In re Aniya L.
Filed 9/23/08 In re Aniya L. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
In re ANIYA L., a Person Coming Under the Juvenile Court Law. | B204932 |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TERENCE L., Defendant and Appellant. | (Los Angeles County Super. Ct. No. CK54565) |
APPEAL from orders of the Los Angeles County Superior Court, Juvenile Division. Emily Stevens, Judge. Reversed and remanded with directions.
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, and Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.
____________________________________
The juvenile dependency court entered orders terminating fathers parental rights over his daughter. Fathers sole argument on appeal is that the dependency courts orders were entered without strict compliance with the Indian Child Welfare Act or ICWA. (25 U.S.C. 1901 et seq.) We agree with father, and conditionally vacate the dependency courts orders, with directions to the court to assure strict compliance with the ICWA.
FACTS
Aniya L. was born in February 2005. Aniyas mother, Ashley B., was herself a dependent child of the juvenile court at the time Aniya was born. Ashley also had given birth to a previous child who was already a dependent child of the juvenile court when Aniya was born.
In late June 2005, a social worker from the Department of Family and Children Services (DCFS) met with Ashley to discuss Aniyas medical condition and records. The social worker directed Ashley to take Aniya to a doctor to get her weight assessed. On July 1st, the social worker met with Ashley again. Ashley stated that she had taken Aniya to a doctor, but did not have any documentation to confirm her story.
On July 7, 2005, DCFS filed a petition on Aniyas behalf. (Welf. & Inst. Code, 300.) The petition alleged that Ashley had failed to provide Aniya with routine medical care, and that Ashley had failed to reunify with another child who had been declared a dependent child of the juvenile court. DCFSs detention report indicated that the whereabouts of Aniyas father were unknown, and that Ashley had stated that he was incarcerated.
At a hearing on July 29, 2005, Ashley identified Terence L. as Aniyas father. Based on Ashleys representations that she and Terence were not married when Aniya was born, that he did not go to the hospital when Aniya was born, and that his name was not on her birth certificate, the dependency court found that Terence was Aniyas alleged father only. During the same hearing, Ashley indicated that she believed she had Native American heritage on her mothers side, but did not know any tribe, and the court ordered DCFS to send an ICWA notice to the Bureau of Indian Affairs.
In August, DCFS separately interviewed Ashley and Terence both of whom were incarcerated at the time.[1] Ashley stated that the Indian heritage was on the paternal side of the family. Terence stated that his great-great grandmother had Cherokee Indian heritage.
In late August 2005, DCFS mailed ICWA notices to the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, the Bureau of Indian Affairs, the Cherokee Nation of Oklahoma, and the Department of the Interior Office of Tribal Services. In September 2005, DCFS filed a report which included information regarding the ICWA notices which had been sent; the report included signed mail receipts from the United Keetoowah Band of Cherokee Indians, the Bureau of Indian Affairs, and the Cherokee Nation of Oklahoma, but not from the Eastern Band of Cherokee Indians or the Department of Interior.
On September 6, 2005, Ashley waived her rights and submitted the petition on the basis of the social workers reports, and the dependency court sustained the petition. The courts disposition plan included education and counseling for Ashley, and orders for paternity testing to determine whether Terence was Aniyas biological father. Because Terence remained an alleged father only, the court ordered no reunification services on his behalf.
At a review hearing in December 2005, the dependency court found that notice of proceedings ha[d] been given to all appropriate parties as required by law. DCFSs subsequent reports indicated that the ICWA did not apply.
In July 2006, DCFS reported that DNA testing confirmed that Terence is Aniyas biological father. In September 2006, Terence filed a section 388 petition in which he requested presumed father status and to have Aniya placed with a paternal aunt. On September 5, 2006, the dependency court set Terences section 388 petition on calendar for hearing. On October 10, 2006, the court terminated reunification services. At the same hearing, the court denied Terences section 388 petition, finding that he would still probably not be entitled to reunification services under the circumstances, given the length of time that hes going to be incarcerated, and that he had not maintained any contact with Aniya, and that he had no relationship whatsoever with Aniya, that a change the placement . . . would not be in [Aniya]s best interest.
On December 4, 2007, the court terminated Terences parental rights, from which Terence appealed.[2]
DISCUSSION
Terence contends, DCFS concedes, and we agree that the requirements of the ICWA were not strictly followed.
The purpose of the ICWA is to protect the rights of Indian children and promote the stability and security of Indian tribes and families. In order to ensure a tribe is given an opportunity to intervene on behalf of an Indian child during a dependency proceeding, the ICWA requires where the court knows or has reason to know that an Indian child is involved DCFS to notify the Indian childs tribe of the pending proceedings and its right to intervene in the proceeding. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) Where the identity or location of the tribe cannot be determined, notice must be given to the Secretary of the Interior. The notice requirement is a key component of ICWAs legislative goals. (Ibid.) For this reason, the ICWA requires actual notice to the tribe both of the pending proceedings and of the tribes right to intervene. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) The dependency court is not to order foster care placement or termination of parental rights until the court has received proof that the appropriate Indian tribes and/or the Secretary of the Interior have been notified of the proceeding. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
Since Terence informed the social worker that his great-great grandmother was of Cherokee decent, it was DCFSs duty to inform all potential tribes of the proceeding involving Aniya, and to provide the dependency court with proof that the notices had been received. DCFS submitted mail receipts from some of its ICWA notices, but did not submit mail receipts from either the Eastern Band of Cherokee Indians or the Department of the Interior. DCFS acknowledges notice to the former was sent to the wrong address. Since proof of proper notice was not submitted to the dependency court, the case must be remanded to the juvenile court so proper notice can be given. (In re Nikki R., supra,106 Cal.App.4th at p. 848; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 237; In re H.A. (2002) 103 Cal.App.4th 1206, 1215; In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1109; In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)
DISPOSITION
The juvenile dependency courts orders terminating Terences parental rights are vacated, and the matter is remanded to the court with directions to assure compliance with the ICWAs notice provisions. If, after proof of proper notice under the ICWA is received by the court, a tribe claims that Aniya is an Indian child, then the court shall proceed in conformity with all provisions of ICWA. If no tribe claims Aniya, then the courts orders terminating Terences parental rights shall be reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BIGELOW, J.
We concur:
COOPER, P. J.
RUBIN, J.
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[1] Terence was then facing charges of kidnapping and grand theft of an automobile.
[2] Ashley is not involved in this appeal.
