as: 113 Cal.App.4th 166, 6 Cal.Rptr.3d 205)
of Appeal, Fourth District, Division 1, California.
re KARLA C., a Person Coming Under the Juvenile Court
Diego County Health and Human Services Agency, Plaintiff and Respondent,
C. et al., Defendants and Appellants.
Joseph T. Tavano, under appointment by the Court of Appeal,
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, and Katharine R. Bird, Deputy County Counsel, for Plaintiff
Suzanne Evans, under appointment by the Court of Appeal, San
Diego, for minor.
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 Code [FN1] 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
Statutory references are to the Welfare and Institutions Code except
when otherwise specified.
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 *172
is no suggestion in the appellate record that the notice
sent to the tribe contained required information. Accordingly, we reverse
the order with directions.
AND PROCEDURAL BACKGROUND
In January 2003 [FN2]
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.
All dates are in 2003.
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
[FN3] 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.
The Blackfeet Tribe of the Blackfeet Indian Reservation of Montana
is a federally recognized American Indian tribe. (67 Fed.Reg. 46328
(July 12, 2002).)
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 **208
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
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," [FN4]
the court found the ICWA inapplicable.
In addressing the court, counsel misspoke and reported the tribe
responded stating it had insufficient information to determine if Karla
were eligible for tribe membership. The record shows that only
the Bureau responded to the Agency.
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
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
of the ICWA Notice
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 *174
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 **209
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
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).)
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.)
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 *175
Blackfeet Tribe, and without the notice before the court, it
had no evidence from which to conclude the notice was
The parents principally assert the Agency should have submitted to
the court a copy of its notice to the Bureau.
However, since the identity of the tribe is known here,
notice to the Bureau is not required. (25 U.S.C. § 1912(a);
Cal. Rules of Court, rule 1439(f).)
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....'
P., supra, 103 Cal.App.4th
at p. 255, 126 Cal.Rptr.2d 639.) The "construction of a statute
by the executive department charged with its administration is entitled
to great weight." (In
re Junious M. (1983)
144 Cal.App.3d 786, 792, fn. 7, 193 Cal.Rptr. 40.) In Dwayne
P., supra, 103 Cal.App.4th
at page 255, 126 Cal.Rptr.2d 639, we found the Guidelines persuasive insofar
as the ICWA notice requirements are concerned. Accordingly, we look
to the Guidelines in resolving the ICWA notice issue here.
Additionally, by federal regulation an ICWA notice must include, if
(1) the name, birthplace, and birth date of the Indian
child; (2) the name of the tribe in which the
Indian child is enrolled or may be eligible for enrollment;
(3) names and addresses of the child's parents, grandparents, great-grandparents
and other identifying information; and (4) a copy of the
dependency petition. (25 C.F.R. § 23.11(d)(3)
(2003); 59 Fed.Reg. 2248 (eff.Feb.14, 1994).) "[T]o establish tribal identity,
it is necessary to provide as much information as is
known on the Indian child's direct lineal ancestors." (25 C.F.R.
Most appellate courts considering the issue have held the ICWA
return receipts and responses of the Bureau or tribe, if
any, must be filed with *176
the juvenile court. In In
(2002) 103 Cal.App.4th 1206, 128 Cal.Rptr.2d 12, the Fifth District
Court of Appeal published its opinion for the express purpose
of emphasizing the importance of ICWA notice compliance. (Id.
at p. 1214, 128 Cal.Rptr.2d 12.) Noting it frequently encountered
"deficient records" (ibid.),
the court stated: "We hold that a party, such as
the [social services agency] here, who seeks the foster care
placement of or termination of parental rights to a child
who may be eligible for Indian child status, must do
the following or face the strong likelihood of reversal on
appeal to this court. [¶]
First, the [social services agency] must complete and serve ...
the 'Notice of Involuntary Child Custody Proceeding Involving an Indian
Child' along with a copy of the dependency petition. Second,
the [social services agency] must file with the superior court
copies of proof of the registered mail or certified mail
and the return receipt(s), the completed [notice] that was served,
and any responses received." (Id.
at pp. 1214-1215, 128 Cal.Rptr.2d 12, some capitalization omitted.)
