T.P. v. Super. Ct.
Filed 1/5/10 T.P. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
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T.P., Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY et al., Real Parties in Interest. | C063395 (Super. Ct. No. J04980) |
T.P. (petitioner), the mother of M.P. (the minor), seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate orders of the juvenile court terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 (hereafter section 366.26). Petitioner contends, and real party in interest San Joaquin County Human Services Agency (the Agency) concedes, there was inadequate compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901, et seq.) We accept the concession and shall issue a peremptory writ of mandate directing the juvenile court to vacate the orders and to conduct further proceedings to determine whether ICWA notice is complete.
DISCUSSION
The minor was removed from petitioners custody following petitioners arrest for possession of methamphetamine. Petitioner claimed Indian heritage in the Cherokee tribes, Colorado River Indian Tribes (CRIT), and the Navajo tribe. The Agency sent notice of the proceedings to the three Cherokee tribes, the Navajo Nation, and CRIT, but not to the Ramah Navajo School Board. Prior to the disposition hearing, all tribes to which notice was sent responded that the minor was not an Indian child.
The court granted petitioner services; however, petitioner relapsed into drug use and failed to reunify with the minor. At the review hearing, the juvenile court terminated services and set a section 366.26 hearing.
Petitioner argues her petition for extraordinary writ should be granted because notice of the proceedings was not sent to the Ramah Navajo School Board. The Agency concedes notice was not sent to that entity.
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1911(c), 1912.) If, after the petition is filed, the court knows or has reason to know that an Indian child is involved, notice of the pending proceeding and the right to intervene must be sent to the tribe. (25 U.S.C. 1912; Welf. & Inst. Code, 224.2; Cal. Rules of Court, rule 5.481(b).) Failure to comply with the notice provisions and determine whether ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
It is unclear whether the Ramah Navajo School Board is actually an entity entitled to notice under ICWA. The list of Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs in the most recent Federal Register includes CRIT and the Navajo Nation, but does not include the Ramah Navajo School Board. (74 Fed.Reg. 40218-40221 (Aug. 11, 2009).) However, the most recent list from the Department of the Interior of Designated Tribal Agents for Service of Notice does include the Ramah Navajo School Board in the list by regions but not in the list by tribal affiliation. (See 74 Fed.Reg. 19343, 19351 (Apr. 28, 2009).)
Petitioner cites a discussion of the Ramah Navajo Chapter in Ramah Navajo School Bd. v. Bureau of Revenue (1982) 458 U.S. 832, 834 [73 L.Ed.2d 1174, 1177-1178] as evidence that the group is a separate entity, like CRIT, and entitled to separate notice. However, the fact that an administrative entity, i.e., a school board, is a party to a lawsuit does not mean the Navajo Chapter with which it is associated is separate from the Navajo Nation. We decline to rely on a discussion of historical facts in an opinion that does not address the issue before us to conclude the Ramah Navajo School Board or the Ramah Navajo Chapter is entitled to notice separate from the Navajo Nation.
However, because the issue of the precise parameters of the ICWA notice required in this case is unclear, we accept the Agencys concession of prejudicial error.
DISPOSITION
The petition for extraordinary writ is granted. Let a peremptory writ of mandate issue, directing respondent juvenile court to vacate its orders terminating petitioners reunification services and scheduling a section 366.26 hearing. The juvenile court is further directed to determine whether the Ramah Navajo School Board is entitled to ICWA notice and whether ICWA applies in this case. If the juvenile court determines that the Ramah Navajo Chapter was not entitled to notice separate from the Navajo Nation or that notice was required and has been given and there either was no response or the tribe determined that the minor is not an Indian child, the orders shall be reinstated. However, if the tribe determines the minor is an Indian child and ICWA applies to this case, the court is ordered to conduct a new review hearing in conformance with all provisions of ICWA.
The section 366.26 hearing scheduled for February 24, 2010, is stayed pending finality of this opinion.
SCOTLAND , P. J.
We concur:
ROBIE , J.
CANTIL-SAKAUYE , J.
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