Ventura County Human Services Agency v. B.G.

Filed 2/24/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re H.G., et al., Persons Coming Under 2d Juv. No. B255712 the Juvenile Court Law. (Super. Ct. Nos. J068715 & J069080) (Ventura County)

VENTURA COUNTY HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

B.G., et al.,

Defendants and Appellants.

Since the start of these dependency proceedings, the juvenile court and Ventura County Human Services Agency (HSA) have believed the Indian Child Welfare Act (ICWA) does not apply. (25 U.S.C. § 1901 et seq.) Evidence submitted for the first time on appeal, however, establishes that the children, who are of Eskimo descent, are Indian children under ICWA. We discuss the remedy. Father and mother appeal from the order terminating parental rights to their two minor children (minors) and selecting adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.)1 Three years ago, father submitted an ICWA-020 form claiming possible Eskimo heritage. HSA informed the juvenile court that ICWA does not apply to

1 All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

Eskimo families. The juvenile court agreed and found ICWA inapplicable. HSA concedes this was error. The federal definition of "Indian" includes "Eskimos and other aboriginal peoples of Alaska." (25 U.S.C. § 479; In re B.R. (2009) 176 Cal.App.4th 773, 783.) To avoid a remand to ensure ICWA notice compliance, HSA sent ICWA- 030 form notices to four native entities, including the Noorvik Native Community (NNC), a federally-recognized Alaskan Indian tribe. NNC responded by confirming minors are lineal descendants of their paternal grandmother, who is a tribe member. It stated minors "have a chance at getting enrolled within [NNC]" and provided application information. Father subsequently submitted a letter from NNC, dated November 5, 2014, which states: "The [NNC] has accepted the enrollment application from [father and minors]. [All three] are lineal descendants of a tribe member. [Father and minors] are now enrolled members of the [NNC]."2 ICWA reflects a congressional determination that it is in the best interests of Indian children to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations. (25 U.S.C. § 1902; see In re Desiree F. (2000) 83 Cal.App.4th 460, 469; § 224, subd. (a).) ICWA defines "Indian child" as a child who is either a member of an Indian tribe or eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4); In re Junious M. (1983) 144 Cal.App.3d 786, 796; see § 224.1, subd. (a).) Now that NNC has confirmed minors are tribe members, the parties agree they are Indian children under ICWA. (25 U.S.C. § 1903(4); § 224.3, subd. (e)(3).) Before terminating parental rights to an Indian child, the juvenile court must satisfy ICWA requirements. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339 (Jonathon S.).) Among other things, it must find that "active efforts" were made to