The form notice to which the court referred in In
re H.A., supra,
103 Cal.App.4th at page 1211, 128 Cal.Rptr.2d 12, is numbered
"SOC 319" and was promulgated by the State of California
Health and Welfare Agency for the benefit of county agencies,
and is intended to conform with the Guidelines' notice requirements.
As the court held in In
(2003) 110 Cal.App.4th 214,
224-225, 1 Cal.Rptr.3d 578, form SOC 319 is deficient in
that it does not contain a space for the names
and addresses of grandparents and great-grandparents, and other identifying information,
if known, as required by 25 Code of Federal Regulations
part 23.11(d)(3) (2003). The deficiency may be cured, however, if
the social services agency also sends the tribe form SOC
318, which includes spaces for the information required by 25
Code of Federal Regulations part 23.11(d)(3) (2003). (In
re C.D., supra,
at pp. 225-226, 1 Cal.Rptr.3d 578.) [FN6]
re C.D., supra,
110 Cal.App.4th 214, 1 Cal.Rptr.3d 578, the court recommended that
the State of California Health and Welfare Agency issue a
new form that allows a county agency to provide the
Bureau or tribe with all of the information identified in
the Guidelines and 25 Code of Federal Regulations part 29.11(d)
(2003) on one document. (In
re C.D., supra,
at p. 226, 1 Cal.Rptr.3d 578.)
re Samuel P., supra,
99 Cal.App.4th 1259, 121 Cal.Rptr.2d 820, the Sixth District Court
of Appeal held that since ICWA notices pertaining to some
children were not provided to the juvenile court, it "did
not have a sufficient record from which to make a
determination whether there had been compliance with the notice provisions
of the ICWA, or whether further inquiry was
at p. 1266, 121 Cal.Rptr.2d 820.) The court rejected the
notion the juvenile court could rely on the social worker's
statement in a report that she sent a request for
confirmation of the children's status to the tribe. (Ibid.)
Further, the court found the notice regarding another child was
insufficient because "there was no information about the dependency proceedings,
no court number identifying the proceedings, and no notice informing
the tribe of the dates of any of the hearings."
The court explained a "tribe's mere ' "awareness" ' of
a dependency proceeding involving a possible Indian child is not
considered sufficient notice under the ICWA.'' (Ibid.,
re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1422, 285 Cal.Rptr. 507.)
re Asia L.
(2003) 107 Cal.App.4th 498, 132 Cal.Rptr.2d 733, Division Three of
the First District Court of Appeal held the social worker's
testimony that she served the Bureau and tribes with forms
SOC 318 and SOC 319 was insufficient. (Id.
at pp. 507, 508, 132 Cal.Rptr.2d 733.) The court was
unpersuaded by the argument it was unnecessary to file the
notices as there was no evidence suggesting they were defective.
The court explained that "[a]bsent the ability to review the
forms, ... neither the trial court nor this court has
the ability to evaluate whether the forms were defective." (Id.
at p. 509, 132 Cal.Rptr.2d 733.)
re Jennifer A.
(2002) 103 Cal.App.4th 692, 127 Cal.Rptr.2d 54, Division
Three of the Fourth District Court of Appeal held the
ICWA notice and any return receipt and response must be
filed. The court explained "it is up to the juvenile
court to review the information concerning the notice given, the
timing of the notice, and the response of the tribe,
so that it may make a determination as to the
applicability of the ICWA." (Id.
at p. 705, 127 Cal.Rptr.2d 54.) The court also concluded
the nonfiling of the notice was prejudicial error even though
the tribe responded that it could not trace the child
and did not consider her to be an Indian child,
because the information from which the tribe made its determination
was unknown. (Ibid.;
re Suzanna L.
(2002) 104 Cal.App.4th 223, 232, 127 Cal.Rptr.2d 860 [Div. 2
of Fourth Dist.].)
In contrast to the above cases, in In
re Levi U.
