Opinion
NOT TO BE PUBLISHED
Santa Cruz Super. Ct. No. DP001021
Mihara, J.
After we reversed the initial dispositional order due to inadequate Indian Child Welfare Act (ICWA) notices and remanded for proper notification, new notices were sent that were also inadequate. Although Turtle Mountain Band of Chippewa Indians (TMC) denied that the child was eligible for membership in response to both the initial and subsequent notices, all of these notices misidentified the child’s Chippewa ancestor. TMC subsequently concluded that the child was eligible for membership, and TMC sought to intervene and to transfer jurisdiction to its tribal court. The juvenile court initially refused both requests. It found that the ICWA did not apply because the child was not a member of an “existing Indian family.” After parental rights were terminated following that finding, the parents again appealed. We again reversed and remanded for compliance with the substantive provisions of the ICWA.
On remand, the juvenile court granted TMC’s intervention request, but it denied as untimely TMC’s request for a transfer of jurisdiction. The court scheduled a Welfare and Institutions Code section 366.26 hearing. The parents initiated this writ proceeding to challenge the juvenile court’s order denying TMC’s transfer request. They assert that the juvenile court’s finding that TMC’s transfer request was untimely is not supported by substantial evidence. The parents also contend that the juvenile court was required to vacate the original dispositional orders and hold a new dispositional hearing after granting TMC’s intervention request. We conclude that substantial evidence does not support the juvenile court’s denial of the transfer request, and we issue a writ of mandate directing the juvenile court to grant TMC’s transfer request.
I. Background
When two-year-old Vincent M. (Vincent) was detained in July 2004, his mother, petitioner P.M. (Mother), immediately notified real party Human Resources Agency of Santa Cruz County (the Agency) of her Chippewa and Sioux Indian heritage and provided the Agency with her tribal enrollment number for the Sioux tribe in which she was enrolled. (In re Vincent M. (2007) 150 Cal.App.4th 1247, 1252 (Vincent II).)
In August 2004, shortly after the filing of the petition, the Agency sent ICWA notices to TMC and to the Spirit Lake Sioux tribe, which was the tribe in which Mother was enrolled. These notices identified Mother’s Chippewa grandmother as “Mabel Ironbear Smith” and provided a birthdate and place of “08/20/1919 CANADA.” These notices provided only ancestral information, and no information about Mother’s residence on a North Dakota Indian reservation in 2001 and 2002 or her treatment by an Indian substance abuse clinic. (Vincent II, supra, 150 Cal.App.4th at p. 1252.)
The notice to TMC was sent to “P.O. Box 900 [¶] Belcourt, North Dakota 58316.” TMC received this notice on August 9, 2004. On August 20, 2004, TMC sent a letter to the Agency in which it stated “Vincent is not enrolled or eligible for enrollment with the Turtle Mountain Band of Chippewa.” (Vincent II, supra, 150 Cal.App.4th at pp. 1250-1252.) TMC’s letter to the Agency was on letterhead bearing the same address to which the notice had been sent.
Vincent was placed in a foster/adoptive home in August 2004. (Vincent II, supra, 150 Cal.App.4th at p. 1253.) On August 27, 2004, the Agency sent another substantively identical ICWA notice to TMC at the same address to apprise TMC of a change in the date for the scheduled jurisdictional and dispositional hearing.
At or about this same time, Mother prepared a letter addressed to “Turtle Mountain Agency [¶] Attention: Enrollment [¶] PO Box 60 [¶] Belcourt, ND 58316.” This address was not TMC’s address for ICWA notices. The letter was titled “Re: Enrollment of Vincent MARQUEZ JR.” It stated: “I am enrolled in the Spirit Lake tribe of North Dakota. I wish to enroll my son, Vincent, in the Turtle Mountain Chippewa. My grandmother, Mabel Ironbear Smith Burns was [a] member of the Turtle Mountain Chippewa and I believe my son and I are also eligible for enrollment. Please send an enrollment application for both of us.” There is no evidence in the record that this letter was ever sent to or received by TMC. Nor is there any evidence in the record that TMC ever responded to this letter.
