|
(Cite
as: 176 Cal.App.4th 773, 97 Cal.Rptr.3d
890) |
Court
of Appeal, First District, Division 1, California.
In
re B.R. et al., Persons Coming Under the Juvenile Court Law.
Marin
County Department of Health and Human Services, Plaintiff and
Respondent,
v.
G.R.,
Defendant and Appellant.
No.
A122581.
Aug.
13, 2009.
**891
Caroline J. Todd, Berkeley, under appointment by the Court of Appeal for
Defendant and Appellant.
Patrick
K. Faulkner, County Counsel, Jessica F. Mills, Deputy County Counsel, for
Plaintiff and Respondent.
MARGULIES,
J.
*777
This appeal presents the issue of whether the Indian Child Welfare Act (25
U.S.C. ? 1901 et seq.) FN1
(ICWA), applies when the minors' presumed father in a juvenile dependency
proceeding alleges that his adoptive
father has one-quarter ancestry in a federally recognized Indian tribe. We hold
that the ICWA notice provisions do apply in these circumstances, and
conditionally**892
reverse the juvenile court's order terminating parental rights so that notice of
the proceedings may be given to the tribe in question.
FN1.
All further statutory references are to the Indian Child Welfare Act (25 U.S.C.
? 1901 et seq.) unless otherwise specified.
I.
BACKGROUND
On
June 7, 2007, the Marin County Department of Health and Human Services
(Department) received a ?general neglect? referral. In response, a Department
social worker and deputies from the county sheriff's office conducted a welfare
check of G.R.'s (Mother) apartment. The deputies placed Mother under arrest when
she became combative, and the social worker took the children into temporary
protective custody. Several days later the Department filed a petition under
Welfare and Institutions Code section 300, subdivision (b).
At
the jurisdiction/
Following
a contested review hearing in late March 2008, the court ordered the termination
of reunification services for Mother, and set the matter for the selection of
permanent plans pursuant to Welfare and Institutions Code section *778
366.26. Mother filed a writ petition challenging the order, which this court
denied by nonpublished opinion filed on June 18, 2008. (G.R.
v. Superior Court
(June 18, 2008, A121247), 2008 WL 2445215.)
After
a contested Welfare and Institutions Code section 366.26 hearing, the juvenile
court found that the children were adoptable and determined that adoption was
the best permanent plan for them. The court ordered that Mother's and Richard
H.'s parental rights be terminated and that the children be referred for
adoptive placement. Mother timely appealed.
II.
DISCUSSION
Mother
contends the order terminating parental rights must be reversed because no
notices were sent to the Apache tribes pursuant to the ICWA.
A.
ICWA-related
Facts
Based
on information provided by Richard's biological sister, J.G., the Department's
jurisdiction report stated that the children had Seneca and Delaware Indian
ancestry and the ICWA may apply. The Department later reported in a July 6, 2007
submission to the court that it was ?in the process of notifying the Seneca and
Delaware tribes.? At the jurisdiction/
Notices
were subsequently sent to the Delaware Nation of Oklahoma, Cayuga Nation of New
York, Seneca-Cayuga Tribe of Oklahoma, Seneca Nation of Indians, Tonawanda Band
of Senecas, and the Sacramento Area Director of the Bureau of Indian Affairs.
The Delaware Nation of Oklahoma, Seneca-Cayuga Tribe of Oklahoma, Seneca Nation
of Indians, and *779
Tonawanda Seneca Nation wrote back, stating that the children were not members
or eligible for membership. No notices were mailed to the Apache
tribes.
At
the six-month review hearing in March 2008, the court made a finding that the
ICWA did not apply. No objection regarding the Department's compliance with the
ICWA was made by Mother or Richard at that time. No ICWA issue was raised in
Mother's writ petition or by either parent at any other time before the present
appeal.
B.
Procedural
Issues
[1]
As an initial matter, we reject the Department's claim that Mother waived the
issue of ICWA notice to the Apache tribes by failing to raise it earlier. The
Department relies on In
re Pedro N.
(1995) 35 Cal.App.4th 183, 41 Cal.Rptr.2d 819 (Pedro
N.),
which held that a parent can waive an ICWA notice claim by failing to raise it
in a timely appeal and then seeking to raise it for the first time in a later
appeal. (Id.
at pp. 189-190, 41 Cal.Rptr.2d 819.) We agree with the view taken in
In
re Marinna J.
