as: 125 Cal.App.4th 1443, 24 Cal.Rptr.3d 582)
of Appeal, Second District, Division 4, California.
re GLORIANNA K., a Person Coming Under the Juvenile Court
Angeles County Department of Children and Family Services, Plaintiff and
K., Defendant and Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal,
for Defendant and Appellant.
Larry D. Cory, Assistant County Counsel, and Aleen L. Langton,
Deputy County Counsel, for Plaintiff and Respondent.
Mother Jennie K. appeals from a juvenile court order terminating
her parental rights to minor Glorianna K. pursuant to Welfare
and Institutions Code section 366.26.
[FN1] This order followed our reversal of a prior order
terminating parental rights on the ground that the juvenile
court did not ensure compliance by the Department of Children
and Family Services (DCFS) with the notice requirements of the
Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901
et seq.). Appellant contends that again the juvenile court has
not secured ICWA compliance. DCFS requests that we take additional
evidence, which is contested by appellant. We deny the motion.
We reverse and remand for the juvenile court to enter
a new termination order only if it determines that DCFS
has complied with the ICWA notice requirements.
All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
In June 2003, the juvenile court entered an order terminating
appellant's parental rights to her daughter pursuant to section 366.26.
On October 20, 2003, we reversed the order, and remanded
the matter to the juvenile court "for the sole purpose
of investigating American Indian heritage and providing" ICWA notice to
tribes and/or the Bureau of Indian Affairs (BIA). We directed
the juvenile court to reinstate its section 366.26 order if
no tribe indicates that the subject minor is subject to
On remand, the juvenile court ordered DCFS to provide ICWA
notice to BIA and the
Apache Nation, and the court continued the matter to January
The report prepared for the January 7 hearing reflects that
appellant claimed her father is a full-blooded Apache, probably a
registered tribe member. It states that notices and requests for
confirmation of the minor's Indian status were mailed but none
of the copies of the notices and requests was attached
to the report. Nor did DCFS attach copies of certified
mail receipts. The following eight tribes were reported to have
responded that the minor is not eligible for tribe membership:
(1) White Mountain Apache, (2) San Carlos Apache, (3) Mescalero
Apache Tribal **584
Council, (4) Yavapai-Apache Nation, (5) Fort Sill Apache Council, (6)
Jicarilla Apache Nation, (7) Tonto Apache Reservation, and (8) Apache
Tribe of Oklahoma. A letter of November 3, 2003, from
the Mescalero Apache Tribe was also attached. It stated that
the subject minor was not eligible to be a member
of the tribe.
Noting that it did not receive one of the nine
responses from the ICWA notices sent, the juvenile court continued
the matter to February 4, 2004.
The report for February 4 stated that in response to
the ICWA notices all the tribes responded that the subject
minor does not qualify to become a member of any
of the tribes. Attached to the report were multiple responses,
including the same November 3, 2003 letter from the Mescalero
The juvenile court was apparently not satisfied with the evidence
presented and at the February 4 hearing it ordered DCFS
"to further verify ICWA eligibility."
The matter was continued to March 24, 2004.
The report for March 24 stated that on March 1,
2004, the social worker re-mailed notices and requests for confirmation
of the child's status to the eight Apache tribes initially
referenced in the report for January 7. On the same
day, DCFS noticed a ninth Apache tribe, the Fort McDowell
Mohave Apache tribe, reporting that the notice was by certified
mail or return receipt requested. On March 5 and March
9, the social worker contacted the nine Apache tribes "to
assure that research was done on maternal grandfather" regarding his
possible membership or eligibility for membership in an Apache tribe.
On March 1, 2004, the social worker left a telephone
message with a maternal aunt to inquire about the family's
alleged Apache affiliation. The aunt contacted the social worker on
Attached to the report for the March 24, 2004 hearing
are ICWA notices sent to the nine tribes, the BIA
and the Office of Tribal Services by certified mail, return
receipt requested, each dated March 1, 2004. Also attached are
requests for confirmation of the minor's Indian status, if any,
sent to the same nine tribes, the BIA and the
Office of Tribal Services, also on March 1. The report
attached copies of certified receipts indicating mail delivery on March
5, 2004, to the Fort Sill Apache Tribe of Oklahoma
and the Fort McDowell Mohave Apache tribe, and copies of
certified receipts indicating mail delivery on March 4, 2004, to
the San Carlos Tribal Council, the Tonto Apache Tribal Council
and the Yavapai-Apache Community Council. DCFS did not attach to
its report any evidence of delivery of the March 1
certified mail to the other four tribes.
Also attached to the report for March 24 are ICWA
notices and Indian status confirmation requests sent on March 12
to the same entities identified in the March 1 mailings.
Copies of certified mail receipts are also attached to the
March 24 DCFS report, but there are no copies of
certified receipts indicating mail delivery of the March 12 ICWA
notices and requests for Indian status confirmation.
