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In Re A.G., A Person Coming Under the Juvenile Court Law. v. Anthony G

April 16, 2012

IN RE A.G., A PERSON COMING UNDER THE JUVENILE COURT LAW. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
ANTHONY G., DEFENDANT AND APPELLANT.



(Alameda County Super. Ct. No. HJ08019040) Trial Court: Superior Court of the County of Alameda Trial Judge: Honorable Bari Robinson

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

CERTIFIED FOR PUBLICATION

Anthony G. (Father) appeals from a order terminating his parental rights as to his son, A.G. He contends the Alameda County Social Services Agency (the Agency) failed to investigate his Native American heritage and provide adequate notice to tribes as required by the Indian Child Welfare Act. (25 U.S.C. §§ 1901 et seq. (ICWA).) The Agency does not dispute that it violated ICWA's inquiry and notice requirements. Instead it raises numerous procedural and equitable arguments against reversal that all turn on Father's participation and conduct in these proceedings. None of the Agency's arguments excuses its failure to comply with ICWA or allow this court to affirm the termination of Father's parental rights without ICWA compliance. Although reversal will further delay and complicate A.G.'s permanent placement with his prospective adoptive family, the Agency's ICWA violations require us to conditionally reverse the order terminating parental rights and direct the juvenile court to ensure compliance with ICWA's inquiry and notice requirements.

BACKGROUND

The background of this proceeding from the removal of A.G. and his sister from their parents' care in 2008 through the 2010 order terminating both parents' reunification services and setting a permanency planning hearing (Welf. & Inst. Code, § 366.26)*fn1 is set forth in our prior opinion denying the parents' petitions to vacate that hearing (A.G. v. Superior Court (April 13, 2011, A130940 [nonpub. opn.]). We incorporate that discussion by reference here. In this appeal, we will restrict our statement of facts to those bearing on the adequacy of the ICWA notices.

Mother does not claim any Indian heritage. But an attachment to the initial dependency petition noted that Father had told the Agency that A.G. and his sister might have Indian ancestry. The detention report filed on October 2, 2008 said that Father believed he had Creek heritage, was gathering more information regarding tribal affiliation, and would inform the Agency when he knew more. Father signed a Parental Notification of Indian Status form stating he was or might be affiliated with the Choctaw Creek tribe or the Choctaw Creek tribe of Oklahoma. The Agency subsequently filed a Notice of Child Custody Proceeding for Indian Child (ICWA-030 form). The ICWA-030 form sent to various Creek and Choctaw tribes*fn2 stated Father's name and birth date and his mother's name, address, and telephone number. It provided no information about A.G.'s paternal grandfather, great-grandparents, or any other relatives. The notice stated there had been a judicial declaration of parentage and that Father acknowledged he was A.G.'s biological father.

In an addendum report filed on January 7, 2009, in connection with the jurisdictional proceedings, the Agency stated that letters received from various tribes indicated A.G. was not a member of any tribe and that ICWA did not apply. The juvenile court sustained the dependency petition and ordered the Agency to provide reunification services to both parents.

A hearing on the 12-month and 18-month review began on January 29, 2010 and was conducted over 11 months. The court found the parents were afforded reasonable reunification services, but they had made minimal progress toward alleviating the causes for the children's out-of-home placement. Reunification services were terminated and the court set a section 366.26 hearing for April 14, 2011, with adoption as the permanent plan. On March 11, the court denied a section 388 modification petition filed by a paternal uncle requesting that A.G.'s sister be placed with him.

Both parents petitioned to this court to vacate the order setting the section 366.26 hearing, and we denied their petitions on the merits. On April 14, 2011, the juvenile court terminated both parents' rights as to A.G.'s sister. Her foster parents wished to adopt her and were also open to integrating A.G. into their family. A.G.'s dependency case was extended for another six months while efforts were made to transition him from his placement at the Lincoln Children's Center to his prospective adoptive home. He was placed with the foster parents on May 28, 2011.

A.G.'s section 366.26 hearing was held on June 23, 2011. The foster parents remained committed to adopting him and his sister. The court found that A.G. was likely to be adopted and terminated parental rights.

Father filed a notice of appeal the same day, and identified both the June 23 order and the April 14 order that terminated his parental rights as to A.G.'s sister. On July 25, 2011, the family court granted Father's request to eliminate his child support for A.G., retroactive to June 23.*fn3 In a prior order, we dismissed as untimely Father's appeal from the April 14 order terminating his parental rights as to A.G.'s sister.

DISCUSSION

Father's sole contention is that the order terminating his parental rights as to A.G. must be reversed because the Agency did not provide notice as required under ICWA. Although the Agency strenuously contested this appeal, it does not dispute that it failed to comply with ICWA's inquiry and notice requirements. Instead, it raises a battery of contentions that arise out of a theory that Father has "renounced" his paternal rights and worked a fraud on the family and juvenile courts. The Agency also says the appeal is barred by res judicata and, in any event, that reversal is not required because its ICWA violations were not prejudicial. These arguments are long on novelty, but short on merit. We are reluctant to impose further delay before this young child may finally gain permanence and stability in an adoptive family. ...


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