The juvenile court denied the Welfare and Institutions Code section 388 petition filed by a mother and terminated her parental rights.

Orange County Social Services Agency (SSA) took the child into protective custody due to the mother's inability to provide proper medical care for the child. At the detention hearing, the juvenile court asked the mother if she or the alleged father had American Indian heritage. The mother replied that the father had Cherokee heritage. The juvenile court immediately ordered notice of the proceedings to the Bureau of Indian Affairs (BIA) and the Cherokee Tribe. The father had been incarcerated since the child's birth.

The child was declared a dependent of the court and reunification services were provided to the mother. Subsequently, the juvenile court terminated reunification services after finding that the mother had not complied with her case plan and had missed most of her visits with the child. By the time of the permanency planning hearing, the child was 18 months old and thriving in foster care. After denying the mother's section 388 petition, which requested additional reunification services, the juvenile court terminated parental rights and placed the child for adoption. On appeal, the mother contended that notice of the proceedings was inadequate under the Indian Child Welfare Act (ICWA). SSA argued that the issue of ICWA notice was waived because the mother knew or should have known at the jurisdictional and dispositional hearing that ICWA compliance was an issue and failed to appeal from that judgment.

The Court of Appeal reversed the order terminating parental rights and remanded the matter to the juvenile court with directions to conduct further proceedings to determine whether SSA complied with the notice provisions of ICWA. In any involuntary proceeding in a state court where the court knows or has reason to know that an Indian child is involved, the tribe must be notified, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (25 U.S.C. § 1912(a).) If the tribe cannot be determined, such notice shall be given to the Secretary of the Interior. (Ibid.) If notice is not complied with, an Indian child, parent, or the tribe may petition the court to invalidate the action. (25 U.S.C. § 1914.) The appellate court further concluded that ICWA is not waived by the parent's failure to first raise it in the trial court. Relying on the reasoning in In re Marinna J. (2001) 90 Cal.App.4th 731 and Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, the appellate court noted that the notice requirement is designed to protect the interests of the tribe. Therefore, to the extent a notice defect impairs the tribe's ability to participate, another party cannot waive it.

In regard to the issue of the adequacy of ICWA notice, the appellate court noted that there was no evidence in the record that SSA made any effort to elicit information about the child's Indian heritage. Although the juvenile court ordered SSA to notify BIA and the Cherokee Nation, SSA did not address the issue again except to indicate in its reports that ICWA did not apply. On appeal, SSA filed a motion to take additional evidence of notices it sent to BIA and the Cherokee Nation before the jurisdictional hearing. Based on responses from both BIA and Cherokee Nation that the child did not belong to any tribe and was not an Indian child, SSA moved to dismiss the appeal as moot. The mother and child's counsel opposed the receipt of the additional evidence and the motion to dismiss, claiming that there was minimal information regarding the child's background in the notices. The appellate court accepted the additional evidence, but deemed it insufficient to render the appeal moot.

Subsequently, SSA filed another motion to take additional evidence. The motion proffered evidence of efforts made by the adoptions social worker (during the briefing stage of the appeal) to determine whether the child was an Indian child, which was a part of the process for freeing a dependent child for adoption. This time around, the social worker asked the paternal grandmother about her family's affiliation with the Cherokee Tribe and was given the names and birthdates of the family members she thought might have Cherokee ancestry. The information was transmitted to the Department of Social Services/BIA, and three tribes were notified. All three tribes responded that they could not identify an Indian ancestor for the child and did not consider her an Indian child within the meaning of ICWA. In analyzing the adequacy of the notice, the appellate court relied on In re Samuel P. (2001) 99 Cal.App.4th 1259 and In re Jennifer A. (2002) 103 Cal.App.4th 692. It emphasized that it is the juvenile court's duty to receive evidence of notice efforts and to determine if they measure up to ICWA standards. Furthermore, if the juvenile court has reason to believe the child is an Indian child, it must conduct the proceedings in accordance with ICWA. The appellate court found it unacceptable for SSA to wait to reveal evidence of its notice efforts until the issue arose on appeal.

The appellate court further examined two recent cases, In re Antoinette S. (2002) 104 Cal.App.4th 1401 and In re Christopher I. (2003) 106 Cal.App.4th 533, in which both relied on additional evidence taken on appeal to conclude that the notice error was harmless. However, the appellate court distinguished both cases based on the fact that they involved scenarios where augmenting the record with additional evidence prevented a remand that would serve no purpose. In contrast, there were no extraordinary circumstances in the present case that would compel the appellate court to act as the juvenile court and determine whether ICWA notice was adequate. First, the appellate court noted that the additional evidence did not demonstrate that proper notice was given as a matter of law. It was unclear whether better avenues of information were open to SSA. Second, if the juvenile court found the notice sufficient on remand, no new hearing would be necessary and the case could proceed normally. Third, the appellate court emphasized its concern that SSA fully satisfy ICWA's notice requirements. It noted that it was not acceptable for juvenile courts to completely ignore indications that a child may be of Indian ancestry. Accordingly, it denied SSA's motion to take additional evidence on appeal.

Therefore, the judgment terminating parental rights was reversed and the matter was remanded to the juvenile court to determine whether SSA complied with the notice provisions of ICWA. If not, the juvenile court was ordered to direct SSA to comply; if the child were determined to be an Indian child, a new hearing would be held. If notice were found to be sufficient, all previous findings and orders must be reinstated, subject to the juvenile court's consideration of any issues that may have arisen during the appeal that could affect the outcome.