On March 24, DCFS filed a form titled "Information for
Court Officer." It stated that the Fort Sill Apache, San
Carlos Apache and Tonto Apache tribes responded that the subject
minor is not enrolled or eligible for enrollment in those
tribes. DCFS also submitted copies of letters from these three
Also filed on March 24 was a letter written by
a Karen M. on behalf of the minor's maternal side
of the family. Karen wrote that the maternal aunt had
obtained death certificates to help research the family's American Indian
heritage and **585
that she had given the social worker this information. She
also told the social worker "about the importance of notifying
the Apache tribes with this new information.... [¶]
When I get the responses from the tribes I will
file them with the court."
Apparently not waiting for further confirmation from Karen M., on
24, 2004, the juvenile court found that DCFS had complied
with the ICWA notice requirements and noted that the tribes
"do not wish to intervene." It entered an order reinstating
its June 26, 2003 order terminating appellant's parental rights under
At issue is whether DCFS
has now complied with the ICWA notice requirements. Although DCFS
argues in its respondent's brief that ICWA was satisfied, it requests
that we take additional evidence proffered to the court in September 2004
establishing that notice was accomplished. Appellant objects to
the request contending that the proffered evidence is not properly authenticated.
She also contends that the evidence was proffered to the court in
an ex parte proceeding at which she was not present to object. Before
addressing the request to take evidence, we review relevant ICWA law.
ICWA entitles an Indian tribe to intervene at any point
in a state juvenile dependency proceeding if the minor who
is the subject of the proceeding qualifies as an "Indian
child." (25 U.S.C. § 1911(c).)
An Indian child is an unmarried minor who is either
a member of an Indian tribe or eligible for membership.
(Cal. Rules of Court, rule 1439(a)(1), citing 25 U.S.C. § 1903.)
"Determination of tribal membership or eligibility for membership is made
exclusively by the tribe." (Cal. Rules of Court, rule 1439(g).)
Subdivision (a) of 25 United States Code section 1912 states
in pertinent part:
"In any involuntary proceeding in a State court, where the
court knows or has reason to know that an Indian
child is involved, the party seeking ... termination of parental
rights ... shall notify ... the Indian child's tribe, by
registered mail with return receipt requested, of the pending proceedings
and of their right of intervention. If the identity or
location of ... the tribe cannot be determined, such notice
shall be given to the Secretary in like manner, who
shall have fifteen days after receipt to provide the requisite
notice to ... the tribe. No ... termination of parental
rights proceeding shall be held until at least ten days
after receipt of notice by ... the tribe or the
Secretary." "If the tribe is unknown, the notice must be
given to the Bureau of Indian Affairs ..., as agent
for the Secretary of the Interior. [Citations.]" (Dwayne
P. v. Superior Court
(2002) 103 Cal.App.4th 247, 253, 126 Cal.Rptr.2d 639.)
Both the juvenile court and DCFS have an affirmative duty to inquire whether
a child declared a dependent minor of the juvenile court qualifies as
an Indian child for ICWA purposes. (In
re Nikki R. (2003)
106 Cal.App.4th 844, 848, 131 Cal.Rptr.2d 256.) It is the duty of
the juvenile court to receive evidence of the notice efforts by DCFS and
to determine if they comply with ICWA. (Id.
at p. 852, 131 Cal.Rptr.2d 256.) The juvenile court may not rely on mere
representations that proper notice was given; there must be a court
record of the notice documents. (In
re Asia L.
(2003) 107 Cal.App.4th 498, 506-509, 132 Cal.Rptr.2d 733.) "When
proper notice is not given under the ICWA, the court's order is voidable.
(25 U.S.C. § 1914.)" (Dwayne
P. v. Superior Court, supra,
103 Cal.App.4th at p. 254, 126 Cal.Rptr.2d 639.)
Appellant contends that the record does not contain sufficient proof
that the Apache tribes received the requisite ICWA notices sent
on March 12, 2004. She points out that DCFS failed
to file any executed return receipts or responses from the
tribes regarding the March 12, 2004 mailings. DCFS concedes that
on March 24, when the juvenile court reinstated its order
terminating parental rights, "it had not confirmed that the BIA
and Apache tribes had received the notices sent to them
on March 12, 2004." It is this gap in the
record which is the subject of the request by DCFS
that we take additional evidence. DCFS argues that the additional
evidence will suffice to prove proper notice was given and
that "any premature orders made by the juvenile court were
The request that we take additional evidence attaches three exhibits.
Exhibit 1 is a form identified as Information for Court
Officer, dated September 28, 2004, with attachments. The attachments are:
a March 22, 2004 letter from the San Carlos Apache
Tribe stating the subject minor is ineligible for tribal membership;
and March 15 and March 16 postal return receipt forms
sent to the Yavapai-Apache Community Council, Tonto Apache Tribal Council,
Apache Tribe of Oklahoma, White Mountain Apache Tribal Council, Fort
McDowell Mohave Apache, Apache Tribe of Oklahoma, Jicarilla Apache Tribe
and the BIA. Exhibit 2 is a September 29, 2004
minute order which states that the evidence "indicates that the
above tribes received notice of the March 24, 2004 hearing."
