In re D.D.
Filed 10/22/08 In re D.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 D.D. et al., Persons Coming Under the Juvenile Court Law. | B206646 |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.D., Defendant and Appellant. | (Los Angeles County Super. Ct. No. CK61379) |
APPEAL from orders of the Juvenile Division of the Los Angeles Superior Court. Robert Hughes, Referee. Reversed and remanded with directions.
Roni Keller, 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 mothers parental rights. Mothers sole argument on appeal is that the dependency courts orders were entered in the absence of strict compliance with the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) The Department of Children and Family Services (DCFS) concedes there were ICWA errors. We conditionally vacate the dependency courts orders, and remand the cause with directions to assure compliance with the ICWA.
FACTS
A. The Family and the Dependency Court Proceeding
S.D. is the biological mother of two children: D.D., born in May 2000, and D.H., born in July 2002. In September and October 2005, DCFS received the following information about the family: S.D. had tried to commit suicide in front of her children (she slit her wrist). S.D. had been homeless for nearly a year; D.D. and D.H. were with caretakers. S.D. left the following message on the phone answering machine of D.D.s caretaker: God told me to tell you to get out of California. Take [D.H.] and [D.D.] and tell everyone that you know to get out of California. . . . Gods wrath is going to fall upon California . . . . S.D. had exhibited strange behavior at the home of D.H.s caretaker, causing the caretaker to call police.
On November 2, 2005, DCFS detained D.H. and D.D. On November 7, 2005, DCFS filed a petition alleging that S.D.s mental and emotional problems rendered her incapable of providing protection or care for D.H and D.D. (Welf. & Inst. Code, 300, subd. (b).) DCFS subsequently filed an amended petition adding an allegation that S.D. had a history of methamphetamine use, which further rendered her incapable of providing protection and care for D.H. and D.D.
B. The ICWA Issues
In November 2005, S.D. signed a California Judicial Council form Parental Notification of Indian Status, declaring under penalty of perjury that she herself is, or may be, a mem-ber of, or eligible for membership in, the Navajo Indian tribe.
In January 2006, DCFS reported that D.H.s father, D.G., had stated that he had Navajo heritage through this father (i.e., D.H.s paternal grandfather), M.H. In the same report, DCFS further indicated that D.H.s paternal grandmother, M.G., had also stated that the family had Indian heritage through M.H., although M.G. did not know the tribe.
DCFSs January 2006 report included copies of ICWA notices, which had been mailed to various Navajo tribes and the Bureau of Indian Affairs, along with copies of signed mail receipts.
At a pretrial resolution conference hearing on January 23, 2006, the dependency court found that the ICWA was not an issue, following which the ICWA was not addressed in any meaningful manner at any subsequent hearing.
C. The Relevant Remaining Dependency Proceedings
In April 2006, the dependency court sustained the allegations in that amended petition that S.D.s mental and drug use problems rendered her incapable of providing care for D.H and D.D. In November 2006, the court terminated S.D.s family reunification services. On March 13, 2008, the court terminated S.D.s parental rights and selected a permanent plan of adoption for D.H. and D.D.
DISCUSSION
S.D. contends, DCFS concedes, and we agree that the ICWAs notice require-ments 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. To that end, the ICWA provides that notice of a dependency proceeding must be given to an Indian tribe when there is reason to know or believe that the proceeding involves a child who is a member of the tribe. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) Notice is a key component of the ICWA, and the dependency court may not order foster care placement for an Indian child or terminate parental rights unless and until the court has received proof that the proper Indian tribe or tribes have been properly notified of the dependency court proceedings. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; see also In re Marinna J. (2001) 90 Cal.App.4th 731, 738 [notice is absolutely critical under the ICWA].)
S.D. contends the dependency courts orders terminating her parental rights must be vacated because the ICWA notices sent in her case failed to include information which was known to the DCFS, and which may have been assistance to the tribe or tribes in determining whether D.H. and/or D.D. have Indian heritage. DCFS agrees, and so do we.
The ICWA notices regarding D.D. stated that she was reported to be eligible for membership in the Navajo tribe, and provided S.D.s name. Apart from this basic information, however, the notices did little more than indicate that S.D.s address was unknown, and that her last known address was [***] Highland #101, Whittier, California. The notices incorrectly indicated that S.D.s date of birth was unknown. The notices provided a name vis--vis D.D.s alleged father, but, apart from this basic information, did no more than indicate that his current address was unknown, and that his last known address was Las Vegas, Nevada. The notices regarding D.D. were not sent to any Navajo tribes, notwithstanding that S.D. had declared under penalty of perjury that she herself may have Navajo heritage.
The ICWA notices regarding D.H. stated that he was reported to be eligible for membership in the Navajo tribe, and provided S.D.s name. Apart from this general information, however, the notices did little more than indicate that S.D.s address was unknown, and that her last known address was [***] Highland #101, Whittier, California. The notices incorrectly indicated that S.D.s date of birth was unknown. The notices provided a name vis--vis D.H.s alleged father, and an address. The notices indicated incorrectly that the address of D.H.s paternal grandmother who had provided some information about his potential Indian heritage was unknown.
The deficiencies in the ICWA notices mean that the dependency courts orders terminating parental rights must be vacated, and that this cause must be remanded to the court to assure that proper notice in accord with the ICWA can be given. (In re Nikki R., supra,106 Cal.App.4th at p. 848.)
DISPOSITION
The juvenile dependency courts orders terminating S.D.s parental rights are reversed, 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 D.D. and/or D.H. is an Indian child, then the court shall proceed in conformity with all provisions of the ICWA. If no tribe claims the children, then the dependency courts orders terminating S.D.s parental rights shall be reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BIGELOW, J.
We concur:
RUBIN, Acting P. J.
FLIER, J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line Lawyers.
