In re Taylor H.
Filed 10/25/07 In re Taylor H. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re TAYLOR H., a Person Coming Under the Juvenile Court Law. | |
S.D. COUNTY HEALTH & HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ALLEN H., Defendant and Appellant. | D050776 (Super. Ct. No. NJ13648E) |
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Reversed and remanded with directions.
Allen H. appeals following the dispositional hearing in the dependency case of his child Taylor H. Allen contends notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) was insufficient because complete notices, proofs of service, and return receipts were not filed with the juvenile court, and therefore the court erred by sustaining the petition and ordering Taylor remain in out-of-home care. The San Diego County Health and Human Services Agency (the Agency) properly concedes the point. Allen's counsel, Taylor's counsel and the Agency's counsel have filed a stipulation for immediate issuance of the remittitur, which we accept. (Cal. Rules of Court, rule 8.272(c)(1).)
BACKGROUND
On March 13, 2007, just weeks after Taylor's birth, the Agency filed a dependency petition that alleged there were narcotics and a loaded handgun in areas of the family home accessible to her. Taylor's mother, Connie W., absconded with her, and the court issued a detention order. In early April Taylor was located and detained. On April 23 the court entered a true finding on the petition, declared Taylor a dependent, ordered her placed with a relative, and found the ICWA did not apply.
Allen's paternity questionnaire, filed on March 13, 2007, stated he might have American Indian heritage through the Cherokee tribe. The Agency's jurisdictional and dispositional report filed on March 29 stated that on March 25, it sent notices to the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians,[1]and the Bureau of Indian Affairs (BIA). None of the notices are in the record. The jurisdictional and dispositional report also stated that Taylor's maternal grandmother, A.M., said she was one-eighth Apache but not registered with the tribe, and "[n]otices to the Apache Tribe will be done and submitted . . . ."
The Agency's addendum report filed on April 4, 2007, stated that on March 15[2]it sent notices to the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, and the BIA. The Agency said that it had received responses from the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians in Oklahoma and the BIA. Attached to the addendum report are certified mail receipts for notices sent to Allen, Connie, the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians and the BIA. Responses are also attached to the report. The response of the United Keetoowah Band of Cherokee Indians, dated March 21, states a search of its enrollment records, with the information supplied, disclosed no evidence Taylor was descended from anyone on the Keetoowah Roll, so she was not a member and not eligible for enrollment and the United Keetoowah Band of Cherokee Indians would not intervene. The response of the Cherokee Nation, dated April 3, stated Taylor could not be traced in tribal records through Allen, Connie or A., so based on the information provided,[3]Taylor would not be considered an Indian child and the Cherokee Nation was not empowered to intervene. The response of the BIA, dated April 9, stated it depended on the family's information and the Agency's investigation to help identify tribal heritage, and asked the Agency to "review with the family to determine if any tribes would be the tribe of their heritage."
The only further information regarding Apache tribes is a letter filed May 24, 2007, from the Mescalero Apache Tribe[4]stating Connie, A.and Marie G.[5]are not members, so Taylor was not eligible for enrollment or recognition and the Mescalero Apache Tribe did not wish to intervene.
DISCUSSION
It is apparent from the responses to the ICWA notices that the notices sent were incomplete. Furthermore, none of the notices or return receipts were filed with the juvenile court. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; In re Karla C. (2003) 113 Cal.App.4th 166, 175-179.)
DISPOSITION
The dispositional judgment is reversed. This case is remanded to the juvenile court with directions to order the Agency to give proper ICWA notice to any applicable tribes and the BIA and file all required documentation with the court. If, after proper
notice, no tribe indicates that Taylor is an Indian child, the court shall reinstate the judgment. The remittitur is to issue forthwith.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
HUFFMAN, J.
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[1] The official names of these tribes are Cherokee Nation, Oklahoma; Eastern Band of Cherokee Indians of North Carolina; and United Keetoowah Band of Cherokee Indians in Oklahoma. (72 Fed.Reg. 13648 (March 22, 2007).)
[2] The record does not explain the discrepancy between the different dates in the two reports.
[3] Apparently, A.'s birth date was not provided.
[4] The official name of this tribe is Mescalero Apache Tribe of the Mescalero Reservation, New Mexico. (72 Fed.Reg. 13648 (March 22, 2007).) It is just one of several Apache tribes.
[5] The record does not say who Marie G. is.
