In re John S.
Filed 8/7/07 In re John S. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re JOHN S., a Person Coming Under the Juvenile Court Law. | |
TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. WAYNE S., Defendant and Appellant. | F052119 (Super. Ct. No. JJV059222A) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Hugo Loza, Commissioner.
Kimball J.P. Sargeant, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and Konstantine Demiris, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Wayne S. appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26) to his son John.[1] Appellant contends the order must be reversed because, at an earlier stage of the proceedings, the court and respondent Tulare County Health and Human Services Agency (the agency) failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; ICWA). The agency concedes it did not comply with the notice requirements and requests a limited remand. On review, we will reverse and remand the matter to assure compliance with ICWA notice requirements.
DISCUSSION[2]
In its February 2005 detention report, the agency advised ICWA might apply inasmuch as Johns mother reported she had Cherokee and Cheyenne heritage. For his part, appellant denied any Indian heritage. The social worker assigned to the case, however, did not complete an ICWA notice form, JV-135 -- Notice of Involuntary Child Custody Proceedings for an Indian Child, because she did not have the necessary information. This Judicial Council form provides notice of the dependency proceedings and the rights available under ICWA as well as heritage information on the child and other information which might be helpful in tracing the childs ancestry.
At the detention hearing, the court questioned the mother about possible Indian heritage and she claimed to be uncertain. When asked what made her think she might have Indian heritage, the mother replied My parents said that they were Cherokee and Cheyenne. She could offer no further details.
Although the court appeared skeptical, it ordered the social worker to follow up on that to see if there is any heritage. Its minute order following the hearing stated in relevant part At this time, Court find no reason to believe ICWA is applicable but the Social Worker is to inquire further with Cherokee or Cheyanne [sic].
The record is silent regarding any further investigation by the agency. In addition, there is no record that the agency ever completed and served ICWA notice on the Bureau of Indian Affairs (BIA) or any federally-recognized Cherokee or Cheyenne tribe. Indeed, in its next report and virtually all of its subsequent reports, the agency alleged the court found, at the February detention hearing, that ICWA did not apply to John.
Ordinarily, we would deem appellants complaint waived given his failure to raise it, in a timely fashion, by way of appeal from the courts March 2005 dispositional order removing John from parental custody. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185.) However, in view of respondents concession that it in fact failed to comply with the courts order, we have deemed the appeal timely. We further agree with the parties that the mothers claim of Cherokee and Cheyenne heritage triggered the need to comply with ICWA notice requirements. (25 U.S.C. 1912(a); In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) Further, given the agencys noncompliance, we must reverse and will issue a limited remand (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706).
Since 2005 when the Indian heritage issue first arose in the underlying proceedings, our state legislature has incorporated ICWA into the code, commencing at section 224, and, in some instances, may have provided an even higher standard of protection than the rights under the federal act ( 224, subd. (a)). Accordingly, on remand, the court must proceed not only according to the dictates of ICWA but also the the relevant California notice requirements, in particular sections 224.2 and 224.3.
DISPOSITION
The order terminating parental rights is reversed and the case is remanded for a limited remand. The superior court is hereby directed to promptly assure that an inquiry is conducted pursuant to section 224.3, subdivisions (a)-(c) based on the mothers claim of Indian heritage. If the court or the agency knows or has reason to know that an Indian child is involved, the agency shall provide notice in accordance with section 224.2 and in compliance with ICWA to the BIA and any identified tribes. In the event the BIA or any tribe responds by confirming that the child is or may be eligible for membership within 60 days of sending proper notice under ICWA and section 224.2, the court shall proceed accordingly and is hereby authorized to vacate, in whole or in part, any prior finding or order which is inconsistent with ICWA requirements. If there is no confirmation that the child is or may be eligible for Indian tribal membership within 60 days after proper and adequate notice has been received, the court shall reinstate immediately the order terminating parental rights.
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*Before Vartabedian, Acting P.J., Wiseman, J., and Kane, J.
[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] Given the narrow focus of this appeal and the agencys concession of error, we need not recite in detail the procedural and factual history of the childs dependency.
