Dependency Case Law

In re H.A. (Nov. 26, 2002) 103 Cal.App.4th 1206 [128 Cal.Rptr.2d 12] Court of Appeal, Fifth District.

The juvenile court terminated the mother’s parental rights to her two daughters. The two children were declared dependents of the court. The children’s grandmother told the social worker that she is of American Indian heritage, specifically Chumash Indian through the Santa Ynez Tribe in Santa Ynez, California. Prior to the Welfare and Institutions section 366.26 hearing, the social worker sent requests for confirmation of the children’s Indian status and a hearing notice to the Bureau of Indian Affairs and the Santa Ynez Tribal Health Clinic by certified mail. The Santa Ynez Band of Mission Indians sent a response to the Kern County Department of Human Services (the department) stating that the children had no affiliation with the Santa Ynez Band of Mission Indians. The social worker did not attach to his report any copies of the notices given, proofs of the certified mail, the returned receipts, or the responses sent by the Santa Ynez Band of Indians. In addition, no one made any references to these representations at the section 366.26 hearing. At the conclusion of that hearing, the juvenile court terminated the mother’s parental rights. The mother appealed the juvenile court’s decision, arguing that the juvenile court erred in terminating her rights absent proof of proper notice to the tribe within the meaning of the Indian Child Welfare Act (ICWA).

The Court of Appeal reversed the juvenile court’s decision terminating the mother’s parental rights on the grounds that the social services agency did not comply with the notice requirements of the ICWA. First, the appellate court held that the forms sent by the department did not suffice for notice purposes of the ICWA because the forms did not include blanks for detailing the dependent child’s family history unlike the form entitled “Notice of Involuntary Child Custody Proceedings Involving an Indian Child” and numbered “SOC 319,” which is consistent with both federal law, 25 United States Code section 1912(a), and the Bureau for Indian Affairs Guidelines. Second, the appellate court held that the department improperly relied on certified mail to attempt to serve notice because the ICWA requires the department to request a return receipt to show that service of notice was completed. Third, the appellate court held under rule 1439(f)(2) of the California Rules of Court, the department should have sent notice of the proceedings to the Indian tribe’s chairperson or its designated agent for service of process, rather than to the tribal health clinic. Fourth, the appellate court held that the department’s failure to comply with ICWA notice requirements was prejudicial error. The appellate court reasoned that unless a tribe has participated or expressly indicated no interest in the proceedings, the failure to comply with ICWA notice requirements constitutes prejudicial error. Therefore, the appellate court reversed the juvenile court’s order terminating parental rights and directed the juvenile court on remand to ensure that the Santa Ynez Band received proper notice under ICWA and that the tribe determines if the children are eligible for membership in the tribe. More specifically, the appellate court held that the department must complete and serve, pursuant to the terms of 25 United States Code section 1912(a), the “Notice of Involuntary Child Custody Proceeding Involving an Indian Child” along with a copy of the dependency petition. The appellate court also held that the department must file with the superior court copies of proof of registered mail or certified mail with return receipt(s), the completed “Notice of Involuntary Child Custody Proceeding Involving an Indian Child” form that was served, and any responses received.