Filed 12/3/18 In re Haven S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

John P. Doering, County Counsel, and Jeremy Meltzer, Deputy County Counsel, for Plaintiff and Respondent.

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Appellant Breanne S. (mother), appealed from a judgment terminating her parental rights as to her now one-year-old daughter, Haven S. (Welf. & Inst. Code, § 366.26.)[1] Mother filed an opening brief contending the juvenile court failed to adequately comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Respondent conceded error and stipulated to reversal and an immediate remand with instructions to comply with the ICWA. After reviewing the record, we conclude the juvenile court failed to adequately comply with the ICWA and reverse with the requested directions.

PROCEDURAL AND FACTUAL SUMMARY

Fourteen-month-old Haven was taken into protective custody in June 2017 by the Stanislaus County Community Services Agency (agency) after she was treated in the emergency room for second degree burns on her feet, which were infected for lack of medical care. She also had an unexplained lump on her forehead. Mother and Wyatt, Haven’s father, had a history of drug use, including heroin and cocaine. When mother was interviewed by the social worker about Haven’s injuries, she agreed to drug test and the results were positive for methamphetamine, ecstasy and marijuana. The parents completed the “Parental Notification of Indian Status” (ICWA-020), Wyatt claiming Apache ancestry and mother claiming Cherokee and Potawatomi ancestry.

The agency sent the “Notice of Child Custody Proceeding for Indian Child” (ICWA-030) to all the known Apache, Cherokee and Potawatomi tribes and included the names, addresses and birthdates for the parents, maternal and paternal grandparents and one of the maternal great-grandmothers and the name, birthdate and date of death of a maternal great-grandmother and maternal great-grandfather. There is no information listed for the paternal great-grandparents, even though the social worker spoke to one of the paternal great-grandmothers prior to sending out the notice.

In July 2017, the juvenile court granted the parents reunification services. The court terminated their reunification services at the six-month review hearing in March 2018 and in July 2018 at the section 366.26 hearing found the ICWA did not apply and terminated their parental rights. Only mother appealed.

DISCUSSION

In her sole issue on appeal, mother contends the agency failed to comply with the inquiry and notice requirements of ICWA because it failed to include information about the known paternal great-grandmother on the ICWA-030. Mother requests a limited reversal for full compliance with ICWA. Respondent concedes the error.

A stipulated reversal under Code of Civil Procedure section 128, subdivision (a)(8)(A) is permissible in a dependency case when the parties agree that reversible error occurred, and the stipulated reversal will expedite the final resolution of the case on the merits. (In re Rashad H. (2000) 78 Cal.App.4th 376, 380-382.) The parties agree that insufficient notice was provided under the provisions of ICWA and that reversal of the judgment is appropriate with directions to the juvenile court to make a proper ICWA inquiry. Notice under ICWA must contain sufficient information to determine the child’s direct ancestors. (§ 224.2, subd. (a)(5).) Reversal is, therefore, appropriate given the agency and juvenile court’s failure to provide adequate ICWA notice. Although only mother appealed, the parental rights termination order must be reversed as to both parents. (In re Mary G. (2007) 151 Cal.App.4th 184, 208.)

DISPOSITION

The order terminating parental rights is reversed as to both parents. The juvenile court is directed to order the agency to provide adequate notice which contains information concerning all known relatives pursuant to the provisions of the Indian Child Welfare Act (ICWA). If after proper notice and inquiry, a tribe determines that Haven is an Indian child as defined by ICWA, the juvenile court is directed to conduct a new Welfare and Institutions Code section 366.26 hearing in conformity with the ICWA provisions. If there is no response or the tribes determine that Haven is not an Indian child, the juvenile court is directed to reinstate all previous findings and terminate parental rights. The Clerk/Executive Officer of this court is directed to issue a remittitur immediately. (Cal. Rules of Court rule 8.272(c)(1).)