|
(Cite
as: 163 Cal.App.4th 262, 77 Cal.Rptr.3d
628) |
Court
of Appeal, Second District, Division 4, California.
TINA
L., Petitioner,
v.
The
SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;
Los
Angeles County Department of Children and Family Services et al., Real Parties
in Interest.
No.
B206049.
May
23, 2008.
Review
Denied July 9, 2008.
.**628
Los Angeles Dependency Lawyers, Inc., Law Office of Timothy Martella, Hermosa
Beach, Ryan Matienzo and Eliot Lee Grossman, South Pasadena, for
Petitioner.
No
appearance for Respondent.
Raymond
G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and
Judith A. Luby, Principal Deputy County Counsel, for Real Party in Interest Los
Angeles County Department of Children and Family Services.
No
appearance for Real Parties in Interest (Minors).
WILLHITE,
J.
*264
INTRODUCTION
Tina
L. (Mother) petitions for a writ of mandate to compel the juvenile court to
vacate its orders terminating reunification services as to her children Rayna N.
and Rudy L., and setting a permanency planning hearing under Welfare and
Institution Code section 366.26.FN1
Mother contends that the court failed to comply with the notice requirements of
the Indian Child Welfare Act of 1978 (?ICWA,? 25 U.S.C. ? 1901 et seq.), and of
recently enacted California statutes governing custody proceedings involving
Indian children (?? 224 et seq.). The Los Angeles County Department of Children
and Family Services (DCFS) agrees, and asks that we follow the common practice
of a limited reversal and remand to permit compliance. **629
Mother challenges that procedure, contending that section 224.2, subdivision
(d), one of the recent California statutes, prohibits it. We hold that when the
juvenile court fails to comply with the notice requirements applicable in Indian
child custody proceedings, section 224.2, subdivision (d), does not prohibit the
established remedy of a limited reversal and remand.
FN1.
All undesignated section references are to the Welfare and Institutions
Code.
FACTUAL
AND PROCEDURAL BACKGROUND
Rayna
(born in October 2004) and Rudy (born in April 2007) are the subjects of a
section 300 petition filed in April 2007 by DCFS. The petition alleges that
Mother tested positive for methamphetamines at Rudy's birth, that Mother has a
three-year history of methamphetamine abuse and is a current abuser,
*265
that Mother and Michael N. (Father) have a history of domestic violence, and
that Father has a history of substance abuse.
Mother
was interviewed by the social worker at the hospital and denied any Native
American heritage. At the detention hearing, the juvenile court found the ICWA
to be inapplicable. The court ordered the children to be detained and placed in
foster care. It ordered DCFS to investigate the home of maternal relatives for
possible placement of the children.
In
July 2007, Mother and Father signed a mediation agreement, agreeing to submit on
the section 300 petition, as amended. The court ordered DCFS to provide family
reunification services for both parents, and ordered the children placed in the
home of a maternal cousin. Thereafter, however, Mother had very limited contact
with DCFS and failed to drug test or enroll in parenting and substance abuse
rehabilitation as required by the case plan.
In
late December 2007, Mother for the first time told DCFS that she had Apache
heritage. The social worker interviewed maternal relatives, and completed the
required Indian ancestry questionnaires.
The
six-month review hearing (? 366.21, subd. (d)) was held on January 10, 2008. The
matter was continued until February 14, 2008 to permit Father, who was
incarcerated, to be present.
On
January 18, 2008, DCFS sent by certified mail, return receipt requested, notice
of the child custody proceedings scheduled for February 14, 2008, to the
parents, the Bureau of Indian Affairs, the Secretary of the Interior, and
numerous Apache tribes. The record fails to show that any of the addressees
verified their receipt of the notice.
Nonetheless,
the court proceeded with the review hearing on February 14 and 19, 2008. It
terminated reunification services for both parents, and scheduled a section
366.26 hearing for June 17, 2008. Mother petitions for a writ of mandate to set
aside these orders. (? 366.26, subd. (l);
Cal. Rules of Court, rule 8.452.)
