Filed 3/29/18 In re D.B. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


In re D.B., a Person Coming Under the Juvenile Court Law.

SONOMA COUNTY HUMAN SERVICES DEPARTMENT,
Plaintiff and Respondent,
v.
S.B.,
Defendant and Appellant.




A151003

(Sonoma County
Super. Ct. No. 4825-DEP)


S.B. (Mother) appeals the juvenile court’s order terminating parental rights over D.B. (Minor). Her sole challenge on appeal is the agency failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA). We reverse.
BACKGROUND
In February 2016, the Sonoma County Human Services Department (the Department) filed a Welfare and Institutions Code section 300 petition regarding Minor, then three years old. The petition included an attachment providing Mother “states she is a registered Cherokee” and “identified two tribes that she is registered with; South Eastern Cherokee Tribe and Lakotasouis.” Mother completed an ICWA form identifying ancestral tribal membership in the “Lakota Sioux” and “Cherokee” tribes.
Minor’s maternal grandmother was present at the initial hearing and the juvenile court asked her if she had Native American relatives. The maternal grandmother responded: “My mother and my father both who are deceased. My Mother came from the Rosebud Reservation in South Dakota and my father came from the White Mountain Apache Reservation in New Mexico.” With respect to the former, Mother clarified, “Rosebud is the town or the reservation itself. Lakota is what we are called.”
The maternal grandmother also stated, “When a native child parents’ pass on, they can be adopted to a different tribe. And I have been adopted to the Southeastern Cherokee tribe as are my children and my grandsons as well.” Mother provided the Department with a copy of her membership card in the Southeastern Cherokee Council. The Department subsequently reported that the Southeastern Cherokee Council was not a federally recognized tribe, and the juvenile court took judicial notice of this fact.
The Department mailed ICWA notices to the Rosebud Sioux Tribe, the White Mountain Apache Tribe, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, and Cherokee Nation, as well as to the Bureau of Indian Affairs. Each of the tribes responded that Minor was not eligible for enrollment. In June 2016, the juvenile court found ICWA does not apply. On February 2, 2017, the juvenile court terminated parental rights and ordered a permanent plan of adoption.
DISCUSSION
Mother argues the ICWA notice was insufficient because the Department failed to notify all federally recognized Sioux and Apache tribes. We agree.
Section 224.2, subdivision (a)(3), provides ICWA notice “shall be sent to all tribes of which the child may be a member or eligible for membership . . . .” “ ‘ “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.” ’ ” (In re O.C. (2016) 5 Cal.App.5th 1173, 1181.) “[A] challenge to ICWA notice compliance is not forfeited due to a failure to object in the trial court.” (In re J.T. (2007) 154 Cal.App.4th 986, 991.)
In In re J.T., the mother “identified her possible Indian heritage as Sioux and Cherokee.” (In re J.T., supra, 154 Cal.App.4th at p. 992.) Although there were 16 federally recognized Sioux tribes, the county did not provide notice to all of these tribes. (Ibid.) This court reversed, concluding section 224.2, subdivision (a)(3)’s “phrase ‘all tribes’ of which [the minors] may be members or eligible for membership is best understood as referring to all federally recognized Sioux and Cherokee tribes,” and the county was thus required to send ICWA notice to all such tribes. (In re J.T., at pp. 993–994.)
In In re S.B. (2008) 164 Cal.App.4th 289, the county learned the paternal great-grandfather was Mescalero Apache and provided notice to that tribe. (Id. at p. 294.) The Court of Appeal held the notice was insufficient because “the record contains no information that would allow us to conclude a dependent child whose paternal grandmother’s heritage was Mescalero Apache on the grandmother’s father’s side (Arizona, circa 1895) was not a member of or eligible for membership in any other Apache tribe.” (Id. at p. 303.) Similarly, in In re O.C., the father identified Native American ancestry in the Pomo tribe (among others), later specifying he “was enrolled as a child in the Round Valley tribe” and his father “was possibly a member of the Covelo tribe.” (In re O.C., supra, 5 Cal.App.5th at p. 1178–1179.) The county sent ICWA notice to the Round Valley Tribe of Pomo Indians located in Covelo, California, and to one other Pomo Indian tribe; there were 20 additional federally recognized Pomo-affiliated tribes. (Id. at pp. 1179, 1181.) The Court of Appeal reversed, finding “the trial court erred in failing to require notice to the remaining Pomo-affiliated tribes.” (Id. at p. 1188.)
Minor’s maternal grandmother said one of her parents lived on the Rosebud reservation and the other lived on the White Mountain Apache reservation, but she did not identify their specific tribal affiliation and there was no evidence that Native Americans living on these reservations could only be members of the Rosebud Sioux Tribe and the White Mountain Apache Tribe, respectively. The Department does not dispute that there are additional federally recognized Sioux and Apache tribes. (See 81 Fed.Reg. 10887 (Mar. 2, 2016).) Accordingly, under section 224.2, subdivision (a)(3) and the cases discussed above, the Department was required to provide notice to the remaining Sioux and Apache tribes.
DISPOSITION
The order of February 2, 2017 is reversed. The case is remanded to the juvenile court with directions to order the Department to notice the remaining Sioux and Apache tribes in accordance with ICWA. If, after proper notice, the court finds that Minor is an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA. If, after proper notice, the court finds that Minor is not an Indian child, the order terminating parental rights and selecting adoption as the permanent plan shall be reinstated.







SIMONS, J.



We concur.




JONES, P.J.




NEEDHAM, J.





(A151003)