Guardianship of D.W. , 221 Cal. App. 4th 242 ( 2013 )


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  • 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
    

Document Info

Docket Number: A136982

Citation Numbers: 221 Cal. App. 4th 242

Judges: Ruvolo

Filed Date: 11/5/2013

Precedential Status: Precedential

Modified Date: 11/3/2024