(2000) 78 Cal.App.4th 191, 92 Cal.Rptr.2d 648, the Third District
Court of Appeal held the ICWA notice and proof of
service need not be filed with the court, and a
statement in the social worker's report that she notified the
Bureau sufficed. The court found "there is no requirement that
[the social services agency] demonstrate it did anything more than
send notice." (Id.
at p. 198, 92 Cal.Rptr.2d 648.) In In
(2003) 110 Cal.App.4th 1420, 3 Cal.Rptr.3d 16, the same court
relied on In
re Levi U.
in holding that "ordinarily, when a social worker's report or
other documentation indicates that ICWA notice has been provided, it
properly be presumed that such notice complied with the requirements
of the ICWA in the absence of any evidence in
the record to the contrary." (Id.
at p. 1425, 3 Cal.Rptr.3d 16.)
however, the evidence showed the social worker served the tribes
with forms SOC 318 and SOC 319. (In
re L.B., supra,
110 Cal.App.4th at p. 1425, 3 Cal.Rptr.3d 16.) In In
re Jeffrey A.
(2002) 103 Cal.App.4th 1103, 127 Cal.Rptr.2d 314, the Third District
held it could not presume the notice was adequate when
it was referred to as a "request for verification," and
there was *178
no evidence the notice was sent on form SOC 319.
The court concluded: "[T]here is nothing to indicate that the
document referred to in the social worker's report as having
been sent to the tribe included notice of the proceedings
and of the right to intervene. Thus, it cannot be
determined on this record whether proper notice of the proceedings
was provided." (Id.
at p. 1108, 127 Cal.Rptr.2d 314.) [FN7]
re Marinna J.
(2001) 90 Cal.App.4th 731, 109 Cal.Rptr.2d 267, the Third District
Court of Appeal noted in a footnote that to satisfy
the notice requirements of the ICWA, the social services agency
should provide the juvenile court with copies of the notice
sent and the return receipt, as well as any response
from the Bureau or tribe. (Id.
at pp. 739-740, fn. 4, 109 Cal.Rptr.2d 267.) In In
re L.B., supra,
110 Cal.App.4th at page 1425, footnote 3, 3 Cal.Rptr.3d 16,
explained the procedure suggested in In
re Marinna J.
was not mandatory, but "would head off numerous appellate complaints
of non-compliance with the ICWA."
We join the weight of authority and hold the filing requirement set forth
in the Guidelines is an essential component of the ICWA notice process.
Without a review of the notices, the juvenile court is unable to
determine whether they complied with the ICWA (25 U.S.C. § 1912(a)),
the Guidelines (44 Fed.Reg. 67588 (Nov. 26, 1979)) and the federal regulation
(25 C.F.R. § 23.11(d) (2003)), and gave the Bureau or the tribe
all known relevant information and a meaningful opportunity to determine
whether the dependent child is an Indian child within the meaning of the
ICWA. Absent evidence the notice was sufficient, a tribe's nonresponse
may not be deemed "tantamount to determinations that the minor [is]
not an 'Indian child' within the meaning of the [ICWA]." (In
re Levi U., supra,
78 Cal.App.4th at p. 198, 92 Cal.Rptr.2d 648.)
We disagree with the Third District's
conclusion in In re
Levi U., supra, 78
Cal.App.4th at page 198, 92 Cal.Rptr.2d 648, and In
re L.B., supra, 110
Cal.App.4th at p. 1425, 3 Cal.Rptr.3d 16, that a statement in the social
worker's report that he or she sent ICWA notice is sufficient evidence
compliance with notice requirements. In the latter case, the court
relied on Evidence Code section 664, which provides "[i]t is presumed
that official duty has been regularly performed." The presumption
is overcome by evidence the agency involved did not comply with all pertinent
Costa Beach Homeowners' Assn. v. California Coastal Com.
(2002) 101 Cal.App.4th 804, 820, 124 Cal.Rptr.2d 618.) Because the
Guidelines require that notices be submitted to the juvenile court, the
parents rebutted the presumption by showing the Agency did not follow
the failure to file the notice may be deemed harmless error (see In
re C.D., supra, 110
Cal.App.4th at p. 226-227, 1 Cal.Rptr.3d 578), such is not the case here.
In ruling the ICWA is inapplicable, the juvenile court relied on
a statement in *179
the Agency's report that the social worker notified the Bureau and the
Blackfeet Tribe and an attorney's comment the "tribe was notified."