The jurisdictional and dispositional hearing was held on October 5, 2004. The court took jurisdiction, found that the ICWA did not apply, denied reunification services to Mother, granted services to petitioner Vincent Marquez Sr. (Father) (who was then in prison), and placed Vincent in foster care. The parents filed an appeal from the court’s dispositional order. (Vincent II, supra, 150 Cal.App.4th at p. 1252.)
On October 18, 2004, TMC responded to the Agency’s second ICWA notice with another letter, identical to its August 2004 letter, denying that Vincent was eligible for enrollment with TMC.
In March 2005, the court terminated Father’s reunification services and scheduled a Welfare and Institutions Code section 366.26 hearing for July 2005. That hearing was repeatedly rescheduled at the Agency’s request due to the parents’ then-pending appeal. (Vincent II, supra, 150 Cal.App.4th at p. 1252.)
In September 2005, this court filed its opinion in the parents’ first appeal. This court concluded that the ICWA notices were inadequate and remanded for proper ICWA noticing. This court did not find any substantive problems with the notices to TMC, and the disposition in the appeal did not require that TMC be renoticed. The disposition in that appeal reversed the court’s dispositional order and provided: “If, after proper notifications have been accomplished, it is determined that Vincent is not an Indian child, the court shall reinstate its jurisdictional and dispositional orders. If Vincent is determined to be an Indian child, the court shall vacate its dispositional order and proceed in accordance with the ICWA.”
In November 2005, the Agency sent new notices to numerous tribes, including TMC, and the Bureau of Indian Affairs (BIA) notifying them of a January 13, 2006 hearing on “ICWA STATUS REVIEW.” These notices, unlike the earlier ones, identified Mother’s Chippewa grandmother as “Mabel Ironbear Smith Bruns.” (Bold italics added.) These notices contained inaccurate information about Mother’s periods of residence on Indian reservations and did not disclose that she had been treated at an Indian substance abuse clinic. The notice to TMC was sent to the same address as the previous notices to TMC, and it was received by TMC on November 21, 2005. On December 7, 2005, TMC sent another letter to the Agency stating that Vincent was not enrolled or eligible for enrollment.
At the January 13, 2006 hearing, the juvenile court declined to make ICWA findings. It continued the hearing to January 27, 2006 for clarification of Vincent’s status. At the January 27, 2006 hearing, the court found that the ICWA did not apply and scheduled a Welfare and Institutions Code section 366.26 hearing for February 17, 2006. That hearing was subsequently rescheduled for March 16, 2006. (Vincent II, supra, 150 Cal.App.4th at p. 1253.)
On March 15, 2006, the BIA certified that Vincent was a member of TMC, and TMC sought to intervene in the juvenile court proceedings and to transfer jurisdiction to its tribal court. At the scheduled March 16, 2006 hearing, the Agency sought a continuance for briefing, and the Agency’s attorney admitted that the Agency was to blame for the delay in the Welfare and Institutions Code section 366.26 hearing “because of inappropriate or incomplete notice at the beginning of this case.” A hearing was set for April 7, 2006 on TMC’s intervention and transfer requests. (Vincent II, supra, 150 Cal.App.4th at pp. 1253-1254.)
The hearing on those requests began on April 7, but it was not completed until June 7, 2006. The juvenile court found that the ICWA did not apply because Vincent was not a member of an “existing Indian family.” (Vincent II, supra, 150 Cal.App.4th at pp. 1254-1258.) The juvenile court was especially concerned about the timing of TMC’s conclusion that Vincent was a member. “Turtle Mountain had ample opportunity to come forward and declare that Vincent was a member of their tribe. [¶] . . . Turtle Mountain came in belatedly, for reasons that are quite suspect by this Court.” (Vincent II, at p. 1257.) The court refused to allow TMC to intervene and refused to transfer jurisdiction to TMC’s tribal court. (Vincent II, at p. 1258.) The court proceeded to hold the Welfare and Institutions Code section 366.26 hearing, terminated parental rights, and selected adoption as the permanent plan. (Vincent II, at p. 1258.)
