Dependency Case Law

Dwayne P. v. Superior Court of San Diego County (Oct. 30, 2002) 103 Cal.App.4th 247 [126 Cal.Rptr.2d 639]. Court of Appeal, Fourth District, Division 1.

The juvenile court terminated reunification services and scheduled a selection and implementation hearing under Welfare and Institutions Code section 366.26(l) and rule 39.1B of the California Rules of Court. The parents of two twin sons allegedly inflicted two subdural hematomas and a humeral fracture on one of the twins. The San Diego County Health and Human Services Agency (the agency) took the twins into protective custody and filed a section 300 petition on the injured child’s behalf, alleging that the child had been physically abused and was at a substantial risk of physical harm. The father of the child claimed that he might have Cherokee Indian heritage, and the mother claimed that the father did have Cherokee heritage. The mother’s counsel argued that the Indian Child Welfare Act’s (ICWA) notice requirement could apply to the case. The juvenile court found that ICWA notice requirement did not apply at this time. However, the juvenile court asked the agency to make further inquiries about the information the mother provided. The parents did not object to the juvenile court’s ruling, nor did they appeal the jurisdictional and dispositional order. At the 12-month review hearing, the juvenile court terminated reunification services and set a selection and implementation hearing under section 366.26. The parents appealed the juvenile court’s decision with a petition for extraordinary writ relief, arguing for the first time that the court erred by not giving notice under the ICWA.

The Court of Appeal granted the parents’ petition and issued a writ directing the juvenile court to vacate its order setting a section 366.26 hearing and to send notice to the three federally recognized Cherokee tribes. The appellate court further held that if, after receiving notice, no tribe intervened, the juvenile court should reinstate its order. The appellate court reasoned that compliance with the notice provisions of the ICWA was required prior to terminating the mother and father’s parental rights. The appellate court indicated that the ICWA recognizes that it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations. The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings. The appellate court stated that the tribe’s right to assert jurisdiction under a child dependency proceeding is meaningless unless the tribe receives notice that the action is pending. The appellate court stated that the Indian status of the child need not be certain to invoke the notice requirement of the ICWA; ICWA provides that notice to the tribe is required when the court knows or has reason to know that an Indian child is involved. The appellate court also held that the comments expressing uncertainty over tribe membership do not constitute invited error or the waiver of appellate review for the parents. In addition, the appellate court held that, under the ICWA, the court’s duty continues until proper notice is given, and an error in not giving notice is also of a continuing nature that may be challenged at any time during dependency proceedings. Therefore, the appellate court struck down the agency’s argument that the parents waived their right to appeal the ICWA notice issue since they failed to raise the issue at the dispositional hearing. Accordingly, the appellate court granted the parents’ petition and issued a writ, under rule 39.1B, directing the juvenile court to vacate its order setting a section 366.26 hearing and to send notice to the federally recognized Cherokee tribes. The appellate court also concluded that an ICWA notice issue is a proper subject of review in a rule 39.1B writ proceeding and that rule 1439, requiring that notice be given to Indian tribes, does not infringe on the court’s continuing duty to ensure proper notice is given.