In re Natalie P. CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. EJ3869
- Trial judge
- Gary M. Bubis
- Outcome
- reversed — Reversed and remanded with directions.
- Area
- dependency
- Panel
- Alex C. McDonald (author), Richard D. Huffman, Sr., Patricia D. Benke
Analysis
The juvenile court found that the Agency substantially complied with the Indian Child Welfare Act (ICWA) and that ICWA did not apply, making a true finding on the dependency petition. The Court of Appeal reversed and remanded, directing the Agency to conduct a proper ICWA inquiry and provide notice to the Cherokee tribe.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding of substantial compliance with ICWA and that ICWA did not apply“In March 2015, the court found there had been substantial compliance with ICWA and ICWA did not apply.” | unclear | error | agree with court The appellate court determined the trial court erred because the Agency failed to send notice to the Cherokee tribe, the ICWA-030 form was incomplete and contained errors, and there was no evidence of an inquiry into the father's ancestry, which are required for substantial compliance. |
Authorities
- relied: In re Robert A. (2007) 147 Cal.App.4th 982 — Supports the requirement for proper ICWA inquiry and notice and the remedy of reversal and remand when notice is defective.
The appellate opinion: sound — The opinion is sound because it correctly identifies the specific procedural failures (lack of notice to the Cherokee tribe, incomplete forms, and lack of inquiry into the father's ancestry) that preclude a finding of substantial compliance under ICWA. It relies on the appropriate federal statute and California rules to support the reversal.
How this analysis was made · dispute it
unusual dispositionThe juvenile court found the Agency substantially complied with ICWA and that ICWA did not apply, made a true finding on the dependency petition, and placed Natalie with a relative. The Court of Appeal, on the Agency's concession, reversed and remanded with directions to conduct a proper ICWA inquiry, notice the Cherokee tribes, and reinstate the judgment if no tribe claims Natalie is an Indian child.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that the Agency substantially complied with ICWA and that ICWA did not apply“The Agency did not send ICWA notice to any of the federally recognized Cherokee tribes (78 Fed. Reg. 26384-02 (May 6, 2013)). The ICWA-030 form was incomplete and contained a typographical error.” | unclear | error (fact finding unsupported) | agree with court Erika declared possible Cherokee ancestry and the maternal grandmother confirmed Cherokee heritage, yet no notice went to any federally recognized Cherokee tribe, the ICWA-030 form was incomplete and misspelled the grandmother's surname, and no inquiry was made into the deceased father's ancestry. Notice to the BIA alone does not satisfy ICWA when a specific tribe is identified, so the substantial-compliance finding lacked evidentiary support; the Agency's concession confirms this. |
Authorities
- relied: In re Robert A. (2007) 147 Cal.App.4th 982 — Where ICWA notice is deficient, the appropriate remedy is a limited reversal and remand for proper inquiry and notice, with reinstatement of the judgment if no tribe claims the child is an Indian child.
The appellate opinion: sound with gaps — The court correctly identified three independent ICWA defects (no notice to identified Cherokee tribes, incomplete and erroneous ICWA-030 form, no paternal inquiry) and applied the standard limited-remand remedy from In re Robert A. The opinion is brief and does not state a standard of review or cite the governing notice provisions (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2), but given the Agency's concession the result is plainly correct.
Opinion
Filed 7/6/15 In re Natalie P. 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 NATALIE P., a Person Coming Under the Juvenile Court Law. D067689 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3869) Plaintiff and Respondent, v. ERIKA P., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Gary M.
Bubis, Judge. Reversed and remanded with directions.
Paul A. Swiller, 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. Erika P. appeals following the jurisdictional and dispositional hearing in the juvenile dependency case of her daughter, Natalie P. Erika contends the juvenile court erred by finding the San Diego County Health and Human Services Agency (the Agency)
substantially complied with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and ICWA did not apply. The Agency concedes ICWA notice should have been sent to the Cherokee tribe, the ICWA-030 form (Cal. Rules of Court, rule 5.481(a)(4)(A)
[Notice of Child Custody Proceeding for Indian Child]) was incomplete and contained typographical errors, and a reversal and a limited remand is necessary to effect and document proper ICWA notice.
In January 2015, the Agency filed a dependency petition for four-year-old Natalie.
Natalie was detained with the paternal grandmother. In the detention report, the Agency noted that because Natalie's father (the father) was deceased, relatives would need to be asked about any Indian ancestry. On the day of the detention hearing, Erika completed an ICWA-020 form (Cal. Rules of Court, rule 5.481(a)(2) [Parental Notification of Indian Status]) in which she declared she might have Cherokee ancestry and a parentage inquiry in which she declared the father did not have any Indian heritage. The court ordered her to complete an ICWA-30 form and provide it to the Agency. The court ordered the Agency to give notice to the appropriate tribes and agencies.
A few days after the detention hearing, the maternal grandmother told the Agency she was adopted, her birth family had Cherokee heritage and she did not know her birth name or the names of any members of her birth family. The Agency asked Erika and the maternal grandmother to complete and return the ICWA-030 form.
2 At the next hearing, in February 2015, the court ordered Erika and the maternal grandmother to assist the Agency in completing the ICWA-030 form. The court ordered the Agency to give notice to the appropriate tribes and any appropriate agencies.
Nine days after the February 2015 hearing, the Agency mailed an ICWA-030 form to Erika, the Sacramento Area Director of the Bureau of Indian Affairs and the United States Secretary of the Interior. On the form, the Agency misspelled the maternal grandmother's surname. The form stated that neither Erika nor the maternal grandmother had named a tribe.
In March 2015, the court found there had been substantial compliance with ICWA and ICWA did not apply. The court made a true finding on the petition and ordered Natalie placed with a relative.
The Agency did not send ICWA notice to any of the federally recognized Cherokee tribes (78 Fed. Reg. 26384-02 (May 6, 2013)). The ICWA-030 form was incomplete and contained a typographical error. The record contains no evidence of any inquiry whether the father had Indian ancestry. We reverse the judgment and remand the case for the required ICWA inquiry and notice. (In re Robert A. (2007) 147 Cal.App.4th 982, 989-990.)
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 court.
If, after proper notice, a tribe claims Natalie is an Indian child, the court shall proceed in 3 conformity with ICWA. If, on the other hand, no tribe makes such a claim, the court shall reinstate the judgment. The remittitur is to issue immediately. (Cal. Rules of Court, rule 8.272(c)(1).)
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
Cites, in this corpus
- San Diego County Health & Human Services Agency v. Robert A. D048994 · 2007-01-25