Filed 11/23/05 In re E.R. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re E. R. III et al., Persons Coming Under the Juvenile Court Law.
MADERA COUNTY DEPARTMENT OF PUBLIC WELFARE, Plaintiff and Respondent, v. E. R. II, Defendant and Appellant.	F048288 (Super. Ct. Nos. BJP014882, BJP014883) O P I N I O N

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Thomas L.

Bender, Judge.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Douglas W. Nelson, Acting County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

E. R. appeals from orders terminating his parental rights to his two young sons. (Welf. & Inst. Code, sec. 366.26.)^[1] He contends respondent Madera County Department of Public Welfare (the department) failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; ICWA). Specifically, despite both parents' claims of Indian heritage and the juvenile court's direction to follow up on these claims, there is no record that the department ever pursued the ICWA issue or gave any notice of the dependency proceedings pursuant to ICWA (25 U.S.C. 1912(a)). The department later represented in a status report that the court made a finding that ICWA did not apply when in fact there was no such finding in the record. The children's mother who volunteered the names of specific Indian tribes has joined appellant's argument in her appeal, F048252, from the termination order.

The department now concedes that it should have given notice at least based on the mother's claims of Indian heritage and its failure to give notice was error. It further admits the orders terminating parental rights must be reversed and the matter remanded with specific directions regarding the ICWA notice issue. Our review of the record also supports appellant's contention. Accordingly, we will reverse and remand with directions as set forth below.

DISPOSITION

The orders terminating parental rights are reversed and the matter remanded. The juvenile court is directed to assure that the department make the necessary inquiry and in turn give notice of the underlying proceedings in compliance with ICWA to the Bureau of Indian Affairs (BIA) and any identified tribes. (25 U.S.C. 1912(a).) The department shall document its efforts to provide notice by filing such documentation and any and all responses received with the trial court. (See In re H.A. (2003) 103 Cal.App.4th 1206, 1214-1215.)^[2] If the BIA or any tribe responds by confirming that the children are or may be eligible for Indian tribal membership within 60 days of sending proper ICWA notice (Cal. Rules of Court, rule 1439(f)(6)), the juvenile court shall proceed pursuant to the terms of ICWA and is hereby authorized to vacate, in whole or in part, any prior finding or order which is inconsistent with ICWA substantive requirements. If, on the other hand, there is no confirmation that the children are or may be eligible for Indian tribal membership, the court shall reinstate its orders terminating parental rights.

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^*Before Harris, Acting P.J., Levy, J., and Cornell, J.

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

^[2] The notice form mentioned in our In re H.A. opinion has been superseded with new forms promulgated by the California Department of Social Services and the California Judicial Council.