In re Camilia L.

Filed 8/6/07 In re Camilia L. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Eric R. appeals an order of the juvenile court terminating his parental rights to Camilia L. (Welf. & Inst. Code,  366.26, subd. (c)(1).)^[1]He argues that the Ventura County Human Services Agency (HSA) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C.A.  1901 et seq.) HSA acknowledges that it erred in complying with the ICWA and is attempting to cure the error. We reverse and remand for the limited determination of whether the ICWA applies.

FACTS

Because the parties agree that the matter must be remanded on the single issue of ICWA compliance, we present only a brief recitation of the facts. Camilia L. is the child of Eric R. (father) and Maria L. (mother.) Mother is not a party to this appeal. Camilia was removed from the home and HSA filed an amended dependency petition, alleging six counts of failure to protect and three counts of abuse of a sibling. A detention hearing was held and the juvenile court set an uncontested jurisdiction and disposition hearing for May 22, 2006. Camilia was placed in foster care.

Prior to Camilia's detention, mother told HSA that she did not have any American Indian Ancestry and filed Judicial Council Form JV-130 (Parental Notification of Indian Status) to this effect. Mother stated that Camilia might have Indian background through Eric R. He first indicated that he did not have Indian ancestry, but, at the detention hearing, indicated he might have such ancestry.

HSA submitted a jurisdiction and disposition report recommending the bypass of reunification services to mother and father. ( 361.5, subds. (b)(10), (11) & (13).) At a contested jurisdiction and disposition hearing, the court sustained the allegation of the amended section 300 petition, bypassed reunification services and set a section 366.26 hearing for October 16, 2006.

HSA filled out a Judicial Council form JB-135 (Notice of Involuntary Child Custody Proceedings For An Indian Child). However, the information on the form was incomplete, certain tribes were not contacted, and HSA failed to obtain return receipts showing service. HSA nevertheless concluded that the ICWA did not apply. At a contested section 366.26 hearing, the juvenile court terminated parental rights and selected adoption as a permanent plan. It found that ICWA did not apply.

Father filed an appeal, claiming that HSA had failed to comply with ICWA requirements. On May 14, HSA requested a continuance of a May 15 hearing until July 10, 2007, to allow it to complete its efforts to determine whether Camilia L. is an Indian child under the ICWA. The court granted its request.

DISCUSSION

The ICWA sets forth procedural and substantive standards regarding Indian children in state dependency proceedings. (In re H.A. (2002) 103 Cal.App.4th 1206, 1210.) The ICWA requires that "'[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.' (25 U.S.C. 1912(a).)" (Ibid.) In the event the identity or location of the Indian tribe cannot be determined, the moving party shall notify the Secretary of the Interior. (Id. at p. 1211.) The purpose of the notice is to allow the Indian tribe to determine the dependent child's Indian ancestry. (Id. at p. 1210.)

California recognizes the ICWA's notice requirements, both in statutes and by court rule. (See 290.1-297; Cal. Rules of Court, rule 5.664.) To satisfy the notice provisions of the ICWA and to provide a proper record for the juvenile court and appellate courts, the social services agency should follow a two-step procedure. (In re Marinna J. ( 2001) 90 Cal.App.4th 731, 739, fn. 4.) First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Ibid.) Second, it should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to the BIA. (Ibid.) Both the juvenile court and the county child welfare department have an affirmative duty to inquire about a child's Indian status whenever a section 300 petition is filed. (Cal. Rules of Court, rule 5.664(d); In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)

DISPOSITION

The judgment is reversed and the matter is remanded to determine whether the ICWA applies. If the juvenile court determines, after proper notice and inquiry, that the ICWA does not apply, it shall reinstate the order and judgment terminating parental rights.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant Eric. R.

Noel A. Klebaum, County Counsel, Oliver G. Hess, Assistant County Counsel for Plaintiff and Respondent.

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^[1]All further statutory references are to the Welfare and Institutions Code.