(2001) 90 Cal.App.4th 731, 109 Cal.Rptr.2d 267, which questioned the conclusion
reached in Pedro
N.
and observed that ?it would be contrary to the terms of the [ICWA] to conclude
... that parental inaction could excuse the failure of the juvenile court to
ensure that notice ... was provided to the Indian tribe named in the
proceeding.? (In
re Marinna J.,
at p. 739, 109 Cal.Rptr.2d 267.) Similarly, the Court of Appeal in Dwayne
P. v. Superior Court
(2002) 103 Cal.App.4th 247, 126 Cal.Rptr.2d 639 (Dwayne
P.),
rejected Pedro
N.
and held that the juvenile court had a sua sponte duty to ensure compliance with
ICWA notice requirements ?since notice is intended to protect the interests of
Indian children and tribes despite the parents' inaction.? (Dwayne
P.,
at p. 261, 126 Cal.Rptr.2d 639.) We agree with In
re Marinna J.
and Dwayne
P.
that the parents' failure to raise the ICWA issue now before us does not prevent
us from considering the issue on the merits. (See also In
re Nikki R.
(2003) 106 Cal.App.4th 844, 848, 131 Cal.Rptr.2d 256; In
re Suzanna L.
(2002) 104 Cal.App.4th 223, 231-232, 127 Cal.Rptr.2d 860.) Further, this is not
a case in which a forfeiture may be found because the parents have raised a
series of ICWA issues in successive appeals after failing in each instance to
raise the issue in the trial court. (See In
re X.V.
(2005) 132 Cal.App.4th 794, 804-805, 33 Cal.Rptr.3d 893.)
[2]
Finally, although Mother is not the parent with alleged Indian heritage, she
still has standing to raise the issue of ICWA compliance. (In
re Jonathon S.
(2005) 129 Cal.App.4th 334, 339, 28 Cal.Rptr.3d 495.) Under *780
section 1914, any parent or the Indian child's tribe may petition to invalidate
a placement or termination order for failure to comply with ICWA
requirements.
C.
Applicability
of ICWA
[3]
The purpose and background of the ICWA were explained as follows in In
re **894
Junious M.
(1983) 144 Cal.App.3d 786, 193 Cal.Rptr. 40 (Junious
M.):
?The [ICWA] was enacted ?... 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 or adoptive
homes which will reflect the unique values of Indian culture, ...? (? 1902.) The
legislation was Congress' response to its findings that ?... an alarmingly high
percentage of Indian families are broken up by the removal, often unwarranted,
of their children from them by nontribal public and private agencies and that an
alarmingly high percentage of such children are placed in non-Indian foster and
adoptive homes and institutions; ...? (? 1901, subd. (4); [citations].)?
(Id.
at pp. 789-790, 193 Cal.Rptr. 40, fn. omitted.) Prior to the enactment of the
ICWA, surveys found that in states with large Native American populations 25 to
35 percent of all Native American children were removed from their homes and
placed in foster or adoptive homes at one time during their lives, often because
state officials disapproved of traditional Native American child-rearing
practices, such as reliance on extended families, or opted to remove Native
American children due to alcoholism in disproportionate numbers compared to
other populations affected by the disease. (Jones, The Indian Child Welfare Act
Handbook (1995) pp. 2-3.)
Congress
achieved the goals of the ICWA, in part, by allowing Indian tribes to take
jurisdiction over or intervene in state court proceedings for foster care
placement, termination of parental rights, preadoptive placement, and adoptive
placement involving Indian children. (?? 1903(1), 1911(b), 1912(c); Junious
M., supra,
144 Cal.App.3d at p. 790, 193 Cal.Rptr. 40.) Because the tribe's right to assert
jurisdiction over the proceeding or to intervene in such proceedings would be
meaningless if the tribe has no notice that the action is pending (see
Junious
M.,
at pp. 790-791, 193 Cal.Rptr. 40), section 1912 therefore provides in relevant
part as follows: ?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 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.... No foster care placement or
termination of parental rights proceeding shall be held until at *781
least ten days after receipt of notice by the parent or Indian custodian and the
tribe ....? (? 1912(a).) Violation of the notice provisions may invalidate the
proceeding. (? 1914.)
The
ICWA protects ?Indian children who are members of or are eligible for membership
in an Indian tribe.? (? 1901(3).) For purposes of the ICWA, ? ?Indian child?
means 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.? (? 1903(4).) The tribe in
question must be a federally recognized Indian tribe, group, band, or community
eligible for federal services provided to Indians. (? 1903(8); In
re John V.
(1992) 5 Cal.App.4th 1201, 1217, 7 Cal.Rptr.2d 629.)
