Dependency Case Law

In re Samuel P. (July 2, 2002) 99 Cal.App.4th 1259 [121 Cal.Rptr.2d 820]. Court of Appeal, Second District, Division 6.

The juvenile court removed three children from the care and custody of a mother under Welfare and Institutions Code section 300(b). The mother was of American Indian ethnicity, but the section 300 petition did not indicate that the children might be Indian or eligible for membership in an Indian tribe. The Department of Family and Children's Services (the Department) sent a "Request for Confirmation of Child's Status as Indian" for only one of the children to the Santa Ynez Band of Mission Indians, 17 other tribes, and the Bureau of Indian Affairs. The social worker's report indicated that the children were of Chumash descent, that the Indian Child Welfare Act (ICWA) might apply, that the children's ICWA eligibility status was unknown and that the mother had stated that her family was enrolled in the Santa Ynez Chumash tribe. None of the court's orders, however, discussed the children's possible Indian affiliation or any application of ICWA. The mother contended on appeal that notice was not properly made under ICWA, that the court erred in not applying ICWA's requirements at the disposition hearing, and that she had not waived the issue.

The Court of Appeal reversed the disposition orders of the juvenile court and remanded the case to the juvenile court to comply with the notice requirements under ICWA. The court determined that actual notice to the tribe about the proceedings and the right to intervene was required under ICWA (25 U.S.C. § 1912) and In re Desiree F., 83 Cal.App.4th 460, 470. The notice sent about one of the children was inadequate because it was only a request for confirmation of status and contained no information about the proceedings, no court number for the proceedings, and no notice of the dates of the hearings. The Department was also in error in not sending notice for any of the other children. Also, there was enough information to support probable cause for the court to believe that the children were affiliated with the Chumash tribe. Even though it was uncertain whether the mother was a tribal member herself, there was concrete information about the tribal affiliation of several of her family members. Given this information, the appellate court concluded that the juvenile court was required to proceed as if the child was an Indian child or make further inquiry to affirm tribal affiliation under rule 1439(e) of the California Rules of Court, and ICWA (25 U.S.C. § 1912(e).)

The appellate court also held that the appeal of the dispositional orders was timely. The mother had not waived her claim of improper notice even though she did not raise the issue during the juvenile court proceedings. The court noted that, because the notice requirements serve the interests of the Indian tribe regardless of the parents' position, a parent cannot waive the tribe's interests. Therefore, the appellate court reversed the disposition orders of the juvenile court and remanded the case to the juvenile court to comply with the notice requirements under the ICWA.