--- Cal.Rptr.3d ----, 2015 WL 765139 (Cal.App. 2 Dist.)

(Cite as: 2015 WL 765139 (Cal.App. 2 Dist.))


IN RE H.G., et al., Persons Coming Under the Juvenile Court Law.

Ventura County Human Services Agency, Plaintiff and Respondent,


B.G., et al., Defendants and Appellants.

2d Juv. No. B255712

Court of Appeal,

Second District, Division 6, California.

Filed February 24, 2015

Bruce A. Young, Judge Superior Court County of Ventura. (Super. Ct. Nos. J068715 &
J069080) (Ventura County)

Ernesto Paz Rey, Under Appointment By the Court of Appeal, for Defendant and
Appellant Father.

Maureen L. Keaney, Under Appointment By the Court of Appeal, for Defendant and
Appellant Mother.

Leroy Smith, County Counsel, Joseph J. Randazzo, Patricia McCourt, Assistant
County Counsel, for Plaintiff and Respondent.


*1 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. s 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, s 366.26.) FN1 Three years ago, father submitted an ICWA-020 form
claiming possible Eskimo heritage. HSA informed the juvenile court that ICWA
does not apply to 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. s 479; In
re B.R. (2009) 176 Cal.App.4th 773, 783.)

FN1. All further statutory references are to the Welfare and Institutions
Code unless otherwise stated.

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]."FN2

FN2. We previously granted HSA's unopposed motion to augment the record with
documents demonstrating ICWA compliance and father's unopposed motion
requesting that we accept, as evidence on appeal, the November 5, 2014,
letter from NNC. (See Code Civ. Proc., s 909; Cal. Rules of Court, rule

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. s 1902; see In re
Desiree F. (2000) 83 Cal.App.4th 460, 469; s 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. s 1903(4); In re Junious M. (1983) 144 Cal.App.3d 786,
796; see s 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. s
1903(4); s 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 provide services designed to prevent the breakup of the Indian family, and that
parents' continued custody of minors "is likely to result in serious emotional or
physical damage." (25 U.S.C. s 1912(d), (f); Jonathon S., at p. 339.) The
latter finding shall be "supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses." (25 U.S.C. s 1912(f);
Jonathon S., at p. 339; In re Riva M. (1991) 235 Cal.App.3d 403, 410.) "These
heightened requirements ... apply regardless of whether the tribe [chooses] to
intervene [in the case]." (Jonathon S., at p. 339; Riva M., at p. 410.)

*2 Having found ICWA inapplicable, the juvenile court did not consider these
requirements before terminating parental rights. (See 25 U.S.C. s 1912(d), (f);
Jonathon S., supra, 129 Cal.App.4th at p. 339.) NNC also was not afforded an
opportunity to intervene. (See 25 U.S.C. s 1912(a); In re Kahlen W. (1991) 233
Cal.App.3d 1414, 1425-1426.) Accordingly, as HSA now concedes, the order
terminating parental rights must be reversed and the matter remanded for a new
section 366.26 hearing in compliance with ICWA. FN3 (Jonathon S., at pp. 342-343;
In re Jonathan D. (2001) 92 Cal.App.4th 105, 111; see In re Francisco W. (2006)
139 Cal.App.4th 695, 709-711.)

FN3. At oral argument, parents requested that we also reverse the
dispositional order. We lack authority to do so. (Jonathon S., supra, 129
Cal.App.4th at pp. 340-342.) In light of our decision, we do not reach
parents' contentions that the juvenile court erred by finding the beneficial
exception to adoption does not apply and by failing to select a legal
guardianship as the permanent plan.

We recognize our decision further delays permanency for minors, "but cannot
conclude that the prospect of such a delay excuses non-compliance at the expense
of those that ICWA is intended to protect." (In re Alice M. (2008) 161
Cal.App.4th 1189, 1197.) We urge the juvenile court and the parties to expedite
resolution of these proceedings on remand.

The order terminating parental rights is reversed and the matter remanded to
the juvenile court with instructions to conduct a new section 366.26 hearing in
conformity with the provisions of ICWA and applicable state law.

We concur: