Guardianship of the Person of D.W., a Minor. J.G., Petitioner and Respondent, v. D.W., Objector and Appellant; KARUK TRIBE, Intervener and Appellant.
No. A136982
First Dist., Div. Four
Oct. 10, 2013
221 Cal. App. 4th 242
Counsel
California Legal Services and Nicholas Mazanec for Intervener and Appellant.
Law Office of Richard Sax and Richard Sax for Petitioner and Respondent.
Opinion
RUVOLO, P. J.
I.
INTRODUCTION
Appellant D.W., proceeding in propria persona, appeals after respondent J.G. was appointed guardian of appellant‘s six-year-old grandson, D.W. (the minor). She contends the court failed to comply with the inquiry and notice requirements of the federal Indian Child Welfare Act of 1978 (
II.
FACTS AND PROCEDURAL HISTORY
Because the issues on appeal relate solely to ICWA compliance, we will restrict our statement of facts to those bearing on the adequacy of the ICWA notice.
The record contains appellant‘s handwritten objections to the petition for appointment of guardian of the person filed on March 16, 2012. Appellant describes herself as the minor‘s paternal “Grandmother & Indian Custodial Appointed Caretaker.” In stating the reasons for her objection, appellant invoked the “I.C.W.A.” explaining she is a “Native American of a Recognized Yurok Tribe . . . .” She claimed to “have cared for [the minor] over 4 1/2 years of his life . . . . I am requesting [the minor] be returned to his Native Home.”
The courtroom minutes from June 22, 2012, indicate that the court decided to bifurcate the issue of the minor‘s ICWA status to be heard on August 17, 2012. The minutes also indicate that the court assigned appellant, the minor‘s paternal grandmother and objecting party to the proposed guardianship, the task of notifying the Indian tribes of respondent‘s pending guardianship petition and providing proof of service to the court. Respondent‘s temporary guardianship was extended until August 17, 2012.
The reporter‘s transcript of the ICWA compliance proceeding held on August 17, 2012, indicates the court had before it some type of document indicating the minor was not eligible for enrollment in the Yurok Tribe, which led the court to rule ICWA did not apply to the present action.3 However, appellant was present and pointed out that the Karuk Tribe had not been properly notified. The Karuk Tribe is a federally recognized Indian tribe, independent from other federally recognized tribes, and different than the Yurok Tribe.
Appellant stated, “It shows on record in all the statements that I made to every hearing, that I addressed that the [minor] is a potential member of the Yurok and Karuk tribe [sic]. I found out from the Karuk tribe that they were not contacted . . . . [¶] And I contacted them . . . ,” and they said that they would be responding to his potential application as a member. The record contains a letter from the Karuk Tribe dated August 17, 2012, “To Whom It May Concern,” indicating the minor‘s request for “possible potential membership” in the Tribe was currently being processed. The court indicated that the matter should proceed without any further delay. When appellant asked
After a contested hearing on September 25, 2012, the court granted respondent‘s request to be appointed the minor‘s permanent guardian. During the hearing, appellant requested “that the Karuk [T]ribe be allowed to intervene.” When the court pointed out that the Tribe had not taken any steps to intervene, appellant replied that the Tribe had not yet received the records it requested. The court indicated the matter was closed, stating, “[t]he ship has sailed on the issue of ICWA.” Appellant filed a timely appeal from the orders entered on September 25, 2012.
While this matter was pending on appeal, the Tribe intervened and filed an “Intervenor‘s [sic] Brief” in support of appellant‘s position on appeal. The Tribe‘s intervener‘s brief states: “The lack of notice and inquiry violated ICWA and state law, resulting in the Tribe‘s inability to participate in the underlying action. As such, the underlying Guardianship Order must be invalidated.” Appended to the brief is a declaration executed under the penalty of perjury by the enrollment officer for the Tribe confirming that the minor is an “enrolled descendant member of the Karuk Tribe.”4 We have been informed that all proceedings in the trial court have been stayed pending the outcome of this appeal.
III.
DISCUSSION
A. Timeliness of Appeal
Proceeding in propria persona, appellant‘s sole contention on appeal is that the court failed to comply with the notice provisions of the ICWA and that this failure invalidates the orders issued on respondent‘s guardianship petition. Appellant‘s position derives substantial support from the Tribe‘s intervener‘s brief filed in this matter. Respondent does not address the contentions made regarding ICWA compliance. Instead, she claims appellant has forfeited her right to challenge any defects in ICWA notice by failing to file a timely appeal. We first address respondent‘s forfeiture claim.
