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In Re D.D. et al., Persons Coming Under the Juvenile Court v. D.D

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


January 20, 2012

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

(Super. Ct. No. JV1000131, JV1000132, JV1000133 & JV1000163)

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

In re D.D.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Father of minors D.D. (father) appeals from orders terminating his parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 395.) Father contends, and respondent Yolo County Department of Employment and Social Services (DESS) concedes, that correct notice was not sent to all identified tribes as required by the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) Because we agree with the parties, we shall accept the concession and reverse for compliance with ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2010, DESS detained three of father's very young children (minors).*fn2 Father initially identified Shoshone and Paiute Indian ancestry; DESS sent notice of the proceedings to those tribes. Subsequently father's brother provided documentation of paternal ancestors. In April 2010, the juvenile court sustained the petition and ordered reunification services for the family.

Soon after minors were detained, mother gave birth to their sibling M.D., who was then also detained. The court sustained M.D.'s petition and again ordered services. DESS again sent notice to the Shoshone and Paiute tribes.

At the consolidated contested review hearing for minors' and M.D.'s cases held in February 2011, the juvenile court terminated services. At the hearing, father claimed ancestry from the Apache and Cherokee tribes for the first time. In March 2011, DESS sent notice of the proceedings to the Cherokee and Choctaw*fn3 tribes. The social worker met with family members in April 2011 to clarify the ancestry information and, after the family agreed that inaccuracies had been corrected, new notices were sent in May 2011. DESS sent the corrected notices to the Apache tribes and one of the Cherokee tribes, but not to the remaining Cherokee or Choctaw tribes or to the Paiute or Shoshone tribes.

At the section 366.26 hearing, the social worker testified the ICWA information from the May 2011 noticing was accurate and that corrected notices were sent. The juvenile court then terminated parental rights as to all four children.

DISCUSSION

Father contends that DESS failed to comply with the ICWA by sending the corrected notice of the proceedings to some, but not all, of the identified tribal groups. DESS concedes the error. We agree with the parties.

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.) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the relevant tribes. (25 U.S.C. § 1912; § 224.2; Cal. Rules of Court, rule 5.481(b).)

Here, notice was initially sent to the tribes first identified. However, the information in the notice was later corrected and expanded and new tribes were identified. The ICWA requires that new and corrected notice be sent to all the identified tribes; it was not. Accordingly, we must reverse the orders terminating parental rights and remand the case to the juvenile court for the limited purpose of compliance with the notice requirements of the ICWA.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of providing corrected notice of the proceedings to all identified tribes. If the juvenile court determines that all identified tribes have been properly noticed, and subsequently finds that either the tribes failed to respond or responded that none of the four minors are Indian children, the orders shall be reinstated. However, if any tribe determines any of the minors are Indian children and the juvenile court subsequently determines the ICWA applies, the juvenile court is ordered to conduct a new selection and implementation hearing pursuant to section 366.26 in conformance with all applicable provisions of the ICWA.

We concur: BLEASE , Acting P. J. HULL , J.


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