DISCUSSION
Mother
contends, and DCFS concedes, that the juvenile court erred in holding the
six-month review hearing without verification that the applicable Indian tribes
or the Bureau of Indian Affairs received ICWA notice.
Section
224.2, enacted in 2006 (Stats.2006, ch. 838, ? 31), provides in relevant part:
?(a) If the court, a social worker, or probation officer knows or *266
has reason to know that an Indian child is involved, any notice sent in an
Indian child custody proceeding under this code shall ... comply with all of the
following requirements: [?] (1) Notice shall be sent by registered or certified
mail with return receipt requested. Additional notice by first-class mail is
recommended, but not required. [?] (2) Notice to the tribe shall be to the
tribal **630
chairperson, unless the tribe has designated another agent for service. [?] (3)
Notice shall be sent to all tribes of which the child may be a member or
eligible for membership, until the court makes a determination as to which tribe
is the child's tribe in accordance with subdivision (d) of Section 224.1, after
which notice need only be sent to the tribe determined to be the Indian child's
tribe.? (? 224.2, subd. (a)(1)-(3).)
Of
particular note here is subdivision (d) of section 224.2. It states:
?No
proceeding shall be held until at least 10 days after receipt of
notice
by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs,
except for the detention hearing.? (Italics added.)
Section
224.2 largely tracks the ICWA, which provides in 25 U.S.C. section 1912,
subdivision (a): ?(a) 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. If the identity or location of
the parent or Indian custodian and the tribe cannot be determined, such notice
shall be given to the Secretary in like manner, who shall have fifteen days
after receipt to provide the requisite notice to the parent or Indian custodian
and the tribe. No
foster care placement or termination of parental rights proceeding shall be held
until at least ten days after receipt of notice
by the parent or Indian custodian and the tribe or the Secretary: Provided,
That the parent or Indian custodian or the tribe shall, upon request, be granted
up to twenty additional days to prepare for such proceeding.? (First italics
added.)
Courts
interpreting the ICWA have held that ? ? ?[t]o satisfy the notice provisions of
the [ICWA] and to provide a proper record for the juvenile court and appellate
courts, [a social service agency] should follow a two-step procedure. First, it
should identify any possible tribal affiliations and send proper notice to those
entities, return receipt requested. [Citation.] Second, [the agency] should
provide to the juvenile 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 Asia L.
(2003) 107 Cal.App.4th 498, 507[, 132 Cal.Rptr.2d 733].)? (In
re Mary G.
(2007) 151 Cal.App.4th 184, 209, 59 Cal.Rptr.3d 703, italics
added.)
*267
In the instant case, DCFS did not provide to the juvenile court a copy of any
return receipts. Thus, pursuant to both federal and California law, the court
erred in proceeding with the six-month review hearing absent proof by return
receipt that notice was received.
The
point of dispute here is whether we must unconditionally reverse the orders made
at the six-month review hearing that terminated reunification services and set a
section 366.26 hearing, or whether we may enter a limited reversal and direct
the juvenile court to reinstate the orders if no Indian tribe chooses to
intervene. Such a limited reversal and remand is common practice in cases
involving failure to comply with the ICWA notice requirements, and DCFS asks
that we follow it here. (See In
re Francisco W.
(2006) 139 Cal.App.4th 695, 705, 43 Cal.Rptr.3d 171, and decisions therein
cited.)
Mother
acknowledges this widespread practice. She contends, however, that the enactment
of section 224.2, subdivision (d), invalidates the limited reversal and remand
procedure. According to Mother, ?[t]he only reasonable interpretation of
**631
[section 224.2, subdivision (d),] ... is that any orders issued in violation of
the prohibition must be void. And, if such orders are void, they must be
reversed in their entirety. A ?limited remand? would be inappropriate in such a
situation and would be contrary to the legislative mandate.?
This
issue appears to be one of first impression. Although at least one court of
appeal has issued a limited remand in a published decision involving failure to
comply with the notice requirements of section 224.2 (In
re J.T.
(2007) 154 Cal.App.4th 986, 994, 65 Cal.Rptr.3d 320), that opinion did not
squarely address whether the procedure remains appropriate after California
enacted its own state laws governing child custody proceedings involving Indian
children. We address that issue here, and conclude that section 224.2,
subdivision (d), does not affect the appellate remedy of a limited reversal and
remand.
