Filed 10/9/20 In re H.M. CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re H.M. et. al., Persons B300506
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
19CCJP02080)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
LISA F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kristen Byrdsong, Commissioner; and Robin R.
Kesler, Juvenile Court Referee. Conditionally affirmed and
remanded with directions.
Christopher R. Booth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, Jacklyn K. Louie, Principal Deputy
County Counsel for Plaintiff and Respondent.
Lisa F. (mother) appeals from the juvenile court’s
dispositional order under Welfare and Institutions Code sections
300 and 3611 relating to two of her four children, contending the
Los Angeles County Department of Children and Family Services
(the Department) failed to comply with the notice provisions
mandated by the Indian Child Welfare Act of 1978 (ICWA) (25
U.S.C. § 1901 et seq.). Specifically, mother argues the court erred
when it found ICWA inapplicable, although the notices of the
children’s possible Indian heritage mailed to the Apache tribes
were addressed incorrectly. The Department concedes the error.
We accept the concession, affirm the dispositional order, but
remand for compliance with ICWA’s notice provisions.
PROCEDURAL BACKGROUND
Because the appeal raises solely the issue of noncompliance
with the notice provisions of ICWA, the underlying facts of the
dependency action are not at issue, and we do not recite them.
The Department filed a section 300 petition on behalf of
mother’s four children on April 2, 2019. In a February 22, 2019
interview with the Department, mother denied her children had
Indian ancestry. However, on April 3, 2019, she submitted a
Parental Notification of Indian Status form (ICWA-020)
indicating there was possible Native American heritage in the
Apache Indian tribe through her grandparents.2
1 All further statutory references are to the Welfare and
Institutions Code.
2 Mother’s two older children, H.M. and C.M., and her two
younger children, A.T. and B.T., had different fathers, neither of
whom claimed Indian heritage.
2
At the April 3, 2019 detention hearing, the juvenile court
stated it had received mother’s completed Parental Notification of
Indian Status form and ordered the Department “to make
appropriate inquiries to determine whether ICWA applies [to the
four children] via mother’s [possible Apache Indian] lineage.”3
In the May 15, 2019 jurisdiction/disposition report, the
Department stated mother said there “might be some Native
American ancestry through her father’s side, however, she did
not know what tribe it was. [Mother] stated she asked her father
about it, but he was not sure either but [she] will ask him again
and provide that information to [the Department social worker].”
The Department reported it would “submit ICWA notices and
receipts in [an] Addendum Report upon meeting with [the
children’s] maternal grandfather[.]”
According to the May 24, 2019 addendum report, mother’s
father said his grandfather was reportedly Apache and born in
California, but he could not provide any other identifying
information, and believed his grandfather was not registered
with the Apache tribe.
On May 20, 2019, the Department mailed “ICWA notices”
on behalf of the four children to the Bureau of Indian Affairs, the
Secretary of the Interior, Apache Tribe of Oklahoma, Fort Sill
Apache Tribe of Oklahoma, Jicarillo Apache Nation, Mescalero
Apache Tribe, San Carlos Apache Tribe, Tonto Apache Tribe,
3 The minute order of the detention hearing states: “Parents
are to keep the Department, their Attorney and the Court aware
of any new information relating to possible ICWA status. ICWA-
020, the Parental Notification of Indian Status is signed and
filed. The Court is informed that there may be some Apache
Native American/Indian heritage in the mother’s background.
The [Department] is ordered to investigate said claim.”
3
White Mountain Apache Tribe, and Yavapai-Apache Nation. The
Department attached copies of the ICWA notices and certified
mail receipts to an addendum report.
At the June 3, 2019 jurisdictional hearing, the Department
advised the juvenile court the ICWA notices to the pertinent
agencies and tribes had been sent, but “the Department has not
received responses.” The Department requested the jurisdictional
hearing be continued “so that there would be enough time to
either receive responses, or 60 days would expire since service of
the notice.” The court continued the hearing.
On June 3, 2019, the Bureau of Indian Affairs responded to
the notices, writing, “[i]n checking the enrollment records for the
Apache Tribe of Oklahoma” the children were not “listed as
members of the tribe[,] nor are they eligible for enrollment.” On
June 4, 2019, the Jicarilla Apache Nation signed a return receipt,
with the incorrect address and name of the ICWA agent crossed
out and the proper address and agent’s name added.
On June 17, 2019, a first amended section 300 petition was
filed on behalf of the four children. On June 18, 2019, the
children were ordered detained from mother.
