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In Re E.H., A Person Coming Under the Juvenile Court Law. v. E.H

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


December 3, 2010

IN RE E.H., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
E.H., DEFENDANT AND APPELLANT.

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

In re E.H. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

E.H. is a minor and a ward of the juvenile court. When she violated the terms of her probation, the juvenile court continued her probation with modifications. However, when she violated the terms of her probation again by selling methamphetamine, the juvenile court determined that she was ineligible for deferred entry of judgment (DEJ) because her probation had been revoked.

The minor contends that we should remand this case to the juvenile court for further proceedings, because (1) her probation was never revoked and hence the juvenile court erred in concluding that she was ineligible for DEJ, and (2) the juvenile court failed to investigate whether the Indian Child Welfare Act (ICWA) is applicable to her. We conclude that both of the minor's contentions have merit, and we will remand this case to the juvenile court for further proceedings.

BACKGROUND

In May 2009, the minor was adjudged a ward of the juvenile court and placed on formal probation based on her admission of four misdemeanor offenses. Later, in August 2009, the minor admitted two violations of probation and the court continued her on probation.

On November 23, 2009, the People filed a petition under Welfare and Institutions Code section 602, charging the minor with sale of methamphetamine. At the same time, the People filed a determination of eligibility for deferred entry of judgment, asserting that the minor was ineligible for DEJ because her probation had been revoked. In December 2009, the minor admitted the drug sale offense and also admitted that the offense constituted a violation of her probation. The juvenile court concluded that the minor was ineligible for DEJ because her probation had been revoked, continued her as a ward of the court, ordered her placed in a suitable group home, specified a maximum term of confinement of 5 years 2 months, and awarded 29 days custody credit. The minor filed a timely appeal from the judgment.

DISCUSSION

I

Welfare and Institutions Code section 790, subdivision (a), sets forth the eligibility requirements for DEJ. (In re T.P. (2009) 178 Cal.App.4th 1, 4.) Among other things, a minor is eligible if "[t]he minor's record does not indicate that probation has ever been revoked without being completed." (Welf. & Inst. Code, § 790, subd. (a)(4).) A probation violation is not the same thing as a probation revocation. (In re T.P., supra, 178 Cal.App.4th at p. 4.)

There is no indication in this record that the minor's probation was ever revoked. Instead, the court continued her on probation with modifications. Under the circumstances, the juvenile court was incorrect in concluding that the minor was ineligible for DEJ because her probation had been revoked.

The error requires reversal of the judgment and remand to the juvenile court for further proceedings. (In re T.P., supra, 178 Cal.App.4th at pp. 4-5.) The People agree. The juvenile court must determine not only whether the minor is "eligible" for DEJ (Welf. & Inst. Code, § 790, subd. (a)), but also whether the minor is "suitable" for DEJ. (Welf. & Inst. Code, § 790, subd. (b); In re T.P., supra, 178 Cal.App.4th at p. 4.)

II

The minor also contends that remand is required for the juvenile court to investigate whether the ICWA is applicable to her. We agree.

"[I]n 2006 California passed legislation imposing upon the court, county welfare department, and probation department a duty of inquiry and notice in any proceeding brought pursuant to Welfare and Institutions Code section 602 where the child is at risk of entering foster care or is in foster care. Section 602 brings within the jurisdiction of the juvenile court cases involving the commission of a crime by a minor. The duty in such cases is to inquire whether a child is or may be an Indian Child, and to provide notice to the child's parents or guardian, Indian custodian, and tribe of the right to intervene in the proceeding, the right to counsel for the parents or Indian custodian, and the right to transfer the proceeding to tribal court." (R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 193-194, fn. omitted.)

"'The Indian status of the child need not be certain to invoke the notice requirement. [Citation.] Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given . . . .' [Citation.]" (In re Jose C. (2007) 155 Cal.App.4th 844, 848.)

Here, at the disposition hearing, after the court had ordered the minor removed from the custody of her parents for suitable placement, the court asked the minor's parents whether "either parent [was] aware of any Native American Indian heritage on either side of the minor's family that would enable the minor to enroll in a Native American Indian Tribe?" The minor's father responded, "No. Just a minor, minor degree. We have very little Indian." The minor's mother stated, "Blackfoot."

The People claim that "[t]here is no suggestion on this record that [the minor] had any 'tribal relations' whatsoever. Her parents were present and involved in virtually every proceeding in this case. Except for the one-word response from [the minor's] mother at the final dispositional hearing, no one at any time hinted that [the minor] had any Native American heritage."

Contrary to the People's position, the record could not be clearer -- there was a "minor" bit of Indian blood in the minor and it was "[Blackfeet]." These responses by the parents gave the court "'reason to believe the [minor] may be an Indian child'"; therefore, "'notice must be given.'" (In re Jose C., supra, 155 Cal.App.4th at p. 848.)

DISPOSITION*fn1

The matter is remanded to the juvenile court with directions to determine whether the ICWA applies to the minor and, if so, to give the required notice. If jurisdiction of the minor remains with the court, the court must determine whether the minor is eligible and suitable for deferred entry of judgment pursuant to Welfare and Institutions Code section 790.

We concur:

NICHOLSON, Acting P.J. BUTZ, J.


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