The parents appealed and challenged the court’s finding that the ICWA did not apply. This court agreed, and again reversed. This court’s opinion in the parents’ second appeal explicitly blamed the Agency for the delays in this case. “We do not share the juvenile court’s skepticism of the tribe’s motivations nor can we countenance the court’s statements blaming the tribe for the situation that it found itself facing. If responsibility for this situation is to be laid at anyone’s door, it must be at the door of the Agency. The Agency placed Vincent in a foster/adoptive home within a month of his detention even though the Agency had been immediately informed by mother of her Indian heritage. It was the Agency that sent inadequate ICWA notices, which necessitated the many delays caused by the first appeal. And it was the Agency that opposed the application of the ICWA more than a year ago after it had been indisputably established that Vincent was an Indian child.” (Vincent II, supra, 150 Cal.App.4th at pp. 1267-1268.) This court reversed the juvenile court’s order terminating parental rights and mandated that, “[o]n remand, the juvenile court shall apply the substantive provisions of the ICWA.” (Vincent II, at p. 1268.)
Our remittitur issued in September 2007, and the juvenile court thereafter set a hearing for October 12, 2007. The Agency filed a brief recommending that the court grant TMC’s intervention request but deny its transfer request. The Agency argued that there was “good cause” to deny transfer because “‘[t]he proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.’” Vincent’s attorney and the attorney for the de facto parents (Vincent’s foster parents) filed briefs supporting the Agency’s position. Mother and Father filed briefs urging the court to transfer the case to TMC’s tribal court.
At the December 18, 2007 hearing on TMC’s motion to intervene and request for transfer of jurisdiction, the juvenile court first granted the motion to intervene. The court then took the issue of the request for transfer under submission. No evidence was presented at the hearing beyond the documents attached to the parties’ briefs. Mother’s counsel subsequently filed a December 2007 order of TMC’s tribal court accepting jurisdiction of the case.
In January 2008, the juvenile court denied TMC’s request for transfer. “[T]here has not been proper and timely action on the part of the Turtle Mountain Band of Chippewa [in] asserting their right to transfer. [¶] In this particular case, months have gone by. Many, many months. The child has been put in temporary placement during that time. The efforts on behalf of the tribe have been through faxes to mother’s counsel, have not been directly to the Court. They were not timely made.”
After the court denied the transfer request, both Mother and Father argued that the court was required to hold a new dispositional hearing. The Agency asserted that the court should proceed to a Welfare and Institutions Code section 366.26 hearing. The juvenile court reasoned that a new dispositional hearing was not required because this court, in its opinion in the first appeal, “excluded the Turtle Mountain Band from its remand on further ICWA notice.” The court set a Welfare and Institutions Code section 366.26 hearing for April 24, 2008. Both parents have filed petitions seeking a writ of mandate.
II. Discussion
Both state and federal law require a court to grant an Indian tribe’s request for a transfer of jurisdiction unless the Agency establishes good cause for denying the request. Since the juvenile court was bound to comply with both state and federal law, and the California statutes are more explicit than the federal statutes, we rely primarily on California statutes.
“In the case of an Indian child who is not domiciled or residing within a reservation of an Indian tribe . . ., the court shall transfer the proceeding to the jurisdiction of the child’s tribe upon petition of either parent, the Indian custodian, if any, or the child’s tribe, unless the court finds good cause not to transfer. The court shall dismiss the proceeding or terminate jurisdiction only after receiving proof that the tribal court has accepted the transfer of jurisdiction. At the time that the court dismisses the proceeding or terminates jurisdiction, the court shall also make an order transferring the physical custody of the child to the tribal court.” (Welf. & Instit. Code, § 305.5, subd. (b), italics added; 25 U.S.C. § 1911(b) [“the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe”]; see also Cal. Rules of Court, rule 5.483(b).)
“Good cause not to transfer the proceeding may exist if: . . . The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition within a reasonable time after receiving notice of the proceeding, provided the notice complied with Section 224.2. It shall not, in and of itself, be considered an unreasonable delay for a party to wait until reunification efforts have failed and reunification services have been terminated before filing a petition to transfer.” (Welf. & Instit. Code, § 305.5, subd. (c)(2), italics added; Cal. Rules of Court, rule 5.483(d)(2)(B); see also 44 Fed.Reg. 67591 (Nov. 26, 1979) [BIA guidelines].)
