Opinion
C084945
11-07-2017
In re R.G., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.B., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. STKJVDP20150000315, J07390)
Appellant S.B, mother of the minor, appeals from the juvenile court's orders terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant argues, and the San Joaquin County Health and Human Services Agency (Agency) concedes, that the order terminating parental rights must be conditionally reversed and remanded because the Agency did not comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We agree that conditional reversal for ICWA compliance is required.
Further undesignated statutory references are to the Welfare and Institutions Code.
We note that, under these circumstances, a joint application for reversal also would have been appropriate and would have permitted this court to issue the remittitur forthwith. (Cal. Rules of Court, rule 8.272(c)(1).) --------
I. DISCUSSION
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.) The juvenile court and the Agency have "an affirmative and continuing duty to inquire" whether a child is, or may be, an Indian child. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs if the tribal affiliation is not known. (§ 224.2; see Cal. Rules of Court, rule 5.481(b); 25 U.S.C. § 1912.) 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; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
When this case commenced, appellant stated she had no known Indian ancestry and completed an ICWA-20 form so reflecting. However, it is undisputed that, shortly after reunification services were terminated, appellant completed a new ICWA-20 form stating that she has Cherokee Indian ancestry. The Agency failed to make any subsequent ICWA inquiry or notice the Cherokee tribes and continued to state the ICWA did not apply, referencing appellant's first ICWA-20 form. Accordingly, we must conditionally reverse and remand the case to the juvenile court for further proceedings to address compliance with the inquiry and notice provisions of the ICWA.
II. DISPOSITION
The order terminating parental rights is reversed. The juvenile court is directed to conduct further proceedings limited to the issue of compliance with the provisions of the ICWA. If the juvenile court concludes that notice has occurred and the minor is not an Indian child, the order terminating parental rights shall be reinstated. If, after proper notice to the tribes, the juvenile court determines the ICWA applies because the minor is an Indian child, the juvenile court shall schedule a new section 366.26 hearing and proceed in accordance with the ICWA.
/S/_________
RENNER, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
ROBIE, J.