In re Daja

Filed 11/23/05 In re Daja V. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re DAJA V., a Person Coming Under the Juvenile Court Law.
DEL NORTE COUNTY DEPT. OF HEALTH & SOCIAL SERVICES, Plaintiff and Respondent, v. DERAL V., Defendant and Appellant.	A109349 (Del Norte County Super. Ct. No. JV046009)

Deral V. (Father) has filed this appeal from an order terminating his parental rights and finding his daughter likely to be adopted. Father argues his due process rights were violated when the dispositional hearing and a Welfare and Institutions Code section 366.26[1] hearing were held in his absence. He also contends the judgment must be reversed because the Del Norte County Department of Health and Social Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We conclude any error due to Father’s absence was harmless, but we agree the case must be remanded to secure compliance with the ICWA.

BACKGROUND

On January 21, 2004, the Department filed a section 300 petition to declare the minor, who was then four months old, a dependent child. The petition alleged the parents had substance abuse problems and a history of domestic violence, to which the minor had been exposed. Specifically, the petition alleged that in September 2003, when the minor was three weeks old, Father struck her on the shoulder with his knee during a domestic violence incident. In addition, the mother, Samantha R. (Mother), had recently been arrested for vandalism, battery and child endangerment following a violent encounter with her sister, and Father’s whereabouts and ability to care for the minor were unknown. The minor was detained and placed in the care of a maternal aunt.

The Department’s detention report indicated the ICWA did not apply. However, at the detention hearing, Mother told the court the minor’s father “is half Indian.” She did not know which tribe Father belonged to but knew it was in Oklahoma. She reported that Father had an “Indian reservation identification card” and believed she had a copy of this card at home. The court asked Mother to give the Department a copy of the card. Mother stated the minor was “probably” eligible for enrollment in the tribe, but she had not discussed the issue with Father due to their domestic violence incidents. When asked if she knew the location of any relatives that might have information about possible tribe membership, Mother agreed to give the Department the address of Father’s mother, who lives in a small town in Oklahoma. At a jurisdiction hearing held on January 30, 2004, Mother stated that she had given a copy of Father’s Indian reservation card to a Department social worker. The Department’s jurisdiction report indicated the ICWA “does or may apply” based on Mother’s statements at the detention hearing. Mother had provided an Oklahoma driver’s license but not Father’s reservation card. The Department did not report giving ICWA notice to any tribe, and its report stated only that the issue “will need to be explored further.”

Father was not present at the previous hearings but was brought into court in custody for a follow-up hearing on February 27, 2004, whereupon he admitted some allegations of the petition and denied others. Father was on probation for felony domestic violence, and he had recently been sentenced to prison for a probation violation. The court held a contested jurisdiction hearing on March 16, 2004, with Father present in custody, but no mention was made in the hearing of the ICWA or Father’s Indian heritage. The court sustained all but one of the allegations of the petition and set the matter for a dispositional hearing.

The Department’s disposition report stated simply that the ICWA “does not apply.” With respect to Father, the report noted he had been sentenced to three years in prison and was thus not able to care for the minor. As a result of his incarceration, Father had not participated in any visits with the minor, and he had had no contact with Mother or the minor since he was arrested for the domestic violence incident in September 2003. At a dispositional hearing on April 2, 2004, the minor was declared a dependent and the court ordered that reunification services be provided to both parents. Neither parent was present at the hearing.

The juvenile court held several review hearings in May, June and July 2004, but Father was personally present at none of them. During this time, Mother was ordered to participate in drug court, but she was later found in contempt due to drug use. On July 23, 2004, Mother signed a waiver of reunification services, and the court ordered that no further services be provided to her.

A six-month review hearing was set for September 17, 2004. The Department recommended terminating reunification services for Father and setting a permanency planning hearing. The minor was living with a maternal aunt who wanted to adopt her. The Department reported that Father had not been involved in the reunification process with his child and had not communicated with the Department since she was detained in January 2004. Indeed, for the preceding year, a restraining order had prevented Father from having any contact with the minor. The report again stated that the ICWA did not apply. Father remained incarcerated in San Quentin State Prison, and he was not present at the review hearing. Consistent with the Department’s recommendations, the court terminated Father’s services and set a section 366.26 hearing. Both parents were served with blank forms for filing a writ petition, and both were served with a notice of the permanency planning hearing that declared they had a right to be present at the hearing and have an attorney represent them.

