Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 01CEJ300338, Jane A. Cardoza, Judge.
Julie E. Braden, under appointment by the Court of Appeal, for Defendants and Appellants.
Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J., and Kane, J.
INTRODUCTION
Appellant, K.M., appeals from the juvenile court’s order pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights to C.E. and K.M. Appellant contends that the social services agency (agency) failed to notify all Indian tribes pursuant to the Indian Child Welfare Act (ICWA). Respondent concedes that the agency failed to notify the Comanche Tribe and Pueblo Tribe pursuant to the ICWA. We agree with the parties and will conditionally remand the case.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
25 U.S.C. § 1901 et seq.
FACTS AND PROCEEDINGS
Dependency proceedings in this case began in June 2006. On May 20, 2008, the juvenile court denied a continuance, dismissed a section 388 petition, selected adoption as a permanent plan, and terminated parental rights. Because the only issue on appeal concerns proper notice under the ICWA, we only review the record as it pertains to that issue.
The mother, father, and children were identified as American Indian by treating professionals and social workers. The father reported he was a registered member of the Pomo Tribe through the Lytton Rancheria and asserted eligibility to that tribe for both children. The mother’s family was recognized as Native American by the Pueblos of Taos. The mother’s family also asserted Apache and Comanche heritage. The record includes a photograph of an Indian ancestor taken in 1912, a letter from Sacramento Unified School District indicating Indian ancestry for a relative, and a family tree showing Indian heritage.
On July 13, 2006, the social worker sent notice of proceedings to the Bureau of Indian Affairs, Eastern Band of Cherokee Indians, United Keetoowah Band of Cherokee, Cherokee Nation, Dry Creek, Lytton, Guidiville, Lower Lake, Redwood Valley, and Robinson Rancherias, Hopland Reservation, Coyote Valley Reservation, Mishewal Wappo, San Carlos Tribal Council, Mescalero Apache Tribe, Yavapai Apache Nation, Apache Tribe of Oklahoma, Jicarilla Apache Nation, Fort Sill Apache Tribe of Oklahoma, White Mountain Apache Tribal Council, Yavapi-Prescott Tribe, and the Tonto Apache Tribal Council.
On July 31, 2006, notice was sent by the department for a hearing in August 2006. Notice pursuant to the ICWA was sent to the Cherokee Nation, Eastern Band of Cherokee Indians, Apache Tribe of Oklahoma, Fort Sill Apache Tribe of Oklahoma, Mescalero Apache Tribe, San Carlos Tribal Council, White Mountain Apache Tribal Council, Yavapai-Prescott Indian Tribe, Coyote Valley Reservation, Hopland Reservation, Mishewal Wappo, Bureau of Indian Affairs, and the following Rancherias: Dry Creek, Guidiville, Lower Lake, Lytton, Redwood Valley, and Robinson.
By July 31, 2006, the Yavapai Apache Nation, Jicarilla Apache Nation, San Carlos Apache Tribe, the United Keetoowah Band of Cherokee Indians in Oklahoma, Tonto Apache Tribe, Yavapai-Prescott Tribe, Dry Creek Rancheria, and White Mountain Apache Tribe all found no eligibility for membership. In August 2006, the Eastern Band of Cherokee Indians, Fort Sill Chiricahua Warm Springs Apache, Mescalero Apache Tribe, Apache Tribe of Oklahoma, Cherokee Nation, and Robinson Rancheria found no eligibility.
The mother told the social worker that she was a full-blood Apache on July 24, 2006.
On August 17, 2006, notice was sent for a hearing in September 2006 to the Cherokee Nation of Oklahoma, Fort Sill Apache Tribe of Oklahoma, Mescalero Apache Tribe, White Mountain Apache Tribal Council, Hopland Reservation, Coyote Valley Reservation, and the following Rancherias: Lytton, Guidiville, Redwood Valley, and Lower Lake. The Lytton Rancheria tribal leader acknowledged receipt of notice.
On September 22, 2006, notice was sent for a hearing in October 2006 to the Hopland and Coyote Valley Reservations and the following Rancherias: Lytton, Redwood Valley, Guidiville, and Lower Lake. On October 23, 2006, counsel for appellant informed the court that appellant had seen checks arrive to the children’s father from the Pomo Indian Tribe in Santa Rosa. On November 9, 2006, notice for a December 2006 hearing was sent to the Coyote Valley and Hopland Reservations and to the Rancherias of Guidiville, Lower Lake, and Lytton. On December 6, 2006, the juvenile court found that the ICWA did not apply to this case.
The Lytton Rancheria was apparently part of the Pomo Tribe. When contacted by the department, representatives of the Lytton Rancheria were uncooperative.
DISCUSSION
The parties agree that the department failed to fully comply with the ICWA. The department concedes that ICWA notice should have been given to the Comanche Tribe and to the Pueblo of Taos Tribe. We will accept the concession of the parties and remand the case for compliance with the ICWA.
The record in the instant action is unusual. Not only do both birth parents have claims of Indian ancestry, the record includes a photograph of an Indian ancestor taken in 1912, a letter from Sacramento Unified School District indicating Indian ancestry for a relative, and a family tree showing Indian heritage. Furthermore, respondent is not arguing that the doctrines of waiver or forfeiture apply to this case.
DISPOSITION
The matter is final to this court forthwith and remanded to the trial court with directions to assure that the department gives notice of the underlying proceedings in compliance with the ICWA to the Bureau of Indian Affairs and any identified tribes. (25 U.S.C. § 1913.) Respondent shall document its efforts to provide notice by filing such documentation and any and all responses received by the trial court. (See In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215.) If the Bureau of Indian Affairs or any tribe responds by confirming that the child is or may be eligible for membership within 60 days of sending proper notice under the ICWA, the court shall proceed pursuant to the terms of the ICWA and is hereby authorized to vacate, in whole or in part, any prior finding or order which is inconsistent with the ICWA requirements. If there is no confirmation that the children are or may be eligible for Indian tribal membership, the court may reinstate its orders and judgment.