Dependency Case Law

In re Suzanna L. (Dec. 10, 2002) 104 Cal.App.4th 223 [127 Cal.Rptr.2d 860]. Court of Appeal, Fourth District, Division 2.

The trial court granted the mother’s petition to terminate the father’s parental rights pursuant to Family Code section 7800 et seq. Upon divorcing, the mother obtained sole custody of the child. Although the father was allowed monitored visitation, he saw the child sporadically for only a year before discontinuing his visits. Thereafter, the mother remarried. She later filed a petition to free the child from the father’s custody and control (Fam. Code, § 7800 et seq), based on abandonment, so that the stepfather could adopt the child. After more than one year into the proceedings, the father’s counsel discovered that the father was of Indian heritage. Thereafter, the father filed an objection to the proceedings and requested that the court allow sufficient time for the Bureau of Indian Affairs (BIA) to investigate the matter. The trial court granted a continuance so that the Department of Children’s Services (the department) could contact the appropriate tribes. At the next hearing, the department reported that two bands of the Cherokee tribe had reported that the father was not enrolled, but there had been no response from the Papago or Yaqui tribes. The trial court granted another continuance but, by the next hearing, refused to continue the matter again when there was still no response from the tribes. At trial, the father argued that federal law had exclusive jurisdiction over the matter and requested that the court dismiss the case. Minor’s counsel objected and claimed that because the tribe had been notified and failed to respond, the court had jurisdiction to proceed. The trial court determined that the father had failed to follow the proper procedure for invoking the jurisdiction of the Indian tribes and for obtaining a stay of the proceedings, and denied his motion to dismiss the case. On appeal, the father contended that the trial court erred by proceeding in the absence of proper notice pursuant to the Indian Child Welfare Act (ICWA). The mother argued that notice was not required because there was insufficient evidence that the child was an “Indian child” within the meaning of ICWA. The mother further argued that notice was not required because the child was not being removed from an existing Indian family; thus the purposes of ICWA were not implicated.

The Court of Appeal, in this partially published opinion, held that ICWA’s notice provisions did apply, even if its other provisions were found inapplicable under the “existing Indian family doctrine.” The ICWA requires notification of the particular tribe in question in any involuntary proceeding in a state court where the court knows or has reason to know that a child is an Indian child. (25 U.S.C. § 1912(a).) If the identity or location of the tribe cannot be determined, such notice must be given to the Secretary of the Interior. (Ibid.) In response to the mother’s claim that the child was not an “Indian child” within the meaning of ICWA, the appellate court explained that the tribe has the exclusive authority to make such a determination. Application of ICWA was not precluded by the fact that the evidence did not demonstrate that the child was an Indian child or eligible for membership in an Indian tribe, or that her father was a member of an Indian tribe. The evidence of Indian ancestry was sufficient “reason to know” that the child was an Indian child and to trigger the notice requirement. The appellate court further declared that the trial court erred by finding that the father had somehow been dilatory since notice is mandatory no matter how late in the proceedings a child’s possible Indian heritage is uncovered.

In order to fulfill the notice requirement, the party seeking termination of parental rights must provide notification by registered mail, with return receipt requested, of the pending proceedings and of their right to intervene. (25 U.S.C. § 1912(a).) The appellate court concluded that there was insufficient evidence that adequate notice had been given. In making its determination, it noted that it was unclear whether the department had contacted the appropriate tribes or informed them of their right to intervene; the trial court was not provided with copies of the notices sent by the department or the return receipts (if any) it received; and the actual responses of the two tribes who did respond were not on the record (explaining that enrollment was not the only means of establishing membership). It noted further that notice should have been given to the Bureau of Indian Affairs (BIA) on behalf of the Secretary of the Interior in light of the uncertainty over the tribe with which the father’s grandparents were affiliated.

The mother and her husband also contended that the child was not being removed from an existing Indian family; hence, notice was not required under the “existing Indian family doctrine,” which indicates that the ICWA is not applied where its purpose, preventing the improper removal of Indian children from their Indian families, will not be served. Although the mother and her husband did not raise the “existing Indian family” issue below, the appellate court decided to address its merits because the facts were undisputed and it presented a new question of law.

The appellate court concluded that the notice provisions of the ICWA should have been complied with, even though the child did not appear to have an existing Indian family, because doing so promotes the federal policies underlying the ICWA. After engaging in a lengthy review of the two theories behind the creation of the doctrine, legislative intent, and constitutional imperative, the appellate court determined that it was unnecessary to determine which was the proper theory. Relying on In the Interest of H.D. (1986) 11 Kan.App.2d 531, the appellate court concluded that the issue, under the circumstances, was the tribe’s right to notification of involuntary proceedings where the court has reason to believe that the subject of the proceedings is or may be of Indian descent. (Id. at p. 534.) However, the cases involving the “existing Indian family doctrine” did not concern the notice provisions of ICWA. Rather, the focus was on whether or not ICWA applied and whether application of ICWA deprived a child of his or her fundamental right to an established family relationship. The appellate court reasoned that giving notice at least permits the tribe to be heard on the question of whether the child does have an existing Indian family, noting that the tribe’s interests are not necessarily congruent with those of the parents. Therefore, under the circumstances, compliance with the notice provisions of ICWA, even when the child does not appear to have an existing Indian family, does promote the federal policies underlying the Act. The appellate court concluded that there had been no substantial compliance with the notice requirements of ICWA, and thus, that the trial court erred by terminating the father’s parental rights. If further held that if, upon giving proper notice, the trial court were to find insufficient evidence that the child is an Indian child, it must reinstate its order terminating the father’s parental rights. However, it also noted that if the tribe were to respond that the child is an Indian child, the trial court may have to decide whether to apply other provisions of ICWA, such as the placement preference, which would threaten the child’s existing family relationship. The appellate court stated that it is at this point that the “existing Indian family doctrine” should be invoked. However, it noted that the record strongly suggested that the child had no existing Indian family, and thus, it was most likely that her placement would not change.