In rе LOUIS S., a Person Coming Under the Juvenile Court Law.
San Diego County Health and Human Services Agency, Plaintiff and Respondent,
v.
Charisse A., Defendant and Appellant.
Court of Appeal, Fourth District, Division One.
*111 Maryann M. Milcetic, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Christopher Blake, under appointment by the Court of Appeal, San Diego, for the Minor.
McDONALD, J.
Charisse A. appeals the order from the 12-month review hearing terminating services to her and continuing the court's jurisdiction over her son, Louis S., under Welfare and Institutions Code section 366.21.[1] She raises no substantive objection to the order, but asserts it must be reversed because the San Diego County Health and Human Services Agency (the Agency) did not comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Because the Agency did not comply with the notice provisions of the ICWA, we reverse the order from the 12-month review hearing and all subsequent orders, remand the matter to the juvenile court and direct the court to ensure that proper notice under the ICWA is given.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2002 the Agency removed eight-year-old Louis from Charisse's custody *112 and filed a section 300 petition on his behаlf. The petition alleged Louis was at risk because he tested positive for, and Charisse used, drugs. At the time of the detention hearing, the social worker was unable to inquire of Louis's parents about possible Indian heritage because their whereabouts were unknown. In August the court made a true finding on the petition, declared Louis to be a dependent, removed him from his parents' custody, and ordered reunification services.
In January 2003 Charisse told the social worker that her maternal grandmother, Ramona L., was an Apache Indian. Charisse's mother, Vivian E., told the social worker Ramona was eligible for membership in the Chiricahua tribe, a branch of the Apache tribe, but she never registered with any tribe. Presumably in an effort to determine where to send notice to comply with the provisions of the ICWA, the social worker spoke with the enrollment clerk for the San Carlos Apache tribe, who said the members of the Chiricahua tribe had blended with their tribe a "long time ago."
The social worker stated in her six-month review hearing report that in January 2003 she sent the ICWA notices to the San Carlos Apache tribe and to the Bureau of Indian Affairs (BIA). However, she did not file the notices or copies of the notiсes or any return receipt with the court. The San Carlos Apache tribe reported Louis was not eligible for enrollment; the BIA did not respond. At the March six-month review hearing, the court found the ICWA did not apply.
At the September 2003 12-month review hearing, the court terminated Charisse's reunification services, but continued services to Louis's father and continued jurisdiction over Louis. Charisse timely filed this appeal. Subsequently, the court terminated reunification services for Louis's father and scheduled a section 366.26 hearing for May 2004.[2] The court again found the ICWA did not apply to this proceeding.
DISCUSSION
I
In her opening brief, Charisse asserts the Agency did not comply with the notice provisions of the ICWA: (1) it did not file the ICWA notices or copies of the notices with the juvenile court; (2) the ICWA notices it sent were insufficient; (3) it did not serve notiсe on all known Apache tribes; and (4) it did not serve notice on the chairperson or the designated service agent for the San Carlos Apache tribe. We granted the Agency's request to augment the record with the notice it sent to the BIA in January 2003 and the notice it sent to the San Carlos Apache tribe in January 2004. Charisse argues these notices were deficient because: (1) her name and thе names of her mother and grandmother were misspelled; (2) her grandmother's identification information was placed in the space on the form for her father's information; (3) no birthdates were provided for either her mother or grandmother; (4) the notices sent to the BIA were sent to the wrong address; and (5) the notice sent to the San Carlos *113 Apache tribe in January 2004 did not provide information about Ramona, the person with the alleged Indian heritage.
