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In re R.C.

California Court of Appeals, Third District, Sacramento
Mar 10, 2008
No. C055063 (Cal. Ct. App. Mar. 10, 2008)

Opinion


In re R.C. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. R.J. et al., Defendants and Appellants. C055063 California Court of Appeal, Third District, Sacramento March 10, 2008

NOT TO BE PUBLISHED

Superior Ct. Nos. JD223024, JD223025, JD223026

MORRISON, J.

R.J., the father of R.C., and S.S., the father of Q.S., each appeal from orders of the juvenile court terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) R.J. and S.S. contend the juvenile court and Department of Health and Human Services (DHHS) violated the notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) Agreeing with the claim of ICWA error, we shall reverse and remand for proper notice.

All further undesignated statutory references are to the Welfare and Institutions Code.

R.J. and Q.S. have a half-sibling, A.A. The mother of all three minors, N.C. , did not appeal from the juvenile court’s orders terminating her parental rights as to R.J. and S.S. The court ordered A.A. continued as a dependent child.

FACTUAL AND PROCEDURAL BACKGROUND

On September 16, 2005, DHHS filed original juvenile dependency petitions pursuant to section 300 on behalf of the minors. R.J. was listed as the alleged father of R.C., and S.S. was listed at the alleged father of Q.S. The father of A.A. was unknown. None of the petitions alleged that the minors might be of Indian ancestry.

At the detention hearing, the mother of the minors reported she had Blackfeet Indian tribal heritage. R.J.’s counsel told the juvenile court that R.J. thought R.J. had Cherokee Indian tribal heritage. The court stated that, until it was established that R.J. was the father of R.C., ICWA notices were not required. However, at that same hearing, the court ordered DHHS to provide notice of the dependency proceedings to Bureau of Indian Affairs (BIA), the various Cherokee tribes, and the Blackfeet Tribe. The minute order of the hearing included notice only to BIA and the Cherokee tribes.

DHHS sent notices of the dependency proceedings to three Cherokee tribes, Blackfeet Tribe, and BIA on behalf of the minors. As to R.C., the notice omitted details about R.C.’s ancestors and stated that, although R.J. was the father of R.C., his formal paternity status was unknown. Moreover, the certificate of mailing omitted R.J.’s name as one who received a copy of the notice. As to Q.S., the notice contained similar paternity information pertaining to S.S., and S.S.’s name also was omitted from the certificate of mailing.

At the detention hearing, the juvenile court found S.S. to be the presumed father of Q.S.

On May 17, 2006, the juvenile court found that R.J. was the presumed father of R.C. The court did not order any further inquiry pertaining to ICWA. Previously, the court had concluded there was “insufficient evidence . . . to determine if [the minors] are Indian children within the meaning of . . . ICWA.” DHHS found ICWA did not apply.

At the February 7, 2007 section 366.26 hearing, the juvenile court ordered the parental rights of R.J., S.S., and the mother of the minors terminated.

DISCUSSION

R.J. and S.S. contend the juvenile court and DHHS failed to comply with the notice requirements of ICWA.

The notice provisions of ICWA state, in part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).)

The Indian status of a child need not be certain to trigger ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) “[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child.” (Id. at p. 470.) “The [Department] must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage.” (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include, if known, the names of the child’s grandparents and great-grandparents, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, current and former addresses, and other indentifying information. (25 C.F.R. § 23.11(a) & (d)(3); 25 U.S.C. § 1952.)

Having received information suggesting there was Cherokee and Blackfeet Indian heritage in the family, DHHS was obliged to notify each of those tribal units of the dependency proceedings with the most current information available to it, in order that the tribes could make a proper determination about Indian heritage. Thereafter, when it received confirmation about the status of R.J. and S.S. as presumed fathers of the minors, DHHS should have clarified their status and sent that new information to the tribes and advised the juvenile court that it did so and, also, whether it received any replies from the tribes. Inexplicably, it failed to do so.

In this case, until DHHS had obtained all relevant information and sent it to the tribes, the juvenile court’s ruling that ICWA did not apply was at best premature. The failure to comply with the notice provisions and determine whether ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; see also In re Desiree F., supra, 83 Cal.App.4th at p. 472.)

On remand, DHHS must send new notices of the dependency proceedings to each of the tribes previously notified as to R.C. and Q.S., with all available information included, or with “unknown” indicated where appropriate. Moreover, DHHS must send copies of the notices to R.J. and S.S., and also must send those notices to the proper tribal agents and addresses pursuant to statute and regulation.

On Page 115 of its 117-page opening brief in this case, DHHS suggests a concession of the validity of appellants’ contention would have been less time consuming. We agree with that truism, and also believe such a concession would have been the more appropriate resolution of this appeal, in light of the record presented.

We reject the request by R.J. and S.S. for an unlimited remand. On the record of this case, we see no necessity for such an order.

DISPOSITION

The order terminating parental rights is reversed conditionally, and the matter is remanded to the juvenile court with directions to order DHHS to provide the tribes with proper notice of the section 366.26 hearing under ICWA. If, after proper and complete notice, a tribe determines that either R.C. or Q.S. is an Indian child as defined by ICWA, the juvenile court is ordered to conduct a new Welfare and Institutions Code section 366.26 hearing in conformity with all provisions of ICWA. If, on the other hand, no response is received or the tribes determine neither minor is an Indian child, then the juvenile court shall reinstate all previous findings and orders.

We concur: RAYE , Acting P.J., CANTIL-SAKAUYE , J.


Summaries of

In re R.C.

California Court of Appeals, Third District, Sacramento
Mar 10, 2008
No. C055063 (Cal. Ct. App. Mar. 10, 2008)
Case details for

In re R.C.

Case Details

Full title:SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 10, 2008

Citations

No. C055063 (Cal. Ct. App. Mar. 10, 2008)