The record contains no suggestion as to what form or forms the Agency
used or what information the notice included. Therefore, the court
was unaware of whether the Agency sent the tribe a copy of the dependency
petition, or notified it of the names and addresses of the parents, or,
if known, the names and addresses of the grandparents or great-grandparents,
the dates of hearings, or its right to intervene. Because the court's
ruling the ICWA is inapplicable is unsupported by the evidence, we reverse
the order with directions.
the juvenile court's guidance on remand, we also hold the notice should
include the information set forth in the Guidelines and 25 Code of Federal
Regulations part 23.11(d)(3) (2003), to the extent such information is
known. (In re
C.D., supra, 110 Cal.App.4th
at p. 226, 1 Cal.Rptr.3d 578.)
Karl contends he was denied his due process right to
be heard when the court refused his request for continuance
of the jurisdiction and disposition hearing pending receipt of the
results of his paternity testing. Although we reverse the order,
we resolve this issue because, as discussed below, the juvenile
court may reinstate the order without a further hearing on
the merits should it determine the Agency's notice to the
Blackfeet Tribe was adequate.
As an alleged father, Karl had limited rights. "An alleged
biological father in dependency proceedings is a man who may be the father
of a child, but whose biological paternity has not been established. [Citation.]
'An alleged father ... does not have a known current interest because
his paternity has not yet been established.' [Citation.] An
alleged biological father is entitled to notice of the proceedings. (§
316.2, subd. (b).) Notice provides an opportunity for him to appear
and assert a position." (In
re Joseph G. (2000)
83 Cal.App.4th 712, 715, 99 Cal.Rptr.2d 915.) Karl was given notice
of the proceedings and he was given the opportunity
to seek to become a party by establishing his paternity. This comported
with due process requirements for an alleged father, and until Karl established
a higher status than alleged father he lacked standing and had no right
to a continuance.
Further, the court did not abuse
its discretion by denying the continuance request. The juvenile
court may continue a dependency hearing at the request of a parent for
good cause and only for the time shown to be necessary. (§ 352, subd.
(a); Cal Rules of Court, rule 1422(a)(2).) Courts have interpreted
this policy to be an express discouragement of continuances. (See,
e.g., In re Emily L.
(1989) 212 Cal.App.3d 734, 743, 260 Cal.Rptr. 810.) The court's
denial of a request for continuance will not be overturned on appeal absent
an abuse of discretion. (See In
re Angela R. (1989)
212 Cal.App.3d 257, 265-266, 260 Cal.Rptr. 612.) Discretion is abused
when a decision is arbitrary, capricious or patently absurd and results
in a manifest miscarriage of justice. (People
v. Franco (1994) 24
Cal.App.4th 1528, 1543, 30 Cal.Rptr.2d 478.)
A disposition hearing must be
conducted within 60 days of the detention hearing. (§ 352, subd.
(b).) On March 13 when the court denied Karl's request for a continuance,
the evidence was that the paternity test results would not be available
for several more weeks, or well past the 60-day limit of section 352,
subdivision (b). Under the circumstances, the court did
abuse its discretion by proceeding without the test results. We are unpersuaded
by Karl's assertion the test results actually became available within
50 or 57 days of the mandatory cut-off date, as we evaluate the court's
reasonableness as of the time it made its decision.
We also reject Karl's contention he was not given "any
opportunity to perfect his paternity status." On February 4, the
court made a timely paternity inquiry and promptly ordered paternity
testing to take place on February 7. Karl did not
show up for the testing, and there is no suggestion
he brought this to the court's attention until February 25,
when the court ordered him to undergo testing the following
day. Thus, Karl, and not the court, caused the delay.
The March 13, 2003 order is reversed. The matter is
remanded to the juvenile court for its acceptance of the
Agency's filing of the notice it sent the Blackfeet Tribe
and determination of whether the notice was adequate and proper.
If the notice is sufficient, and if as a result
of the tribe's nonresponse the court determines the ICWA is
inapplicable, it is to reinstate the order. If the notice
is insufficient, the court must order the Agency to send
a new notice to the Blackfeet Tribe, and to file
a copy of the notice, and return receipt and response,
if any, with the court.
WE CONCUR: BENKE and NARES, JJ.