The commentary to the BIA’s Guidelines addresses “late transfer requests.” “Permitting late transfer requests by persons and tribes who were notified late may cause some disruption. It will also, however, provide an incentive to the petitioners to make a diligent effort to give notice promptly in order to avoid such disruptions.” (44 Fed.Reg. 67590 (Nov. 26, 1979).) The BIA Guidelines are not binding on state courts. (44 Fed.Reg. 67584, 67585 (Nov. 26, 1979).)
“The burden of establishing good cause to the contrary shall be on the party opposing the transfer. If the court believes, or any party asserts, that good cause to the contrary exists, the reasons for that belief or assertion shall be stated in writing and made available to all parties who are petitioning for the transfer, and the petitioner shall have the opportunity to provide information or evidence in rebuttal of the belief or assertion.” (Welf. & Instit. Code, § 305.5, subd. (c)(4); Cal. Rules of Court, rule 5.483(f); see also 44 Fed.Reg. 67591 (Nov. 26, 1979) [BIA guidelines].)
The parties agree that the juvenile court’s good cause finding is subject to a substantial evidence standard of review on appeal. (Cf. Fresno County Dept. of Children and Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 644-646 [finding of good cause to overcome the ICWA’s placement preferences is reviewed for substantial evidence].) Hence, we review the record to determine whether it contains substantial evidence that TMC’s transfer request was not submitted until the “proceeding was at an advanced stage” and was not “file[d] within a reasonable time after receiving notice of the proceeding . . . [that] complied with Section 224.2.” (Welf. & Instit. Code, § 305.5, subd. (c)(2)(B).)
“We review the court’s findings made pursuant to ICWA for supporting evidence which is ‘reasonable, credible and of solid value.’ [Citation.] We review the record in a light most favorable to the judgment and uphold the trial court’s finding unless it can be said that no rational factfinder could reach the same conclusion. [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court’s finding or order.” (In re Barbara R. (2006) 137 Cal.App.4th 941, 950.)
The Agency was required to establish both components of their claim that TMC’s request was untimely. If it failed to prove one of the two components, the juvenile court’s good cause finding cannot be upheld. The dispositive question here is when, if ever, TMC received an ICWA notice that “complied with Section 224.2.” Welfare and Institutions Code section 224.2 requires that an ICWA notice to a tribe contain “[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” (Welf. & Instit. Code, § 224.2, subd. (a)(5)(C).)
The record indisputably establishes that the Agency knew, no later than September 1, 2004, that Vincent’s Chippewa ancestor’s correct name was “Mabel Ironbear Smith Burns.” None of the Agency’s notices to TMC ever contained the correct name of Vincent’s Chippewa ancestor. The original notices, prior to the parents’ first appeal, identified her as “Mabel Ironbear Smith,” and the later notices, after the reversal in the first appeal, identified her as “Mabel Ironbear Smith Bruns .” (Bold italics added.) Although the parents’ first appeal did not challenge the validity of the Agency’s notices to TMC on the ground that the notices incorrectly identified Vincent’s Chippewa ancestor, this error was noted in the parents’ second appeal, though it was not critical to the issues raised in that appeal.
The letter prepared by Mother in August 2004 that appears in the record bears a fax receipt notation at the top which indicates that it was received by Agency’s counsel on September 1, 2004.
The Agency suggests that the parents “waived” any claim that TMC was deprived of proper notice because they failed to raise the specific contention of failure to properly identify Vincent’s Chippewa ancestor in the first appeal. The Agency relies on two cases in which Courts of Appeal refused to consider challenges by parents to the adequacy of new notices in a second appeal where those new notices had been sent after a reversal on notice issues in a first appeal, and the parents had not challenged the adequacy of the new notices in the juvenile court prior to the second appeal.
