Opinion
C086293
06-27-2018
In re C.W. et al., Persons Coming Under the Juvenile Court Law. EL DORADO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.M. et al., Objectors and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SDP20160026, SDP20160027, SDP20160028)
Appellants R.M. (mother) and C.M. (father) appeal from the juvenile court's orders terminating parental rights and freeing the three minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) They contend the El Dorado County Health and Human Services Agency (Agency) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) by failing to notify the Blackfeet Tribe of the dependency proceedings and failing to include accessible and required family heritage information on the notices it sent to the Cherokee and Apache tribes. The Agency filed a letter in response stating it did not oppose conditional reversal. We agree that conditional reversal for ICWA compliance is required.
Undesignated statutory references are to the Welfare and Institutions Code.
We note that, under these circumstances, a joint application for reversal from the parties also would have been appropriate and would have permitted this court to issue the remittitur forthwith. (See Cal. Rules of Court, rule 8.272(c)(1).)
We have made this observation in at least two recent cases wherein the Agency has chosen this method to concede ICWA error where that is the only error alleged in an appeal from termination of parental rights. (See In re A.N. (Nov. 7, 2017, C084652) [nonpub. opn.] and In re S.L. (Dec. 27, 2017, C085390) [nonpub. opn.].) Nonetheless, the Agency has continued to file letters of nonopposition or concession, in lieu of a more expeditious stipulation for reversal allowing for immediate issuance of the remittitur.
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; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, the ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) A mere suggestion of Indian ancestry is sufficient to trigger the notice requirement. (In re Robert A., at p. 989.) "Notice shall be sent to all tribes of which the child may be a member or eligible for membership . . . " until such time as the child's tribe has been determined. (§ 224.2, subd. (a)(3).) 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 In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
Here, father informed the Agency that he might have Indian heritage with the Cherokee tribe. Although the record does not reflect the conversation the Agency had with mother regarding her Indian heritage, the ICWA notices that were prepared indicated that mother, the maternal grandmother, and the maternal great-grandmother have Indian heritage through the Blackfeet tribe. The ICWA notices that were prepared also indicated that father has Indian heritage through both the Cherokee and Apache tribes.
As prepared, the ICWA notices failed to include the addresses for the maternal grandmother and paternal grandmother (both of whom had Indian heritage according to the notices), and failed to include identifying information for the paternal grandfather, even though that information was available to the Agency. The ICWA notices were sent to the three Cherokee tribes, and later sent to the eight Apache tribes, but were never sent to the Blackfeet Tribe. The juvenile court found the ICWA did not apply.
Because the Agency had reason to know the minors may be eligible for membership or services with the Blackfeet Tribe, notice to that tribe was required. Furthermore, because the Agency had access to the addresses of the maternal grandmother and paternal grandmother and identifying information for the paternal grandfather, and did not include that information, the notices sent to the Cherokee and Apache tribes were incomplete. (See § 224.2, subd. (a)(5)(C).)
DISPOSITION
The orders of the juvenile court terminating parental rights are conditionally reversed, and the matter is remanded to the juvenile court with directions to order the Agency to provide the Cherokee, Apache, and Blackfeet tribes with proper notice of the proceedings under the ICWA. If, after proper notice to the tribes, the minors are determined to be Indian children as defined by the ICWA, the juvenile court must conduct a new section 366.26 hearing in conformity with all provisions of the ICWA. If no response is received or the tribes determine that none of the minors is an Indian child, the juvenile court shall reinstate all previous findings and orders.
BUTZ, J. We concur: RAYE, P. J. ROBIE, J.