In re I.G.

35 Cal.Rptr.3d 427

133 Cal.App.4th 1246

In re I.G., a Person Coming Under the Juvenile Court Law San Francisco County Department of Human Services, Plaintiff and Respondent, v. Bonnie C. et al., Defendants and Appellants.

No. A106784.

Court of Appeal, First District, Division 2.

November 2, 2005.

Certified for Partial Publication.^*

Valerie E. Sopher, El Cerrito, under appointment by the First District Appellate Project's Independent Case System, for Appellant Mother.

Janice A. Jenkins under appointment by the First District Appellate Project's Independent Case System, for Appellant Father.

Dennis J. Herrera, City Attorney, Kimiko Burton-Cruz, Joseph Sandoval, Deputy City Attorneys, for Respondent.

RUVOLO, J.

I. INTRODUCTION

Appellants Bonnie C. (Mother) and Russell G. (Father) appeal from the order denying rehearing of an order approving the placement of their minor child, I.G., with a maternal cousin, K.W. They argue that the court abused its discretion by placing I.G. with K.W. rather than with her paternal aunt, who they maintain had placement preference under Welfare and Institutions Code¹ section 361.3. Mother and Father also claim that the Department failed to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 (ICWA)).

The San Francisco County Department of Human Services (the Department) moves to dismiss the appeal on the basis that the issues are moot. The Department also filed a motion to introduce additional evidence on appeal pursuant to Code of Civil Procedure section 909, and for judicial notice. We address these motions with the appeal.²

In the unpublished portion of this opinion we conclude that the trial court did not abuse its discretion by placing I.G. with K.W. However, in the published portion we agree with Mother and Father that there has been a failure to comply with ICWA requiring remand.

II. PROCEDURAL AND FACTUAL BACKGROUND

The factual and procedural background of this case is detailed in our unpublished opinion (A105430 (Jan. 24, 2005)). We set forth here only the background relevant to the issues raised on appeal.

I.G., born in 2001, initially was found to come within the provision of section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The petition described Mother's substance abuse, emotional problems, criminal history (including convictions for child cruelty and drug-related offenses), and Mother's failure to reunify with six other dependent children. The Department detained I.G. two days after her birth, and the court ordered her continued detention on May 24, 2001. Over the next 27 months, I.G. was placed at various times with both parents, Mother, and in out-of-home placements. Reunification services for Father were terminated on February 21, 2003.

The Department again detained I.G. on August 26, 2003, due to allegations that Mother abandoned I.G. and had an untreated substance abuse problem. Father filed a section 388 petition on October 2, 2003, seeking to place I.G. with T.G., Father's sister. On October 11, 2003, the Department placed I.G with K.W., a maternal cousin in Compton.³ Counsel for I.G. moved to decrease visitation. The court granted the motion on October 27, 2003, and ordered monthly visitation for both parents, with transportation costs paid for by the Department. The court denied Father's section 388 petition. On January 12, 2004, the court terminated reunification services for Mother.

Following the hearings on Father's section 388 petition and the section 387 disposition, the juvenile court acknowledged that T.G. was "a relative entitled to preferential consideration under section 361.3," but denied the petition on the basis that it was not in the best interests of I.G. at that time. The court continued I.G.'s placement with K.W., and continued the monthly visitation schedule for both parents.

Mother and Father filed a motion for rehearing. The juvenile court indicated that T.G. was "a preferred relative under [section] 361.3[, subd.] (b)(2). Mother's cousin [K.W.] is not." Nevertheless, the court held that "the commissioner was obligated to make an independent determination utilizing the criteria set forth in [section] 361.3 to determine which placement would be in [I.G.'s] best interest, regardless of whether one of the placements was a preferred relative and the other was a non-preferred relative." The court denied the application for rehearing, noting that "[a]lthough [T.G.] may be a `preferred relative' under [section] 361.3[, subd.] (c)(2), she is not the better placement for [I.G.]."

