Opinion
NOT TO BE PUBLISHED
Super. Ct. No. DPSQ025749
SIMS, Acting P.J.E.S. (petitioner), the mother of the minor, seeks an extraordinary writ to vacate the orders of the juvenile court terminating her reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452.) Petitioner contends the court’s orders must be vacated due to its failure to comply with the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We agree. Accordingly, we shall issue a peremptory writ of mandate directing the juvenile court to vacate its orders and conduct a new dispositional hearing in compliance with the ICWA.
Undesignated section references are to the Welfare and Institutions Code.
Undesignated rule references are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
The minor was first made a dependent of the court in 2002, shortly after his birth, based on petitioner’s substance abuse during her pregnancy with him. During the prior proceeding, the maternal grandmother reported that the minor’s great, great grandfather was an enrolled member of the Choctaw Nation, and notice was provided to the Choctaw tribes. As petitioner complied with her case plan, the minor, along with his two older siblings, were returned to her care and dependency jurisdiction was terminated.
In May 2008, a new dependency petition was filed concerning the minor (now six years old) by the Sutter County Department of Human Services (the Department) after petitioner was discovered to have a blood-alcohol level of.298 percent while the minor was in her care. It was further alleged that petitioner’s residence was “extremely filthy, cluttered, unsanitary and unsafe for the children.” At the detention hearing, petitioner again disclosed Indian heritage. ICWA notice was sent to the three Choctaw tribes and to petitioner.
According to the jurisdictional report, petitioner had a history of chronic alcohol abuse dating back to 1999, and there had been numerous referrals concerning the family since the termination of the prior dependency proceeding. Prior to the jurisdictional hearing, petitioner complied with the services she was offered, although she continued to test positive for marijuana.
Meanwhile, the social worker spoke to an ICWA social worker with the Choctaw Nation of Oklahoma (the Tribe), who requested that an application for enrollment of the minor be completed. The social worker also received a letter from the Tribe’s ICWA social worker stating: “We were able to establish Choctaw Indian Heritage for [the minor] with the information you have given the tribe therefore, the [ICWA] will apply to this case and the Tribe is choosing to intervene in this case.” The letter explained that the Tribe wanted to be informed of upcoming hearings and make formal recommendations to the court, but that a case worker most likely would not be appearing in person. The letter also “urge[d] all involved to follow the placement criteria” set forth in the ICWA.
The allegations in the petition were sustained and reunification services were ordered for petitioner. The juvenile court made no findings regarding the ICWA.
By the six-month review hearing, petitioner was in full compliance with her case plan and the minor had been placed with her for more than a month on a trial basis. At the hearing, which occurred in December 2008, the juvenile court ordered the minor placed with petitioner with family maintenance services.
The following month, a supplemental petition was filed concerning the minor, alleging that petitioner had been arrested for child endangerment, again having been found extremely intoxicated with the minor and his sibling in her care. It was reported that petitioner had been on a two-week drinking binge and that the residence once again was filthy. At the detention hearing, the juvenile court ordered petitioner to “fill out the ICWA forms” and provide various documents so the minor could be enrolled in the Tribe. The court ordered the minor detained with no other mention of ICWA. The minor was placed in the home of a “[n]on-[r]elated [e]xtended [f]amily [m]ember,” where he had been placed prior to being returned to petitioner’s care. Notice of the detention and jurisdictional hearings was sent to the Tribe.
The detention and the jurisdictional reports both stated that ICWA “does or may apply” and that the minor’s ICWA eligibility was “[p]ending.”
The juvenile court sustained the allegations in the supplemental petition. The Tribe was served with notice that the minor had been found to come within provisions of section 300 and that a dispositional hearing had been set.
Based on petitioner’s chronic alcohol problem and the numerous times the minor had been placed outside her home, the social worker recommended that no further services be provided. In the meantime, petitioner’s sister sent a letter to the court stating petitioner had entered a residential treatment program “that is set up through the Indian Tribes.”
Petitioner was not present at the dispositional hearing, which occurred in March 2009. Her attorney explained that petitioner was supposed to enter a rehabilitation program, which was in San Francisco, but that neither he nor the social worker had heard from her. Petitioner’s attorney argued services should be offered.
The juvenile court adopted the recommendations of the social worker and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor. No ICWA findings were made other than that “notice[] has been given under the [ICWA].”
DISCUSSION
Petitioner contends the section 366.26 hearing must be vacated due to the failure to comply with the provisions of the ICWA. The Department agrees, as do we.
When an Indian tribe determines that a child is either a member of the tribe or eligible for membership and a biological child of a member, the ICWA must be applied to the proceedings. (§ 224, subd. (c).) “A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe... shall be conclusive.” (§ 224.3, subd. (e)(1).) A child may qualify as an Indian child even if neither parent is enrolled in the tribe. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254; D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 208.)
“If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.” (Rule 5.482(c).)
In the present matter, the Tribe notified the court that the minor was eligible for membership and intervened in the proceedings. Yet, other than providing notice to the Tribe of court hearings, no attempt was made to comply with the ICWA’s procedural and substantive requirements. These requirements include that, before placing an Indian child in foster care or terminating parental rights, “active efforts” must be made to provide services to prevent the breakup of the Indian family (25 U.S.C. § 1912(d)) and clear and convincing evidence must be presented, including testimony by qualified expert witnesses, that continued parental custody is likely to result in serious emotional or physical damage to the Indian child. (25 U.S.C. § 1912(e).) The tribe’s “prevailing social and cultural standards” and “way of life” must be considered when making these determinations. (§ 361.7, subd. (b); rule 5.484(a) and (c)(1).) Furthermore, special placement preferences apply if the Indian child is removed from parental custody. (25 U.S.C. § 1915.)
We agree that the juvenile court’s orders denying reunification services and setting the matter for a section 366.26 hearing must be vacated and the matter remanded for a new dispositional hearing on the supplemental petition in compliance with the ICWA. However, petitioner contends that all prior jurisdictional and dispositional orders are subject to invalidation because the ICWA was not complied with throughout the proceedings. She is incorrect. ICWA’s requirements do not govern a juvenile court’s authority to assert jurisdiction in dependency cases except to the extent that jurisdiction must be transferred to the tribe under circumstances not present here. (25 U.S.C. § 1911(a) & (b).) The ICWA provisions of concern here apply only to the removal of an Indian child from parental custody--a dispositional issue--or the termination of parental rights. Thus, there is no basis for invalidating the juvenile court’s jurisdictional findings based on the ICWA violations at issue. And as the minor was returned to petitioner’s care prior to the six-month review hearing, any ICWA violations pertaining to the initial dispositional hearing have been rendered moot.
DISPOSITION
Let a peremptory writ of mandate issue, directing respondent juvenile court to vacate its order terminating petitioner’s reunification services and scheduling a Welfare and Institutions Code section 366.26 hearing. The matter is remanded with directions to the juvenile court to conduct a new dispositional hearing in compliance with the Indian Child
Welfare Act.
We concur: RAYE, J., CANTIL-SAKAUYE, J.