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In Re Jo.C. et al., Persons Coming Under the Juvenile Court v. K.J. et al

November 30, 2011

IN RE JO.C. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
K.J. ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. Nos. J04816, J04999)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

K.J. (mother) and J.C. (father) appeal from the juvenile court's orders terminating their parental rights to minors Jo.C. and Ja.C. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to this code.) They contend the orders must be reversed because the San Joaquin County Human Services Agency (HSA) and the juvenile court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act. (ICWA; 25 U.S.C. § 1901 et seq.) We shall remand for ICWA compliance.

BACKGROUND

Minor Jo.C. and two of his siblings (who are not subjects of this appeal) were detained in January 2008. The family had been referred to HSA on five previous occasions. A section 300 petition was filed on behalf of Jo.C. and the two siblings because of the filthy and hazardous state of mother's residence and the parents' drug use.

The juvenile court sustained the petition and, at an April 23, 2008, disposition hearing, adjudged Jo.C. and the two siblings dependent children of the court. At the hearing, the HSA represented that it was looking for further information regarding mother's Indian ancestry, explaining that "[f]irst time in court mother stated she had Native American Heritage. Later on she signed a paper that stated she did not have Native American Heritage." Mother's counsel then indicated that mother was not enrolled or a member of a tribe. The court noted that she may have lineage, and HSA's counsel stated the agency would need to have a form JV-010 completed. Mother's counsel then indicated mother was willing to "waive that" if it were to be an "in-home dependency," which was HSA's recommended disposition. The court ordered Jo.C. released to mother with family maintenance services and ordered family reunification services for father. There is no completed form JV-010 in the record.

On October 8, 2008, HSA filed a section 387 petition on behalf of Jo.C. and the two siblings because of the filthy and hazardous state of mother's residence and mother's violation of court orders in allowing father to live in the home. The following day, HSA filed a section 300 petition on behalf of Jo.C.'s newborn sibling, Ja.C., based on the unsuitable state of the home, mother's drug and alcohol use, mother's violation of court orders in allowing father to live in the home, domestic violence, and neglect and abuse of the older siblings.

On October 30, 2008, HSA sent ICWA notices (form ICWA-030) to the Bureau of Indian Affairs (BIA) and the three federally recognized Cherokee tribes (the United Keetoowah Band of Cherokee Indians, the Cherokee Nation of Oklahoma, and the Eastern Band of Cherokee Indians) that indicated minor Ja.C. may be eligible for membership. The notices included minor Ja.C.'s name, birth date, and birthplace, mother's "Legal" name, a single address as both the current and former addresses for mother, mother's date of birth, the maternal grandmother's name, the maternal great-grandmother's name, and "Luisiana" as the maternal great-grandmother's current address. The notice did not include mother's birthplace, the maternal grandmother's current or former addresses, or the maternal grandmother's birthplace or birth date. Instead, the notice indicates "No information available" in those boxes. The notice also indicates "No information available" for the maternal great-grandmother's tribe or band (although the three Cherokee tribes are listed for mother and maternal grandmother). HSA filed certificates of mailing and return receipts for the BIA and three Cherokee tribes.

On December 3, 2008, the juvenile court sustained the section 387 and 300 petitions as to Jo.C. and Ja.C. On January 16, 2009, HSA sent a second form ICWA-030 for minor Ja.C. to the Eastern Band of Cherokee Indians. The notice included essentially the same information for the minor, mother, and maternal great-grandmother as the first notice but listed only a former address for mother. The notice, however, listed the maternal grandmother's name and added a current address of "Isleton, CA" but erroneously listed her as a maternal great-grandmother and, again, did not include a birth date or birthplace. HSA filed the certificate with the court.

On February 4, 2009, the juvenile court adjudged Ja.C., who had been detained since October 7, 2008, a dependent child of the court and ordered him placed in foster care. At that hearing, mother indicated she had Indian heritage through her grandmother but that her grandmother refused to acknowledge it or register with the tribe, rendering mother unable to register herself. The juvenile court found the ICWA did not apply to Ja.C.

On May 6, 2009, the juvenile court found Jo.C. would be at substantial risk of harm if returned to mother and ordered Jo.C., who had been detained since October 7, 2008, placed in foster care. The court terminated reunification services ...


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