as: 146 Cal.App.4th 779)
K. v. Superior Court
of Appeal, Third District, California.
SUPERIOR COURT of San Joaquin County, Respondent;
Joaquin County Human Services Agency et al., Real Parties in
James L. Larsen, Public Defender, Judith K. Hansen and Nelson
C. Lu, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
R. Dermody, County Counsel and Lisa S. Ribeiro, Deputy County
Counsel, for Real Party in Interest San Joaquin County Human
In this dependency proceeding, we must decide what the remedy
is when, after failing to provide notice to a tribe
as required by the Indian Child Welfare Act (ICWA), a
juvenile court terminates reunification services and schedules a hearing to
select a permanent plan for the child.
re Brooke C.
(2005) 127 Cal.App.4th 377, 25 Cal.Rptr.3d 590 (hereafter Brooke
held that orders other
than the termination of parental rights
may be affirmed despite the lack of ICWA notice, and
the matter simply can be remanded to the juvenile court
with directions to comply with the notice requirements of ICWA.
reasoned that ICWA errors are not jurisdictional and that if,
upon remand, the child is determined to be an Indian
child, the parent can petition the juvenile court to invalidate
the orders it issued in violation of ICWA. (Id.
at pp. 384-386, 25 Cal.Rptr.3d 590.)
disagree with Brooke
As we will explain, when there has been a lack
of ICWA notice, the juvenile court's orders must be vacated
because they are based on different standards than should have
been applied if ICWA notice was provided and showed the
child is an Indian child.
Accordingly, we shall issue a peremptory writ of mandate directing
the juvenile court to (1) vacate its orders terminating reunification
services and scheduling a permanency planning hearing, and (2) provide
the notice required by ICWA. If, after proper ICWA notice,
the juvenile court determines that the child is an Indian
child, it must conduct new proceedings in conformity with ICWA's
If, however, the court determines that the child is not
an Indian child, it shall reinstate the vacated orders.
K. (petitioner), the mother of R.G., G.G., and A.G. (the
minors), seeks an extraordinary writ of mandate to vacate orders
of the juvenile court terminating her reunification services and setting
a hearing pursuant to Welfare and Institutions Code section 366.26.
Rules of Court, rule 8.452.)
She contends that ICWA notice of the dependency proceedings was
June 2005, petitions were filed by the San Joaquin County
Human Services Agency (HSA), alleging the minors had suffered or
were at substantial risk of suffering serious physical harm or
illness and were at risk of being abused or neglected
because, among other things, G.G. tested positive for amphetamines when
born, and petitioner tested positive for both amphetamines and marijuana.
& Inst.Code, §
subds. (b) & (j);
section references are to this Code unless otherwise specified.)
to the jurisdictional hearing, petitioner disclosed that the maternal grandmother
and grandfather had Cherokee ancestry.
In August 2005, ICWA notice was sent to the Bureau
of Indian Affairs and to three Cherokee tribes.
However, notice to one of the tribes, the United Keetoowah
Band of Cherokee Indians, was sent to a post office
box in Park Hill, Oklahoma, rather than to the address
in Tahlequah, Oklahoma, listed in the most recent federal register
at that time.
Fed.Reg. 13518, 13527 (Mar. 21, 2005).)
response was received from the United Keetoowah Band, although “Joe
signed a return receipt for the **254
ICWA notice delivered to the Park Hill address.
Responses received from the two other Cherokee tribes stated the
minors were not registered or eligible to register as members.
did not begin to comply with her case plan until
then, her compliance was spotty.
In July 2006, the social worker reported to the juvenile
court that petitioner had not complied sufficiently with her case
plan to warrant the continuation of reunification efforts.
The report also stated that ICWA did not apply.
a contested review hearing in October 2006, the juvenile court
terminated reunification services and set a hearing pursuant to section
366.26 to select and implement a permanent plan for the
contends the ICWA notices were inadequate because notice to the
United Keetoowah Band was sent to an incorrect address.FN1
petitioner raises the adequacy of ICWA notice for the first
time in this writ proceeding, the issue is not deemed
forfeited because the principle purpose of ICWA is to “protect
and preserve Indian tribes.”
re Marinna J.
(2001) 90 Cal.App.4th 731, 738, 109 Cal.Rptr.2d 267.)
1978, Congress passed ICWA, which is designed “to
promote the stability and security of Indian tribes and families
by establishing minimum standards for removal of Indian children from
their families and placement of such children ‘in
homes which will reflect the unique values of Indian culture....’
re Levi U.
(2000) 78 Cal.App.4th 191, 195, 92 Cal.Rptr.2d 648;
Choctaw v. Holyfield
(1989) 490 U.S. 30, 32-36, 109 S.Ct. 1597, 1599-1602, 104
L.Ed.2d 29, 36-39.)
the procedural safeguards included in ICWA is a provision for
notice, which states in part:
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 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.”
The Indian status of a child need not be certain
or conclusive to trigger ICWA's notice requirements.
re Desiree F.
(2000) 83 Cal.App.4th 460, 471, 99 Cal.Rptr.2d 688.)
tribe entitled to notice under ICWA may designate an agent
for service of notice other than the tribal chairman, and
the current names and addresses of designated agents for service
of notice are contained in the Federal Register.