Exhibit 3 is a September 30, 2004 minute order which
states the juvenile court received return receipts for the Fort
Sill Apache Tribe of Oklahoma and the White Mountain Apache
Tribal Council, and that the "above indicates that these two
tribes received notice of the March 24, 2004 hearing."
The minute order of September 29, similar to the minute
order of September 30, has the following entries as appearances:
MO01 [Mother]: JENNIE [K.]
appointed Attorney, CARRIE CLARKE [bar# 150031], represents the mother.
DP01 [Defacto Parent]: CHELIE [M.]
appointed Attorney, PETER FERRERA [bar# 167336], appears
and represents the defacto parent.
FA01 [Father]: RONALD V.[G.]
appointed Attorney, MICHAEL J. KRETZMER [bar# 110785], represents the father.
(APPEAL IS PENDING.)
LANGTON, COUNTY COUNSEL IS PRESENT
TODAY." (Respondent's Motion to Take
Additional Evidence, Exhibit 2, italics added.)
Because the minute orders identify only the attorneys for the
de facto parent and the County Counsel as being present,
we must conclude neither appellant nor her counsel was present.
Nor is there any indication in the minute order that
appellant or her counsel was given notice of these hearings.
Appellant is correct that none of the items attached as
Exhibit 1 to the request is authenticated. The "Information For
Court Officer" form has no declaration or affirmation attesting to
the attached documents and the attached copies themselves have no
Taking additional evidence on appeal is governed by Code of
Civil Procedure section 909, which, as pertinent, states: "In all
cases where trial by jury is not a matter of
right ..., the reviewing court ... may for the purpose
of making the factual determinations or for any other purpose
the interests of justice, take additional evidence of or concerning
facts occurring at any time prior to the decision of
the appeal, and may give or direct the entry of
any judgment or order and may make any further or
other order as the case may require. This section shall
be liberally construed to the end among others that, where
feasible, causes may be finally disposed of by a single
appeal and without further proceedings in the trial court except
where in the interests of justice a new trial is
required on some or all of the issues."
"It has long been the general rule and understanding
that 'an appeal reviews the correctness of a judgment as of the time of
its rendition, upon a record of matters which were before the trial court
for its consideration.' [Citation.] This rule reflects an
'essential distinction between the trial and the appellate court ... that
it is the province of the trial court to decide questions of fact and
of the appellate court to decide questions of law....' [Citation.] The
rule promotes the orderly settling of factual questions and disputes in
the trial court, provides a meaningful record for review, and serves to
avoid prolonged delays on appeal. 'Although appellate courts are
authorized to make findings of fact on appeal by Code of Civil Procedure
section 909 ..., the authority should be exercised sparingly. [Citation.]
Absent exceptional circumstances, no such findings should be made....'
[Citations.] [¶] There is no blanket exception to the general
rule for juvenile dependency appeals." (In
re Zeth S. (2003) 31
Cal.4th 396, 405, 2 Cal.Rptr.3d 683, 73 P.3d 541, italics omitted.)
Hence, "[t]he power to invoke [section 909] should be exercised
only in order to affirm the lower court decision and
terminate the litigation,
and in very rare cases where the record or new
evidence compels a reversal with directions to enter judgment for
the appellant [citation]." (Monsan
Homes, Inc. v. Pogrebneak
(1989) 210 Cal.App.3d 826, 830, 258 Cal.Rptr. 676, italics added,
disagreed with on another point in Passavanti
(1990) 225 Cal.App.3d 1602, 1607-1608, fn. 5, 275 Cal.Rptr. 887.)
Here, appellant objects to the evidence on the basis it
is not authenticated, a valid objection. (See Evid.Code, §§ 400-403.)
This is compounded by the fact that neither appellant nor
her counsel were in attendance on either date to test
the authenticity of the evidence. The trial court is in
the best position to determine these issues. We conclude that
remand is necessary for the trial court to address these
issues. We deny respondent's motion to take additional evidence.
But even if we were to receive the evidence, there
is still a question whether the Mescalero Apache tribe received
appropriate notice of the March 24 proceeding. There is no
certified receipt or response from its tribal council relating to
the March 12 notices. The letter from the Mescalero tribe
of November 3, 2003, stating that the minor is not
eligible to become a member of that tribe, is insufficient
to establish notice to that tribe. There is no copy
of the ICWA notice provided to the tribe in connection
with the earlier notice. Thus, we have no information in
the record that the Mescalero tribe received information about the
maternal grandfather through whom Indian ancestry is claimed.
The motion to take additional evidence is denied, and the
juvenile court order terminating parental rights is reversed and remanded
for the juvenile court for further proceedings. If the juvenile
court does not find proper ICWA notice was
given to all the tribes, the court shall order appropriate
notice be given. If the court determines that no further
notices need be given, all previous findings and orders shall
be reinstated and are affirmed.
We concur: EPSTEIN, P.J., and CURRY, J.