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In re B.R.

August 13, 2009

IN RE B.R. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
MARIN COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
G.R., DEFENDANT AND APPELLANT.



(Marin County Super. Ct. Nos. JV24131A, JV24132A). Trial Judge: Mary T. Grove, Commissioner.

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

CERTIFIED FOR PUBLICATION

This appeal presents the issue of whether the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.)*fn1 (ICWA), applies when the minors' presumed father in a juvenile dependency proceeding alleges that his adoptive father has one-quarter ancestry in a federally recognized Indian tribe. We hold that the ICWA notice provisions do apply in these circumstances, and conditionally reverse the juvenile court's order terminating parental rights so that notice of the proceedings may be given to the tribe in question.

I. BACKGROUND

On June 7, 2007, the Marin County Department of Health and Human Services (Department) received a ―general neglect‖ referral. In response, a Department social worker and deputies from the county sheriff's office conducted a welfare check of G.R.'s (Mother) apartment. The deputies placed Mother under arrest when she became combative, and the social worker took the children into temporary protective custody.

Several days later the Department filed a petition under Welfare and Institutions Code section 300, subdivision (b).

At the jurisdiction/disposition hearing on July 19, 2007, the juvenile court sustained allegations that Mother had failed to provide the children with appropriate shelter, in that the Department had found her home to be in ―deplorable‖ condition, ―hazardous to the children's health, and unfit for human or animal habitation.‖ Both children had also been found to suffer from ―emotional and cognitive effects of neglect.‖ The sustained allegations further stated that Mother had failed to provide the children with adequate dental care, in that both were found to suffer from ―serious tooth decay and infection‖ requiring treatment that included multiple cavity fillings, tooth extractions, and baby root canals. The court ordered out-of-home placement for the children, and ordered reunification services for Mother and for Richard H., whom the court found to be the noncustodial presumed father.

Following a contested review hearing in late March 2008, the court ordered the termination of reunification services for Mother, and set the matter for the selection of permanent plans pursuant to Welfare and Institutions Code section 366.26. Mother filed a writ petition challenging the order, which this court denied by nonpublished opinion filed on June 18, 2008. (G.R. v. Superior Court (June 18, 2008, A121247).)

After a contested Welfare and Institutions Code section 366.26 hearing, the juvenile court found that the children were adoptable and determined that adoption was the best permanent plan for them. The court ordered that Mother's and Richard H.'s parental rights be terminated and that the children be referred for adoptive placement. Mother timely appealed.

II. DISCUSSION

Mother contends the order terminating parental rights must be reversed because no notices were sent to the Apache tribes pursuant to the ICWA.

A. ICWA-related Facts

Based on information provided by Richard's biological sister, J.G., the Department's jurisdiction report stated that the children had Seneca and Delaware Indian ancestry and the ICWA may apply. The Department later reported in a July 6, 2007 submission to the court that it was ―in the process of notifying the Seneca and Delaware tribes.‖ At the jurisdiction/disposition hearing, the court inquired of the parents and of the maternal and paternal grandmothers who were present at the hearing whether they knew if either parent had any other possible Native American heritage. Richard's mother reported that Richard was adopted and that his adoptive father was one-fourth Apache Indian. The court made findings that the ICWA ―may apply‖ as some tribes had been identified and sent notices but had not responded, and that the ―Apache tribes, identified July 19, 2007, will be noticed if required by law.‖ The court apparently added the ―if required by law‖ condition in light of a comment by minors' counsel that notice might not be required since Richard was not the biological child of the parent reported to have Apache Indian ancestry.

Notices were subsequently sent to the Delaware Nation of Oklahoma, Cayuga Nation of New York, Seneca-Cayuga Tribe of Oklahoma, Seneca Nation of Indians, Tonawanda Band of Senecas, and the Sacramento Area Director of the Bureau of Indian Affairs. The Delaware Nation of Oklahoma, Seneca-Cayuga Tribe of Oklahoma, Seneca Nation of Indians, and Tonawanda Seneca Nation wrote back, stating that ...


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