Filed 10/10/13; pub. order 11/5/13 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
Guardianship of the Person of D.W., a
Minor.
J.G.,
Petitioner and Respondent, A136982
v.
(Sonoma County
D.W., Super. Ct. No. SPR-84391)
Objector and Appellant.
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 (25 U.S.C. § 1901 et seq. (ICWA)). The Karuk Tribe of
California (the Tribe), a federally recognized Indian tribe (65 Fed.Reg. 13298 (Mar. 13,
2000)), has exercised its right to intervene in this matter in support of appellant‟s
position.1 (See 25 U.S.C. § 1911; California Rules of Court, rule 5.482(e).2) We agree
1
On July 17, 2013, the Tribe filed a motion requesting this court to invalidate the
underlying guardianship proceeding and remand the matter for proceedings in
compliance with the ICWA. This court issued an order on July 29, 2013, indicating that
the Tribe‟s motion would be considered with the merits of this appeal. (Ruvolo, P.J.)
1
with appellant and the Tribe that the inquiry and notice conducted by the court was not in
compliance with the requirements of the ICWA. Consequently, we reverse and remand
for further proceedings.
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.
On or about February 22, 2012, respondent, the minor‟s maternal aunt, filed a
petition for appointment of guardian and a petition for appointment of temporary
guardian. The court granted respondent‟s petition for appointment of temporary guardian
on or about February 28, 2012. Letters of temporary guardianship were issued the same
day. Respondent does not claim any Indian heritage.
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.
2
All further rule references are to the California Rules of Court unless other
stated.
2
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 [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
the court if the Karuk Tribe could intervene in the future, the court indicated, “I will cross
that bridge when I come to it.”
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,
3
The document is not included as part of the record on appeal.
3
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 determination made on
August 17, 2012, that the ICWA does not apply in this matter. Instead, appellant filed an
appeal from the September 25, 2012 decision of the trial court granting respondent‟s
petition to be the minor‟s guardian. Respondent argues: “Since the trial court‟s order
regarding the application of the ICWA and the right of intervention, the essential
gravamen of [a]ppellant‟s appeal, was made on August 17, 2012,” thus appellant‟s appeal
4
Whether the minor actually is an Indian child is a question that must be
answered by the Tribe. (In re Junious M. (1983) 144 Cal.App.3d 786, 792, 794.) “ „A
tribe‟s determination that the child is or is not a member of or eligible for membership in
the tribe is conclusive.‟ [Citation.]” (Dwayne P. v. Superior Court (2002) 103
Cal.App.4th 247, 255 (Dwayne P.).)
4
“was untimely because it was not filed until October 23, 2012 . . . more than sixty days
after the trial court‟s minute order of August 17, 2012.”5
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 (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 [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., Welf. &
Inst. Code, § 361.7, subd. (c) [guardianship may not be ordered “in the absence of a
determination, supported by clear and convincing evidence . . . that the continued custody
of the child by the parent or Indian custodian is likely to result in serious emotional or
physical damage to the child”].) The guardianship hearing was conducted without these
protections. Therefore, the court‟s ICWA determination provided “a necessary step” for
the trial court‟s ruling ordering the guardianship. Consequently, it cannot be considered
5
On July 8, 2013, respondent filed a motion to dismiss this appeal advancing the
identical argument. Opposition to this motion was filed by appellant on July 23, 2013,
and the Tribe on July 25, 2013. On July 29, 2013, this court entered an order indicating
that respondent‟s motion to dismiss would be considered with the appeal. (Order,
Ruvolo, P.J.)
5
collateral to the general subject matter of the litigation. (San Joaquin County, supra, 163
Cal.App.4th at p. 300.) Therefore, contrary to respondent‟s argument, the ICWA notice
issue was preserved for review, even though the appeal was taken from the order granting
respondent‟s request to become the minor‟s guardian. Accordingly, we deny
respondent‟s motion to dismiss this appeal.
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.) 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 (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 (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 (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.” (Ibid.)
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.” (25
U.S.C. § 1902; In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) “The ICWA
presumes it is in the best interests of the child to retain tribal ties and cultural heritage and
6
in the interest of the tribe to preserve its future generations, a most important resource.
[Citation.]” (Desiree F., supra, 83 Cal.App.4th at p. 469.) The provisions of the ICWA,
which are said to be the highest standard of protection for Indian children, apply to
guardianship proceedings in this state. (Prob. Code, § 1459.5, subd. (a)(1); rule
7.1015(b)(1)(A).)
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 unknown, the Bureau of Indian Affairs, of the pending
proceedings and the tribe‟s right to intervene. (25 U.S.C. § 1912(a); see Samuel P.,
supra, 99 Cal.App.4th at p. 1265.) The Indian status of the child need not be certain in
order to trigger the notice requirement. (In re Jonathan D. (2001) 92 Cal.App.4th 105,
110.)
In a guardianship proceeding, it is the petitioner‟s burden, if represented by
counsel, to provide proper notice to the tribes. (Rule 7.1015(c)(3).) If not represented, it
is the clerk of the court‟s responsibility to give notice. (Rule 7.1015(c)(4).) Although the
court may assign the inquiry provisions to certain parties, the person objecting to the
guardianship petition is not one of the designated parties. (Rule 7.1015(d)(5), (6).)
Because the failure to give proper notice forecloses participation by interested Indian
tribes, the ICWA notice requirements are strictly construed. (Desiree F., supra, 83
Cal.App.4th at pp. 474-475.)
The ICWA confers on tribes the right to intervene at any point in a court
proceeding, including on appeal. (25 U.S.C. § 1911(c); see also Prob. Code, § 1459.5,
subd. (b); rule 5.482(e).) However, a tribe‟s right to intervene in the proceedings is
meaningless if it has not received notice of the pending action. (Dwayne P., supra, 103
Cal.App.4th at p. 253.)
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.
7
(Dwayne P., supra, 103 Cal.App.4th at p. 254 [where facts 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 eligible for
enrollment. However, appellant had a letter from the Karuk Tribe, indicating that the
minor was potentially affiliated with the Tribe and that the matter was currently under
investigation. Rather than waiting for the results of that investigation for at least 60 days,
as required by the rule 7.1015(c)(9), the court proceeded with the guardianship
proceeding as if the minor was not an Indian child, granted respondent‟s guardianship
petition, and placed the minor in respondent‟s care.
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.
8
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.
_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
HUMES, J.
9
CALIFORNIA COURT OF APPEAL
FIRST APPELLATE DISTRICT
DIVISION FOUR
GUARDIANSHIP OF THE PERSON OF D. W., A MINOR.
J. G.
v.
D. W.
A136982
Sonoma County
Sup. Ct. No. SPR84391
BY THE COURT:
The request filed on October 30, 2013 by intervenor, the Karuk Tribe, that this
court‟s October 10, 2013 opinion be certified for publication is granted. The Reporter of
Decisions is directed to publish said opinion in the Official Reports.
____________Ruvolo_________________P. J.
10
Trial Court: Sonoma County Superior Court
Trial Judge: Hon. James G. Bertoli
Counsel for Objector and Appellant: D.W. in Propria Persona
Counsel for Petitioner and Respondent: Law Office of Richard Sax,
Richard Sax
Counsel for Intervener: California Indian Legal Services,
Nicholas Mazanec
11