Dependency Case Law

In re Antoinette S. (Dec. 31, 2002) 104 Cal.App.4th 1401 [129 Cal.Rptr.2d 15]. Court of Appeal, Fourth District, Division 3.

The juvenile court terminated parental rights to a child with possible Indian heritage. Neither the possibility of the child's Indian ancestry nor the applicability of the Indian Child Welfare Act (ICWA) was addressed.

Orange County Social Services Agency (SSA) filed a dependency petition alleging serious physical harm and failure to protect. Although a box on the petition indicated that the child might be of Indian ancestry, the mother denied that she or the father had any Indian heritage at the initial detention hearing. Therefore, the juvenile court and SSA proceeded as if ICWA did not apply. It wasn't until two weeks before the termination of parental rights hearing that the father informed the social worker that he believed his deceased maternal grandparents had Native American ancestry. SSA had been previously unable to locate the father. However, the father could only provide limited information concerning his grandparents—he did not know their birthdates or if they were members of any tribe. He was not even sure of their names. Father himself was not a member of any tribe.

SSA sent notice regarding the child's possible Indian heritage to the appropriate regional Bureau of Indian Affairs (BIA) office of the Department of the Interior the day before the termination hearing. The notice included a form entitled Request for Confirmation of Child's Status as Indian. The form listed the child's name, sex, birthdate, and birthplace. It also contained the mother's married and maiden names, her birthdate and birthplace, and similar information for the father. The names of the child's maternal grandmother, paternal grandparents, and paternal great-grandparents were provided, but their birthdates, birthplaces, tribal affiliations, and enrollment statuses were reported as unknown. SSA also attached a copy of the child's birth certificate and stated that the father was unable to identify a particular tribal affiliation. SSA sent a similar notice to the California Department of Social Services (DSS).

Although the father appeared at the termination hearing, neither he, SSA, nor the court raised the issue of his possible Indian ancestry. The juvenile court terminated parental rights without addressing the possible applicability of ICWA. The father raised ICWA for the first time on appeal, contending that his claim of Native American ancestry was sufficient to trigger the notice requirements of ICWA and that the juvenile court's failure to hold the termination hearing without waiting at least 10 days after receipt of notice by the Secretary of the Interior (25 U.S.C. § 1912(a)) was jurisdictional error. SSA claimed that the information regarding the father's Indian ancestry was too vague to trigger the notice requirements of ICWA and that any encroachment on section 1912(a)'s 10-day window was harmless.

The Court of Appeal concluded that, while holding the termination hearing without waiting at least 10 days after receipt of notice by the Secretary of the Interior (25 U.S.C. § 1912(a)) was error, such error was not jurisdictional and was harmless under the circumstances. As a preliminary issue, the appellate court found that the father's claim that his grandparents had Native American ancestry was sufficient to trigger the notice requirements of ICWA. ICWA defines an Indian child as an unmarried person under the age of 18 who is either (a) a member of any Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) If the court knows or has reason to know that an Indian child is involved, the parent or Indian custodian and the Indian child's tribe must be notified, by registered mail with return receipt requested, of the pending proceedings and of their right to intervene. (25 U.S.C. § 1912(a).) Only a minimal showing suggesting that the child may be an Indian child is required. The fact that the identity of the tribe is not known does not discharge SSA from the requirement of giving notice. The appellate court held that, because biological descendance is often a prerequisite for tribal membership, and because of the broad interpretation afforded ICWA's notice provisions by courts around the country, the father's suggestion that the child might be an Indian child was enough to trigger the notice requirements of ICWA. Since the notice requirements were triggered, the juvenile court was required to wait at least 10 days after receipt of notice by the parent or Indian custodian and the tribe or Secretary of the Interior before holding the termination of parental rights proceeding. (25 U.S.C. § 1912(a).) Therefore, the juvenile court violated ICWA by sending notice to BIA just one day before the termination hearing was held.