A
Congress enacted the ICWA in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) It allows a tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)), because the "ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000)
"[W]here 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 their right of intervention." (25 U.S.C. § 1912(a).) Notice to the tribe provides it the opportunity to assert its rights. (In re Karla C. (2003)
B
Charisse contends reversal of the order from the 12-month hearing is required because the Agency never filed the notices, copies of the notices or return receipts for notices it sent to the San Carlos Apache tribe or the BIA in the trial court. The BIA's Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979)) (the Guidelines), which were designed to implement the ICWA, require that an original or a copy of each ICWA notice must be filed in the juvenile court together with any return receipts. (In re Karla C., supra,
Here, the social worker did not file any notices, copies of notices or return receipts with the juvenile court; she did file the response from the San Carlos Apache tribe with the court. However, responses to the ICWA notices without the notices *114 are insufficient because it is impossible to determine from the responses alone whether the notices provided the tribe with relevant information and therefore a meaningful opportunity to evaluate whether the dependent minor is an Indian child within the meaning of the ICWA. (See In re Karla C., supra,
C
The Agency concedes the initial appellate record does not show the ICWA notice requirements were satisfied. However, it urges us to affirm because it contends the error was cured with the notice sent to the BIA in January 2003 and to the San Carlos Apache tribe in Januаry 2004, which are now part of the appellate record by augmentation.[4] We may conclude the court's error is harmless if the notices sent by the Agency in January 2003 and January 2004 comply with the ICWA. (In re C.D. (2003)
One of the purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. (In re D.T. (2003)
The State of California Hеalth and Welfare Agency and the Department of Social *115 Services have issued two forms to comply with the ICWA notice requirements. (In re Jeffrey A. (2002)
The augmented record shows that in January 2003 the social worker sent forms SOC 318 and 319 to the BIA.[5] The forms contained multiple errors. Charisse's first name and Vivian's lаst name are misspelled on form SOC 319. Vivian's birthdate is missing from form SOC 318, although the information was available because the children are in foster care with her. The social worker wrote Ramona's name in the location on form SOC 318 for information about the maternal grandfather and did not include Ramona's full name or birthdate. There is no evidence the social worker was unable to obtain Ramona's birthdаte and she was aware of Ramona's full name because she used it in her report. This information is critically important because Ramona is the person with the alleged Indian heritage.
Because the notices contained misspelled and incomplete names, provided information about Ramona in the wrong part of the form, and did not provide birthdates for Vivian or Ramona, the tribe could not conduct a meaningful search to determine Louis's tribal heritage. (See, e.g., In re Jennifer A. (2002)
The errors were not cured by the Agency's January 2004 notice. The Agency must provide all known information to the tribe, partiсularly that of the person with the alleged Indian heritage. (In re C.D., supra,
D
Although the deficiencies in the notice provided by the Agency compel reversal of the order from the 12 month hearing and subsequent orders, we address Charisse's other asserted errors to guide the Agency on remand.
1
Charisse asserts the notice sent to the BIA was insufficient because it was sent to the wrong address. For dependency proceedings in California, notice is sent to the BIA's regional office in Sacramento. (25 C.F.R. § 23.11(c)(12).) The social worker sent the notice to 2800 Cottage Way, Sacramento California, 95825, which is the current address for that office of the BIA. (Ibid.; U.S. Off. of the Fed.Reg., U.S. Government Manual (2003-2004 ed.) p. *116 257.) The notice was sent to the proper address.[6]
2
Charisse asserts the Agency should have sent notice to the eight recognized Apache tribes, not solely to the San Carlos Apаche tribe. The Agency must provide notice to all tribes of which the child may be a member or eligible for membership. (Rule 1439(f)(3); In re Edward H. (2002)
There are eight recognized Apache tribes, but the Chiricahua tribe is not one of them. (68 Fed.Reg. 68180 (Dec. 5, 2003).) The social worker contacted the San Carlos Apache tribe, presumably to dеtermine the affiliation of members of the Chiricahua tribe. She learned members of the Chiricahua tribe had blended with the San Carlos Apache tribe. If all members of the Chiricahua tribe had merged with the San Carlos Apache tribe, notice solely to that tribe is sufficient. (25 U.S.C. § 1912(a); rule 1439(f)(3).) However, the social worker did not represent that the San Carlos Apache tribe absorbed all members of the Chiricahua tribe. Further, the San Carlos Apache tribe is located in Arizona, as are the Tonto and White Mountain Apache tribes. (68 Fed.Reg. 68180.) Minor's counsel represents the three tribes live in close proximity. We have no reason to doubt that representation. If it is true, the social worker should have determined whether any members of the Chiricahua tribe were absorbed into either the Tonto or the White Mountain Apache tribes or confirmed the San Carlos Apache tribe absorbed all members of the Chiricahua tribe. Once the social worker learns which tribe or tribes absorbed the Chiricahua, she need notice only those tribes. (25 U.S.C. § 1912(a); rule 1439(f)(3).) If the social worker cannot determine which tribes absorbed the Chiricahua, she should give notice to the BIA and the tribes she knows absorbed members of the Chiricahua tribe. (25 U.S.C. § 1912(a); In re Edward H., supra,
3
Charisse argues reversal is warranted because the Agency did not serve notice on the chairperson or the designated service agent of the San Carlos Apache tribe. Notice should be sent to the tribe's chairperson unless the tribe designates another agent for service of process. (Rule 1439(f)(2); In re H.A., supra,
*117 The Agency argues the notice was sent to the chairperson because the response contained the chairperson's name. Although the response was on San Carlos Apache tribe stationary, the fact the chairperson's name is on the stationary does not mean the notice was properly addressed to the chairperson. Moreover, because the January 2004 notice was not addressed to anyone, it seems likely the January 2003 notice was also insufficiently addressed.
