In re Zachary T.
Filed 6/8/07 In re Zachary T. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re ZACHARY T., a Person Coming Under the Juvenile Court Law. | |
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. WENDY T., Defendant and Appellant; JERRY T., Defendant and Respondent. | G038023 (Super. Ct. No. DP012327) O P I N I O N |
Appeal from an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Reversed and remanded with directions. Request for judicial notice. Granted.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendant and Respondent.
No appearance for the Minor.
* * *
Introduction
Wendy T., mother of three‑year‑old Zachary T., appeals from the juvenile courts order terminating her parental rights. The sole issue on appeal is the failure to provide notice under the Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.) (ICWA). The Orange County Social Services Agency (SSA) concedes ICWA notice was not given, but argues the error was harmless since notice was given in a separate dependency proceeding involving Zacharys older siblings. Based on the record before us, we cannot conclude the failure to provide ICWA notice was harmless, since we do not know that no additional information regarding Zacharys Indian heritage would have been provided, which was not provided in connection with the ICWA notice for his siblings. Therefore, we reverse and remand with directions to the juvenile court to ensure proper ICWA notice is given. If, after notice is given, there is no response showing that Zachary is an Indian child, the order terminating parental rights shall be reinstated.
Statement of Facts[1]
Wendy (mother) and Jerry T. (father) are the parents of Brandon T., Troy T., and Zachary. Zachary was detained by SSA in September, at the age of 17 months. At that time, Brandon and Troy were dependent children of the juvenile court, and had been since July 2001.
At Zacharys detention hearing on September 27, 2005, mother advised the juvenile court her grandmother was a full-blooded Shawnee. Mother also advised the court that although her grandmother was no longer alive, her aunt Ilene M. might have more information about her Indian heritage. Father told the court he had Cherokee heritage on his fathers side, but did not know who might have more information about his Indian heritage.
The juvenile court directed mother and father to provide SSA with any information they had regarding their Indian heritage. The court noted it had previously made a finding that ICWA did not apply to Brandons and Troys cases. The court nevertheless found ICWA might apply to Zacharys case and directed SSA to follow up on any new information from mother and father. SSA agreed to renotice the tribes although their previous responses stated Brandon and Troy were not eligible for membership in any tribe.
Despite its agreement to do so, SSA did not provide further notice to any tribe regarding Zachary. At the permanency hearing on October 25, 2006, the juvenile court terminated the parental rights of mother and father. Mother appealed.
Discussion
Once a juvenile court has reason to know a dependent child might be an Indian child, notice must be given to the Indian childs tribe (25 U.S.C. 1912(a)), and the tribe must be afforded an opportunity to intervene or request a transfer of the case to the tribal court (id., 1911(b) & (c)). SSA concedes it did not provide notice to any tribe regarding Zacharys dependency proceedings.
SSA, however, argues its error in failing to provide notice was harmless, because (1) ICWA notice was provided in Brandons and Troys cases; (2) the tribes to which notice was sent in Brandons and Troys cases had concluded they were not eligible for tribal membership; (3) the juvenile court had concluded ICWA did not apply in Brandons and Troys cases; and (4) Zachary has the same parents as Brandon and Troy. An ICWA notice violation is harmless when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions of the ICWA would not have applied [citations]. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
In this case, we cannot say that Zachary would not have been found to be an Indian child if notice had been given. The appellate record in this case does not show what information was provided to any tribes in Brandons and Troys cases. At the detention hearing in Zacharys case, mother identified by name an aunt who might have more information about mothers grandmothers Indian heritage. Even if mothers aunt had been contacted at the time ICWA notices were sent out in Brandons and Troys cases, it is possible that she might, in the meantime, have developed or remembered more information that would be relevant to a determination of Zacharys eligibility for tribal status. Reversal of the juvenile courts order terminating parental rights, with a limited remand to provide ICWA notice, is necessary.
SSA filed a request for judicial notice, asking this court to take judicial notice of (1) three stipulations filed with the juvenile court in Brandons and Troys cases; (2) three minute orders filed in Brandons and Troys cases; and (3) the unpublished opinion of this court, affirming the order terminating mother and fathers parental rights to Brandon and Troy. The juvenile court in Zacharys case took judicial notice of all orders, findings of fact, and conclusions of law in Brandons and Troys cases. Pursuant to Evidence Code section 459, subdivision (a), we take judicial notice of exhibits A through G, attached to SSAs request for judicial notice. However, these materials do not affect our analysis or our conclusion, because they only show that ICWA documentation was provided to the court; they do not show what information was provided by SSA to the tribes, or what responses SSA received.
Disposition
The order terminating parental rights is reversed, and the matter is remanded to the juvenile court with directions to ensure that proper notice is given under ICWA. If, after proper notice, no response is received showing that Zachary is an Indian child, the order terminating parental rights shall be reinstated. If it is determined that Zachary is an Indian child, the juvenile court shall conduct a new permanency hearing under Welfare and Institutions Code section 366.26, at which any and all involved tribal entities may participate fully.
In the interests of justice, the remittitur shall issue immediately.
FYBEL, J.
WE CONCUR:
SILLS, P. J.
ARONSON, J.
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[1] Because the only issue before us is the lack of ICWA notice, we need not detail the facts leading to Zacharys detention, mothers and fathers performance of their case plans, or the courts findings at the permanency hearing.