The father claimed that this type of error was jurisdictional and required reversal. After examining several cases with language that state courts have no jurisdiction to proceed with dependency proceedings that fail to satisfy the 10-day rule (In re Desiree F. (2000) 83 Cal.App.4th 460, 474; In re Jonathon D. (2001) 92 Cal.App.4th 105, 110 [quoting Desiree F.]; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267 [citing Desiree F. and Samuel P.]; and Matter of N.A.H. (S.D. 1988) 418 N.W.2d 310, 311), the appellate court concluded that such statements were merely dicta; they were a shorthand way of saying that such ICWA violations constituted serious legal error. The appellate court reasoned that the very fact that notice problems are sometimes deemed harmless in ICWA cases indicated that such error was not jurisdictional since a finding of jurisdictional error would logically precede and preclude any inquiry about whether the error was harmless. The appellate court further pointed to Congress's recognition of state court jurisdiction over foster care placement and termination of parental rights proceedings (25 U.S.C. § 1911(b) & (c)), noting that the remedy Congress provided for ICWA violations was not to void jurisdiction and transfer the matter to tribal courts, but rather to allow parents and tribes to seek invalidation of any proceedings held in error. (25 U.S.C. § 1914(a).) Relying on State ex rel. Juv. Dept. v. Charles (Or.Ct.App. 1984) 688 P.2d 1354, the appellate court agreed that "[i]f a state court , as opposed to a tribal court, properly has jurisdiction over the subject matter, the court is not divested of jurisdiction simply because it fails to comply with the [ICWA]." (Id. at p. 1360, fn. 5 [noting Congress specifically acknowledged state court jurisdiction in 25 U.S.C. § 1911].) Therefore, it held that a court's failure to comply with the notice provisions of ICWA is not jurisdictional error.

The appellate court then examined whether such error was prejudicial or harmless. SSA argued that the juvenile court's failure to wait at least 10 days before holding the termination hearing was harmless and sought to introduce new evidence on appeal consisting of the notices SSA sent to BIA and DSS and the responses received from both agencies. The substance of the new evidence was simply that neither the BIA nor DSS could trace any Indian heritage to the child due to insufficient identifying tribal information and a lack of proof of biological descendance (alleged paternity of the Indian father is unacceptable for tribal membership). The father did not oppose SSA's motion. The appellate court concluded that it was compelled to accept new evidence under the terms of Code of Civil Procedure section 909 in order to expedite a just and final resolution for the benefit of the child involved. Although the appellate court denied the same motion in In re Jennifer A. (2002) 103 Cal.App.4th 692, in which SSA sought to introduce the negative/lack of responses by tribes as evidence that the child was not an Indian child, the appellate court distinguished Jennifer A. on the basis that it would have been unjust to grant the motion under the circumstances of that case. In Jennifer A., SSA had failed to ask either the parents or the daughter about their birthplaces—information highly relevant to tracing tribal membership. Conversely, in the present case, SSA asked the father for identifying information about his grandparents' Indian ancestry, including their names, birthdates, and tribal affiliations. Moreover, the child, who was found adoptable, already had prospective adoptive parents.

The appellate court further concluded that SSA satisfied the inquiry obligation imposed by rule 1439(d) and (e) of the California Rules of Court. The appellate court noted that SSA confirmed with the mother that she had no Indian heritage and asked the father about the birthdates and tribal affiliation of his grandparents. The father could point to nothing more that SSA might have done or any further information regarding his alleged Indian ancestry. The appellate court further noted that the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry. Therefore, the appellate court concluded that the failure to comply with the notice provisions in section 1912(a) was harmless.

The appellate court further rejected the father's contention that the juvenile court should have applied the substantive provisions of ICWA since it had reason to believe that his daughter might be an Indian child. (25 U.S.C. § 1912(f)); Cal. Rules of Court, rule 1439(e) [court shall proceed as if the child is an Indian child if it has reason to know child might be Native American].) It reasoned that ICWA clearly did not apply to the proceedings in light of BIA's response showing no Indian heritage could be traced to the child. However, the appellate court strongly emphasized that juvenile courts should abide by their obligation to determine, as an initial matter, whether ICWA applies to dependency proceedings. Therefore, the judgment of the juvenile court was affirmed.

Justice Eileen C. Moore dissented, claiming that (1) the juvenile court was on notice, but chose to ignore information concerning the possible Indian heritage of the child, (2) the juvenile court made no findings on the applicability of ICWA and failed to ensure compliance with ICWA notice requirements, (3) there was no evidence that SSA had provided the necessary information to BIA concerning the proceedings and the right of intervention, and (4) while the appellate court impliedly acknowledged that the record before the juvenile court was inadequate to determine whether ICWA notice provisions had been followed, they chose to take additional evidence on appeal rather than remand the case for a determination of the pertinent factual issues—a course of action this same appellate court declined to follow in Jennifer A., supra, 103 Cal.App.4th 692 [it is up to the juvenile court to review the information provided concerning notice, and the tribe's response, so it can determine ICWA's applicability; making the appellate court the trier of fact is not the solution]. Therefore, Justice Moore concluded that the juvenile court's failure to secure compliance with the notice provisions of ICWA was prejudicial error, emphasizing that it was not notice of the child's possible Indian heritage that was required, but notice of the dependency proceedings, which SSA failed to do. She believed the matter should be remanded to the juvenile court to determine the applicability of ICWA.