Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07JU005
NICHOLSON, J.
Gretchen W. and Michael M., parents of the minor, appeal from an order terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395; undesignated statutory references are to the Welfare and Institutions Code.) Appellants contend there was a failure to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). County Counsel concedes the trial court’s error. We reverse and remand for compliance with the ICWA.
FACTS
On January 16, 2007, Trinity County Health and Human Services (HHS) removed the four-year-old minor from his father’s home, alleging the minor suffered a burn on his wrist that neither the father or Alice K., his companion, could explain, thus putting the minor “at risk of physical harm.” The petition to remove the minor was later amended to include allegations that both parents failed to protect the minor, and the mother, a substance abuser, could not care for the child due to mental illness.
The court detained the minor, adjudged him a dependent, and ordered services for the father. The court deferred ruling on the services for the mother but ultimately the mother did not request services. At that time, father completed a Parental Notification of Indian Status form, indicating the minor may be a member of the “Wintu” tribe, and the court sent notice of the minor’s dependency status and upcoming hearings to the Bureau of Indian Affairs (BIA). The BIA responded, indicating they did not have enough information to determine whether the minor was a member of any federally recognized tribe.
In a subsequent report, HHS indicated the ICWA “does or may apply. [¶] The child, [], may be an Indian child with the Cherokee tribe. The mother, [], stated that he might have Indian heritage.” Nevertheless, no further inquiries or notices were sent to the BIA or any of the federally recognized Cherokee tribes and in August 2007, the court terminated reunification services and set a section 366.26 hearing.
On December 10, 2007, the court terminated the parental rights of both parents. The parents appeal from that order.
DISCUSSION
Appellants contend reversal is required because the requirements of the ICWA and California Rules of Court, rule 5.481 were not satisfied in several respects resulting in lack of adequate notice, particularly to the Cherokee tribe.
Father notes in his opening brief that during the process he indicated the minor may be a member of the “Wintu” tribe. He does not, however, claim the court’s failure to pursue notification of that tribe as a basis for his appeal.
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.) 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 or the BIA if the tribal affiliation is not known. (25 U.S.C. § 1912; Cal. Rules of Court, rule 5.481(b).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
Respondent concedes the trial court erred in failing to provide notice to the three federally recognized Cherokee tribes. Having reviewed the record and the applicable law, we accept respondent’s concession.
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded for the limited purpose of securing compliance with the notice provisions of the Indian Child Welfare Act. Respondent shall promptly send proper notice to the Bureau of Indian Affairs and the Cherokee tribes. Thereafter, if there is no response within 60 days or if the tribe determines the minor is not an Indian child, the order shall be reinstated. However, if the 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 Indian Child Welfare Act, and the court determines the Indian Child Welfare Act applies to this case, the juvenile court is ordered to conduct a new Welfare and Institutions Code section 366.26 hearing in conformity with all provisions of the Indian Child Welfare Act.
We concur, DAVIS, Acting P. J., ROBIE, J.