NICOLE v.
Filed
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(San Joaquin)
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NICOLE K., Petitioner, v. THE Respondent; Real Parties in Interest. | C053987 (Super. |
ORIGINAL PROCEEDINGS: Petition for Writ of Mandate and Request for Stay. John Parker, Judge. Writ issued.
James L. Larsen, Public Defender, Judith K. Hansen and Nelson C. Lu, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Terrence R. Dermody, County Counsel and Lisa S. Ribeiro, Deputy County Counsel, for Real Party in Interest San Joaquin County Human Services Agency.
In this dependency proceeding, we must decide what the remedy is when, after failing to provide notice to a tribe as required by the Indian Child Welfare Act (ICWA), a juvenile court terminates reunification services and schedules a hearing to select a permanent plan for the child.
In re Brooke C. (2005) 127 Cal.App.4th 377 (hereafter Brooke C.) held that orders other than the termination of parental rights may be affirmed despite the lack of ICWA notice, and the matter simply can be remanded to the juvenile court with directions to comply with the notice requirements of ICWA. Brooke C. reasoned that ICWA errors are not jurisdictional and that if, upon remand, the child is determined to be an Indian child, the parent can petition the juvenile court to invalidate the orders it issued in violation of ICWA. (Id. at pp. 384-386.)
We disagree with Brooke C. As we will explain, when there has been a lack of ICWA notice, the juvenile court's orders must be vacated because they are based on different standards than should have been applied if ICWA notice was provided and showed the child is an Indian child. Accordingly, we shall issue a peremptory writ of mandate directing the juvenile court to (1) vacate its orders terminating reunification services and scheduling a permanency planning hearing, and (2) provide the notice required by ICWA. If, after proper ICWA notice, the juvenile court determines that the child is an Indian child, it must conduct new proceedings in conformity with ICWA's provisions. If, however, the court determines that the child is not an Indian child, it shall reinstate the vacated orders.
BACKGROUND
Nicole K. (petitioner), the mother of R.G., G.G., and A.G. (the minors), seeks an extraordinary writ of mandate to vacate orders of the juvenile court terminating her reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452.) She contends that ICWA notice of the dependency proceedings was insufficient. (25 U.S.C. § 1901 et seq.)
In June 2005, petitions were filed by the San Joaquin County Human Services Agency (HSA), alleging the minors had suffered or were at substantial risk of suffering serious physical harm or illness and were at risk of being abused or neglected because, among other things, G.G. tested positive for amphetamines when born, and petitioner tested positive for both amphetamines and marijuana. (Welf. & Inst. Code, § 300, subds. (b) & (j); further section references are to this Code unless otherwise specified.)
Prior to the jurisdictional hearing, petitioner disclosed that the maternal grandmother and grandfather had Cherokee ancestry. In August 2005, ICWA notice was sent to the Bureau of Indian Affairs and to three Cherokee tribes. However, notice to one of the tribes, the United Keetoowah Band of Cherokee Indians, was sent to a post office box in Park Hill,
No response was received from the United Keetoowah Band, although â€