Father did not file a writ petition, and the section 366.26 hearing proceeded as scheduled. The Department’s report indicated that the minor had lived with her maternal aunt since February 2004, and the aunt wished to adopt. The minor had had only brief and limited contact with Mother and no contact with Father since she was detained; however, the Department’s social worker did receive two letters from Father regarding the minor. Once again, the Department’s report stated that the ICWA did not apply. The Department also submitted an adoption assessment performed by the California Department of Social Services (CDSS), which concluded the minor was likely to be adopted. This report noted that Father had written a letter asking that his daughter not be placed for adoption “in hopes that he could regain custody once he is released from prison.” Nevertheless, CDSS observed the child had developed a strong attachment to the prospective adoptive parent, and it recommended that the court terminate the parental rights of Mother and Father and order a permanent plan of adoption. With respect to the ICWA, the CDSS report indicated the minor was “reported to have Native American Heritage, with the Cherokee Tribe by her birth father. The Cherokee Tribe was noticed of these proceedings and will not intervene. Therefore, the Indian Child Welfare Act does not apply.”

Neither Mother nor Father was present at the section 366.26 hearing, and their attorneys submitted the matter without argument. The court terminated parental rights and released the minor for adoption, and this appeal from Father followed.

DISCUSSION

I. Father’s Absence from Hearings Was Harmless Error

Penal Code section 2625, subdivision (d) states, in relevant part: “No proceeding may be held under . . . Section 366.26 of the Welfare and Institutions Code and no petition to adjudge the child of a prisoner a dependent child of the court . . . may be adjudicated without the physical presence of the prisoner or the prisoner’s attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding.” Penal Code section 2625 therefore requires the juvenile court to order the temporary removal and production of a prisoner-parent before the court for these specified hearings. (In re Jesusa V. (2004) 32 Cal.4th 588, 599.) Father now claims his statutory and due process rights were violated when the court held dispositional and section 366.26 hearings in his absence, contrary to the mandate of Penal Code section 2625.

We agree that the court erred in failing to procure Father’s presence or an appropriate waiver. The Supreme Court has ruled that attendance by a prisoner’s attorney is not sufficient for purposes of Penal Code section 2625, subdivision (d), and a juvenile court errs if it proceeds with a dispositional hearing or a section 366.26 hearing without the prisoner’s presence or a waiver of his right to be present. (In re Jesusa V., supra, 32 Cal.4th at pp. 623-624.) However, the Supreme Court also ruled that this error is not one of constitutional dimension. (Id. at pp. 601-602, 626.) “Although there is no dispute that prisoners have a constitutional right of access to the courts [citation] and that ‘absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard’ [citation], it does not follow that prisoners have a constitutional right to be personally present at every type of hearing.” (Id. at p. 601.) Father has cited no authority holding that incarcerated parents have a due process right to be present at dependency proceedings involving their children, and our Supreme Court has expressly concluded they have no such right. (See id. at pp. 602, 626; see also In re Maria S. (1997) 60 Cal.App.4th 1309, 1312-1314 [absence of a statute facilitating the attendance of federal prisoners at dependency hearings did not deprive juvenile court of jurisdiction to proceed or require suspension of the dependency proceedings].) Thus, Father’s due process claim has no merit.

Consistent with these conclusions, the Supreme Court has also held that a violation of Penal Code section 2625, subdivision (d) is judged by the state law harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (In re Jesusa V., supra, 32 Cal.4th at pp. 624-625.) Under this standard, we reverse only if it is reasonably probable the result would have been more favorable to the parent absent the error. (Id. at p. 625; see also In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632.) Father barely attempts to argue facts to support reversal under this standard. He notes that he expressed a desire to regain custody of the minor once he was out of prison, and he complains he was not offered visitation due to his incarceration. He also speculates that, if he had been present at the hearings, he could have testified about “arrangements that he could make for the child,” his desire to raise the child, and the Department’s failure to provide visitation after his restraining order expired. But Father made no attempt to put any such evidence before the juvenile court—in a declaration, for example, or an offer of proof from his attorney. (See In re Jesusa V., supra, 32 Cal.4th at pp. 625-626.) Due to the domestic violence incident when the minor was only three weeks old, Father was under a restraining order prohibiting him from having any contact with her for a year. There is no evidence in the record that he complained or sought visitation with the minor after this restraining order expired. Nor is there any evidence to show he complied with other aspects of his case plan, such as completing a domestic violence prevention program and parenting program and participating in substance abuse treatment. With respect to the section 366.26 hearing, Father does not point to any evidence he would have offered to show the minor was not adoptable, and there is simply nothing in the record to suggest he could or would have been able to care for the minor upon his release from prison. On this record, a different result was not reasonably likely absent the error under Penal Code section 2625.

