In re Gianna I. CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. J518441B-D
- Trial judge
- Edlene C. McKenzie
- Outcome
- reversed — Reversed and remanded with directions.
- Area
- dependency
- Panel
- Judith D. McConnell (author), Richard D. Huffman, Sr., Patricia D. Benke
Analysis
The trial court terminated the appellant's parental rights, finding that the Indian Child Welfare Act (ICWA) did not apply because notice was sent to one Chumash tribe which denied eligibility. The Court of Appeal reversed and remanded, directing the agency to provide proper ICWA notice to all potentially relevant tribes, including the Tejon Indian Tribe, and to file required documentation.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that ICWA did not apply and terminating parental rights without providing notice to the Tejon Indian Tribe or regarding the third child (G.M.C.) to either tribe.“The Agency never sent ICWA notice to the latter tribe and never sent ICWA notice regarding G.M.C. to either tribe.” | unclear | error (procedure) | agree with court The appellate court found that the agency failed to comply with ICWA notice requirements by omitting the Tejon Indian Tribe and failing to send notice for the third child. The court reversed the judgment to ensure proper notice was provided, as required by federal law. |
The appellate opinion: sound — The opinion is sound because it correctly identifies a procedural defect in the ICWA notice process (failure to notify all potentially relevant tribes and all children) and provides a clear remedy (remand for proper notice). The reasoning is supported by the statutory requirement for notice and the factual record showing the omission.
How this analysis was made · dispute it
unusual dispositionThe juvenile court terminated presumed father E.C.'s parental rights to three children after repeatedly finding ICWA did not apply, even though the mother claimed Chumash ancestry and the Agency had noticed only one of two federally recognized Chumash tribes and sent no notice at all regarding the youngest child. On appeal, the Agency conceded the ICWA notice error, and the Court of Appeal reversed and remanded with directions to give proper notice, with the judgment to be reinstated if no tribe claims the children are Indian children.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that ICWA did not apply and that ICWA notice was adequate, underlying the order terminating parental rights“The Agency never sent ICWA notice to the latter tribe and never sent ICWA notice regarding G.M.C. to either tribe.” | unclear | error (procedure) | agree with court Under 25 U.S.C. § 1912(a) and Welfare and Institutions Code section 224.2, when the court knows or has reason to know a child may be an Indian child, notice must go to every tribe of which the child may be a member or eligible for membership. Judicially noticed state records showed two federally recognized Chumash tribes (Santa Ynez Band and Tejon Indian Tribe); the Agency noticed only the Santa Ynez Band for the two older children and sent no notice for G.M.C. The ICWA-inapplicability finding therefore lacked a proper foundation, the Agency conceded as much, and the conditional reversal with directions to notice and reinstate if no tribe responds is the standard remedy for ICWA notice defects. |
Authorities
- missed: In re Francisco W. (2006) 139 Cal.App.4th 695 — ICWA notice error at the termination stage is remedied by a limited reversal: the case is remanded for proper notice and, if no tribe responds that the child is an Indian child, the termination order is reinstated. The court adopted this disposition without citing any authority for it.
The appellate opinion: sound with gaps — The court reached the correct result on a conceded ICWA notice error, properly augmenting the record and taking judicial notice of the state tribal-contact list to show a second Chumash tribe was never noticed and no notice was sent for the youngest child. However, the opinion cites no statute or case for the notice requirement, the standard of review, or the limited-reversal remedy, leaving the legal framework entirely implicit.
Opinion
Filed 11/25/15 In re Gianna I. 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 GIANNA I. et al., Persons Coming Under the Juvenile Court Law. D068548 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518441B-D) Plaintiff and Respondent, v. E.C., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Edlene C.
McKenzie, Judge. 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 Daniela Davidian, Deputy County Counsel, for Plaintiff and Respondent. Presumed father E.C. appeals the termination of his parental rights to children Gianna I., G.I.C. and G.M.C. (together, the children). E.C. contends judgment must be reversed and the case remanded to ensure proper notice pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). Plaintiff San Diego County Health and Human Services Agency (the Agency) properly concedes the point.
In June 2012, the Agency filed dependency petitions for Gianna and G.I.C. Their mother, Michelle I., said she had Chumash Indian ancestry. In July, the Agency sent notice by certified mail to the Santa Ynez Band of Mission Indians (also called the Santa Ynez Band of Chumash Indians), the Bureau of Indian Affairs (BIA) and the Secretary of the Interior.1 In August, the Santa Ynez Band of Chumash Indians responded, saying Gianna and G.I.C. were not enrolled or eligible for enrollment. The court entered true findings on the petitions and ordered Gianna and G.I.C. placed with E.C. The court found ICWA did not apply.
In February 2013, the Agency filed supplemental petitions. The court ordered Gianna and G.I.C. detained with a relative and confirmed its finding ICWA did not apply.
In April, the court dismissed the supplemental petitions and ordered Gianna and G.I.C.
continue to be placed with E.C. In November, G.M.C. was born. The Agency filed a petition for her. The court ordered G.M.C. detained with E.C. and found ICWA did not apply in her case. In December, the court ordered G.M.C. placed with E.C.
1 We grant the Agency's motion to augment the record with copies of the postmarked certified mail receipts and responses from the BIA and the Santa Ynez Band of Chumash Indians. 2 In May 2014, the Agency filed supplemental petitions for the children. The children were detained in foster care. In July, the court made true findings on the supplemental petitions and ordered the children placed in foster care. The court found ICWA notice was not required because ICWA did not apply. At the six-month review hearing in February 2015, the court set a section 366.26 hearing. In July, the court terminated parental rights. The court confirmed its previous finding ICWA did not apply.
We grant the Agency's request for judicial notice of pages one and nine of the Federally-Recognized Tribes ICWA Contacts For Noticing Purposes (December 2013 and March 2014) <http://www.childsworld.ca.gov/res/pdf/CDSSTribes.pdf>. This material shows there are two Chumash Tribes, the Santa Ynez Band of Mission Indians and the Tejon Indian Tribe. The Agency never sent ICWA notice to the latter tribe and never sent ICWA notice regarding G.M.C. to either tribe.
DISPOSITION
The judgment is reversed. The case is remanded to the juvenile court with directions to order the Agency to (1) provide proper ICWA notice and (2) file all required documentation with the court. If, after proper notice, a tribe claims the children are 3 Indian children, the court shall proceed in conformity with ICWA. If, on the other hand, no tribe makes such a claim, the court shall reinstate the judgment.
MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
HUFFMAN, J.