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In Re E. J. et al., Persons Coming Under the Juvenile Court v. A. J

September 27, 2011

IN RE E. J. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
A. J., DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 09JVSQ2785601, 11JVSQ2825001)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A. J., mother of the minors appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 395.) Appellant contends the Shasta County Health and Human Services Agency (agency) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C § 1901, et seq.) The agency acknowledges there may be notice errors and that it was unable to reach a stipulation for reversal with appellant's counsel. We reverse and remand to permit the juvenile court to comply with the notice requirements of the ICWA.

FACTS

The one-year-old minor, A. J., was removed from parental custody in January 2009 due to allegations of neglect stemming from parental substance abuse, anger control problems, and mental health issues. The court ordered services for both parents. In November 2009, the mother gave birth to E. J., who was also detained. In April 2010, the court terminated the parents' services as to A. J., denied services for the parents as to E. J. and set a section 366.26 hearing as to both minors. At the section 366.26 hearing in February 2011, the court terminated parental rights as to both minors, selecting adoption as a permanent plan.

Initially the mother claimed Indian heritage in the Blackfeet and Cherokee tribes. The father claimed heritage in the Paiute tribe, stating his mother lived on the reservation. He did not identify the particular Paiute group. The father also claimed heritage in the Blackfeet and Cherokee tribes. Subsequently, both parents completed form ICWA 020 (parental notification of Indian status) and both claimed Paiute and Pueblo heritage.

The first ICWA notice was sent to over 50 individual tribes in January 2009. The notice did not state that the mother claimed Paiute and Pueblo heritage or on which Paiute reservation paternal grandmother lived. No birth certificate was attached to the notice, the father's parentage was not acknowledged and there were several errors in addresses and lapses in ancestor information. The notices to the tribes generally were addressed to the ICWA representative for each tribe. Three responses (Moapa Band of Paiutes, Utu Utu Gwaitu Paiute tribe and the Kaibab Band of Paiute Indians) were received in February and appear in the record but were not formally filed.

A second notice was sent to 21 tribes in April 2009 which perpetuated the problems of the first notice. An ICWA addendum report filed in April 2009 provided responses to the first notice from 32 tribes and stated there was no response from 19 tribes. The report failed to include the responses separately received and placed in the record from the Utu Utu Gwaitu Paiute tribe and the Kaibab Band of Paiute Indians stating A. J. was not eligible for enrollment.

In May 2009, appellant told the social worker that the minor did not have Cherokee, Blackfeet, Paiute or Pueblo heritage through his father and now claimed only Navajo heritage. A third notice was sent to the Navajo tribes, again continuing the errors in the earlier notices. Ruling on the applicability of the ICWA was deferred. An addendum in July 2009 stated notices had been sent to all tribes for which Indian heritage had been claimed and asked that the court find that the ICWA did not apply. The court made the requested finding on July 20, 2009.

Following the filing of the petition to detain E. J. in November 2009, appellant completed a form ICWA 020 (parental notification of Indian status) which stated she claimed no Indian heritage. Nonetheless, notice of the new proceeding was mailed to all 53 tribes which had been noticed when A. J. was detained. Once more, no birth certificate was available and there was no statement regarding the minor's paternity or the name of the reservation where the paternal grandmother had reportedly lived. Also, most of the notices were addressed to the ICWA representative of each tribe. The jurisdiction report stated the paternal grandmother currently lived in an elder care home in Sacramento; however, this address was not in the notice. A second notice was sent in February 2010 to tribes who had not yet responded, however, the prior concerns had not been remedied.

An ICWA addendum in March 2010 stated that notices had been sent to all relevant tribes. All but 18 tribes had responded that the minor was not eligible for enrollment. The social worker requested the court find that ICWA did not apply ...


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