II. Failure to Provide Notice under the ICWA Requires Remand

Father also argues the juvenile court’s orders must be reversed due to the court’s failure to ensure compliance with the ICWA. Given the Department’s complete disregard of this federal statute’s notice requirements, we agree the case must be remanded.

“The ICWA is designed to protect the interests of Indian children, and to promote the stability and security of Indian tribes and families. It sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. When the dependency court has reason to believe a child is an Indian child within the meaning of the Act, notice on a prescribed form must be given to the proper tribe or to the Bureau of Indian Affairs, and the notice must be sent by registered mail, return receipt requested. [Citations.]” (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) The ICWA defines an “Indian child” child as “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.” (25 U.S.C. § 1903(4).) Under the California Rule of Court implementing the ICWA, circumstances that may provide probable cause for the court to believe a minor is an Indian child include information provided by any interested person “suggesting that the child is an Indian child.” (Cal. Rules of Court, rule 1439(d)(4)(A).)

Several appellate courts in this state have stressed the importance of strict compliance with the notice requirements of the ICWA. (See, e.g., In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267; In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475.) “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) “Notice is mandatory, regardless of how late in the proceedings a child’s possible Indian heritage is uncovered. [Citations.]” (Id. at p. 1424.) This is because “[a] tribe may intervene in dependency proceedings at any time, even after parental rights have been terminated. (25 U.S.C. § 1911(c); In re Desiree F., supra, 83 Cal.App.4th at pp. 472-473.)” (In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.) “[F]ailure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. ([In re Kahlen W., 233 Cal.App.3d] at p. 1422; In re Jonathan D.[, supra,] 92 Cal.App.4th [at p.] 111.)” (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.)

The Department does not claim it provided notice to any Indian tribe or the Bureau of Indian Affairs, or that it substantially complied with the ICWA. Rather, the Department insists the ICWA’s notice requirements were not triggered in this case because the only evidence of the minor’s Indian status was Mother’s “unsworn, vague and unspecific assertion” to that effect. Yet Mother confidently informed the court that Father belonged to a tribe in Oklahoma and had an Indian reservation identification card. She agreed to give the Department a copy of the card, as well as the address of Father’s mother in Oklahoma, but the record contains no indication of whether or how the Department ever followed up with Mother to obtain this important information. Moreover, despite the Department’s disparagement of her statement to the court, even a cursory review of case law in this area reveals that the information Mother provided was sufficient to trigger the federal statute’s notice requirements. (See, e.g., In re I.G. (Nov. 2, 2005, A106784) __ Cal.App.4th __ [2005 Lexis 1704] [mother told a social worker she believed she was part Native American and this was “part of the reason” for her alcohol dependence]; In re Jonathan D., supra, 92 Cal.App.4th at p. 108 [grandmother told attorney she had a relative who was a Cherokee tribe member].)

A minor’s Indian status need not be certain to invoke the notice requirement of the ICWA. (In re Desiree F., supra, 83 Cal.App.4th at p. 471; In re Kahlen W., supra, 233 Cal.App.3d at p. 1422.) This is because the question of membership or eligibility for membership rests exclusively with each Indian tribe. (25 U.S.C. § 1911; Cal. Rules of Court, rule 1439(g)(1); In re Desiree F., supra, 83 Cal.App.4th at p. 471.) Thus, whenever information suggests to the juvenile court that dependency proceedings may concern an Indian child, notice must be sent to the tribes in question, or to the Secretary of the Bureau of Indian Affairs if the identity of the tribe cannot be determined. (Cal. Rules of Court, rule 1439(f); In re Kahlen W., supra, 233 Cal.App.3d at p. 1422; see also Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255-257 [finding the broad construction of notice requirements in Rule 1439 consistent with the ICWA].)

Mother’s statements at the detention hearing were sufficient to trigger the need for notice under the ICWA. The Department itself stated in its jurisdiction report that the ICWA “does or may apply” and indicated its intent to “explore[] [the issue] further.” At that point, the Department had an affirmative duty to give notice of the proceedings to the appropriate tribes in Oklahoma and/or the Bureau of Indian Affairs. (See In re Desiree F., supra, 83 Cal.App.4th at p. 471 [social services agency had a duty to give ICWA notice as soon as it filed a petition noting the ICWA possibly applied]; see also Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 261 [court has a sua sponte duty to ensure agency’s compliance with notice requirement, and this duty continues until proper notice is given].)

