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N.M v. the Superior Court of San Joaquin County

February 7, 2013

N.M., PETITIONER,
v.
THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, RESPONDENT; SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY ET AL., REAL PARTIES IN INTEREST.



(Super. Ct. No. J05827)

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

N.M. v. Super. Ct.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Petitioner N.M., mother of the dependent minor, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the disposition hearing denying reunification services and setting a Welfare and Institutions Code*fn1 section 366.26 hearing. Mother contends that the juvenile court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Mother also requested a stay of proceedings in the respondent court. We granted a stay of the section 366.26 hearing in the respondent court pending the resolution of this writ petition and permitted real party in interest San Joaquin County Human Services Agency to late file opposition to the writ petition. We shall issue a peremptory writ of mandate directing the juvenile court to vacate its ICWA findings and conduct further proceedings to determine whether ICWA notice is complete.

BACKGROUND

A section 300 petition was filed on behalf of the minor on October 7, 2011. At that time, the social worker for San Joaquin County Human Services Agency (HSA) indicated she had spoken with father and been informed he had Cherokee heritage. Accordingly, on November 15, 2011, HSA sent ICWA notice to the Bureau of Indian Affairs (BIA), the Cherokee Nation of Oklahoma (Cherokee Nation), the United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians. The notice contained: father's full name, current address, date and place of birth, and tribal affiliations; the first and last names of the paternal grandmother and her current city of residence; the first and last names of the paternal grandfather, his current state of residence, and his tribe and band affiliations; the first and last names of the paternal great-grandmother; and the first and last names of the paternal great-grandfather and his tribal affiliations.

The Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians responded that the minor was not eligible for membership. The Cherokee Nation sent a letter dated December 28, 2011, "requesting additional information that includes paternal grandparent's and great-grandparent's complete names and dates of birth."

On January 11, 2012, HSA sent amended ICWA notice to the BIA and all three Cherokee tribes, adding additional information to include: the paternal grandmother's date and place of birth; the paternal grandfather's location, city and state of residence; the paternal great-grandmother's first and last names, date and place of birth; the other paternal great-grandmother's first and last name; the paternal great-grandfather's full name, current address, month and day of birth, and place of birth, and tribal affiliations; the first and last names of the great-aunt, her current address, date and place of birth, and tribal affiliation; and the first and last names of the great, great-grandfather, city and state of residence, and tribal affiliation.

On February 28, 2012, the Cherokee Nation sent a letter "requesting additional information that includes; paternal grandfather, Michael West and paternal great-grandfather, Leo Smith's middle names and dates of birth."*fn2

The March 14, 2012, disposition report implied the social worker had no contact with the paternal grandparents, stating they would be permitted reasonable visitation with the minor should they come forward and be assessed as appropriate. The following week, the Cherokee Nation sent a letter stating they were closing the inquiry since the additional required information had not been sent. The letter further reminded HSA to send additional information if it were obtained at some point in the future..

On June 8, 2012, HSA informed the court that the paternal grandmother was being assessed for placement. Thereafter, on July 16, 2012, HSA filed a declaration of ICWA efforts, stating: "I have now received responses for the aforementioned [three Cherokee] tribes (see attached letters). The Cherokee Nation has requested for the paternal grandfather, Michael West, and the paternal great-grandfather's [sic], Leo Smith, middle names and dates of birth. The social worker, Charyl Carlson, mentioned that the father,

[ . . . ], does not have any information regarding the middle names of Michael West and Leo Smith. Nor does he have any additional information regarding his family. [ΒΆ] Based on the information provided, I respectfully request that the court make a ruling on ICWA." Paternal grandmother appeared in court on the issue of placement on July 30, 2012, and again on October 1, 2012. The August 2012 supplemental disposition report reflects that HSA had substantive contact with the paternal ...


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