The
Department apparently determined in this case that no notices to the Apache
tribes were ?required by law? under the court's July 19, 2007 findings because
the minors were not biological descendants of an ancestor with Apache blood. In
the present appeal, Mother insists that the **895
Department had no right to make that determination under the ICWA absent notice
of the proceeding to the Apache tribe and an opportunity for the tribe to
respond. Mother argues that despite the lack of a biological link, the minors
could still be-under the Apache tribe's own membership rules-either (1) members
of the tribe or (2) eligible for membership in the tribe and the biological
children of a member of that tribe. According to Mother, a determination of the
minors' membership status in a tribe is not for the state court or a social
worker to make as a matter of law under the ICWA. For the reasons discussed
below, we agree with Mother's position.
In
Junious
M.,
another panel of this court discussed how to go about determining the status of
a child who may be an Indian child. The Junious
M.
court relied on guidelines promulgated by the Department of the Interior's
Bureau of Indian Affairs (BIA) shortly after passage of the ICWA. (Junious
M., supra,
144 Cal.App.3d at pp. 792-794, 193 Cal.Rptr. 40; see Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584 et seq. (Nov. 26,
1979) (Guidelines).) As the Court of Appeal noted, the Guidelines represent the
Department of the Interior's interpretation of certain provisions of the ICWA.
(Junious
M.,
at p. 792, fn. 7, 193 Cal.Rptr. 40.) The Department of the Interior's
construction of the statute-being that of the executive agency charged with
administering it-is entitled to great weight even though it is not binding on
us. (Ibid.)
Insofar
as relevant to the issue before us, the Guidelines state that the fundamental
policy of the ICWA is to express Congress's ?clear preference for keeping Indian
children with their families, deferring to tribal judgment *782
on matters concerning custody of tribal children, and placing Indian children
who must be removed from their homes within their own families or Indian
tribes.? (Guidelines, supra,
at pp. 67585-67586.) The Guidelines further provide that the ICWA and all
regulations, guidelines, and state statutes relating to it ?shall be liberally
construed in favor of a result that is consistent with these preferences. Any
ambiguities in any of such statutes, regulations, rules or guidelines shall be
resolved in favor of the result that is most consistent with these preferences.?
(Guidelines, supra,
at p. 67586.)
As
explained in Junious
M.,
the Guidelines and accompanying commentary emphasize that when it comes to the
determination of a child's Indian tribe membership status, it is for the tribe
itself to make that determination: ?As to determining the status of a child as
an Indian child, the Guidelines provide: ?When a state court has reason
to believe
a child involved in a child custody proceeding is an Indian, the court
shall
seek verification
of the child's status from either the Bureau of Indian Affairs or the child's
tribe.... [?] ... The
determination by a tribe
that a child is or is not a member of that tribe, is or is not eligible for
membership in that tribe, or that the biological parent is or is not a member of
that tribe is
conclusive
.... [?] ... Circumstances under which a state court has reason to believe a
child involved in a child custody proceeding is an Indian include.... [?] ...
Any party to the case ... informs the court that the child is an Indian child.?
[Citation.] [?] The commentary to this portion of the Guidelines states, ?This
guideline makes clear that the
best source of information on whether a particular child is Indian is the tribe
itself. It is the tribe's prerogative to determine membership criteria and to
decide who meets those criteria.
[Citation.]? [Citations.]? (Junious
M., supra,
144 Cal.App.3d at p. 793, 193 Cal.Rptr. 40, italics added.)
**896
In light of these considerations, the Court of Appeal in Junious
M.
held that the trial court erred in hearing evidence on and deciding the issue of
whether the minor's possible connection to the Nooksack Tribe would or would not
make him an ?Indian child? for purposes of the ICWA. (Junious
M., supra,
144 Cal.App.3d at p. 792, 193 Cal.Rptr. 40.) The Court of Appeal stated: ?The
[juvenile] court erred in approaching resolution of the issue in this manner,
since the question of whether the minor was an Indian child was one for the
tribe to determine.? (Ibid.)
It reversed the judgment and remanded for the trial court to afford notice to
the Nooksack Tribe of the pending proceedings so that the tribe could determine
whether the minor was an Indian child for purposes of the ICWA. (Junious
M.,
at pp. 797-798, 193 Cal.Rptr. 40.) FN2
FN2.
Later California cases have followed Junious
M.
in recognizing the ICWA's policy of letting potentially affected tribes decide
the question of tribal membership when the issue is uncertain. (See, e.g.,
In
re Jose C.
(2007) 155 Cal.App.4th 844, 848, 66 Cal.Rptr.3d 355; In
re Desiree F.
(2000) 83 Cal.App.4th 460, 471, 99 Cal.Rptr.2d 688.)