The Department also faults Mother for failing to provide “corroborating information” for her “claims” about the minor’s Indian heritage. First, there is no support in the record for this assertion. One of the Department’s reports indicates Mother had provided Father’s Oklahoma driver’s license instead of his Indian reservation card, but the Department did not document any requests for information it had made of Mother or any failure of Mother to cooperate with such requests. Second, and more importantly, it was the Department’s duty, not Mother’s, to obtain the necessary information for providing notice under the ICWA. (See In re Kahlen W., supra, 233 Cal.App.3d at pp. 1424-1425 [rejecting argument that noncompliance with the ICWA’s notice provisions was justified by parent’s “failure to cooperate” in providing proof of Indian ancestry]; see also Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 258 [same]; In re D.T. (2003) 113 Cal.App.4th 1449, 1455 [noting “the social worker’s affirmative duty to inquire whether the minors might be Indian children mandated, at a minimum, that she make some inquiry regarding the additional information required to be included in the ICWA notice”].)

“The ICWA . . . is designed to protect Indian children and tribes notwithstanding the parents’ inaction. ([In re] Marinna J. [(2001)] 90 Cal.App.4th [731,] 739; In re Kahlen W., supra, 233 Cal.App.3d at pp. 1424-1425.)” (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 258.) Because the notice requirements serve the interests of Indian tribes, irrespective of the parents’ wishes, a long line of cases have held that parents cannot waive a tribe’s rights under the ICWA. (In re Samuel P., supra, 99 Cal.App.4th at p. 1267; In re Marinna J., supra, 90 Cal.App.4th at p. 739; In re Desiree F., supra, 83 Cal.App.4th at p. 471.) It follows that Mother’s asserted failure to “provide corroborating information”—in other words, to prove that the ICWA applies—did not deprive the tribes of their rights to notice and, if applicable, intervention. (See Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 258.)

“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., supra, 233 Cal.App.3d at p. 1424.) Failure to comply with the ICWA’s notice requirements constitutes prejudicial error. (In re Samuel P., supra, 99 Cal.App.4th at p. 1267; In re Desiree F., supra, 83 Cal.App.4th at p. 472.) While the lack of notice does not necessarily invalidate all of the juvenile court’s prior orders in the dependency proceedings (see In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410 [concluding violation of required 10-day notice period is not jurisdictional error]), “[t]he lack of statutory notice nonetheless requires a limited remand to the juvenile court for the Department to comply with the notice requirements of the ICWA, with directions to the juvenile court depending on the outcome of such notice. If, after proper notice is given under the ICWA, [the minor] is determined not to be an Indian child and the ICWA does not apply, prior defective notice becomes harmless error. (Antoinette S., supra, 104 Cal.App.4th at pp. 1413-1414.) In this event, no basis exists to attack a prior order because of failure to comply with the ICWA.” (In re Brooke C. (2005) 127 Cal.App.4th 377, 385.) Alternatively, after proper notice under the ICWA, if the minor is determined to be an Indian child, the juvenile court must conduct further proceedings in conformity with the requirements of this federal statute. (25 U.S.C. §§ 1911-1916; Cal. Rules of Court, rule 1439(h)-(o); see In re Brooke C., supra, 127 Cal.App.4th at p. 385.)

Finally, we note the Department does not attempt to argue that sufficient evidence of notice under the ICWA can be inferred from the statement in the CDSS adoption assessment that the Cherokee tribes were notified of the proceedings and decided not to intervene. It is just as well, because this statement is clearly insufficient documentation of ICWA compliance under current case law. (See In re Elizabeth W., supra, 120 Cal.App.4th at pp. 906-907; In re Asia L. (2003) 107 Cal.App.4th 498, 508-509; In re Jennifer A. (2002) 103 Cal.App.4th 692, 703-704.) On remand, the Department is urged to follow the required two-step procedure described in many dependency opinions “ ‘of sending proper notice to all possible tribal affiliations and filing with the court copies of the notices, the return receipts and any correspondence from the tribes.’ [Citations.]” (In re Elizabeth W., supra, 120 Cal.App.4th at p. 906; see also In re Jennifer A., supra, 103 Cal.App.4th at pp. 702-703; In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.)

DISPOSITION

The order terminating parental rights is conditionally reversed, and the cause is remanded to the juvenile court with directions to conduct such further proceedings as are necessary to establish full compliance with the notice requirements of the ICWA. If, after notice has been sent as required by the ICWA, no response is received indicating the minor is an Indian child, or if the responses received indicate the minor is not an Indian child within the meaning of the ICWA, the order terminating parental rights shall immediately be reinstated and such further proceedings as are appropriate shall be conducted. If the Secretary of the Bureau of Indian Affairs and/or any tribe determines that the minor is an Indian child within the meaning of the ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of the ICWA.

In all other respects, the order is affirmed.

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McGuiness, P.J.

We concur:

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Corrigan, J.

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Pollak, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise stated.