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In Re N.C., A Person Coming Under the Juvenile Court Law. v. Thomas C

January 3, 2011

IN RE N.C., A PERSON COMING UNDER THE JUVENILE COURT LAW. PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
THOMAS C., DEFENDANT AND APPELLANT.



(Super. Ct. No. 53-002819)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Thomas C., father of the minor, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 Father contends the notices to the tribes pursuant to the Indian Child Welfare Act of 1978 (the ICWA) (25 U.S.C. 1901 et seq.) were inadequate. The county concedes error and requests remand to the juvenile court for further proceedings on the ICWA notice compliance. We accept the concession, in part, and shall reverse.

FACTUAL BACKGROUND

The 21-month-old minor was removed from parental custody in May 2009 due to parental domestic violence and substance abuse. The minor was placed with the maternal great-grandmother. At the detention hearing, father told the court he had been told his father was an American Indian, but he did not recall which tribe. Father also completed a Parental Notification of Indian Status form (ICWA-020), which contained the same information.

The report for the jurisdictional/dispositional hearing stated the social worker followed up father's claim of Indian heritage with the paternal grandmother, who provided the paternal grandfather's approximate age and information on where the paternal grandfather grew up. The paternal grandmother had no other information about him or how to contact him. Without explanation for its choice of tribe, the Placer County Department of Health and Human Services (the Department) sent notices of the proceeding pursuant to the ICWA to the three Cherokee tribes as well as to the Bureau of Indian Affairs (BIA) and the Department of the Interior. The notice included information on the parents and only the paternal grandfather's name.

The jurisdictional/dispositional hearing set for June 4, 2009, was continued for three weeks. The social worker filed return receipts from the service of notice showing the tribes had received notice on or before May 30, 2009.*fn2 The social worker also filed responses from all three of the Cherokee tribes that indicated the minor was not an Indian child. The BIA sent the Department a form letter which indicated that tribal responses were final for the ICWA determination when tribes have been noticed. The letter also indicated the family was required to provide historical information back to 1900 to help establish a biological link to a tribe.

The mother and the maternal great-grandmother appeared at the continued hearing. The maternal great-grandmother stated that one of her biological great-grandmothers (a maternal great-great-great-grandmother) was Shawnee, although she herself had been adopted.

New notices were sent in July 2009 as a result of the mother's claim of Shawnee heritage. However, the new notices stated the mother claimed Cherokee, not Shawnee, heritage and were sent only to the Cherokee tribes. Further, while the social worker was in contact with the maternal grandmother and the maternal great-grandmother, virtually no information about either one was provided in the notice and no information at all on the maternal great-grandmother's ancestors who, it was claimed, were Shawnee. Once again, return receipts from mailing the notices and negative responses from the tribes were filed with the court.

Neither parent appeared at the jurisdictional/dispositional hearing. The juvenile court sustained the petition and adopted a reunification plan for the parents.

The report for the review hearing stated that the ICWA notice had been given. No positive response from any tribe was documented. The report recommended termination of services. At the review hearing in January 2010, the court terminated father's services, accepted a waiver of services from the mother, and set a ...


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