In In re X.V. (2005) 132 Cal.App.4th 794 (X.V.), the parents had successfully appealed and obtained a reversal on the ground that ICWA notices had not been sent. The matter was remanded for ICWA notices to be sent. Notices were sent, and the parents did not contend in the juvenile court that the notices were inadequate. (X.V., at pp. 799-800.) In their second appeal, the parents contended that there were irregularities in the ICWA notices that had been sent after the first appeal. (X.V., at pp. 800-801.) The Fourth District Court of Appeal held that “the parents have forfeited a second appeal of ICWA notice issues” by failing to raise their ICWA notice issues in the juvenile court after remand specifically to resolve ICWA notice issues. (X.V., at p. 804.) “We do not believe Congress anticipated or intended to require successive or serial appeals challenging ICWA notices for the first time on appeal.” (X.V., at p. 804.)
In In re Amber F. (2007) 150 Cal.App.4th 1152 (Amber F.), the mother had successfully appealed and obtained a reversal on the ground that the original ICWA notices had been improper. The matter was remanded for renoticing. On remand, new notices were sent, and the mother did not argue below that the notices were improper. On appeal, however, she again contended that the notices were inadequate. (Amber F., at pp. 1154-1155.) The Fourth District Court of Appeal refused to allow the mother to raise the issue for the first time on appeal because it would “open[] the door to gamesmanship . . . .” (Amber F., at p. 1156.)
Neither X.V. nor Amber F. is on point here. Neither of those cases involved a later contention based on inadequacies in the original notices; both of those cases were second appeals challenging the adequacy of new notices that had not been challenged in the juvenile court after renoticing prior to the second appeal. This writ proceeding is not a successive challenge to the adequacy of ICWA notices. The parents have filed only one appeal raising ICWA notice issues, and that appeal resulted in a remand for renoticing. New notices that failed to correctly identify Vincent’s Chippewa ancestor were sent in November 2005, but that error did not result in a second appeal because TMC acquired the requisite information by other means and conclusively identified Vincent as a member in March 2006.
Thus, there was never a need for the parents to challenge the adequacy of the ICWA notices to TMC in a successive appeal on ICWA notice issues. The sole issue raised by the parents in their second appeal was the juvenile court’s refusal to apply the substantive provisions of the ICWA after Vincent had been conclusively identified as an Indian child. This writ proceeding does not follow a remand for renoticing after which the parents were obligated to object to the adequacy of any ICWA notices. The disposition of the second appeal required the juvenile court to apply the substantive provisions of the ICWA. No new ICWA notices were at issue on remand after the second appeal.
The parents’ failure to mount an earlier challenge to the accuracy of the notices to TMC did not result in a successive appeal on notice grounds, and the record strongly suggests that it was the parents who took action after the first appeal to provide TMC with the information that led to TMC being able to verify Vincent’s membership status. Under these circumstances, we decline to conclude that the parents forfeited their right to raise, in this proceeding, their contention that TMC did not unreasonably delay seeking transfer because TMC never received any notice that complied with Welfare and Institutions Code section 224.2 prior to TMC’s transfer request.
The Agency’s 2004 notices to TMC identified Vincent’s Chippewa ancestor as “Mabel Ironbear Smith.” The Agency’s November 2005 notice to TMC identified Vincent’s Chippewa ancestor as “Mabel Ironbear Smith Bruns.” No notice was ever sent to TMC prior to its request for transfer that correctly identified Vincent’s Chippewa ancestor as “Mabel Ironbear Smith Burns.” Because none of the Agency’s notices provided TMC with the correct last name of Vincent’s Chippewa ancestor, which was known to the Agency, none of these notices complied with Welfare and Institutions Code section 224.2.
The Agency asserts that the errors in its notices were remedied by the August 2004 letter prepared by Mother. However, the record contains no evidence whatsoever that Mother’s letter was ever sent to or received by TMC. The fact that this letter did not bear the correct address for ICWA notices to TMC further detracts from any inference that it provided the missing notice to TMC. Mother’s 2004 letter cannot establish that TMC was provided with adequate notice of the correct identity of Vincent’s Chippewa ancestor for the simple reason that there is no evidence that this letter was received by TMC.
