Butte County Children's Services Division v. Kathleen S.

Opinion

RAYE, J. Kathleen S., the mother of minor Jonathan D., appeals from the juvenile court’s order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)1 The mother contends the juvenile court erred by failing to require compliance with the notice provisions of the Indian Child Welfare Act (the Act). (25 U.S.C. § 1901 et seq.) We agree.

Factual and Procedural Background

In May 1999 a dependency petition was filed under section 300, subdivision (b) concerning the 16-month-old minor. The petition alleged the minor’s mother had been arrested for controlled substance offenses and had failed to reunify with the minor’s half sibling, the minor was observed to have bruising, and the minor’s father was on parole. The petition was sustained and reunification services were ordered.

In January 2000, following a contested six-month review hearing, the juvenile court terminated reunification services and set a section 366.26 hearing. The social worker’s report for that hearing recommended a permanent plan of adoption.

The father’s extraordinary writ petition was granted, and the section 366.26 hearing was vacated so the father could be provided with additional reunification services. In August 2000 the father’s services were again terminated and the section 366.26 hearing was reset.

[108]The social worker’s report for the reset section 366.26 hearing again recommended a permanent plan of adoption. As had all prior reports concerning the minor, that report indicated the Act did not apply. Nonetheless, the record reflects that on November 14, 2000, the Butte County Department of Social Welfare (the Department) sent notice of the hearing by certified mail, return receipt requested, to the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee.

The section 366.26 hearing was held on November 27, 2000. At the hearing, the mother’s attorney advised the court: “We have got another issue that the paternal grandmother tells me there’s a definite ICWA, Indian Child Welfare Act, link. Her mother’s father or somebody was full-blooded Cherokee. They have got the number and they can prove that.” Later in the proceedings, the attorney provided the name of the relative, stating she was an enrolled member.