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In re R.N. et al., Persons Coming Under the Juvenile Court Law. v. R.N

November 30, 2010

IN RE R.N. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
R.N., DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of Fresno County. Jane Cardoza, Judge. (Super. Ct. No. 09CEJ300310-1)

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

In re R.N. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

INTRODUCTION

Appellant R.N. is the biological father of two minors who are the subject of a juvenile dependency proceeding. (Welf. & Inst. Code, § 300.)*fn1 Father appeals from a dispositional order finding the Indian Child Welfare Act (ICWA) does not apply, declaring the minors to be dependents of the court and removing them from parental custody.

Father argues the dispositional order must be reversed because respondent Fresno County Department of Children and Family Services (Department) failed to satisfy ICWA's notice requirements. We agree.

FACTS*fn2

In early December 2009, the minors lived with father. The Department took the minors into protective custody after receiving reports from neighbors that father was acting strangely. Drug paraphernalia was found at the house. One of the minors reported witnessing father smoke methamphetamine.

On December 9, 2009, the Department filed a dependency petition. A detention order was filed the next day. It provided that because the court had reason to know the minors are Indian children as defined in ICWA, both parents were to complete and file with the court an ICWA-020 form and meet with the Department to disclose all information they possess about the minors' possible Indian heritage and all information responsive to questions 5 through 9 on the notice of child custody proceeding for Indian child form (ICWA-030 form).

On December 10, 2010, mother filed a parental notification of Indian status form (ICWA-020 form). She reported that she may have Indian ancestry. The only other information she provided was the phrase, "New Mexico."

The ICWA-030

On December 30, 2009, the Department mailed a completed ICWA-030 form and a copy of the juvenile dependency petition to the Bureau of Indian Affairs (BIA). The ICWA-030 form contained mother's current address, her birth date, birthplace and the names, current addresses, birth dates and birthplaces of her parents. It also contained the names, birth dates and birthplaces of one of her grandmothers and one of her grandfathers. The grandfather was deceased, but the grandmother was alive and her current address was provided. In the section of the ICWA-030 form requesting "Tribe or band, and location," for each individual, the phrase "Bureau of Indian Affairs" was typed for mother, both of mother's parents and the identified grandparents. The form stated that the tribal membership or enrollment number for all of these people was "Unknown." Information about mother's other grandparents was not available.

The ICWA-030 form stated that father was "Not Indian." It listed father's current address, birth date and birthplace. It also provided the current addresses, birth dates and birthplaces of father's parents. Father's mother was identified as B.A. It stated that both of father's parents were "Not Indian." It stated that information was not available about any of father's grandparents.

A notice from BIA dated January 8, 2010, acknowledged receipt of ICWA notice and stated that it returned the notice to the Department because "[t]he family has provided insufficient information substantiating any federally recognized tribe."

The settlement hearing

A settlement conference hearing was held on March 9, 2010.

Father's counsel stated father had recently learned he might possess Indian heritage through his biological mother, who is not B.A.

The court asked father if he would "elaborate on [his] American Indian ancestry."

Father replied, "Well, I'm not really aware of the tribe or whatsoever, but from I talked to my uncles and they said there is some form of Indian heritage on my grandfather and grandmother's side."

The court responded, "Such as?"

Father answered, "I really don't know. I didn't really get a chance to speak with him furthermore because it was [a] long-distance call from Texas. He got aware of it and he was supposed to send me the information about it because he knows more in detail about it, but the only thing I was trying to have ...


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