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

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


November 1, 2011

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

(Super. Ct. No. 11JVSQ2875001)

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 minor, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 395.) As in her earlier appeal of the siblings' case (see unpublished opinion in case No. C067484, filed Sept. 27, 2011) appellant contends the Shasta County Health and Human Services Agency (agency) failed to comply with the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, as it did in case No. C067484, that there may be notice errors and that it was unable to reach a stipulation for reversal with appellant's counsel. As with the siblings' case, we reverse and remand to permit the juvenile court to comply with the notice requirements of the ICWA.

FACTS

We adopt the facts as set forth in case No. C067484 to provide background and context for this case.

While proceedings to terminate parental rights as to the two siblings were pending and appellant was in custody, appellant gave birth to the minor in December 2010. The minor was placed in protective custody because both parents were incarcerated, previously had children removed from their custody, and had no viable plan for placement of the minor. Appellant claimed Indian ancestry on the father's side. The court ordered the minor detained.

Notice of the proceedings was sent to the Blackfeet, Cherokee, Navajo, Paiute, and Pueblo tribes. In February 2011, the court sustained the petition, denied services to the parents, and set a section 366.26 hearing.

Prior to the section 366.26 hearing, the agency filed an ICWA status report which stated that information for notices sent to the tribes was taken from the notice sent for one of the minor's siblings. The responses received did not indicate the minor was eligible for membership in any tribe and several tribes did not respond within the 60-day time period.

The report for the section 366.26 hearing recommended termination of parental rights and a finding that the ICWA did not apply. At the hearing, appellant disagreed with information in the notices sent to the tribes and clarified that her Indian heritage was Blackfeet and Cherokee while the father's heritage was Navajo, Paiute, and Pueblo. Counsel for the agency confirmed notice had been sent to those tribes. The court found that the ICWA did not apply and terminated parental rights.

When a dependent child is, or may be, an Indian child, the agency has a duty to make adequate inquiry of the child's status and any relevant genealogical information and to provide notice of the proceedings to any identified tribes. (Cal. Rules of Court, rule 5.481(a), (b); 25 U.S.C. 1912; § 224.2.)

Because the information used to send notices to the various tribes in this case was the same as information we found defective in some respects in case No. C067484 as to both content and inquiry, reversal is also required in this case in order to correct the defects noted in the prior case insofar as information is available to do so.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of permitting the agency to comply with the inquiry and notice provisions of the ICWA as set forth in case No. C067484 and for the juvenile court to determine whether the ICWA applies in this case. If, after demonstration of agency compliance, the juvenile court determines that notice was required, the tribes were properly noticed, and there either was no response or the tribes determined that the minor is not an Indian child, the orders shall be reinstated. If, however, a tribe determines the minor is an Indian child and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new selection and implementation hearing in conformance with all provisions of the ICWA.

We concur: RAYE , P. J. MAURO , J.


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