In re S.E.
Filed 8/30/07 In re S.E. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re S.E. et al., Persons Coming Under the Juvenile Court Law. | |
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. JAMIE E., Defendant and Appellant. | E042356 (Super.Ct.No. INJ17307) OPINION |
APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Affirmed in part; reversed in part with directions.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
I. INTRODUCTION
Jamie E. (mother) appeals from an order of the juvenile court terminating her parental rights to S.E. and B.B. (the children) under Welfare and Institutions Code[1]section 366.26. Her sole issue on appeal is that the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Counsel for the children has joined in mothers argument.
II. FACTS AND PROCEDURAL BACKGROUND
In August 2005, the Riverside County Department of Public Social Services (Department) filed a petition alleging that then 23-month-old S.E. and one-month-old B.B. came within section 300, subdivisions (b) and (g). Specifically, the petition alleged that mother used inappropriate discipline with S.E., had an unresolved history of substance abuse, and failed to obtain proper medication for B.B.s thrush infection.
The detention report stated, The Indian Child Welfare Act does or may apply. The mother informed this social worker that there might be Native American Ancestry on the paternal side of her family[;] however, she was unable to provide specific information. At the detention hearing, mothers counsel indicated mother believed she might have some Indian background in her family, not sure what tribe or which relative . . . . The court inquired of the maternal grandmother, who was present at the hearing, whether she knew the Indian issues, and the maternal grandmother replied, Too far back. Mothers counsel added, Maybe very distant, remote. The court stated, Well say no, and determined that the ICWA did not apply. The court ordered the children detained.
The petition was amended to delete the allegations of inappropriate discipline and failure to obtain medical care for B.B. At the jurisdiction/disposition hearing, the court found the allegations of the petition to be true as amended and found that the children came within section 300, subdivisions (b) and (g). The court ordered the children removed from mothers custody and ordered that mother participate in reunification services.
In the status review report filed on February 22, 2006, the social worker stated that mother had failed to comply with her reunification plan, although she did maintain regular visitation with the children.
The juvenile court ordered that mothers reunification services be terminated and set a permanency planning hearing under section 366.26.
Mother continued to visit the children weekly. Mother gave birth to another child in September or October 2006. By January 2007, the children seemed indifferent to mothers presence during visits.
At the section 366.26 hearing, the juvenile court found the children adoptable and ordered that mothers parental rights be terminated.
III. DISCUSSION
Mother contends the juvenile court failed to comply with the inquiry and notice requirements 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 ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court,[2]rule 5.664(d).)
The duty to provide notice under the ICWA arises when the court knows or has reason to know that an Indian child is involved. (25 U.S.C. 1912(a); rule 5.664.) For purposes of the ICWA, an Indian child is one who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. 1903(4); rule 5.664(a)(1)(A), (B).) The court has reason to know a child might be an Indian child if, among other things, [a] person . . . informs the court or the county welfare agency . . . or provides information suggesting that the child is an Indian child[.] (Rule 5.664(d)(4)(A).) In addition, section 224.3, subdivision (b), provides in part, (b) The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the childs extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the childs biological parents, grandparents, or great-grandparents are or were a member of a tribe. . . .
Once the ICWA notice provisions are triggered, notice must be sent to the Indian childs tribe, and, if the tribe is unknown, to the Bureau of Indian Affairs (BIA). (25 U.S.C. 1912(a); rule 5.664(f).) The BIA and the tribe have the right to determine whether a child is an Indian child. (In re Junious M. (1983) 144 Cal.App.3d 786, 794.)
Courts have repeatedly held that only a hint or suggestion of Indian ancestry is required to trigger the ICWA notice requirements. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 549 [The determination of a childs Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408.) In In re Antoinette S., for example, the court held that the fathers statement that he believed his deceased maternal grandparents might have had Indian ancestry, without identifying a tribe or the birthdates, birthplaces, tribal affiliations, or enrollment statuses of the deceased maternal grandparents, was sufficient to trigger the ICWA notice requirements. (Id. at pp. 1405-1408.) As the court explained in Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257, We agree that [t]o maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child. [Citation.]
The facts of this case are substantially similar to those of In re Antoinette S., supra, 104 Cal.App.4th 1401. We therefore conclude the court erred in failing to direct the Department to provide notice to the BIA, as required when no specific tribe has been identified. (25 U.S.C. 1912(a); rule 5.664(f).) Although the failure to comply with the notice requirements of the ICWA is subject to reversal, only a conditional remand is necessary to ensure compliance. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 710-711.)
IV. DISPOSITION
The juvenile court is directed to order the Department to give notice to the BIA in compliance with the ICWA and related federal and state law. Once the juvenile court finds that there has been substantial compliance with the notice requirements of the ICWA, it shall make a finding with respect to whether the children are Indian children. (See rule 5.664(f)(6), (g)(4).) If at any time within 60 days after notice has been given there is a determinative response that the children are or are not Indian children, the juvenile court shall find in accordance with the response. If there is no such response, the juvenile court shall find that the children are not Indian children. (Rule 5.664(f)(6), (g)(1), (g)(4).) If the juvenile court finds that the children are not Indian children, it shall reinstate the original orders entered after the section 366.26 hearing. If the juvenile court finds that the children are Indian children, it shall set a new section 366.26 hearing and
conduct all further proceedings in compliance with the ICWA and related federal and state law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] All further references to rules are to the California Rules of Court.