In a supplemental report, the Department stated it had
emailed the tribes “in order to determine the ICWA status of the
children.” Attached were copies of emails of “follow-up notices” to
the Mescalero Apache Tribe, the Fort Sill Apache Tribe, the
Jicarilla Apache Nation, the Yavapai-Apache Nation, the White
Mountain Apache Tribe, the San Carlos Apache Tribe, the
Mescalero Apache Tribe, and the Apache Tribe of Oklahoma. On
July 12, 2019, the Department emailed the Tonto Apache Tribe.
In response, the tribe wrote that, based on the information
provided, the children were “not eligible for enrollment in the
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Tonto Apache tribe;” there was “no indication of ancestral
history” with the tribe. Therefore, the Tonto Apache Tribe “did
not intend” to intervene in the dependency proceedings.
At the continued jurisdictional hearing on July 25, 2019,
the juvenile court sustained the first amended petition in part
against mother on behalf of the four children. In response to the
Department’s request, the court found “there’s no reason to
believe that ICWA applied in this case.”
A dispositional hearing was held on August 7, 2019. The
juvenile court ordered the two older children placed with their
nonoffending father and the two younger children removed from
their parents and suitably placed. There was no further mention
of ICWA or the children’s possible Indian heritage.
Mother filed an application for rehearing and order, which
was denied on August 27, 2019. She then filed a timely appeal.
In November 2019, the juvenile court granted the two older
children’s father sole physical custody and their parents joint
legal custody and terminated jurisdiction. Accordingly, this
appeal concerns only mother’s two younger children, A.T. and
B.T.
DISCUSSION
Mother argues the dispositional order concerning the
younger children must be reversed and the cause remanded for
the Department to comply with ICWA notice requirements and
the juvenile court to affirmatively ascertain whether A.T. and
B.T. are Indian children. Because the material facts underlying
mother’s claim are undisputed, “we review independently
whether ICWA requirements have been satisfied.” (In re Michael
5
V. (2016) 3 Cal.App.5th 225, 234-235, fn. 5; accord In re J.L.
(2017) 10 Cal.App.5th 913, 917-918.)
A. ICWA Notice Requirements
ICWA was enacted to curtail “the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement[.]” (Miss. Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32 [109 S.Ct.
1597, 104 L.Ed.2d 29].) Under ICWA and the California statutes
our Legislature enacted to implement it (§§ 224-224.6), a juvenile
court and, as its delegate, the Department, have (1) a duty to
investigate whether a child is an “Indian child” and, if the court
“knows or has reason to know” that the child is, (2) a duty to
notify the child’s parent and either the Indian child’s tribe or, if
the tribe is unknown, the Secretary of the Interior and the
Bureau of Indian Affairs. (25 U.S.C. § 1912, subd. (a); see also 25
U.S.C. § 1903(11); §§ 224.2, subd. (d)(4) & 224.3, subds. (a), (c), &
(d); Cal. Rules of Court, rule 5.481(a).) Once notified, the tribe
then decides whether the child is, in fact, an “Indian child”—that
is, a child who (1) is “a member of an Indian tribe,” or (2) “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);
§§ 224.1, subd. (a) & 224.3, subd. (a)(3)(A)(i); In re Gabriel G.
(2012) 206 Cal.App.4th 1160, 1166.)
In state court proceedings involving “the foster care
placement of, or termination of parental rights” concerning, “an
Indian child, the Indian custodian of the child and the Indian
child’s tribe have the right to intervene at any point in the
proceeding.” (25 U.S.C. § 1911, subd. (c).) This right is
meaningless, however, unless the tribe is notified of the
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proceedings. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.)
Notice serves the dual purpose of (1) enabling “the tribe to
investigate and determine whether a child is an Indian child;
and” (2) advising “the tribe of the pending proceeding[] and its
right to intervene[.]” (In re Desiree F. (2000) 83 Cal.App.4th 460,
470.)
Section 224.3, subdivision (a)(3) requires notice to be sent
to all tribes of which the child may be a member or eligible for
membership, until the juvenile court determines which, if any, is
the child’s tribe. Courts have interpreted this language to
mandate “notice to all federally recognized tribes within the
general umbrella identified by the child’s parents or relatives.”
(In re O.C. (2016) 5 Cal.App.5th 1173, 1183; In re Alice M. (2008)
161 Cal.App.4th 1189, 1202.) “‘[N]otice on a prescribed form must
be given to the proper tribe or to the Bureau of Indian Affairs,
and the notice must be sent by registered mail, return receipt
requested.’” (In re Z.N. (2009) 181 Cal.App.4th 282, 297; 25
U.S.C. § 1912, subd. (a); § 224.2.) Failure to comply with the
notice provisions and determine whether ICWA applies is
prejudicial error. (In re Desiree F., supra, 83 Cal.App.4th at p.
