In re Juan E.

Filed 2/14/07  In re Juan E. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

            APPEAL from an order of the Superior Court of Los Angeles County, Marilyn K. Martinez, Commissioner (pursuant to Cal. Const., art. VI, § 21.)  Reversed with instructions.

            Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

            Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Fred Klink, Senior Deputy County Counsel, for Petitioner and Respondent.

INTRODUCTION

            Samantha E. (mother), mother of 10-month-old Juan E., appeals from the juvenile court's order terminating her parental rights to Juan under Welfare and Institutions Code section 366.26.[1]  Mother contends that the juvenile court's order setting the section 366.26 hearing 56 days after reunification services were denied rather than the 120 days allowed under section 361.5, subdivision (f), effectively prevented her from filing a section 388 petition showing changed circumstances to justify reunification services, thereby violating her due process rights under the United States and California Constitutions.  Mother also contends that the Los Angeles County Department of Children and Family Services (Department) failed to comply fully with the notice requirements of the Indian Child Welfare Act (ICWA or Act).  (25 U.S.C. § 1901, et seq.)  We deny mother's challenge on due process grounds to the termination of her parental rights.  The Department concedes that it did not fully comply with the Act's notice provisions.  Because the Department did not comply fully with those provisions, we reverse the order terminating mother's parental rights and remand this case with directions to the juvenile court to order full compliance.  If, following proper notice under the Act, no Indian tribe chooses to intervene in this case, then the juvenile court is to reinstate the order terminating mother's parental rights.

BACKGROUND

            Mother has given birth to three children, Nykol E. (born in August 2002), Raichel E. (born in March 2005), and Juan (born in March 2006).  In October 2003, Nykol, 13 months old, died from complications after swallowing a penny.  No criminal charges were filed against mother in connection with Nykol's death, but the Department substantiated allegations of severe neglect by mother concerning Nykol's appropriate supervision and medical care.  Regarding Nykol's death, Juan's April 6, 2006, Jurisdiction/Disposition Report states, â€