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In re K.R.

California Court of Appeals, Fourth District, Second Division

February 22, 2018

In re K.R. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
v.
E.K., Defendant and Appellant.

         APPEAL from the Superior Court of Riverside County. No. SWJ1600319 Judith C. Clark, Judge. Conditionally reversed with directions.

          Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.

          Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

          OPINION

          McKINSTER Acting P. J.

         E.K. appeals from an order terminating her parental rights to her three children. The sole issue she raises is lack of compliance with the Indian Child Welfare Act of 1978, or ICWA (25 U.S.C. § 1901, et seq.), and with Welfare and Institutions Code sections 224 et seq. We agree, and we will conditionally reverse the order and remand the matter for compliance with those statutes.

         BACKGROUND

         Because we address only an ICWA claim, a brief synopsis of the factual and procedural history will suffice.

         A petition pursuant to Welfare and Institutions Code section 300 was filed on May 23, 2016, as to the three minors, then age three years, two years, and 20 months, respectively. The children's father, R.R., died of a heroin overdose on April 24, 2016. The petition alleged that mother was unable to provide adequate care for the children and endangered them as a result of her abuse of controlled substances and her untreated mental health issues.

         The petition was sustained on June 15, 2016, and reunification services were ordered. Mother had overdosed on heroin several times before the petition was filed. She overdosed again in August 2016. Ultimately, reunification services were terminated. The children were placed in a prospective adoptive home. Parental rights were terminated on October 2, 2017.

         Mother filed a timely notice of appeal on October 5, 2017.

         LEGAL ANALYSIS

         Mother informed the court that neither she nor the children had Indian ancestry, and at the jurisdiction and disposition hearing, the court found that ICWA does not apply. Later, in response to information that the children might have Cherokee heritage though their father, respondent Riverside County Department of Public Social Services (DPSS) gave notice of the proceedings to three Cherokee tribes and to the Bureau of Indian Affairs.[1]

         At the six-month review hearing in December 2016, DPSS informed the court that it had received responses from two of the tribes, stating that based on the information provided, the minors were not Indian children. DPSS stated that it was still waiting for a response from the third tribe. Mother made no objection to the sufficiency of the notices, and the court found that the notices were proper. A response was later received from the third tribe, also stating that the children were not Indian children.

         At the review hearing in February 2017, mother apparently made no objection to the notices or noticing procedures, and the ...


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