Dependency Case Law

In re Edward H., Jr. (July 12, 2002) 100 Cal.App.4th 1[122 Cal.Rptr.2d 242]. Court of Appeal, Fifth District.

The juvenile court terminated the parental rights of a mother under Welfare and Institutions Code section 366.26. The juvenile court gained jurisdiction over the children under section 300(b) and (g). While the section 366.26 hearing was pending, Stanislaus County Community Services Agency, upon being informed that the children may belong to a Choctaw Indian tribe, inquired of and gave notice of the proceedings to the Bureau of Indian Affairs (BIA) and two of the three Choctaw tribes: the Choctaw Nation of Oklahoma and the Mississippi Band of Choctaw Indians. The children were not declared to be Indian by the Bureau or the tribes, and the court ruled that the Indian Child Welfare Act (ICWA) did not apply. The mother contends that the juvenile court was in error in terminating her parental rights because no notice was given to the third federally- recognized Choctaw tribe, the Jena Band.

The appellate court upheld the termination order, holding that if the responsible agency also gives notice to the BIA, notice to some but not all possible tribes does not violate the ICWA. The rule 1439(f)(3) of the California Rules of Court states that notice is required to "all tribes of which the child may be a member or eligible for membership." However, ICWA (25 U.S.C. § 1912(a).) only requires notice to "the Indian child's tribe." Both provisions allow notice to the Secretary of the Interior if the tribe cannot be identified or located. If the tribe does not decide otherwise, the BIA, as agent for the Secretary, may determine whether or not a child is an Indian under rule 1439(g)(4) of the California Rules of Court. In addition, case law supports notice to the BIA as sufficient compliance with ICWA if the agency cannot identify the correct band or a tribe. Here, the correct tribe of Choctaw Indians was unknown, and still the agency notified 2 of 3 Chocaw tribes and also the BIA. Therefore, the court upheld the order terminating parental rights and held that the agency did not violate the ICWA.