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In Re W.W., A Person Coming Under the Juvenile Court Law. v. D.W. et al

July 9, 2012

IN RE W.W., A PERSON COMING UNDER THE JUVENILE COURT LAW. CALAVERAS COUNTY WORKS AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
D.W. ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. 10JD5070)

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

In re W.W.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Dale W. (father) and Shannon S. (mother), parents of minor W.W. (minor), appeal from orders of the juvenile court terminating their parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 395.) Both parents contend the beneficial parental relationship and relative placement exceptions to adoption applied to minor's case to defeat termination of their parental rights. They also challenge the adequacy of notice pursuant to the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Mother further asserts that the court erred in failing to hear her Marsden motion.*fn2

We agree only with the parents' claim of error under the ICWA's noticing requirements. Our limited agreement, however, requires us to conditionally reverse for compliance with the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

Preliminary Proceedings

In August 2010, Calaveras County Works and Human Services Agency (the Agency) detained minor, born in September 2007, after law enforcement repeatedly found him filthy and wandering in the road significant distances from home. Father blamed a nine-year-old half sibling for not locking the door.*fn3

At the detention hearing, mother claimed Cherokee heritage and father claimed Comanche heritage. The Agency sent notice of the proceedings only to the Cherokee tribes, erroneously indicating that father claimed Cherokee heritage. This notice contained little ancestral information.

By the time of the jurisdiction hearing, minor was placed with the paternal grandmother. The Agency reported that the parents were not taking minor's wandering seriously, and also reported the possibility that the parents were abusing prescription drugs. After a contested jurisdiction hearing, the juvenile court sustained the petition.

The disposition report recommended services for the parents. The report stated minor was well bonded to the parents and his half sibling and had trouble separating from them, but the paternal grandmother was able to comfort him quickly. The visits were supervised. At the disposition hearing, the court adopted the recommendation, ordered services, and set a review hearing.

Six-Month Review Hearing

The review report revealed that the Cherokee Nation had contacted the Agency seeking additional ancestor information. However, the parents had minimal contact with the Agency, and it had been unable to secure the requested information. Eventually, the Agency obtained additional information from mother and sent new notice to the tribe.

The Agency reported the parents made minimal progress on the case plan and had been arrested for child endangerment; mother was also facing drug charges, and the parents were homeless. Minor remained placed with the paternal grandmother and was doing well. The parents had difficulty demonstrating consistent parenting skills in that they were late or cancelled visits although they were appropriate during visits. Consequently, after October 2010, visits were decreased to biweekly and supervised at Agency offices rather than by the paternal grandmother. The parents missed the first scheduled visit and failed to contact the Agency for visits until December 2010. The parents were late for their first visit, but did attend the next two, which went well. Visitation was suspended in February until the parents met with the Agency about their case plan progress and outstanding warrants.

Minor was happy to see his parents at visits; however, he was not overly disturbed when visits ended or when his parents failed to visit. The parents' telephone contact with minor was also inconsistent; they did not call more than once a week. The report recommended termination of services because the parents had made minimal progress on the case plan. The court adopted the recommendation, terminated services and set a section 366.26 hearing.

Events Pending the Section 366.26 Hearing

The Agency sent the June 2011, ICWA notice of the July 2011 section 366.26 hearing only to the Cherokee Nation. The notice included names and birthdates for the maternal and paternal grandmothers and one maternal and one paternal great-grandmother, but no other information. The notice did not reference father's claim of Comanche heritage. No notice was sent to the Comanche tribe.

In June 2011, the California Department of Social Services (DSS) filed an adoption assessment informing the Agency that the current caretakers, the paternal grandparents, felt it was in minor's best interest to be adopted by a younger family because the grandparents were beginning to develop age-related health problems which would make long-term care difficult for them. They did want to "remain a part of [minor's] life," but did not wish to adopt him.

The parents' visitation had been sporadic and was currently set at once a month. DSS had begun a search for an adoptive family. The maternal grandmother and the maternal great-grandmother had been assessed for placement and found unsuitable. DSS had located over 20 families interested in adopting minor and recommended termination of parental rights.

The Agency sent another ICWA notice of the proceedings on June 14, 2011--for the first time referencing the Comanche tribe. The notice was sent only to the Comanche tribe and, aside from including the information that father claimed Comanche heritage, contained only the information sent in the previous notice to the Cherokee Nation.

The Agency's report prepared for the section 366.26 hearing recommended termination of parental rights. Minor was three years old and healthy with no developmental or behavioral issues. The report reiterated the information in the DSS adoption assessment and discussed the overall lack of visitation between minor, his parents, and half sibling. The parents visited monthly after services were terminated, but father had to be reprimanded for expressing hostility toward the social worker and discussing the case in front of minor. Letters from the Cherokee and ...


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