Opinion
—Anthony G. (Father) appeals from an order terminating his parental rights as to his son, A.G. He contends the Alameda County Social Services Agency (the Agency) failed to investigate his Native American heritage and provide adequate notice to tribes as required by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). The Agency does not dispute that it violated ICWA’s inquiry and notice requirements. Instead it raises numerous procedural and equitable arguments against reversal that all turn on Father’s participation and conduct in these proceedings. None of the Agency’s arguments excuses its failure to comply with ICWA or allow this court to affirm the termination of Father’s parental rights without ICWA compliance. Although reversal will further delay and complicate A.G.’s
BACKGROUND
The background of this proceeding from the removal of A.G. and his sister from their parents’ care in 2008 through the 2010 order terminating both parents’ reunification services and setting a permanency planning hearing (Welf. & Inst. Code, § 366.26)
The mother does not claim any Indian heritage. But an attachment to the initial dependency petition noted that Father had told the Agency that A.G. and his sister might have Indian ancestry. The detention report filed on October 2, 2008, said that Father believed he had Creek heritage, was gathering more information regarding tribal affiliation, and would inform the Agency when he knew more. Father signed a “Parental Notification of Indian Status” form stating he was or might be affiliated with the Choctaw Creek tribe or the Choctaw Creek tribe of Oklahoma. The Agency subsequently filed a “Notice of Child Custody Proceeding for Indian Child” (ICWA-030 form). The ICWA-030 form sent to various Creek and Choctaw tribes
In an addendum report filed on January 7, 2009, in connection with the jurisdictional proceedings, the Agency stated that letters received from various tribes indicated A.G. was not a member of any tribe and that ICWA did not apply. The juvenile court sustained the dependency petition and ordered the Agency to provide reunification services to both parents.
Both parents petitioned to this court to vacate the order setting the section 366.26 hearing, and we denied their petitions on the merits. On April 14, 2011, the juvenile court terminated both parents’ rights as to A.G.’s sister. Her foster parents wished to adopt her and were also open to integrating A.G. into their family. A.G.’s dependency case was extended for another six months while efforts were made to transition him from his placement at the Lincoln Children’s Center to his prospective adoptive home. He was placed with the foster parents on May 28, 2011.
A.G.’s section 366.26 hearing was held on June 23, 2011. The foster parents remained committed to adopting him and his sister. The court found that A.G. was likely to be adopted and terminated parental rights.
Father filed a notice of appeal the same day, and identified both the June 23 order and the April 14 order that terminated his parental rights as to A.G.’s sister. On July 25, 2011, the family court granted Father’s request to eliminate his child support for A.G., retroactive to June 23.
DISCUSSION
Father’s sole contention is that the order terminating his parental rights as to A.G. must be reversed because the Agency did not provide notice as required under ICWA. Although the Agency strenuously contested this appeal, it does not dispute that it failed to comply with ICWA’s inquiry and notice requirements. Instead, it raises a battery of contentions that arise out of a theory that Father has “renounced” his paternal rights and worked a fraud on the family and juvenile courts. The Agency also says the appeal is barred by res judicata and, in any event, that reversal is not required because its ICWA violations were not prejudicial. These arguments are long on novelty, but short on merit. We are reluctant to impose further delay before this young
I. The Notice and Inquiry Violations
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. § 1901 et seq.; In re Holly B. (2009)
“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. Specifically, the tribe has the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings. Without notice, these important rights granted by the Act would become meaningless.” (In re Kahlen W (1991)
Accordingly, federal and state law require that the notice sent to the potentially concerned tribes include “available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.” (In re Francisco W. (2006)
Here, the ICWA-030 notices stated A.G.’s mother’s name and birth date, Father’s name, former address and birth date, and his mother’s name and address. No information regarding other relatives was provided. Instead, the spaces in the notice form for information about the maternal grandparents, paternal grandfather, paternal and maternal great-grandparents, and aunts, uncles, siblings, cousins, stepparents, and other relatives were either marked “No information available” or left blank. Moreover, there is no indication in the Agency’s reports of any effort to investigate A.G.’s Indian heritage. The detention report states that Father reported Native American ancestry in his family and that “[h]e is gathering more information regarding tribal affiliation and will let the undersigned know once he has more information,” but, despite the Agency’s continuing duty of inquiry (§ 224.3, subd. (a); In re J.D. (2010)
II. The Agency’s Arguments Against Reversal
To forestall the predictable consequence of its ICWA violations, the Agency asserts Father’s appeal is “frivolous, a ‘sham,’ and a fraud upon the Court.” It premises this argument on its claim that Father “in effect renounced his parental rights” when he asked the family court to terminate his child support obligation for A.G. one month before the juvenile court terminated his parental rights. Out of perhaps an excess of caution, because it is the textual predicate for almost all of the Agency’s arguments, we take judicial notice that on May 23, 2011, Father submitted a handwritten, propria persona request for a family court hearing seeking to terminate child support. Father wrote that there was good cause to recall his earnings assignment because “my parental rights to my children were terminated at the request of Social Services” and “this earning assignment would cause me and my family 4 month old daughter, undue hardship my income is not enough to pay $1,456
According to the Agency, Father’s statement that his parental rights had already been terminated when the hearing on termination as to his son was still a month away and would in any event not be final due to Father’s possible appeal was a “fraud upon the Family Court,” and “[h]e has in effect renounced his parental rights on the minor through his act of obtaining a judgment relieving him of any child support obligation on the minor.” The argument betrays a fundamental misperception of our role as a court of review. It succeeds only if we agree that Father’s May 2011 representation to the family court that his rights had been terminated, or his efforts thereafter to defend those rights in the juvenile court and on appeal, were fraudulent, rather than attributable to his possible misunderstanding of the relatively byzantine legal proceedings in which he was enmeshed.