In our January 24, 2005 opinion in case number A105340, we ordered the juvenile court to set a section 366.26 hearing.⁴ On February 7, 2005, the juvenile court held a hearing in this matter. As indicated at that hearing, "we are on calendar for a settlement conference on a number of issues, including a 388, parental visitation, and a 366.26 hearing." The court indicated that "We have had brief discussions. I think that we all are on the same page at this point, and I want to reiterate what the agreement is and make the orders so that people are comfortable with it." The court granted the section 388 petition filed by I.G.'s paternal aunt, T.G., changing I.G.'s placement from the home of K.W. to T.G.'s home in Concord. The court ordered that the parents continue to have monthly visits with I.G., supervised by T.G., and weekly telephone calls. Finally, pursuant to our opinion, it issued an order setting the section 366.26 hearing for June 15, 2005.

III. DISCUSSION

A. Motion to Dismiss

1. Placement of I.G. with K.W.^**

2. Compliance with ICWA

Mother and Father argue that the prior placement order must be vacated because the Department failed to comply with the notice provisions of ICWA (25 U.S.C. § 1902). They do not identify any order in which the court addressed compliance with ICWA. Instead, noting that the issue of compliance with ICWA may be raised at any time, they assert that the "Department and juvenile court violated the ICWA because there is no evidence that the social worker made any further inquiry or, at the very least, sent notice to the Bureau of Indian Affairs.... This is not a case of adequate proof of notice before the juvenile court, but of no notice at all."

The Department first received information that Mother might have Native American heritage in April 2003. Mother told a social worker in Reno, Nevada that she was part Native American, which she claimed was "part of the reason" for her alcohol problem. "[W]hen the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary. (25 U.S.C. § 1912(a); [citations].) ... [I]t was actually the duty of the [Department] to notify the Tribe or the Secretary [of the Interior] of the filing of the petition by registered mail, return receipt requested. (25 U.S.C. § 1912(a).)" (In re Desiree F. (2000) 83 Cal.App.4th 460, 471, 99 Cal.Rptr.2d 688.) Rule 1439(f) of the California Rules of Court⁷ mandates the following notice procedure: "(1) Notice ... must be sent ... by registered or certified mail with return receipt requested, and additional notice by first class mail is recommended. (2) Notice to the tribe must be to the tribal chairperson unless the tribe has designated another agent for service. (3) Notice must be sent to all tribes of which the child may be a member or eligible for membership. (4) If the identity or location of the parent or Indian custodian or the tribe cannot be determined, notice must be sent to the specified office of the Secretary of the Interior, which has 15 days to provide notice as required...." Subdivision (g)(1) provides that "A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive." (Rule 1439(g).) Substantial compliance with the notice requirements of ICWA may be sufficient under certain circumstances. (In re Christopher I. (2003) 106 Cal.App.4th 533, 565, 131 Cal.Rptr.2d 122.) "The failure to provide the necessary notice requires this court to invalidate actions taken in violation of the ICWA and remand the case unless the tribe has participated in or expressly indicated no interest in the proceedings. [Citation.]" (In re Desiree F., supra, 83 Cal.App.4th at p. 472, 99 Cal.Rptr.2d 688.)

The Department is required to file with the court "a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status." (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4, 109 Cal.Rptr.2d 267.) Notice to the Bureau of Indian Affairs is required only if "the identity or location of the parent or Indian custodian or the tribe cannot be determined...." (Rule 1439(f)(4); see 25 U.S.C. § 1912(a).)

The Department has filed a motion to consider additional evidence on appeal on this issue. This additional evidence consists of copies of letters and forms sent by the Department to various Indian tribes and to the Bureau of Indian Affairs, the responses to these letters, as well as the transcript of a November 30, 2004 hearing at which the court mentioned ICWA issues.⁸

At the November 30, 2004 hearing, the court indicated that "There were some possible Indian Child Welfare Act noticing issues. The Department has sought to correct those issues by re-noticing. Part of our off-the-record discussions included a somewhat informal discussion regarding Mother's interest in attempting to determine whether or not she is related culturally to any of the existing tribes at this point. I have suggested to counsel and I will suggest to ... Mother if she is further interested, if she has other tribes to notice, we will be happy to notice them for her, meaning the Department.... So at this point I think the noticing issues have been addressed. So I am a hundred percent clear, if ... Mother has other tribes she wishes to have...