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In Re A.H. et al., Persons Coming Under the Juvenile Court Law. v. T.T

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


December 28, 2011

IN RE A.H. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
T.T., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. J35240 & J35241)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

T.T., mother of minors I.H. and A.H., appeals from juvenile court findings and orders entered at a combined jurisdiction and disposition hearing. (Welf. & Inst. Code,*fn1 §§ 300, subd. (f), 361.5, subd. (b), 395.) Mother contends, and the Butte County Department of Social Services (DSS) concedes, that DSS and the juvenile court failed to ensure compliance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We agree and shall remand for further proceedings pursuant to the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

DSS filed section 300 petitions under subdivisions (b), (d) and (j), on behalf of I.H. (then seven years old) and his half sibling, A.H. (then age four), based, inter alia, on continuous sexual abuse perpetrated by an older half sibling.

At the initial detention hearing, mother stated that she had Native American ancestry through both parents, specifically Cherokee. She also stated that her grandmother, Reba Levrette, was an enrolled member and was born and raised in Oklahoma City. She had researched her family's Indian ancestry and provided the information to DSS.

DSS sent ICWA-030 notices to the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, and the Bureau of Indian Affairs (BIA). The information in the notice included information about mother, her parents, and her grandparents, but nowhere listed the name "Reba Levrette" as mother's grandmother. Instead only "Reba McAnally" was listed.

In the disposition report, DSS reported that the Cherokee Nation concluded that it appeared the children were eligible for enrollment, but the tribe needed further information about mother's family. DSS was intending to gather additional information from mother to provide to the tribe. The court found the ICWA applied to the case, and continued the disposition hearing to obtain an Indian expert.

The following month, the Cherokee Nation wrote a letter to DSS requesting additional information, including the mother's grandparents' and great-grandparents' complete names and dates of birth. A month later, the Cherokee Nation wrote a second letter to DSS requesting the same additional information. Nothing in the record indicates the requested information was provided by DSS or the juvenile court prior to the disposition hearing.

The Eastern Band responded that, based on the information provided, the children were not enrolled or eligible for enrollment. The United Keetoowah responded that, based on the information provided, the children were not descendants of anyone on the United Keetoowah roll.

The disposition hearing was held on July 29, 2010. The juvenile court entered disposition orders, including declaring the children dependent children of the court and ordering reunification services, and indicated the ICWA status was "pending."*fn2

DISCUSSION

Mother contends the ICWA notice was inadequate and the matter must be remanded for proper notice to the BIA and the Cherokee tribes. DSS does not object to remand for further ICWA proceedings. We agree that remand is appropriate.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) To facilitate participation, notice of the pending proceeding and the right to intervene must be sent to the tribe or to the BIA if the tribal affiliation is not known. (25 U.S.C. § 1912(a); § 224.2, subd. (a).)

Section 224.2, subdivision (a)(5) requires an ICWA notice to include, among other things, the name, birthdate, and birthplace of the Indian child, if known; the name of the Indian tribe in which the child is a member or may be eligible for membership, if known; and all names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known. (§ 224.2, subd. (a)(5), ¶¶ (A)-(C).)

Here, mother stated that she had Native American ancestry through both parents, specifically Cherokee. Accordingly,

DSS sent ICWA-030 notices to the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, the Secretary of the Interior, and the Bureau of Indian Affairs (BIA). DSS concedes, however, that the notices sent in this case were deficient in that some of the information provided was incorrect or missing altogether. The notices made no reference to the grandmother's married name of Reba Levrette, which was the name mother provided at the detention hearing. The notice also failed to include the fact that mother's grandmother was born in Oklahoma (which mother also stated at the detention hearing) or provide her date of birth other than the year.

Additionally, during our review of the ICWA notices containing the Indian ancestry information, we noted that mother's mother and grandfather are both listed as members of the Blackfeet tribe. The Blackfeet tribe is a federally recognized tribe. (74 Fed.Reg. 19326-01 (Apr. 28, 2009) [listing the "Blackfeet Tribe of Montana"].) Accordingly, ICWA notice must also be sent to the Blackfeet tribe.

Similarly, it appears that additional tribes have been subsequently identified which require ICWA notice. Mother has apparently identified tribal affiliation with Alabama-Quassarte Tribal Town, Kialegee Tribal Town, Muscogee (Creek) Nation of OK, Poarch Band of Creek Indians, and Thlopthlocco Tribal Town. ICWA notice must also be sent to these tribes.*fn3

DISPOSITION

The disposition order is vacated. The matter is remanded for the purpose of providing adequate ICWA notice to Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, the Blackfeet tribe, Alabama-Quassarte Tribal Town, Kialegee Tribal Town, Muscogee (Creek) Nation of OK, Poarch Band of Creek Indians, and Thlopthlocco Tribal Town and the BIA, as well as any other federally recognized tribe that may have been identified during the pendency of this appeal.

If any tribe responds that the children are Indian children or eligible for enrollment, the juvenile court shall proceed as required by the ICWA. If there is no response to the ICWA notice, or if the tribes or the BIA advise that the minors are not Indian children and the court so finds, the court shall reinstate the dispositional order.

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


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