The argument that Father perpetrated a fraud on the court may seem facile to the county, but is not supported by the record in this case or the proceedings before the family court. Yes, Father filed his request to eliminate his support obligation in May 2011 on the basis that his parental rights were terminated. But it appears that his request was accompanied by copies of the notices of the hearings set for April 14 and June 23, 2011, to select a permanent plan in this case. When he filed the request to eliminate support, his rights to his daughter had already been terminated, and at the hearing held April 14, the dependency court made a finding that as to A.G., “Termination of parental rights would not be detrimental to the minor. Adoption is the appropriate permanent placement goal and is so ordered.” Moreover, the family court eliminated Father’s support obligation as of June 23, 2011, the same date the dependency court terminated Father’s rights as to A.G.
In a related vein, the Agency contends Father’s appeal is barred by the “disentitlement doctrine” because of the “attitude of contempt” for the family court it reads into his request to terminate child support, and his tenacity in continuing to appeal the termination of his parental rights “after he obtained a judgment extinguishing his obligation to pay child support based on the termination of his parental rights.” This argument is equally misguided.
Under the disentitlement doctrine, a reviewing court has the inherent discretionary power to dismiss an appeal when the appellant has refused to comply with trial court orders. The doctrine thus “prevents a party from seeking assistance from the court while that party is in an attitude of contempt to legal orders and processes of the court” and “ ‘may be applied when the balance of the equitable concerns make it a proper sanction.’ ” (In re Z.K. (2011)
Nor is Father’s ICWA claim barred by res judicata because he could have, but did not, raise it in an appeal from the earlier termination of his parental rights as to A.G.’s sister. ICWA notice issues cannot be forfeited for appeal by a parent’s failure to raise them in the juvenile court, because it is the tribes’ interests, not the parents’, that is at stake in dependency proceedings that implicate ICWA. (Nicole K. v. Superior Court (2007)
This same reasoning compels the conclusion that a judgment in a dependency case is not a res judicata bar to ICWA claims in a sibling’s case where a lack of adequate notice deprived the potentially implicated tribes of the opportunity to protect their interest in the children in either litigation. (See In re Y.R. (2007)
Finally, the Agency maintains that its failure to comply with ICWA was harmless error. This is so, it first asserts, because Father has not proven his biological paternity. The record demonstrates that Father is A.G.’s biological father (as well as his presumed father) on evidence that included statements made by the Agency under penalty of perjury, and the Agency has not appealed that finding. Curiously, it now contends its earlier statements about Father’s paternity (which it made under penalty of perjury) were “plainly erroneous” because “[t]he record shows no biological paternity testing.” Moreover, this contention presupposes that ICWA’s inquiry and notice requirements apply only if an acknowledged father who claims
The Agency also argues that, under In re N.E. (2008)
The Agency is right on one point. It observes that reversal for ICWA compliance now hardly serves the “strong policy in dependency cases that they ‘be resolved expeditiously’ . . . , and the fundamental objective of California’s dependency system to minimize delay in the proceedings.” Indeed, reversal for ICWA compliance at this late stage in A.G.’s dependency proceedings is antithetical to these concerns. “Noncompliance with ICWA has been a continuing problem in juvenile dependency proceedings conducted in this state, and, by not adhering to this legal requirement, we do a disservice to those vulnerable minors whose welfare we are statutorily mandated to protect.” (In re LG. (2005)
DISPOSITION
The order terminating father’s parental rights as to A.G. is reversed. The juvenile court is directed to order the Agency to investigate and obtain complete and accurate information about paternal relatives and to provide corrected ICWA notices to the relevant tribes. If a tribe intervenes after receiving proper notice, the court shall proceed in accordance with ICWA. If no tribes intervene after receiving proper notice, the order terminating Father’s parental rights shall be reinstated.
McGuiness, P. J., and Jenkins, J., concurred.
On April 20, 2012, the opinion was modified to read as printed above.
Notes
All further references to California statutes are to the Welfare and Institutions Code. References to rules are to the California Rules of Court.
The form says the Agency mailed it to the Alabama-Quassarte Tribal Town, the Jena Band-Choctaw, the Choctaw Nation of Oklahoma, the Kailegee Tribal Town, the Mississippi Band of Choctaw Indians, the Poarch Creek Indians, the Muscogee (Creek) Nation of Oklahoma, and the Thlopthlocco Tribal Town.
We take judicial notice of the family court minutes of July 25, 2011, that reflect this order. (Evid. Code, §§ 452, subd. (d), 459.)
As noted ante at footnote 3, we have also taken judicial notice of the family court’s minutes for July 25, 2011. With the exception of these specified documents, the Agency’s request for judicial notice of documents that were not before the juvenile court when it terminated Father’s parental rights is denied. (See In re Zeth S. (2003)
We note that Father’s parental rights as to A.G.’s sister were terminated on April 14, 2011, more than a month before he requested a hearing on his child support obligation.
The Agency also claims Father’s purported “renunciation” deprives him of standing to pursue this appeal, since he cannot really be aggrieved by an order terminating a right he voluntarily renounced. The factual (if not fanciful) nature of this characterization of Father’s child support petition is as fatal to this claim as it is to the Agency’s fraud and disentitlement arguments.