In re S.M. CA1/3

Filed 9/3/15 In re S.M. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re S.M., a Person Coming Under the Juvenile Court Law.

MENDOCINO COUNTY HEALTH & HUMAN SERVICES AGENCY, A144562 Plaintiff and Respondent, v. (Mendocino County Super. Ct. No. SCUKJVSQ141708101) M.A., Defendant and Appellant.

In this appeal from a dispositional order, the parties have submitted a joint application for a stipulated reversal of the challenged order. The parties agree that the juvenile court failed to ensure compliance with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA), and they seek a conditional reversal of the challenged order pending compliance with the ICWA. While we will accept the concession that the juvenile court failed to ensure compliance with the ICWA’s inquiry and notice requirements, we do not agree that reversal of the dispositional order, conditional or otherwise, is an appropriate resolution under these circumstances. Instead, the proper disposition is to remand for compliance with the ICWA’s notice and inquiry provisions and to allow appellants to petition the juvenile court to invalidate any orders that may have violated the ICWA upon a showing that any error was prejudicial.

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FACTUAL AND PROCEDURAL BACKGROUND In September 2014, M.A. (mother) was arrested following a report that she was behaving “out of control” in a pizza restaurant and hitting the head of her son, 11-month- old S.M., against the side of a stroller. Staff at the Mendocino County Health & Human Services Agency (Agency) noted that mother was not only under the influence at the time of the event but that her mental illness was spiraling out of control. S.M. was released to his father, V.M. (father), after he signed a family safety plan. Both mother and father subsequently tested positive for methamphetamine. In October 2014, S.M. was ordered removed from the custody of the parents. A petition filed in October 2014 alleged that S.M. came within the jurisdiction of the juvenile court under subdivisions (b) and (j) of section 300 of the Welfare and Institutions Code.1 Among other things, it was alleged that the parents were unable to provide a safe and appropriate home environment for S.A. in light of their chronic substance abuse, mother’s mental instability, and the condition of their home. It was further alleged that mother has two older children not currently in her care, with at least one of those children having been adopted after mother lost custody following the abuse and neglect of that child. In the juvenile dependency petition, it was noted that mother “stated she may have Native American heritage through the Cherokee, Choctaw & Blackfoot Tribes.” At the detention hearing, father stated that he may have Cherokee heritage, and he later filed a document declaring that he may have Cherokee or Apache heritage. In November 2014, the Agency filed a notice sent to various tribes advising them of the proceedings involving S.M. As of mid-December 2014, the Agency reported that it had received one response—a letter from the Blackfeet Tribe stating that S.M. is ineligible for enrollment. At a contested jurisdiction hearing conducted on December 30, 2014, the juvenile court sustained the jurisdictional allegations contained in the petition. Mother was