C F C C - Dependency Case Law

Dependency Case Law

In re Jennifer A. (Nov. 12, 2002) 103 Cal.App.4th 692 [127 Cal.Rptr.2d 54]. Court of Appeal, Fourth District, Division 3.

The juvenile court removed a child of American Indian ancestry from the mother’s custody and awarded custody to the child’s father. The Orange County Social Services Agency (SSA) filed a petition regarding the child pursuant to Welfare and Institutions Code section 300(b) after finding that her mother frequently left her alone and used methamphetamine on a regular basis. At the detention hearing, both the mother and father indicated that they were of American Indian heritage. The court ordered SSA to investigate the matter and to provide notice to the appropriate tribes. On the date of the jurisdictional hearing, SSA filed a report that stated that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) might apply and that it had sent notice to both tribes and to the Bureau of Indian Affairs (BIA). However, no evidence was presented at trial concerning notice to either the tribes or BIA. SSA recommended that the child be declared a dependent of the court in light of the child’s unwillingness to live with her father. By the time of the dispositional hearing, the child had been placed in a foster home where SSA recommended that she remain, with regular visits with both parents. The juvenile court adjudged the child a dependent under section 360(d) and ordered that the father have custody of her under the supervision of SSA. The child’s mother filed an appeal from the dispositional order, claiming that the juvenile court erred by failing to apply the notice and other procedural requirements of the ICWA. There was no proof in the child’s file that notice was sent or received by the relevant tribes. SSA and the father contended that the ICWA notice provisions did not apply because the child was ultimately placed in the father’s custody, rather than that of a foster parent, and the ICWA does not apply to intra-family disputes.

The Court of Appeal held that the juvenile court erred in failing to determine whether notice in compliance with the ICWA was provided to the tribes and whether the post notice procedural provisions of the ICWA applied. Title 25 United States Code section 1912(a) provides that the Indian child’s tribe must receive notification by registered mail with return receipt requested of any involuntary proceeding involving an Indian child where foster care placement or termination of parental rights is sought. A foster care placement or termination of parental rights proceeding cannot be held until at least 10 days after the parent or Indian custodian and the tribe have received notice of the proceeding. The appellate court found that, despite the child’s placement with her father, the possibility of placing the child in foster care was an issue before the court. Therefore, since SSA was seeking temporary foster care, and because it was unknown whether the child would be placed in permanent foster care or whether the mother’s parental rights would ultimately be terminated, the appellate court concluded that SSA had the obligation to comply with ICWA notice requirements.

SSA and the father also contended that the ICWA did not apply under the circumstances because custody was not being taken from both parents. While the appellate court noted that the ICWA is inapplicable in marital dissolution proceedings, it emphasized that this was not such a proceeding (mother and father were not married) and there was no authority to apply the dissolution exception when a child is removed from the custodial parent out of safety concerns. Relying on Lindsay C. (1991) 229 Cal.App.3d 404 and Crystal K. (1990) 226 Cal.App.3d 655, the appellate court rejected the view that the ICWA is inapplicable in all types of “intrafamily custody disputes” and refused to apply the dissolution exception.

Due to the lack of proof that notice was provided to the tribes and the lack of information about whether a response was received, the appellate court found that the juvenile court could not have knowingly determined whether the remaining provisions of the ICWA applied. Although the appellate court agreed to take additional evidence on appeal, at which time SSA submitted to the court copies of notices sent to various tribes and to the BIA, the appellate court noted that in light of the dates on the documentation, the result would be no different. The documentation proved that none of the three recipients of the notice had received it 10 days before the hearing, as is required by Title 25 United States Code section 1912(a). Therefore, even in consideration of SSA’s proffered evidence of notice, the appellate court could not find that the violation was a harmless error.

SSA and the father further pointed to the response letter of the mother’s tribe that stated it could not trace the child in its tribal records and would not consider her to be an Indian child within the meaning of the ICWA. However, the appellate court noted that the notice did not include the birthplaces of the mother or father and identified the birthplace of the child only as “California.” It further noted that both parents were available to provide that information and that SSA appeared to have made little effort to provide the tribe with sufficient information. Given the tribe’s statement that the determination could be invalidated if any of the family documentation was omitted or incorrect, the appellate court concluded that the juvenile court needed to review both the information provided in the notice and the tribe’s response in order to determine the applicability of the ICWA.

The father also argued that the mother did not have the standing to assert a violation of the ICWA because the tribe that did not respond was that of his lineage, and he wished to waive any failure to comply with the notice requirements. The appellate court concluded that a parent cannot waive notice to his or her tribe because the notice requirement is intended, in part, to protect the interests of Indian tribes.

Last, the mother contended that reversal was required because the juvenile court failed to apply the ICWA’s procedural requirements on the removal of an Indian child from the custody of his or her parent. SSA argued that the mother had waived the application of those provisions by failing to raise the issue before the juvenile court. The appellate court determined that while the mother could not waive ICWA requirements regarding notice to the tribes, based on Riva M. (1991) 235 Cal.App.3d 403, she could waive the application of certain procedural provisions of the ICWA that do not affect the rights of the tribes. However, under rule 1439(i)(2), (4) of the California Rules of Court, which was raised by the mother in support of her lack of waiver, a parent will not be held to have waived ICWA procedural requirements unless he or she has been fully advised of them and has knowingly, intelligently, and voluntarily waived them. The appellate court concluded that the juvenile court, on remand, must determine whether the mother’s failure to object to certain procedures of the ICWA occurred only after she was fully advised of the requirements and validly waived them.

Therefore, the appellate court reversed orders declaring the child a dependent and placing her in her father’s custody and remanded the matter to the juvenile court to determine whether notice complied with the ICWA, and if so, whether the tribes had determined whether the child is of Indian heritage. If she is determined to be an Indian child, the juvenile court must further determine whether her mother waived the application of any ICWA provisions other than those pertaining to notice. The juvenile court was directed to hold a new jurisdiction hearing and a new dispositional hearing (if appropriate), and to consider any circumstances that may have changed while the appeal was pending.