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In re S.B.

June 3, 2009


APPEAL from an order of the Superior Court of Los Angeles County, Randolph Hammock, Referee. Affirmed. (Los Angeles County Super. Ct. No. CK32389).

The opinion of the court was delivered by: Epstein, P. J.


This is the third appeal in this matter raising the issue of compliance with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. §1901 et seq.). After the second remand based on inadequate notice, the trial court expressly asked parents‟ counsel to review the notices and voice any objections. Counsel raised no objection, and even after a lengthy continuance to permit careful review of the record, mother‟s attorney asserted she was not an expert on ICWA notices and did not feel competent to assess whether the notices were sufficient. Yet after the delay of another appeal, the parents, through appellate counsel, again argue deficient ICWA notice.

We conclude notice was adequate in this case and affirm the order terminating parental rights. We also state our view that counsel for the parents share responsibility with the Department of Children and Family Services (DCFS) and minor‟s counsel to advise the trial court of any infirmities in these notices in order to allow for prompt correction and avoid unnecessary delay in the progress of the dependency case.


This case involves S.B., the youngest child of mother S.W. and father G.B. S.B. was declared a dependent child, as his elder siblings had been before him. The court ordered S.B. and his older sibling, G.B., into a permanent plan of foster care with a goal of adoption. On appeal, mother challenged these dispositional orders, claiming the Department of Children and Family Services (DCFS) failed to comply with the ICWA notice requirements. DCFS conceded notice was not proper, and in an opinion filed on December 16, 2005 (In re [G.]B., B182116 [nonpub. opn.]), we reversed the orders and remanded for compliance with ICWA.

On remand, the juvenile court continued the matter so DCFS could provide proper ICWA notice. Notice was mailed to various tribes. In March 2007, the court held a combined hearing on father‟s petition seeking custody or reunification services (Welf. & Inst. Code, § 388; all statutory references are to this code unless otherwise indicated) and to select a permanent plan for S.B. (§ 366.26.) The court found proper notice had been given to the Indian tribes, that S.B. was not an Indian child, and that ICWA did not apply.

The court denied the petition and terminated parental rights to S.B. The parents appealed the termination of parental rights, challenging the adequacy of the ICWA notice. Pursuant to the stipulation of the parties, in September 2007, this court issued an order reversing the March 2007 judgment for the sole purpose of perfecting ICWA notice (Case No. B197376).

In June 2008, the court reviewed the most recent ICWA notices as to S.B., and asked counsel for the parents whether they had any objections with regard to ICWA compliance. Father‟s counsel had none. Mother‟s attorney stated she had not had an opportunity "to look through the I.C.W.A. notices and compare them to anything." The court continued the matter to give counsel that opportunity, ordering parents‟ counsel "to review the I.C.W.A. notices and specify any objection you have. And that‟s not like "I haven‟t looked at it.‟ You have to look at it, you have to think about it, and you have to make an objection known. At that time the court will reinstate the termination and find I.C.W.A. is not applying to either child since both children have the same parents and we have letters from each and every tribe current-I believe each and every tribe, but it‟s your job to find that out, and county counsel can look at it too, and make sure we have each and every tribe."

The matter was heard in August 2008. Father‟s counsel was not present, and the court appointed new counsel for him. Mother‟s counsel advised the court that mother "just told me that she has family living on a reservation in Mesa, Arizona." The court questioned mother further, and mother clarified that she was not claiming her son is an Indian tribe member with that tribe.

The court then asked counsel for the parents if they had any objections to the ICWA notices. Father‟s attorney stated he had no legal objection he could express. Mother‟s counsel stated she had looked at the record and had not seen anything wrong, but said she was not an expert on ICWA, and did not feel competent to make that assessment. The court explained it was not asking for an opinion, just whether she had any legal objection. Mother‟s counsel replied, "Not that I know of, no."

The court found, based on the evidence presented, that there was no "reason to know" that the Indian Child Welfare Act applies to S.B. The court having found that ICWA does not apply, in accordance with the conditional remand in our September 2007 order, reinstated its prior order terminating parental rights as to S.B. Mother and father each filed a timely appeal from this order.


Parents argue the ICWA notices were insufficient because the record does not reflect that DCFS properly notified three of the tribes it had identified and listed, or that these tribes ...

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