N.M. v. Super. >Ct.>

















Filed 2/7/13 N.M. v. Super. Ct. CA3











NOT TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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



THIRD APPELLATE
DISTRICT



(San
Joaquin)

----


>

N.M., Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY ET AL., Real Parties in Interest.

C072290 (Super. Ct. No. J05827)

Petitioner N.M., mother of the
dependent minor, seeks an extraordinary writ
(
ADDIN BA xc <@ru> xl 31 s BOLJAV000001 xpl 1 l "Cal. Rules of
Court, rule 8.452" Cal. Rules of Court, rule 8.452) to vacate
the orders of the juvenile court made at the disposition hearing denying href="http://www.fearnotlaw.com/">reunification
services and setting a ADDIN
BA xc <@st> xl 44 s BOLJAV000002 l "Welfare and Institutions
Code section 366.26" Welfare and Institutions Codehref="#_ftn1" name="_ftnref1" title="">[1] section 366.26 hearing. Mother contends that the juvenile court
failed to comply with the notice provisions of the href="http://www.mcmillanlaw.com/">Indian
Child Welfare Act (ICWA) ( ADDIN BA xc <@st> xl 24 s
BOLJAV000003 xpl 1 l "25 U.S.C. § 1901 et seq." 25 U.S.C. § 1901 et seq.). Mother also requested a stay of proceedings
in the respondent court. We granted a
stay of the section 366.26 hearing in the respondent court pending the
resolution of this writ petition and permitted real party in interest San
Joaquin County Human Services Agency to late file opposition to the writ
petition. We shall issue a peremptory writ of mandate directing the
juvenile court to vacate its ICWA findings and conduct further proceedings to
determine whether ICWA notice is complete.

>BACKGROUND

A ADDIN
BA xc <@osdv> xl 11 s BOLJAV000013 l "section 300" section 300 petition was filed on behalf of
the minor on October 7, 2011. At
that time, the social worker for href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Joaquin County
Human Services Agency (HSA) indicated she had spoken with father and been
informed he had Cherokee heritage.
Accordingly, on November 15, 2011, HSA sent ICWA notice to the Bureau of
Indian Affairs (BIA), the Cherokee Nation of Oklahoma (Cherokee Nation), the
United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee
Indians. The notice contained: father’s full name, current address, date and
place of birth, and tribal affiliations; the first and last names of the
paternal grandmother and her current city of residence; the first and last
names of the paternal grandfather, his current state of residence, and his
tribe and band affiliations; the first and last names of the paternal
great-grandmother; and the first and last names of the paternal
great-grandfather and his tribal affiliations.

The Eastern
Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians
responded that the minor was not eligible for membership. The Cherokee Nation sent a letter dated December
28, 2011,
“requesting additional information that includes paternal grandparent’s and
great-grandparent’s complete names and dates of birth.”

On
January 11, 2012, HSA sent amended ICWA notice to the BIA and all three
Cherokee tribes, adding additional information to include: the paternal grandmother’s date and place of
birth; the paternal grandfather’s location, city and state of residence; the
paternal great-grandmother’s first and last names, date and place of birth; the
other paternal great-grandmother’s first and last name; the paternal
great-grandfather’s full name, current address, month and day of birth, and
place of birth, and tribal affiliations; the first and last names of the
great-aunt, her current address, date and place of birth, and tribal
affiliation; and the first and last names of the great, great-grandfather, city
and state of residence, and tribal affiliation.

On February 28,
2012, the Cherokee
Nation sent a letter “requesting additional information that includes; paternal
grandfather, Michael West and paternal great-grandfather, Leo Smith’s middle
names and dates of birth.”href="#_ftn2" name="_ftnref2" title="">[2]

The March 14, 2012, disposition report implied the social
worker had no contact with the paternal grandparents, stating they would be
permitted reasonable visitation with the minor should they come forward and be
assessed as appropriate. The following
week, the Cherokee Nation sent a letter stating they were closing the inquiry
since the additional required information had not been sent. The letter further reminded HSA to send
additional information if it were obtained at some point in the future..

On June 8,
2012, HSA informed
the court that the paternal grandmother was being assessed for placement. Thereafter, on July 16, 2012, HSA filed a declaration of ICWA efforts,
stating: “I have now received responses
for the aforementioned [three Cherokee] tribes ADDIN
BA xc <@rec> xl 22 s BOLJAV000014 xpl 1 l "(see attached
letters)" (see attached letters). The Cherokee Nation has requested for the
paternal grandfather, Michael West, and the paternal great-grandfather’s [>sic], Leo Smith, middle names and dates
of birth. The social worker, Charyl
Carlson, mentioned that the father,

[ . . . ], does not have any information regarding the
middle names of Michael West and Leo Smith.
Nor does he have any additional information regarding his family.
[¶] Based on the information provided, I respectfully request that
the court make a ruling on ICWA.”
Paternal grandmother appeared in court on the issue of placement on
July 30, 2012, and again on October 1, 2012. The August 2012 supplemental disposition
report reflects that HSA had substantive contact with the paternal grandmother
in assessing potential placement. The
record does not reflect any further information regarding the ongoing ICWA
inquiry.

