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In re Aniya L.

California Court of Appeals, Second District, Eighth Division
Sep 23, 2008
No. B204932 (Cal. Ct. App. Sep. 23, 2008)

Opinion


In re ANIYA L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TERENCE L., Defendant and Appellant. B204932 California Court of Appeal, Second District, Eighth Division September 23, 2008

NOT TO BE PUBLISHED

APPEAL from orders of the Los Angeles County Superior Court, Ct. No. CK54565 Juvenile Division. Emily Stevens, Judge.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.

BIGELOW, J.

The juvenile dependency court entered orders terminating father’s parental rights over his daughter. Father’s sole argument on appeal is that the dependency court’s orders were entered without strict compliance with the Indian Child Welfare Act or “ICWA.â€� (25 U.S.C. § 1901 et seq.) We agree with father, and conditionally vacate the dependency court’s orders, with directions to the court to assure strict compliance with the ICWA.

FACTS

Aniya L. was born in February 2005. Aniya’s mother, Ashley B., was herself a dependent child of the juvenile court at the time Aniya was born. Ashley also had given birth to a previous child who was already a dependent child of the juvenile court when Aniya was born.

In late June 2005, a social worker from the Department of Family and Children Services (DCFS) met with Ashley to discuss Aniya’s medical condition and records. The social worker directed Ashley to take Aniya to a doctor to get her weight assessed. On July 1st, the social worker met with Ashley again. Ashley stated that she had taken Aniya to a doctor, but did not have any documentation to confirm her story.

On July 7, 2005, DCFS filed a petition on Aniya’s behalf. (Welf. & Inst. Code, § 300.) The petition alleged that Ashley had failed to provide Aniya with routine medical care, and that Ashley had failed to reunify with another child who had been declared a dependent child of the juvenile court. DCFS’s detention report indicated that the whereabouts of Aniya’s father were unknown, and that Ashley had stated that he was incarcerated.

At a hearing on July 29, 2005, Ashley identified Terence L. as Aniya’s father. Based on Ashley’s representations that she and Terence were not married when Aniya was born, that he did not go to the hospital when Aniya was born, and that his name was not on her birth certificate, the dependency court found that Terence was Aniya’s alleged father only. During the same hearing, Ashley indicated that she believed she had Native American heritage on her mother’s side, but did not know any tribe, and the court ordered DCFS to send an ICWA notice to the Bureau of Indian Affairs.

In August, DCFS separately interviewed Ashley and Terence -- both of whom were incarcerated at the time. Ashley stated that the Indian heritage was on the paternal side of the family. Terence stated that his great-great grandmother had Cherokee Indian heritage.

Terence was then facing charges of kidnapping and grand theft of an automobile.

In late August 2005, DCFS mailed ICWA notices to the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, the Bureau of Indian Affairs, the Cherokee Nation of Oklahoma, and the Department of the Interior Office of Tribal Services. In September 2005, DCFS filed a report which included information regarding the ICWA notices which had been sent; the report included signed mail receipts from the United Keetoowah Band of Cherokee Indians, the Bureau of Indian Affairs, and the Cherokee Nation of Oklahoma, but not from the Eastern Band of Cherokee Indians or the Department of Interior.

On September 6, 2005, Ashley waived her rights and submitted the petition on the basis of the social worker’s reports, and the dependency court sustained the petition. The court’s disposition plan included education and counseling for Ashley, and orders for paternity testing to determine whether Terence was Aniya’s biological father. Because Terence remained an alleged father only, the court ordered no reunification services on his behalf.

At a review hearing in December 2005, the dependency court found that “notice of proceedings ha[d] been given to all appropriate parties as required by law.� DCFS’s subsequent reports indicated that the ICWA did not apply.

In July 2006, DCFS reported that DNA testing confirmed that Terence is Aniya’s biological father. In September 2006, Terence filed a section 388 petition in which he requested presumed father status and to have Aniya placed with a paternal aunt. On September 5, 2006, the dependency court set Terence’s section 388 petition on calendar for hearing. On October 10, 2006, the court terminated reunification services. At the same hearing, the court denied Terence’s section 388 petition, finding that he would “still probably not be entitled to reunification services under the circumstances, given the length of time that he’s going to be incarcerated,� and that he had not maintained any contact with Aniya, and that he had “no relationshix (whatsoever� with Aniya, that a “change the placement . . . would not be in [Aniya]’s best interest.�

On December 4, 2007, the court terminated Terence’s parental rights, from which Terence appealed.

Ashley is not involved in this appeal.

DISCUSSION

Terence contends, DCFS concedes, and we agree that the requirements of the ICWA were not strictly followed.

The purpose of the ICWA is to protect the rights of Indian children and promote the stability and security of Indian tribes and families. In order to ensure a tribe is given an opportunity to intervene on behalf of an Indian child during a dependency proceeding, the ICWA requires -- where the court knows or has reason to know that an Indian child is involved -- DCFS to notify the Indian child’s tribe of the pending proceedings and its right to intervene in the proceeding. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) Where the identity or location of the tribe cannot be determined, notice must be given to the Secretary of the Interior. The notice requirement is a “key component� of ICWA’s legislative goals. (Ibid.) For this reason, the ICWA requires actual notice to the tribe both of the pending proceedings and of the tribe’s right to intervene. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) The dependency court is not to order foster care placement or termination of parental rights until the court has received proof that the appropriate Indian tribes and/or the Secretary of the Interior have been notified of the proceeding. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)

Since Terence informed the social worker that his great-great grandmother was of Cherokee decent, it was DCFS’s duty to inform all potential tribes of the proceeding involving Aniya, and to provide the dependency court with proof that the notices had been received. DCFS submitted mail receipts from some of its ICWA notices, but did not submit mail receipts from either the Eastern Band of Cherokee Indians or the Department of the Interior. DCFS acknowledges notice to the former was sent to the wrong address. Since proof of proper notice was not submitted to the dependency court, the case must be remanded to the juvenile court so proper notice can be given. (In re Nikki R., supra,106 Cal.App.4th at p. 848; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 237; In re H.A. (2002) 103 Cal.App.4th 1206, 1215; In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1109; In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)

DISPOSITION

The juvenile dependency court’s orders terminating Terence’s parental rights are vacated, and the matter is remanded to the court with directions to assure compliance with the ICWA’s notice provisions. If, after proof of proper notice under the ICWA is received by the court, a tribe claims that Aniya is an Indian child, then the court shall proceed in conformity with all provisions of ICWA. If no tribe claims Aniya, then the court’s orders terminating Terence’s parental rights shall be reinstated.

We concur: COOPER, P. J., RUBIN, J.


Summaries of

In re Aniya L.

California Court of Appeals, Second District, Eighth Division
Sep 23, 2008
No. B204932 (Cal. Ct. App. Sep. 23, 2008)
Case details for

In re Aniya L.

Case Details

Full title:LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Sep 23, 2008

Citations

No. B204932 (Cal. Ct. App. Sep. 23, 2008)