Opinion
C054239
5-9-2007
In re GABRIEL H., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. STANLEY M., Defendant and Appellant.
NOT TO BE PUBLISHED
Stanley M., father of the minor, appeals from orders terminating his parental rights. (Welf. & Inst. Code, § 366.26, 395; further undesignated statutory references are to this code.) Appellant contends reversal is required because the court failed to ensure compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We reverse to permit proper notice to be given to the relevant tribes.
FACTS AND PROCEEDINGS
Since the facts of the underlying dependency are irrelevant to the issue presented, we limit the factual recitation to events relating to the ICWA notice.
The minor was removed from parental custody in March 2005. At the detention hearing, appellant informed the court he had Cherokee Indian heritage. The court ordered appellant to fill out and return a form that would provide the social worker ancestry information to aid in providing notice to the appropriate tribes.
The first disposition report stated the ICWA did not apply but did not address whether the tribes were given notice of the proceedings. An amended report stated the ICWA might apply to one of the minors half-siblings, who was also detained, but did not address appellants status as an Indian.
The record contains a copy of the notice of involuntary child custody proceedings sent to the tribes for the minors half-sibling, but the notice contains no information regarding appellant. A letter from the Mississippi Band of Choctaw Indians received in apparent response to the notice stated that the minor and the half-siblings were not "enrolled with the Tribe or eligible for enrollment." However, the letter in response to the notice received from the Cherokee Nation did not make reference to the minor one way or the other.
A status review report in December 2005, stated that the ICWA might apply to the minors half-siblings but did not mention the minor. The status review report of June 2006 and the report for the section 366.26 hearing both stated the ICWA did not apply to any of the minors. The juvenile court terminated appellants parental rights in November 2006.
DISCUSSION
Appellant contends the court and respondent Human Services Agency (HSA) failed to ensure that the notice requirements of the ICWA were satisfied, both by inadequate inquiry and by lack of notice to the tribes. HSA concedes that it failed to provide proper notice to the tribes and had no record that appellant completed the Indian Ancestry form.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and HSA have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d).) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe. (25 U.S.C. § 1912; see Cal. Rules of Court, rule 5.664(f).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.)
The record in this case does not demonstrate compliance with the notice provisions of the ICWA. Accordingly, we shall accept HSAs concession and reverse the matter to permit HSA to comply with ICWA notice to the Cherokee tribes.
DISPOSITION
The orders terminating appellants parental rights are reversed and the matter is remanded for the limited purpose of determining whether ICWA applies in this case. Because notice of the proceedings was not given to the Cherokee tribes, the juvenile court shall order HSA to comply promptly with the notice provisions of the ICWA. Thereafter, if there is no response or if the tribes determine the minor is not an Indian child, the orders terminating appellants parental rights shall be reinstated. However, if a tribe determines the minor is an Indian child or if information is presented to the juvenile court that affirmatively indicates the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new selection and implementation hearing in conformance with all provisions of the ICWA.
We concur:
BLEASE, Acting P.J.
ROBIE, J.