Good cause cannot be established to deny a request for transfer on the ground of delay by a tribe where the tribe never received a notice that complied with Welfare and Institutions Code section 224.2. The record does not contain substantial evidence that TMC ever received a Welfare and Institutions Code section 224.2-compliant notice, and there is no evidence that there was any delay in submittal of TMC’s request for transfer once it received information that allowed it to identify Vincent as a member. Consequently, substantial evidence does not support the juvenile court’s finding of good cause to deny TMC’s request for transfer.
This court’s decision in In re Robert T. (1988) 200 Cal.App.3d 657 (Robert T.) does not conflict with our holding. In Robert T., the child, who was already enrolled in the tribe, was taken into protective custody in December 1981, but he was returned to the mother’s care after the court took jurisdiction. The mother absconded with him, and he was again taken into protective custody in January 1983. The tribe received proper notice of the dependency proceedings in May 1983, and the tribe was notified of the August 1983 permanency planning hearing at which the recommendation was the initiation of proceedings to terminate parental rights and free Robert for adoption. (Robert T., at pp. 659-661.) The tribe was notified in November 1984 of the termination proceedings. (Robert T., at p. 663.) The tribe filed an intervention petition in February 1985, but it did not file a transfer petition until April 24, 1985. (Robert T., at pp. 663-664.) After a year of hearings, the juvenile court granted the tribe’s intervention request, denied its request for transfer, and terminated parental rights. (Robert T., at p. 662.)
One of the issues on appeal in Robert T. was whether substantial evidence supported the juvenile court’s finding that there was good cause to deny the transfer request due to the tribe’s delay in filing its transfer petition. (Robert T., supra, 200 Cal.App.3d at p. 663.) This court held that substantial evidence supported the juvenile court’s finding of unreasonable delay. “The trial court observed that there was a five-month delay between notice of the termination proceedings and the tribe’s filing of the transfer petition and on this basis found ‘good cause.’ While we tend to agree that ‘good cause’ existed on that ground, we note delay of greater magnitude. The tribe had been given notice of all hearings in the dependency proceedings since July 21, 1983, six months after Robert was first placed in foster care. Despite this, it did not intervene or petition for transfer in those proceedings and, as we have already noted, did not indicate its interest in any of the state court proceedings until a year and a half later.” (Robert T., at p. 664.) “We believe a timely request to transfer jurisdiction, although this determination must be made on a case-by-case basis, should at least precede permanency planning in the dependency proceedings.” (Robert T., at p. 665.) “We therefore hold that the 16-month delay between the permanency planning hearing in August 1983 and the tribe’s first expression of intent to intervene, in December 1984, was sufficient to establish ‘good cause’ under the Act and the guidelines for the court to deny the transfer petition.” (Robert T., at p. 665.)
Robert T. is clearly distinguishable. In Robert T., it was known at the outset that Robert was a member of the tribe. Robert’s tribe received proper notice of the proceedings in May 1983, but it did not file its transfer petition until nearly two years later in April 1985. Here, on the other hand, the question of whether Vincent was eligible for membership in TMC was raised but not resolved at the outset, and TMC never received a proper notice that contained the information known to the Agency that was necessary for TMC to determine whether Vincent was eligible for membership in TMC.
The juvenile court’s good cause finding is not supported by substantial evidence that TMC unreasonably delayed in filing its transfer request after receiving proper notice.
The parents also contend that the juvenile court was required to vacate its dispositional finding and hold a new dispositional hearing. Neither the parents nor TMC lacked the means to seek to invalidate the prior placement order. “If it is determined that the [ICWA] applies, the Indian child, a parent, an Indian custodian, or the child’s tribe may petition [the juvenile court] to invalidate a foster placement or termination of parental rights.” (Cal. Rules of Court, former rule 5.664(n); Cal. Rules of Court, rule 5.486; Welf. & Instit. Code, § 224, subd. (e).) The record does not reflect that either of the parents or TMC filed such a petition. Whether such a petition would serve any purpose on remand is an issue not before us in this proceeding, and we express no opinion on that issue.
III. Disposition
Let a writ of mandate issue commanding the respondent court to vacate its orders denying TMC’s transfer request and setting a Welfare and Institutions Code section 366.26 hearing, and to enter a new order granting TMC’s transfer request. This decision shall be final immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.