472.)
B. The Court and the Department Failed To Comply
With ICWA’s Notice Requirements
Early in these proceedings, mother stated she had possible
Apache Indian ancestry. The parties agree the ICWA notices
mailed by the Department unfortunately used incorrect
addresses and/or incorrect ICWA agent names for six of the eight
Apache tribes identified. Furthermore, the dependency petition
was not included with the notices. (§ 224.3, subd. (a)(5)(D).)
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Later, the Department sent follow-up emails which used incorrect
email addresses for four of the tribes.
The only definitive responses the Department received
were from the Bureau of Indian Affairs in Oklahoma, which
stated the children were not enrolled or eligible to be enrolled in
the Apache Tribe of Oklahoma and the Tonto Apache Tribe.
Because the children did not appear to have tribal ancestry, the
Bureau did not plan to intervene in the proceedings.
“Sending an ICWA notice to the wrong address is error, and
the error is prejudicial when . . . the record lacks conclusive
evidence the tribe received actual notice.” (In re Mary G. (2007)
151 Cal.App.4th 184, 211, citations omitted.) Here, in light of the
Department’s errors, there is no conclusive evidence the Apache
Tribe of Oklahoma, Fort Sill Apache Tribe of Oklahoma, Jicarillo
Apache Nation, Mescalero Apache Tribe, San Carlos Apache
Tribe, White Mountain Apache Tribe, and Yavapai-Apache
Nation received ICWA notices.4 Thus, new notices must be sent to
these tribes, at the correct addresses and to the proper agent,
along with a copy of the first amended dependency petition.
C. Limited Remand Is Appropriate
The only remaining issue is the remedy. “‘[A] notice
violation under ICWA is not jurisdictional in the fundamental
4 Although the Bureau of Indian Affairs in Oklahoma
responded on behalf of the Apache Tribe of Oklahoma, the
Department did not receive a response from the tribe itself.
Similarly, while the wrong address and agent’s name on the
Jicarilla Apache Nation’s return receipt were both crossed out
and corrected, it is unclear whether the proper agent received the
Department’s ICWA notice.
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sense[.]”’ (In re Christian P. (2012) 208 Cal.App.4th 437, 452,
citations omitted.) Nonetheless, there is some disagreement
among our sister courts concerning whether the appropriate
remedy includes reversal or merely a limited remand. Mother
urges us to follow those courts concluding it was reversible error
for the juvenile court to proceed with the dispositional hearing
without first ensuring ICWA compliance. (See Nicole K. v.
Superior Court (2007) 146 Cal.App.4th 779, 785 [“[e]ven
assuming ICWA errors are not jurisdictional, we conclude the
failure to give ICWA notice means that the orders in this case
cannot stand”]; In re S.E. (2013) 217 Cal.App.4th 610, 615-617
[reversal and remand].) This court generally follows the rule that
where, as here, there is a failure to comply with ICWA
procedures before disposition, all jurisdictional and dispositional
orders remain in effect while there is a limited remand to the
juvenile court for the Department to give ICWA notice. (See In re
Damian C. (2009) 178 Cal.App.4th 192, 199-200; In re Veronica
G. (2007) 157 Cal.App.4th 179, 187-188.) Accordingly, we remand
for compliance with ICWA’s notice requirements.
Upon remand, the juvenile court shall vacate its finding
that ICWA does not apply and order the Department to send new
ICWA notices, using the correct address and properly designated
ICWA agent, to the Apache Tribe of Oklahoma, Fort Sill Apache
Tribe of Oklahoma, Jicarillo Apache Nation, Mescalero Apache
Tribe, San Carlos Apache Tribe, White Mountain Apache Tribe,
and Yavapai-Apache Nation and to file all return receipts and
responses with the juvenile court. If, after proper notice, a tribe
claims A.T. and B.T. are Indian children and seeks to intervene,
the court shall vacate its prior dispositional order and proceed in
compliance with ICWA and related California law. (In re Kadence
9
P. (2015) 241 Cal.App.4th 1376, 1388-1389.) Otherwise the
court’s orders shall stand.
DISPOSITION
The matter is remanded to the juvenile court with
directions to comply with the notice provisions of ICWA as stated
in this opinion. In all other respects, the court’s orders are
affirmed.
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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