Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super. Ct. No. JUV089964, Christian F. Thierbach, Judge.
Sharon S. Rollo for Defendant and Appellant.
Ruth E. Stringer, County Counsel, Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
Veronica G., the mother of M.M., appealed from a judgment terminating her parental rights to M.M. (Welf. & Inst. Code, § 366.26.) Mother filed an opening brief contending that the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.; § 224 et seq., Cal. Rules of Court, rule 5.664.) On November 29, 2007, the parties filed a joint application and stipulation for reversal with directions to order respondent to make proper inquiry, to comply with ICWA notice requirements, and to either conduct a new hearing under section 366.26 in conformity with ICWA if a tribe determines that M.M. is an Indian child, or (2) reinstate all previous findings and orders if no response is received under ICWA or the tribes determine that the child is not an Indian child.
All section references are to the Welfare and Institutions Code unless otherwise specified.
All rule references are to the California Rules of Court.
After our own careful review of the entire record, we conclude that the juvenile court did fail to comply with the inquiry and notice requirements of ICWA, and we reverse with the requested directions.
FACTS
The detention report filed January 5, 2005, noted (1) M.M.’s father’s statement on January 4, 2005, that his mother may have Blackfoot ancestry, (2) the social worker’s leaving a telephone message the same day for the paternal grandmother, (3) the lack of a response by the following day, and (4) the social worker’s certified mailing of letters to the Secretary of the Interior, Bureau of Indian Affairs in Riverside and Sacramento, and to the Blackfoot Tribe in Montana. By the time of the jurisdictional hearing report filed February 15, 2005, no responses from the mailings had been received. The record contains no further mention of these mailings or whether any responses were received. The report also reflects a social worker’s contact with the paternal grandmother, but notes no discussion about ancestry. Neither the letters mailed to the Bureau of Indian Affairs and Blackfoot Tribe, nor any response, appear in the record, and the juvenile court made no findings respecting the adequacy of notice or M.M.’s possible Blackfoot or other Indian ancestry.
At the jurisdictional hearing on February 23, 2005, the court had the father’s one-page parental notification of Indian status form (Judicial Council Forms, form JV-130), and asked the father if he had “Cherokee Indian ancestry,” and the father responded, “Yes, ma’am.” No mention appears in the record of the father’s previously asserted Blackfoot heritage through his mother at the jurisdictional hearing or thereafter. The court ordered the form filed and observed that the respondent “investigates that or sends a notice to them” and would “follow through with that.” However, there is no indication in the record, such as a multi-page notice of involuntary custody proceedings for an Indian child (Judicial Council Forms, form JV-135 (JV-135)) or a response or return receipt, that respondent investigated M.M.’s Cherokee ancestry or notified a Cherokee tribe or the Bureau of Indian Affairs respecting M.M.’s possible Cherokee heritage. The disposition report filed May 13, 2005, incongruously asserted, “The Indian Child Welfare Act does not apply. Neither [mother] nor [father] claim Native American ancestry.” Thereafter, no mention is made of ICWA except an occasional denial of its application.
Parental rights of both parents were terminated on May 22, 2007, and mother appealed. The mother had earlier appealed the removal of M.M. from the paternal aunt’s custody and asserted respondent’s failure to comply with ICWA in case No. E041083. That removal was affirmed with directions to comply with ICWA in the opinion filed September 10, 2007. The record before us ends with the filing of the appeal on June 29, 2007, before the filing of the opinion in the earlier appeal, so the impact of the earlier opinion’s disposition cannot be discerned.
STIPULATION
Code of Civil Procedure section 128, subdivision (a)(8), permits a stipulated reversal in a dependency case when, as in this case, the parties agree that reversible error occurred and the stipulated reversal will expedite the final resolution of the case on the merits. (In re Rashad H. (2000) 78 Cal.App.4th 376, 380-382 [stipulated reversal of order terminating parental rights advanced, on balance, the interests of the adoptive parents by avoiding delay].)
In the stipulation, the parties acknowledge appellant’s contention and agree that the judgment terminating parental rights should be reversed with directions that the juvenile court “order the Department to make proper inquiry and to comply with the notice provisions of the ICWA.” The stipulation provides essentially that, if ICWA applies, a new section 366.26 hearing should be held in conformity with applicable ICWA provisions, but if ICWA does not apply, the original findings and orders from the previous section 366.26 hearing be reinstated. This is the disposition required when the juvenile court fails to comply with the ICWA notice requirements. (See, e.g., In re Suzanna L. (2002) 104 Cal.App.4th 223, 237.)
The proposed directions respecting further inquiry are appropriate. Although respondent already has “reason to know that an Indian child is involved” because of the statements of the father about his Blackfoot and Cherokee ancestry (§ 224.3, subd. (b)(1)), and notice must be sent (§ 224.2, subd. (a)), further inquiry appears necessary to obtain additional information required for the notice and to determine whether the father and his mother claim both ancestries or only one. (See §§ 224.2, subd. (a)(5), 224.3, subd. (c); JV-135.) Additionally, respondent has the obligation to file with the juvenile court the notices, return receipts, and any responses for the court’s inspection—respondent apparently failed to do so after the certified mailings respecting the claim of Blackfoot ancestry. (§ 224.2, subd. (c).)
The proposed directions are also correct as to making a finding about M.M.’s ancestry. If a determinative response is received that M.M. is or is not an Indian child, the juvenile court must make the corresponding finding. (§ 224.3, subd. (e)(1) [determination by tribe], (2) [determination by Bureau of Indian Affairs if no contrary determination by tribe]; rule 5.664(g).) However, if after 60 days no determinative response is received and the juvenile court finds that proper and adequate notice has been given, the juvenile court may find that M.M. is not an Indian child. (§ 224.3, subd. (e)(3).)
Although only the mother appealed, the parental rights termination order is reversed as to both mother and father to avoid reliance on a defective termination of the father’s parental rights in M.M.’s prospective adoption proceedings. (Compare Estate of McDill (1975) 14 Cal.3d 831, 840 [reversal as to nonappealing party where judgment “‘so interwoven and connected’”].)
DISPOSITION
The order terminating parental rights is reversed as to both parents.
The juvenile court is directed to order respondent to conduct further inquiry necessary to obtain additional information required for the notice, including without limitation M.M.’s possible Blackfoot and Cherokee ancestry, to give notice pursuant to section 224.2, and to file for the juvenile court’s inspection the notices, return receipts, and any responses.
If, within 60 days after respondent’s giving notice, a determinative response is received that M.M. is or is not an Indian child, the juvenile court is directed to find in accordance with the response. If after 60 days no determinative response is received, the juvenile court is directed to determine whether proper and adequate notice has been provided. If the juvenile court so finds, then the juvenile court is directed to find that M.M. is not an Indian child.
If the juvenile court finds that M.M. is not an Indian child, it is directed to reinstate the original order terminating parental rights.
If the juvenile court finds that M.M. is an Indian child, it is directed to set a new section 366.26 hearing and to conduct all further proceedings in compliance with the ICWA and all related federal and state law.
Pursuant to the parties’ stipulation, the clerk of this court is directed to issue the remittitur immediately. (Rule 8.272(c)(1).)
We concur: McKinster, Acting P. J., King, J.