[4]
*783
In our view, an equivalent error was committed here. The trial court left it to
the Department to determine whether the minors were Indian children for purposes
of the ICWA, rather than letting the Apache tribe make that determination by
ordering that notice be sent to the tribe. It is true that in this case the
minors were not the biological children of a parent with Indian blood. They are
the grandchildren by adoption of an ancestor with Indian blood. But the
definition of ?Indian child? under the ICWA does not by its terms automatically
exclude such children. To the contrary, the ICWA focuses on ?membership? rather
than racial origins. It protects children who are ?members of or eligible for
membership in? federally recognized Indian tribes. (? 1901(3).) The definition
of ?Indian child? in section 1901 (4) does not by its own literal language
require either that the child's biological parents be members of a tribe or that
one of the child's biological parents have tribal ancestry. Such a child could
still be an ?Indian child? for purposes of the ICWA so long as either (1)
the
child is a member of an Indian tribe
or (2) one
of the child's biological parents is a member of the tribe and the child is
eligible for membership.
[5]
Tribal membership is treated under the ICWA as a matter of political affiliation
rather than racial origin: ?The ICWA recognizes the political affiliation that
follows from tribal membership in a federally recognized tribe, rather than a
racial or ancestral Indian origin.? (In
re Vincent M.
(2007) 150 Cal.App.4th 1247, 1267, 59 Cal.Rptr.3d 321.) In incorporating the
ICWA requirements into state law, the California Legislature explicitly found
and declared that tribal membership is a question of political affiliation and
that a tribe's determination of its membership is binding on the state: ?A
determination by an Indian tribe that an unmarried person, who is under the age
of 18 years, is either (1) a member of an Indian tribe or (2) eligible for
membership in an Indian tribe and a biological child of a member of an Indian
tribe shall constitute a significant political affiliation with the tribe and
shall require the application of the federal Indian Child Welfare Act to the
proceedings.? (Welf. & Inst.Code, ? 224, subd. (c).)
As
Mother points out, if Congress had wanted to limit the ICWA solely to children
who are biological descendants of a federally recognized tribe, it knew how to
do so. For example, in the Indian Reorganization Act of 1934 (25 U.S.C. ? 461 et
seq.), Congress defined ?Indian? as follows:**897
?[A]ll persons of Indian descent who are members of any recognized Indian tribe
now under Federal jurisdiction, and all persons who are descendants of such
members who were, on June 1, 1934, residing within the present boundaries of any
Indian reservation, and shall further include all other persons of one-half or
more Indian blood. For the purposes of this Act, Eskimos and other aboriginal
peoples of Alaska shall be considered Indians.? (25 U.S.C. ? 479.)
*784
The issue of whether an adoptive relationship can trigger ICWA notice
requirements came before the Vermont Supreme Court in In
re M.C.P.
(1989) 153 Vt. 275, 571 A.2d 627. There, the minor was the adoptive child of a
member of the Mohawk Indians. (Id.
at p. 279, 571 A.2d 627.) The minor's adoptive father testified that while the
child was not currently a member of the Mohawk Tribe, she could be eligible for
membership in the tribe. (Id.
at p. 284, 571 A.2d 627.) Based on that testimony and the child's adopted
status, the trial court ruled that she did not meet the definition of an ?Indian
child? under section 1903(4), and that no notice of the proceeding need be given
to the Mohawk Tribe. (In
re M.C.P.,
at p. 284, 571 A.2d 627.) The Vermont Supreme Court reversed, finding that under
the ICWA it was up to the Mohawk Tribe itself to determine whether the minor was
a member of the tribe. (In
re M.C.P.,
at pp. 284-289, 571 A.2d 627.)
The
court first focused on the language of the ICWA's notice provision, section
1912(a): ?The notice provision, 25 U.S.C. ? 1912(a), applies not only when the
trial court finds the juvenile is an Indian child but also when the court ?has
reason to know that an Indian child is involved.? This language reflects the
fact that Indian tribes have an interest in Indian child welfare proceedings
apart from the parties and that the information provided by the parties bearing
on whether the juvenile is an Indian child may be incomplete. It also reflects
the fact that Indian tribes are in a better position to determine the membership
of individuals who have some relationship to the tribe and the court should
defer to this expertise.? (In
re M.C.P., supra,
153 Vt. at pp. 285-286, 571 A.2d 627, fn. omitted.) The Vermont court also found
that requiring notice in the case of an adoptive parent with Indian ties was
consistent with the Guidelines and with the approach taken in other notice
cases, including Junious
M.:
?The 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 even where it is unclear that the child involved is an Indian child.?
