptr.3d 205; In
(2003) 113 Cal.App.4th 1449, 5 Cal.Rptr.3d 893; In
re Nikki R., supra,
106 Cal.App.4th 844, 131 Cal.Rptr.2d 256; In
re Asia L.
(2003) 107 Cal.App.4th 498, 132 Cal.Rptr.2d 733.) In addition to
these published opinions, there have been " 'numerous appellate complaints
of non-compliance with ICWA,' " leading to 72
unpublished cases statewide in this year alone
reversing, in whole or in part, because of noncompliance with
re Elizabeth W., supra,
120 Cal.App.4th at p. 906, 16 Cal.Rptr.3d 514.)
This number is cumulative from January 1, 2005, and is
based on a Westlaw search conducted today. In some of
the cases where reversals or vacations of juvenile orders were
required, the reversals were "conditional," meaning that if the trial
courts on remand determined that there had been compliance with
ICWA, the vacated orders could be reinstated. (See In
re H.A., supra,
103 Cal.App.4th at p. 1215, 128 Cal.Rptr.2d 12.)
can hardly blame this chronic problem on the state's Judicial
Council or its educational arms, the Center for Judicial Education
and Research (CJER), and the Center for Families, Children, and
the Courts, which offer regular courses (including online courses) and
written materials dealing with ICWA compliance. (See Appen. to Cal.
Rules of Court (2005 rev. ed.) Standards of Judicial Administration
Recommended by the Judicial Counsel, §§ 25.2
[Judicial Education For Judicial Officers In Particular Judicial Assignments] &
25.3 [Judicial Education Curricula Provided In Particular Judicial
Assignments], pp. 643-644 (Standards of Judicial Administration); http://serranus .courtinfo.ca. gov/education.
The sheer volume of cases of demonstrating noncompliance with ICWA
provides reason enough for supervising juvenile court judges throughout this
state to take immediate steps to ensure that all judicial
officers under their supervision avail themselves of these educational opportunities.
Indeed, continuing education for juvenile law judicial officers is mandated
by section 25.2 of the Standards of Judicial Administration.
While this panel lacks the ability to stem the tide
of this disgraceful statewide record, we can exercise our judicial
power to lend assistance to young I.G. Accordingly, in the
interests of justice upon remand, we direct that all further
proceedings be conducted before the Supervising Judge of the Unified
Family Court of the San Francisco Superior Court, and that
this case be afforded the expeditious and diligent attention it
so clearly deserves and needs.
Under Code of Civil Procedure section 187, courts have wide
latitude to carry out their authority to enter such an
order by "any suitable process or mode of proceeding ...
which may appear most conformable to the spirit of this
code." The power to direct such proceedings
have been applied, in other contexts, to proceedings before the
juvenile court. (See In
re Jeanette H.
(1990) 225 Cal.App.3d 25, 34-35, 275 Cal.Rptr. 9.)
The motion for additional evidence on appeal is denied. The
Department's motion for judicial notice of two documents filed with
the superior court is granted. (Evid.Code, § 452,
subd. (d).) The appeal is moot as to the issues
regarding I.G.'s placement with K.W. The matter is remanded with
directions that the juvenile court proceed in a manner consistent
with this opinion. In all other respects, the orders are
We concur: KLINE, P.J., and HAERLE, J.