Opinion
E067155
05-15-2017
In re D.S. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.S., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Adam Ebright, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J263629, J263630, J263631, J263632 & J263633) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Reversed with directions. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Adam Ebright, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
C.S., the mother of the children who are the subject of this dependency, appeals the termination of her parental rights. On appeal, her only contention is that the court failed to comply with the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) In its letter brief filed in response to mother's opening brief, respondent concedes the error. Our own review of the record demonstrates that the concession is warranted. Accordingly, we will reverse the judgment and remand the case so the court can comply with ICWA. In the event no tribe intervenes or the children are determined not to come within the purview of ICWA, the trial court will reinstate the judgment. The parties have agreed to the immediate issuance of the remittitur upon filing of this opinion.
Father was not offered reunification services due to the length of his incarceration. He is not a party to this appeal.
FACTS AND PROCEDURAL HISTORY
Due to the limited nature of this appeal, the facts and procedural history of the case will be stated in a very abbreviated form.
On September 11, 2012, a petition was filed in Los Angeles County alleging the four children came within Welfare and Institutions Code section 300, subdivision (b). During its initial investigation, the social worker discovered and reported to the court that the children might have Native American ancestry with one of the Cherokee tribes through a deceased great-great-grandmother.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On October 23, 2012, at the jurisdictional/dispositional hearing, the court found the allegation true and declared the children to be dependents of the court. The court found that ICWA did not apply. The court then transferred the case to Kern County, where mother had taken up residency with her children.
Thereafter, the case had a somewhat peripatetic existence. The case was transferred back to Los Angeles County. Review hearings were conducted there. At some point, efforts were made to contact two of the three Cherokee tribes, but the efforts were inadequate for various reasons, as conceded by respondent.
On March 20, 2015, a supplemental petition was filed pursuant to section 387, and an initial petition was filed on a newly born fifth sibling. Mother again asserted the possible Cherokee ancestry.
On May 28, 2015, the court conducted a jurisdictional/dispositional hearing on both petitions and found the allegations true. Despite the inadequacy of the ICWA inquiry, the court also found that ICWA did not apply.
At a review hearing conducted on January 5, 2016, the court transferred the case to San Bernardino County. Ultimately, a contested section 366.26 hearing was held as to all five children on September 28, 2016. Mother was not present, but was represented by counsel. Mother's parental rights were terminated over the objection of counsel, and adoption was selected as the most appropriate plan for all of the children.
DISCUSSION
There is a colorable claim that the children may have Native American ancestry. A parent whose parental rights have been terminated may raise lack of ICWA compliance on appeal. (In re B.R. (2009) 176 Cal.App.4th 773, 779-780.) Respondent has conceded that ICWA compliance was inadequate, and our review confirms the error. Where a judgment is challenged for failure to comply with ICWA, the appropriate remedy is a reversal of the judgment terminating parental rights and a limited remand for the court to comply with ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704-710.)
DISPOSITION
The judgment is reversed, and the case is remanded to the trial court for proper compliance with ICWA. If, after proper notice, a tribe claims that any of the children are Indian children, the trial court will proceed in conformity with ICWA. If no tribe intervenes or no tribe claims the children are Indian children within the meaning of ICWA, the judgment terminating parental rights shall be reinstated by the trial court. (In re Francisco W., supra, 139 Cal.App.4th at p. 711.)
The clerk of this court is directed to issue the remittitur immediately pursuant to the parties' stipulation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.