(In
re M.C.P.,
at p. 287, 571 A.2d 627.) Finally, noting that the ICWA provided for collateral
attack on juvenile placements for violation of the notice requirement, the court
observed that ?[t]o maintain stability in placements of children in juvenile
proceedings, it is preferable to err on the side of giving notice and examining
thoroughly whether the juvenile is an Indian child.? (In
re M.C.P.,
at p. 289, 571 A.2d 627.)
The
Department argues that the putative father's lack of a biological tie to the
Apache tribe precludes any notice requirement under the ICWA, citing
In
re E.G.
(2009) 170 Cal.App.4th 1530, 88 Cal.Rptr.3d 871 (E.G.).
In E.G.,
the Court of Appeal held that no ICWA notice was required when the minor's
alleged
father claimed Indian heritage: ?Until biological paternity is established, an
alleged father's claims of Indian heritage do not trigger any ICWA notice
requirement because, absent a biological connection, the child cannot claim
Indian heritage through the alleged father. Since [the alleged father]
*785
was excluded [by a paternity test] as a biological father of the child, no
notice was **898
required under ICWA.? (E.G.,
at p. 1533, 88 Cal.Rptr.3d 871.) Thus, there was no claim in E.G.
that the alleged father had any adoptive or
biological relationship to the child. Under those circumstances, we agree that
it was impossible for the child to meet the definition of an Indian child under
section 1901(4) by virtue of the child's relationship with the alleged father.
But in this case, the minors are
biologically related to the father and the father is potentially a member of the
Apache tribe via his adoptive relationship with the minors' grandfather. To the
extent E.G.
suggests in dictum that no ICWA notice is ever required unless the minor is
shown to potentially have Indian blood, we respectfully disagree with
it.FN3
FN3.
At least one other California appellate case has rejected, in dictum, the
assertion that proof of biological descendance is required to establish
eligibility for membership in a tribe. In In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 129 Cal.Rptr.2d 15, the Court of Appeal responded
as follows to a statement to that effect contained in a form response sent by
the BIA to the court: ?While true enough for our purposes, the BIA overstates
the matter, considering that ?[n]early all tribal constitutions provide for
adoption through special action by the tribe, subject to review by the Secretary
of the Interior.? (Cohen, Handbook of Federal Indian Law (1942) p. 136.)?
(Id.
at p. 1408, fn. 1, 129 Cal.Rptr.2d 15.)
[6]
Based on Congress's choice of words in section 1901(4), the interpretative
guidelines promulgated by the BIA, and the policy considerations and preferences
reflected in the ICWA, as discussed in Junious
M., In re M.C.P.,
and other cases, we hold that the trial court erred in this case in not
requiring notice to the Apache tribes. Further, we reject the Department's claim
that any such error was harmless. ?Courts have consistently held failure to
provide the required notice requires remand unless the tribe has participated in
the proceedings or expressly indicated they have no interest in the
proceedings.? (In
re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1424, 285 Cal.Rptr. 507; see also In
re Jonathan D.
(2001) 92 Cal.App.4th 105, 110, 111 Cal.Rptr.2d 628.) That was not the case
here. Cases finding notice errors harmless when incomplete notices were sent or
no specific Indian tribe was identified are distinguishable. (See In
re Alexis H.
(2005) 132 Cal.App.4th 11, 33 Cal.Rptr.3d 242; In
re Antoinette S., supra,
104 Cal.App.4th 1401, 129 Cal.Rptr.2d 15.)
The
appropriate remedy for the notice failure in this case is to reverse and remand
the order terminating parental rights to allow notice to be given to the Apache
tribes. If no tribe responds or the responses received indicate that the minors
are not Indian children, the order terminating parental rights should be
reinstated. If any tribe determines the children are Indian children, the
juvenile court should conduct a new Welfare and Institutions Code section 366.26
proceeding applying the provisions of the ICWA and state law implementing
it.
*786
III. DISPOSITION
The
juvenile court's order terminating parental rights and referring the minors for
adoptive placement is conditionally reversed. The matter is remanded to the
juvenile court with directions to proceed in compliance with the notice
provisions of the ICWA and Welfare and Institutions Code section 224.2, in
accordance with the views expressed in this opinion. If, after proper notice to
the Apache tribes, the court finds that the minors are Indian children, the
juvenile court shall proceed in accordance with the ICWA and Welfare and
Institutions Code section 224 et seq. If, however, the juvenile court finds that
the minors are not Indian children, the **899
court shall reinstate the order terminating parental rights.
MARCHIANO,
P.J., and GRAHAM, J.FN*
FN*
Retired judge of the Marin County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.