Nothing
in the language of section 224.2, subdivision (d), addresses the appropriate
appellate remedy when the juvenile court conducts proceedings involving Indian
children without fully complying with the notice requirements. The language of
section 224.2, subdivision (d) [?No proceeding shall be held until at least 10
days after receipt of notice?], is essentially identical to that used in the
ICWA (25 U.S.C. section 1912(a)) [?No foster care placement or termination of
parental rights proceeding shall be held until at least ten days after receipt
of notice?]. The most reasonable interpretation of the California statute is
that the Legislature did not intend to prohibit limited reversals. ? ? ?[T]he
Legislature is deemed to be aware of existing laws and judicial decisions in
effect at the time legislation is enacted and to have enacted and amended
statutes in the light of such decisions as have a direct *268
bearing upon them.? [Citation.]? (Barajas
v. City of Anaheim
(1993) 15 Cal.App.4th 1808, 1814-1815[, 19 Cal.Rptr.2d 764].)? (Fiscal
v. City and County of San Francisco
(2008) 158 Cal.App.4th 895, 908, 70 Cal.Rptr.3d 324.) Thus, we presume that the
Legislature was aware of the many appellate decisions granting limited reversals
when the ICWA notice provisions were not followed. The Legislature's failure to
prohibit this practice when enacting section 224.2, which uses language
essentially identical to the ICWA, strongly suggests that the Legislature did
not intend to disapprove of the procedure.
Mother
asserts that orders issued in violation of the 10-day notice rule (? 224.2,
subd. (d)) are ?void.? To the extent Mother is asserting that such orders are
?void? in a jurisdictional sense, or that they are absolutely null, rather than
simply ?voidable,? we disagree. The better reasoned view is that a violation of
the 10-day period of notice required by the ICWA is not jurisdictional error. If
a state court properly has jurisdiction over the subject matter, the court is
not divested of jurisdiction simply because it fails to comply with the ICWA.
(See, e.g., In
re Veronica G.
(2007) 157 Cal.App.4th 179, 187, 68 Cal.Rptr.3d 465; In
re Brooke C.
(2005) 127 Cal.App.4th 377, 384-385, 25 Cal.Rptr.3d 590; and In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1410-1411, 129 Cal.Rptr.2d 15. But see In
re Desiree F.
(2000) 83 Cal.App.4th 460, 474, 99 Cal.Rptr.2d 688; In
re Jonathan D.
(2001) 92 Cal.App.4th 105, 110, 111 Cal.Rptr.2d 628; and In
re Samuel P.
(2002) 99 Cal.App.4th 1259, 1267, 121 Cal.Rptr.2d 820.)
Thus,
we hold that when the juvenile court fails to comply with the notice
requirements applicable to Indian child custody proceedings, section 224.2,
subdivision (d), does not prohibit a limited reversal and remand to permit
compliance. Mother raises no substantive objection to the order terminating her
reunification services and scheduling a permanency planning**632
hearing. Therefore, we need not discuss the merits of the orders.
DISPOSITION
Let
a peremptory writ of mandate issue directing the juvenile court to (1) vacate
its order of February 19, 2008, terminating reunification services and
scheduling a permanency planning hearing, and (2) order DCFS to comply with the
inquiry and notice provisions of the ICWA, 25 U.S.C. section 1901 et seq., and
applicable state law, Welfare and Institutions Code section 224 et seq. If,
after proper inquiry and notice, no response is received from a tribe indicating
Rayna and Rudy are Indian children, all previous findings and orders shall be
reinstated. If a tribe determines that the minors are Indian children, or if
other information is presented to the juvenile court *269
that suggests the minors are Indian children, the juvenile court is ordered to
conduct a new review hearing in conformity with all provisions of the ICWA and
California law relating to child custody proceedings involving Indian children.
This opinion is final immediately as to this court. (Cal. Rules of Court, rule
8.264(b)(3).)
We
concur: EPSTEIN, P.J., and MANELLA, J.