In re Nevaeh CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. NJ14744A-B
- Trial judge
- Michael J. Imhoff (commissioner)
- Outcome
- reversed — Reversed and remanded with directions.
- Area
- dependency
- Panel
- Gilbert Nares (author), Richard D. Huffman, Sr., Judith L. Haller
Analysis
The trial court entered jurisdictional findings and ordered the removal of the children without completing the required Indian Child Welfare Act (ICWA) inquiry and notice, despite the father's reported tribal affiliation. The Court of Appeal reversed the judgment and remanded the case with directions to conduct the proper ICWA inquiry and provide notice to the identified tribe.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Entry of jurisdictional findings and order of removal without completed ICWA inquiry and notice“Nina correctly contends the San Diego County Health and Human Services Agency (the Agency) and the juvenile court failed to fulfill their duties of inquiry and notice pursuant to the Indian Child Welfare Act (ICWA)” | unclear | error (statutory interpretation) | agree with court The appellate court found that the trial court and Agency failed to fulfill their statutory duties under ICWA and Welfare and Institutions Code section 224.3, which require inquiry and notice when there is reason to know a child is an Indian child. The court determined that the delay and failure to complete the ICWA-030 form and provide notice before making jurisdictional findings constituted a legal error requiring reversal. |
The appellate opinion: sound — The opinion is sound because it correctly applies the mandatory statutory requirements of ICWA and Welfare and Institutions Code section 224.3, which dictate that jurisdictional findings cannot be entered until the required inquiry and notice procedures are completed. The court's reliance on the father's explicit statements of tribal membership as sufficient to trigger the duty to inquire and notify is legally correct under California law.
How this analysis was made · dispute it
unusual dispositionThe juvenile court entered jurisdictional findings and removed Nevaeh T. and E.T. from parental custody after the father repeatedly stated he was a registered member of the Apache Tribe, but the court delayed ICWA notice pending the father's completion of an ICWA-030 form and the Agency did little to inquire or give notice over five months and 11 hearings. The Court of Appeal, with the Agency's concession, reversed the judgment and remanded with directions to conduct ICWA inquiry, give notice to any identified tribes, file the required documentation, and reinstate the judgment if no tribe claims the children are Indian children.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Juvenile court's entry of jurisdictional and dispositional orders without ensuring the Agency fulfilled its ICWA inquiry and notice duties despite the father's claim of Apache membership“Nina correctly contends the San Diego County Health and Human Services Agency (the Agency) and the juvenile court failed to fulfill their duties of inquiry and notice pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).” | unclear | error (procedure) | agree with court Under Welfare and Institutions Code section 224.3 and the implementing rules, a parent's statement of tribal membership triggers an affirmative duty of inquiry and notice on the Agency and the court; conditioning notice on the parent's completion of an ICWA-030 form, and then letting the matter sit through 11 hearings, does not satisfy that duty. The Agency conceded the error, and the limited-reversal remedy ordered is the standard remedy for ICWA notice defects. |
Detention-hearing decision to decline to order ICWA notice until the father completed an ICWA-030 form“In November, at the detention hearing, the court declined to order ICWA notice until Brian had completed an ICWA-030 form” | unclear | error (procedure) | agree with court The inquiry and notice obligations rest on the Agency and the court, not the parent; the court could not shift its duty to the father by withholding notice until he filled out a form, especially where he had already given the Agency the relevant information. The appellate court treated this as part of the overall failure to comply with ICWA, which is consistent with section 224.3. |
The appellate opinion: sound with gaps — The court correctly identified the ICWA inquiry and notice failure, which the Agency conceded, and ordered the conventional limited remand with conditional reinstatement of the judgment. It cited no case authority and did not state a standard of review or discuss the remedy's basis, but given the concession and the clear statutory duty the omission does not undermine the result.
Opinion
Filed 10/29/13 In re Nevaeh CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re NEVAEH T. et al., Persons Coming Under the Juvenile Court Law. D064188 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ14744A-B) Plaintiff and Respondent, v. NINA S., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael J.
Imhoff, Commissioner. Reversed and remanded with directions.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent. Nina S. appeals following the jurisdictional and dispositional hearing in the dependency case of her daughters, Nevaeh T. and E.T. (together, the children). Nina correctly contends the San Diego County Health and Human Services Agency (the Agency) and the juvenile court failed to fulfill their duties of inquiry and notice pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). The Agency concedes ICWA notice should have been given and a limited remand is necessary to effect and document proper ICWA notice.
In October 2012, before the dependency petitions were filed, the children's father, Brian T., told the Agency that he was a registered member of the Apache Tribe. He repeated this after the petitions were filed and in an ICWA-020 form (Cal. Rules of Court, rule 5.481(a)(2) [Parental Notification of Indian Status]). In November, at the detention hearing, the court declined to order ICWA notice until Brian had completed an ICWA-030 form (Cal. Rules of Court, rule 5.481(a)(4)(A) [Notice of Child Custody Proceeding for Indian Child]). During the next five months, there were 11 hearings. The court mentioned ICWA at just one of those hearings, stating "we still need to address ICWA." During this period, the Agency gave an ICWA-030 form to Brian but apparently did nothing else. In May 2013, the court found that Brian was a member of the Apache Tribe and ordered him to complete the ICWA-030 form and submit it to the social worker within a week. The court entered jurisdictional findings, ordered the children removed from parental custody and ordered notice to the Apache Tribe.
We reverse the judgment and remand the case for the required ICWA inquiry and notice. (Welf. & Inst. Code, § 224.3.)
2 DISPOSITION
The judgment is reversed. The case is remanded to the juvenile court with directions to order the Agency to (1) conduct an ICWA inquiry; (2) provide ICWA notice to any tribes the inquiry identifies; and (3) file all required documentation with the juvenile court. If, after proper notice, a tribe claims the children are Indian children, the juvenile court shall proceed in conformity with ICWA. If no tribe makes such a claim, the court shall reinstate its judgment.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.