Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. JD16601
Bamattre-Manoukian, ACTING P.J.
Rebecca B., the mother of the child in this juvenile dependency proceeding, challenges the order terminating her parental rights for the sole reason that notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) was not properly provided. Respondent Department of Family and Children’s Services (the Department) concedes the error, requests that the order terminating parental rights be reversed and that a limited remand be ordered to allow compliance with the ICWA in the juvenile court, and requests that the remittitur issue forthwith. Counsel for the child joins in the Department’s request. We agree that reversal and a limited remand is appropriate in this case.
BACKGROUND
The child, then age three, was taken into protective custody along with her two older siblings pursuant to a protective custody warrant on November 17, 2005. On November 21, 2005, the Department filed a first amended petition as to the child under Welfare and Institutions Code section 300, subdivision (b) [failure to protect]. At the detention hearing on November 22, 2005, after both parents claimed Cherokee ancestry, the juvenile court found that the ICWA may apply and ordered that ICWA notice be given by the social worker. The Department prepared notices to the Bureau of Indian Affairs (BIA) and three Cherokee Indian tribes and sent them by certified mail on November 30, 2005. None of the notices to the Cherokee tribes were addressed to the tribal chairperson or designated representative and an incorrect address was used for notice to two of the tribes.
All further statutory references are to the Welfare and Institutions Code.
A second amended petition under section 300, subdivision (b), was filed as to the child on December 14, 2005. The social worker’s report for the jurisdictional and dispositional hearing stated that all three children were placed with their paternal grandparents. The Department recommended that the children remain in that home and that the parents receive reunification services. The jurisdictional and dispositional hearing was held on December 15, 2005. The Department filed the return receipts of the four ICWA notices with the court. Both parents waived their right to trial and admitted the allegations in the second amended petition as to the child. The juvenile court found the allegations in the petition to be true, adjudged the child to be a dependent child of the court, continued the child in the home of her grandparents, and ordered reunification services for both parents.
The social worker’s report for the six-month review hearing stated that the Department had not received any responses from the tribes or the BIA. The Department recommended that reunification services continue for the parents for another six months. At the six-month review hearing on June 14, 2006, the juvenile court found that the ICWA notice was proper and that the ICWA does not apply. The court continued the child in the home of her grandparents and continued services for both parents.
The social worker’s reports for the 12-month review hearing recommended that reunification services be terminated for both parents and that a section 366.26 hearing be set for the purpose of setting a permanent plan of legal guardianship for the child with her paternal grandparents. Following the contested 12-month review hearing on February 2, 2007, the court continued the child in the home of her grandparents and continued services for both parents. At a review hearing on April 18, 2007, the court terminated services for both parents and set the matter for a section 366.26 hearing on August 13, 2007.
The social worker’s report for the section 366.26 hearing stated that the child’s father passed away on July 10, 2007. The Department recommended that mother’s parental rights be terminated as to the child, and that the child’s paternal grandparents be allowed to adopt the child. On August 13, 2007, the court ordered legal guardianship for the child’s two older siblings and continued the matter for a contested hearing as to the child.
The Department recommended that the paternal grandparents become the legal guardians of the child’s two older siblings.
The contested hearing began on October 1, 2007, and concluded on October 25, 2007. Mother, the social worker, and the child’s therapist testified and were cross-examined. Counsel for the Department requested that the court find that the exception to adoption in section 366.26, former subdivision (c)(1)(A) (now subd. (c)(1)(B)(i)) does not apply and order a permanent plan of adoption for the child. Counsel for mother argued that the exception in section 366.26, former subdivision (c)(1)(A), does apply and requested that the court appoint the paternal grandmother as the child’s legal guardian. Counsel for the child argued that it was in the child’s best interest to terminate mother’s parental rights and to institute a permanent plan of adoption for the child.
The court found that there was no evidence, other than mother’s opinion, that the child would benefit from continuing the relationship with mother. The court further found that the child is adoptable, that she is likely to be adopted, and that she will be adopted by the paternal grandmother. Therefore, the court terminated mother’s parental rights and freed the child for adoption.
Mother filed a timely notice of appeal.
DISCUSSION
Mother’s sole contention on appeal is that the juvenile court erroneously terminated her parental rights because proper notice under the ICWA had not been perfected. She argues that the Department failed to properly send notice to the three Cherokee Indian Tribes because (1) the notice to the Cherokee Nation of Oklahoma did not include the name of the Principal Chief of the tribe, (2) the notice to the United Keetoowah Band of Cherokee Indians had an incorrect address and did not include the name of the Chief of the tribe, and (3) the notice to the Eastern Band of Cherokee Indians had an incorrect address and did not include the name of the designated representative. Mother further argues that the error was not harmless. “Although the record contains signed Return Receipts for the Notices mailed to each of the three Cherokee Indian tribes, the record shows the signatures were not those of the representatives of each of these tribes. . . . The Department failed to properly notice any of the three Cherokee Indian tribes because the Notices were not mailed to the tribal chairpersons or the designated agents for service and, because there was no response from [these tribes] there is no assurance the tribal chairpersons or designated agents received the notice and the dependency petition.”
The Department concedes the error and requests reversal of the order terminating parental rights and a limited remand. “Reversal is necessary to obtain response letters from the noticed tribes, or, in the alternative, to resend notices to the Cherokee tribes at the current addresses and addressed to the current designated tribal chairmen or agents.” “The Department and the juvenile court can address the issues raised by [mother] in a remand proceeding specifically devoted to the task.” The Department also requests that the remittitur issue forthwith. The child has joined in the Department’s request.
In Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, the mother of the child at issue contended that the ICWA notices in her case were inadequate because notice to one tribe was sent to an incorrect address. The appellate court agreed and found that the error was not harmless. (Id. at pp. 783-784.) The court found that the record contained no conclusive evidence that the tribe received actual notice of the dependency proceedings. Although the record contained a signed return receipt for the misaddressed ICWA notice, there was nothing in the record indicating that the signature was that of a representative of the tribe. (Id. at p. 784.) The court held, therefore, that the matter must be remanded for proper ICWA notice to the tribe. (Ibid.; see also In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
Similarly, in this case the Department’s ICWA notices were inadequate and the record contains no conclusive evidence that any of the three Cherokee tribes received actual notice of the dependency proceedings. Accordingly, we will reverse the order terminating parental rights and remand the matter for the limited purpose of allowing proper ICWA notices to be sent to the three pertinent Cherokee tribes.
DISPOSITION
The order of October 25, 2007, terminating parental rights is reversed. The matter is remanded to the juvenile court for the limited purpose of allowing the Department to provide ICWA notice of the dependency proceedings to the three pertinent Cherokee Indian tribes at the addresses listed in the most recent federal register. If, after notice is properly given, no tribe responds indicating that the child is an Indian child within the meaning of the ICWA, the juvenile court shall reinstate the order terminating parental rights and freeing the child for adoption. If any tribe determines that the child is an Indian child within the meaning of the ICWA, the juvenile court shall conduct a new section 366.26 hearing applying the provisions of the ICWA. The remittitur shall issue forthwith.
WE CONCUR: MIHARA, J., MCADAMS, J.