In re S.A.

Full title: In re S.A. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO…

Court: California Court of Appeals, Fourth District, First Division

Date published: Mar 14, 2011

No. D057703 (Cal. Ct. App. Mar. 14, 2011)

Opinion

In re S.A. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. P.A. et al., Defendants and Appellants. D057703 California Court of Appeal, Fourth District, First Division March 14, 2011

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County No. J517053A-B, Yvonne Esperanza Campos, Judge.

IRION, J.

P.A. and Sierra A. (together, the parents) appeal an order made on June 2, 2010, during the Welfare and Institutions Code section 366.26 hearing in the juvenile dependency case of S.A. and Neveah A. (together, the children). On that date the parents filed Indian Child Welfare Act (ICWA) forms "Notice of Child Custody Proceeding for Indian Child" (ICWA-030 forms). (Cal. Rules of Court, ¹ rule 5.481(a)(4)(A), (b)(1).) In the ICWA-030 forms, the parents declared under penalty of perjury that they had Indian heritage within the meaning of the ICWA (25 U.S.C. § 1901 et seq.).² Citing the late stage of the proceedings; the parents' representation by many attorneys; lack of credibility; prior delay tactics; the fact Indian heritage had not been established for the children's multiple siblings; and the previous thorough ICWA inquires, the court found that its prior ICWA findings were accurate.³

1 All rule references are to the California Rules of Court.

2 The ICWA-030 forms were not complete but listed several tribes.

3 S.A. was born in August 2007 and Neveah was born in August 2008. In April 2008 in S.A.'s case, the parents filed ICWA-020 forms, "Parental Notification of Indian Status" (rule 5.481(a)(2), (3)), in which they declared, under penalty of perjury, that they had no Indian heritage as far as they knew. The court found that ICWA did not apply. In September 2008 in Neveah's case, Sierra testified she had Cherokee heritage and P.A. testified he had Sioux heritage. The court ordered the parents to complete "the long form" (ICWA-030) and submit it to the court. In October 2008 Sierra filed an ICWA-020 form in Neveah's case declaring that Sierra had Cherokee heritage. In October 2009 the court found that ICWA did not apply.

The parents contend that because they swore under oath that they had Indian ancestry, the court erred by determining ICWA inquiry and notice were not required. The parents request a limited remand for further proceedings complying with ICWA notice requirements. The San Diego County Health and Human Services Agency (the Agency) accedes to the request for a limited remand in light of this court's nonpublished opinion in In re Neveah A., D056894 (Oct. 25, 2010). For the reasons stated in that opinion, which also apply to S.A., we conclude this case must be remanded to the juvenile court with directions to ensure ICWA compliance as to both children.⁴

4 We deny the Agency's requests for judicial notice of minute orders, augmentation of the record with addendum reports and dismissal of the appeal as moot.

DISPOSITION

The case is remanded to the juvenile court with directions to vacate its finding that reasonable inquiry was made and notice under ICWA was not required and to instruct the Agency to complete ICWA inquiry and notice. The court shall advise the parents that if the children are determined to be Indian children within the meaning of ICWA, they have the right to petition the court to invalidate any action in violation of 25 United States Code sections 1911, 1912 and 1913. (25 U.S.C. § 1914.)

WE CONCUR: BENKE, Acting P. J., McINTYRE, J.