In re J.G.

Filed 1/12/07  In re J.G. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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     Deidre G., mother of the minor, appeals from orders terminating her parental rights.  (Welf. & Inst. Code, §§ 366.26, 395; undesignated statutory references are to the Welfare and Institutions Code].)  Appellant contends there was a failure to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C., § 1901 et seq. (ICWA)) and the juvenile court erred in failing to find termination of parental rights would be detrimental to the minor.  Agreeing only with appellant's first contention, we reverse for compliance with the ICWA.

FACTS

     The Department of Health and Human Services (DHHS) filed a petition to remove the newborn minor from appellant's custody in August 2003.  The petition alleged that the minor and appellant tested positive for cocaine when the minor was born, that appellant had a substance abuse problem and she had failed to comply with an informal supervision plan. 

     The court detained the minor, adjudged him a dependent and, in October 2003, ordered services for appellant.  Appellant did not claim Indian heritage at that time. 

     The minor was returned under supervision in March 2004.  However, in July 2004 DHHS removed the minor on a supplemental petition because appellant provided a number of positive drug tests.  The court placed the minor with the maternal aunt once more. 

     At the detention hearing on the supplemental petition, appellant's counsel informed the court appellant had Indian heritage through the maternal grandmother and provided a telephone number to contact her.  Appellant was unable to identify a tribe and the court ordered DHHS to send notice to the Bureau of Indian Affairs (BIA).  A subsequent declaration by the paralegal who sent the notice stated that she had spoken with appellant who stated that the Indian heritage was through the maternal grandfather and provided his name and a partial birthdate.  Appellant told the paralegal she would try to get further information but did not do so.  Notice with the minimal information was sent to the BIA.  Shortly thereafter, the BIA responded that the family had provided insufficient information to make a determination of tribal identity. 

     The report for the disposition hearing recommended offering further services for appellant because it was in the best interest of the minor who was very bonded to appellant.  At the disposition hearing on the supplemental petition, the court ordered additional services for appellant, adopting the recommended finding that the minor was not adoptable because of his close bond and attachment to appellant. 

     An addendum report for the section 366.22 hearing recommended guardianship for the minor because appellant was living with the minor and maternal aunt and the maternal aunt would not pass a homestudy with appellant in the home.  One of the recommended findings stated that appellant had visited the minor regularly and the minor would benefit from continued contact with her.  By April 2005, appellant's performance in services had deteriorated and she did not have stable housing or employment.  At the section 366.22 hearing, the court terminated services and set a section 366.26 hearing to assess guardianship as a permanent plan, finding by clear and convincing evidence that it would be detrimental to terminate parental rights because appellant had maintained regular visitation with the minor who would benefit from continued contact with her. 

     The assessment for the section 366.26 hearing identified the minor's current relative caretaker as the proposed guardian but noted that another maternal aunt was interested in adopting him.  Appellant had not contacted the social worker in four months. 

     A supplemental report in November 2005 stated that appellant was now living with the maternal grandfather and was working full time.  The social worker spoke to the maternal grandfather to verify appellant lived there but did not discuss his possible Indian heritage. 

     In January 2006, DHHS filed a petition to change the minor's placement to the home of the maternal aunt who wished to adopt him.  The court granted the petition.  Upset about the change, appellant absconded with the minor during a visit, shoving aside the current caretaker and the maternal grandfather as she left.  Appellant hid the minor with a friend then returned and took paperwork which showed the current caretaker was legally entitled to custody of the minor, making it necessary for law enforcement to place the minor in the receiving home until DHHS could be contacted.  The social worker reduced visitation to once a month.  At appellant's request, the court increased visits to twice monthly. 

     At the section 366.26 hearing, appellant presented no evidence but argued that, based upon the prior findings recommended by DHHS and adopted by the court, that there was an exception to the preference for adoption and it would be detrimental to the minor to terminate her parental rights.  The court concluded that the type of bond apparent from the evidence was not such as to outweigh the benefit to the minor of the permanence of adoption and terminated parental rights, finding no detriment in doing so. 

DISCUSSION

I

     Appellant contends the juvenile court failed to comply with the notice and substantive provisions of the ICWA.

     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.)  The juvenile court and DHHS have an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child.  (Cal. Rules of Court, former rule 1439(d), now rule 5.664(d).)  If, after the petition is filed, the court â€