Regardless, our record, even as augmented, does not show the intended recipient of the January 2003 notice sent to the San Carlos Apache tribe. Charisse assumes the notice was not sent to Terry Ross because Ed Hopkins and Verna Talkalai wrote the replies for the tribe. However, the fact the designated agent did not write the replies does not mean the notices were improperly addressed. Ross may have given the notice to Ms. Talkalai because she is the еnrollment clerk for the tribe. Even though not serving the appropriate tribal entity may constitute reversible error (In re H.A., supra,
II
Having concluded error occurred and this matter must be remanded to the juvenile court, we examine the orders affected by the error.[8] Charisse appealed the order entered at the 12-month review hearing, which we reverse because of noncompliance with the notice requirements of ICWA. (See 25 U.S.C. § 1914.) However, since that time, the 18-month review hearing has occurred, at which the court scheduled the section 366.26 hearing for May 2004. Because we reverse the order from the 12-month review hearing, all subsequent orders, including the order from the 18-month review hearing, are also reversed.[9] (See In re Desiree F., supra, 83 Cal.App.4th at pp. 475-478,
We find it increasing incredible that the Agency seems incapable of complying with the ICWA in a significant number of cases recently before this court. The conduct of the Agency in this case has caused the unnecessary expenditure of time and effort by the trial court, county counsel, parents' counsel, minor's counsel and this court, and more importantly has delayed final resolution of Louis's future. Unfortunately, the sole remedy available to this court is to continue reversing orders in juvenile dependency cases in which there has been inadequate compliance with the ICWA by the Agency.
DISPOSITION
The order made at the 12-month review hearing and all subsequent orders are reversed. The court is directed to ensure that proper notice is given under the ICWA. If, after receiving notice, no tribe intervenes, the juvenile court shall reinstate the orders. (See Dwayne P. v. Superior *118 Court, supra,
WE CONCUR: NARES, Acting P.J., and HALLER, J.
NOTES
Notes
[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] On our own motion, we took judicial notice of the court's January 2004 minute order. We recognize the Supreme Court has stated postjudgment evidence may not, excеpt in extraordinary circumstances, be used as a basis to reverse a termination of parental rights on appeal. (In re Zeth S. (2003)
[3] All rule references are to the California Rules of Court.
[4] We have granted the Agenсy's request to augment the record with the notices sent by the social worker to the BIA on January 29, 2003, and to the San Carlos Apache tribe on January 8, 2004. We recognize the Supreme Court has stated postjudgment evidence may not, except in extraordinary circumstances, be used as a basis to reverse a termination of parental rights on appeal. (In re Zeth S., supra, 31 Cal.4th at pp. 413-414,
[5] Although the notice sent to the San Carlos Apache tribe in January 2003 is not included in the augment request, we presume the notice was sent because the tribe responded. For purposes of this appeal, we assume the notice sent to the tribe was the same notice the social worker sent to the BIA.
[6] Charisse argues that the notice was not properly served on the BIA because the Agency never filed the return receipt card. When neither the notices nor the return receipt cards are filed with the court, there is insufficient еvidence the parties received actual notice. (In re Suzanna L. (2002)
[7] The list of registered agents was updated in December 2003, and Terry Ross remained the designated agent for the San Carlos Apache tribe. (68 Fed.Reg. 68408.) (Dec. 8, 2003).)
[8] Charisse acknowledges In re Amirah H. (2003)
[9] The permanency planning hearing should not occur until the Agency properly serves notice on the tribe or tribes and the BIA. (25 U.S.C. § 1912(a).)