Dependency Case Law

In re Jeffrey A. (Nov. 25, 2002) 103 Cal.App.4th 1103 [127 Cal.Rptr.2d. 314] Court of Appeal, Third District.

The juvenile court terminated the mother’s parental rights and ordered a permanent plan of adoption for the two children under Welfare and Institutions Code section 366.26. The mother’s two children were made dependents of the court based on allegations that the mother regularly left the children for weeks at a time with various caretakers, including a registered sex offender. A subsequent petition alleged that the children’s father had been convicted of raping the children’s 13-year-old half-sister and that he was a registered sex offender with the condition that he was to have no contact with the children. The mother was granted reunification services, which were denied to the father. The juvenile court later terminated reunification services and ordered a permanent plan of long-term foster care for the children. The children’s foster parents requested guardianship of the children and a section 366.26 hearing was scheduled. At the section 366.26 hearing, the juvenile court terminated the parental rights of both parents and ordered a permanent plan of adoption. The social worker’s report stated that the social worker had been recently informed that the children could be of Native American descent because their father believed that he might be of Native American descent. The mother appealed the juvenile court’s decision, arguing that the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). More specifically, the mother argued that the juvenile court erred by failing to notify, in accordance with the ICWA, the tribe, the Secretary of the Interior, and herself and the children’s biological father regarding the pendency of the termination proceedings.

The Court of Appeal vacated the order terminating parental rights and remanded the matter to the juvenile court with directions to conduct further proceedings to determine whether the “request for verification” that was sent to the tribe contained, in compliance with the ICWA, notice of the proceedings and of the right to intervene, and whether copies were sent to the Secretary of the Interior and the relevant area director of the Bureau of Indian Affairs (BIA). In all other respects, the appellate court affirmed the juvenile court’s order. The appellate court held that information suggesting that the children could be of Indian ancestry was sufficient to trigger the notice requirement of the ICWA. The appellate court reasoned that the ICWA states that notice shall be sent to an Indian tribe whenever there is reason to believe that the child may be an Indian child. The appellate court also indicated that the Guidelines for State Courts, the Indian Child Custody Proceedings Guidelines promulgated by the BIA, and rule 1439(d)(2) of the California Rules of Court specify that a child is an Indian child if any public or state-licensed agency involved in child protection services or family support has discovered information that suggests the child is an Indian child. Since the social worker had information that the children could be of Indian descent, the appellate court asserted that the ICWA notice provision was triggered.

The appellate court also held that the “request for verification” notice that the social worker allegedly sent to the Pawnee Indian tribe would not be presumed adequate under the ICWA. The appellate court reasoned that a copy of the “request for verification” sent to the Pawnee tribe was not contained in the record, and thus it could not be presumed that the notice complied with the requirement of the ICWA. The appellate court noted that there was nothing indicating that the notice document referred to in the social worker’s report included notice of the proceedings and of the right to intervene as required by the ICWA notice provisions. In agreement with the mother’s contentions, the appellate court also stated that even assuming the “request for verification” contained the requisite ICWA notice, nothing in the record showed that copies of the notice had been sent to the Secretary of the Interior and the BIA area director as required by the ICWA. However, the appellate court disagreed with the mother’s argument that she and the biological father were entitled to notice in compliance with the ICWA. The court held that although the ICWA requires that the parent of the Indian child be provided notice, the mother’s presence and participation in the termination proceedings provided her with sufficient notice. Regarding granting notice to the biological father, the court held that the mother did not have standing to raise the interests of another party on appeal. Therefore, the appellate court remanded the matter to the juvenile court with directions to determine whether the “request for verification” that was sent to the tribe contained notice of the proceedings and of the right to intervene, in compliance with the ICWA, and whether copies were sent to the Secretary of the Interior and the BIA area director.