At the
disposition hearing, HSA requested the juvenile court rely on the July 16,
2012, declaration of efforts and make ICWA findings. Counsel for the parties submitted without
comment and the juvenile court found HSA had made proper inquiry and ICWA did
not apply.

>DISCUSSION

Congress passed
the ICWA “to promote the stability and security of Indian tribes and families
by establishing minimum standards for removal of Indian children from their
families and placement of such children ‘in foster or adoptive homes which will
reflect the unique values of Indian culture . . . .’” ( ADDIN BA xc <@cs> xl 44 s
BOLJAV000004 xhfl Rep xpl 1 l "In re Levi U.(2000)
78 Cal.App.4th 191" In re Levi U. (2000) 78 Cal.App.4th
191, 195; ADDIN BA xc <@st> xl 16 s
BOLJAV000005 xpl 1 l "25 U.S.C. § 1902" 25 U.S.C. § 1902; ADDIN
BA xc <@cs> xl 80 s BOLJAV000006 xhfl Rep xpl 1 l "Mississippi
Choctaw Indian Band v. Holyfield(1989) 490 U.S. 30 [104 L.Ed.2d
29]" Mississippi Band of Choctaw Indians v.
Holyfield (1989) 490 U.S. 30 [104 L.Ed.2d 29].)

A social worker
has “an affirmative and continuing
duty to inquire whether a child [in a ADDIN
BA xc <@$osdv> xl 5 s BOLJAV000013 xpl 1 § 300 proceeding] is or may be an
Indian child . . . .”
(
ADDIN BA xc <@osdv> xl 18 s BOLJAV000015 xpl 1 l "§ 224.3,
subd. (a)" § 224.3, subd. (a), italics
added.) Furthermore, if the social
worker “has reason to know that an Indian child is involved, the social worker
. . . is required to make further inquiry regarding the possible
Indian status of the child, and to do so as soon as practicable, by
interviewing the parents, Indian custodian,
and extended family members to gather the information” required to be provided
in the ICWA notice. ( ADDIN BA xc <@osdv> xl 18 s
BOLJAV000016 xpl 1 l "§ 224.3, subd. (c)" § 224.3, subd. (c), italics added.)

Here, HSA knew
that father had reported Cherokee heritage.
The Cherokee Nation specifically requested the middle names and
birthdates for the paternal grandfather and great-grandfather. Although it appears likely that HSA did get
some additional information (directly or indirectly) from father’s relatives,
since the amended ICWA notice contained a significant amount of additional
information, the record does not establish whether HSA made a reasonable
inquiry of father’s relatives to attempt to obtain the missing information
requested by the Cherokee Nation.

Specifically,
we note that the amended ICWA notice does not contain the paternal
grandmother’s complete address and that, at the time the amended ICWA notice
was sent, the paternal grandparents had not yet “come forward.” Although HSA subsequently indicated it was
assessing the paternal grandmother for placement, the ICWA compliance
declaration, filed three weeks thereafter, does not mention any attempt to
obtain the requested information from grandmother. Further, she appeared in court on
July 30, 2012, to discuss the matter of placement and was, therefore, available
to HSA to fulfill its obligation to make continuing efforts to obtain the
information previously requested by the Cherokee Nation. The record, however, does not affirmatively
indicate any such efforts were made.

Accordingly, we
must grant the petition to assure compliance with ICWA.

With respect to
petitioner’s request for this court’s independent review of the record for
possible error, we disregard the briefing’s content beyond that required by ADDIN
BA xc <@ru> xl 40 s BOLJAV000007 l "California Rules of Court,
rule 8.452(b)" California Rules of Court, rule 8.452(b) and
decline to undertake such review.href="#_ftn3" name="_ftnref3" title="">[3] ADDIN
BA xc <@rec> xl 21 s BOLJAV000019 xpl 1 l "(See Pet. 17, fn.
14)"

>DISPOSITION

Let a
peremptory writ of mandate issue, directing respondent juvenile court to vacate
its findings that adequate ICWA notice was given and that the ICWA does not
apply. The juvenile court is further
directed to order HSA to make reasonable inquiry of the paternal relatives,
specifically, the paternal grandmother, as set forth in ADDIN
BA xc <@ru> xl 43 s BOLJAV000010 l "California Rules of Court,
rule 5.481(4)(A)" California Rules of Court, rule 5.481(4)(A)
and to provide the Cherokee Nation with the requested information, if obtained.
The juvenile court is then directed to
enter updated ICWA findings prior to proceeding with a ADDIN
BA xc <@$st> xl 14 s BOLJAV000002 section 366.26 hearing. Having served its purpose, the stay
previously issued by this court is vacated.name="_BA_TOA_SelectionPoint">









DUARTE , J.







We concur:







ROBIE , Acting
P.J.







BUTZ , J.