71 Fed.Reg. 43788 (Aug. 2, 2006).)
at the time ICWA notice was provided, the federal register
listed a post office box in Tahlequah, Oklahoma as the
address for service of ICWA notice on the United Keetoowah
Band. (70 Fed.Reg. 13518, 13527 (Mar. 21, 2005).)
But ICWA notice was sent to a post office box
in Park Hill, Oklahoma, an address apparently obtained from a
superseded list of designated tribal agents and addresses.
66 Fed.Reg. 65725, 65731 (Dec. 20, 2001).)
This was error.
We conclude the error was not harmless.
Contrary to HSA's assertion, the record contains no conclusive evidence
that the United Keetoowah Band received actual notice of the
Although the record contains a signed return receipt **255
for the misaddressed ICWA notice, the record is devoid of
any evidence that the signature was that of “a
representative of the United Keetoowah Band,”
as claimed by HSA. Consequently, this case is distinguishable from
(2006) 144 Cal.App.4th 1349, 1360, 51 Cal.Rptr.3d 130, which is
cited by HSA, because in that case “the
tribes clearly had actual notice”
as evidenced by the fact that tribal representatives signed the
certified mail receipts.FN2
this case was heard in the juvenile court, the name
of the designated agent for service of ICWA notice for
the United Keetoowah Band was “Dallas
Fed.Reg. 13518, 13527 (Mar. 21, 2005).)
However, a person named “Joe
signed the return receipt from the notice sent to that
While the identity of the surnames suggests that ICWA notice
have been received by an individual affiliated with the tribe,
this may have been coincidental.
In any event, this is not a sufficient basis for
concluding that actual notice was received by the tribe.
As of August 2, 2006, the agent designated for service
of ICWA notice for the United Keetoowah Band is “George
Fed.Reg. 43788, 43797 (Aug. 2, 2006).)
unavailing is HSA's claim that the error is not prejudicial
because petitioner's “lack
of compliance with her reunification case plan is the reason
for the termination of her services.”
A tribe's interest in an Indian child is independent of
the parent's interest in that child.
A parent's compliance with the case plan has no bearing
on the tribe's right to notice and to intervene if
Furthermore, the standard for removal of a child from parental
custody and the type of foster placement are affected when
an Indian child is the subject of dependency proceedings, as
is the standard for termination of parental rights.
25 U.S.C. §
(e) and (f).)
this matter must be remanded for proper ICWA notice to
the United Keetoowah Band.
we agree with HSA that the fact it put an
year for petitioner in the ICWA notices was harmless error.
Although proper ICWA notice must contain the parent's date of
birth (25 C.F.R. §
errors in ICWA notice are subject to harmless error review.
re Alexis H.
(2005) 132 Cal.App.4th 11, 16, 33 Cal.Rptr.3d 242.)
Because petitioner did not claim she had a direct connection
to any tribe, there is no basis to believe that
providing her correct year of birth would have produced different
results concerning the minors' Indian heritage.
urges us to follow the holding of Brooke
127 Cal.App.4th 377, 25 Cal.Rptr.3d 590, which concluded that ICWA
notice error is subject to a limited remand, without reversal
of the judgment, when an appeal is from a hearing
prior to *785
termination of parental rights.
at pp. 385-386, 25 Cal.Rptr.3d 590.)
Adopting the reasoning of cases holding that ICWA errors are
not jurisdictional, the appellate court concluded “the
only order which would be subject to reversal for failure
to give notice would be an order terminating parental rights.”
at p. 385, 25 Cal.Rptr.3d 590.)
Thus, the appellate court affirmed the dispositional order and remanded
the matter to the juvenile court with directions to comply
with ICWA notice requirements, stating:
proper notice under the ICWA, if Brooke is determined to
be an Indian child and the ICWA applies to these
proceedings, [mother] is then entitled to petition the juvenile court
to invalidate orders which violated [ICWA provisions].”
at p. 386, 25 Cal.Rptr.3d 590.)
disagree with Brooke
Even assuming ICWA errors are not jurisdictional,**256
we conclude the failure to give ICWA notice means
that the orders in this case cannot stand.
Petitioner seeks review of a hearing at which her reunification
services were terminated and the juvenile court ordered continued out-of-home
placement for the minors and set a hearing to consider
termination of parental rights.
If notice to the United Keetoowah Band revealed that the
minors are Indian children, the provisions of ICWA would have
applied at the hearing and would have prevented HSA from
seeking foster care placement or termination of parental rights unless
it established that “active
efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family.”
the juvenile court's orders are based on a lesser standard,
they must be vacated until ICWA notice is provided and
the court determines what standard should have been applied.
a peremptory writ of mandate issue, directing respondent juvenile court
to (1) vacate its orders terminating petitioner's reunification services and
scheduling a section 366.26 hearing, and (2) order HSA to
provide ICWA notice to the designated agent for the United
Keetoowah Band at the address listed in the most recent
If, following such notice, the United Keetoowah Band determines that
the minors are Indian children, or if other information is
presented showing the minors are Indian children as defined by
ICWA, the juvenile court shall conduct a new review hearing
in conformity *786
with all the provisions of ICWA. If, however, the United
Keetoowah Band determines that the minors are not Indian children,
or if no response is received indicating the minors are
Indian children, the juvenile court shall reinstate the vacated orders.
and NICHOLSON, JJ.
K. v. Superior Court
Cal.App.4th 779, 53 Cal.Rptr.3d 251, 07 Cal. Daily Op. Serv.
443, 2007 Daily Journal D.A.R. 515