Respondent contends that we lack jurisdiction to consider appellant‘s appeal because appellant did not timely appeal from the juvenile court‘s
Contrary to respondent‘s argument, the court‘s ICWA determination was not immediately appealable because further judicial action was required on the matter dealt with by the order. As explained by San Joaquin County Dept. of Child Support Services v. Winn (2008) 163 Cal.App.4th 296 [77 Cal.Rptr.3d 470] (San Joaquin County), “[i]f an order is ‘important and essential to the correct determination of the main issue’ and ‘a necessary step to that end,’ it is not immediately appealable because further judicial action is required before all of the rights of the parties can be determined. (Id. at p. 300.) Put another way, an order can be considered immediately appealable as a “collateral” order if it does not involve or affect the determination of the merits of the main action. (See Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 904 [91 Cal.Rptr.3d 617] [an order is collateral when “appellate review . . . can be accomplished without implicating the merits of the underlying controversy“].)
In this case, the court‘s determination that the ICWA did not apply cannot be considered collateral to its decision to appoint respondent as the minor‘s guardian. Had the court found the ICWA applicable, it would have used the ICWA‘s more stringent standards in making its ruling on respondent‘s guardianship petition. (See, e.g.,
Furthermore, even assuming arguendo appellant‘s notice of appeal was untimely, there has been no forfeiture of the Tribe‘s ability to contest the court‘s noncompliance with the ICWA. “The purposes of the notice requirements of the ICWA are to enable the tribe to determine whether the child is an Indian child and to advise the tribe of its right to intervene. The notice requirements serve the interests of the Indian tribes ‘irrespective of the position of the parents’ and cannot be waived [or forfeited] by the parent.” (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267 [121 Cal.Rptr.2d 820].) Based on this reasoning, numerous courts have concluded that parents cannot properly be deemed to have waived the tribe‘s rights under the ICWA. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471 [99 Cal.Rptr.2d 688] (Desiree F.) [“[t]here is nothing either in the ICWA or the case law interpreting it which enables anyone to waive the tribe‘s right to notice and right to intervene in child custody matters“]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408 [129 Cal.Rptr.2d 15] (Antoinette S.) [“‘Because the notice requirement is intended, in part, to protect the interests of Indian tribes, it cannot be waived by the parents’ failure to raise it.‘“]; In re Nikki R. (2003) 106 Cal.App.4th 844, 849 [131 Cal.Rptr.2d 256] (Nikki R.) [“[c]ase law is clear that the issue of ICWA notice is not waived by the parent‘s failure to first raise it in the trial court“].) The Nikki R. court clarified: “The notice requirement is designed to protect the interests of the tribe; to the extent a notice defect impairs the tribe‘s ability to participate, another party cannot waive it.” (Nikki R., at p. 849.)
B. ICWA Notice Requirements
The purpose of the ICWA is, of course, to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (
Among other things, the ICWA requires proper notice before a court may place an Indian child in a foster home or under a legal guardianship. Where the court knows or has reason to know that an Indian child is involved, notice must be given to the child‘s Indian tribe, or if the tribe is
In a guardianship proceeding, it is the petitioner‘s burden, if represented by counsel, to provide proper notice to the tribes. (
The ICWA confers on tribes the right to intervene at any point in a court proceeding, including on appeal. (
C. ICWA Notice Was Insufficient
Appellant, joined by the Tribe, contends the notice provided to the Tribe was insufficient to satisfy the ICWA. Using a de novo standard of review, we agree. (Dwayne P., supra, 103 Cal.App.4th at p. 254 [where facts are undisputed, “we review independently” whether the ICWA notice was sufficient].)
The record in the present case discloses that from the outset of these proceedings until respondent was appointed the minor‘s guardian, appellant consistently informed the court that the minor had Indian ancestry, and that his father was an enrolled member of the Yurok or Karuk tribes. “Because ‘biological descendance’ is often a prerequisite for tribal membership . . . [a relative‘s] suggestion that [the child] ‘might’ be an Indian child [is] enough . . .” to satisfy the minimal showing required to trigger the statutory notice provisions. (Antoinette S., supra, 104 Cal.App.4th at p. 1408, fn. omitted.) In carrying out its obligation under the ICWA to provide notice, the court incorrectly assigned appellant, the party objecting to the guardianship, the responsibility of providing notice to the possible Indian tribes.
By the time of the contested hearing on respondent‘s guardianship petition, the Yurok Tribe had completed its investigation and found the minor was not
While the matter was pending on appeal, the Tribe intervened, indicating the minor is an Indian child, requesting that the guardianship order be vacated and proceedings consistent with the ICWA be conducted. In light of the foregoing—and the fact that respondent essentially concedes the ICWA notice requirements were not satisfied in this case—we are compelled to reverse the orders entered in this guardianship proceeding, and to remand for compliance with the requirements of the ICWA and applicable state law.
IV.
DISPOSITION
The order entered on September 25, 2012, establishing the guardianship is reversed. Because the Tribe has determined the minor is an Indian child, the court shall conduct a new guardianship hearing with respect to the minor in conformity with the ICWA and applicable state law. Appellant is awarded her costs on appeal.
REARDON, J., and HUMES, J., concurred.