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In re Dominic S.1/7/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Dominic S., Sr., (appellant), the father of Dominic S., Jr., (Dominic), appeals from the order terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant claims the juvenile court erred in failing to find applicable the "benefit" exception to the preference for adoption set forth in section 366.26, subdivision (c)(1)(A). Appellant also asserts a number of errors in complying with the notice provisions of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.)
As we conclude, the inquiry into Dominic's Indian heritage was inadequate under the ICWA, we shall conditionally reverse the order terminating appellant's parental rights and remand the matter to the juvenile court for additional inquiry and possible new notice to the relevant tribal entities.
FACTUAL AND PROCEDURAL BACKGROUND
Shannon M.'s five children, including Dominic, were taken into protective custody on December 30, 2002, after Shannon M. (mother) gave birth to J.M. on December 28, 2002, and both she and J.M. tested positive for cocaine. Sacramento County Department of Health and Human Services (DHHS) was able to place J.M. with her non-offending father. Juvenile dependency petitions were filed alleging the remaining children, two-year old Dominic, five-year old K.M., six-year old Amy M., and seven-year old Ruth M., came within the provisions of section 300. Appellant is the father of Dominic only.
At the detention hearing held on January 3, 2003, mother represented to the juvenile court that she had no Native American Heritage. Appellant told the court that he did have that heritage. According to appellant, his father was almost full Cherokee, as well as Blackfeet and Navajo. His mother is White, but also has some Cherokee. Appellant then stated that his father's mother was born in Oklahoma on a Cherokee reservation and that he knew she was "from the Wolf Clan." She also had a Navajo connection. Further, his father's grandmother was born on an Indian reservation in Colorado. Appellant represented to the court that his father, his grandmother, and his great grandmother were all still alive and that he knew how to contact them. The juvenile court directed DHHS to send ICWA notice to the Cherokee Nation of Oklahoma and the Bureau of Indian Affairs (BIA). The court also directed DHHS to further investigate additional Indian heritage.
On January 10, 2003, a paralegal with the DHHS spoke with appellant's mother, Dominic's paternal grandmother, regarding Dominic's Indian heritage. Dominic's grandmother said Dominic's paternal grandfather was one-half Cherokee. She did not have very much of his family history and did not know how to reach him. On her side of the family, paternal grandmother said her "grandmother" was Cherokee from Georgia. She was able to provide "his" name and date of birth. She also claimed Navajo and Blackfeet ancestry, "but she was unclear on which relative the ancestry was from." Paternal grandmother said neither she nor appellant were enrolled with a tribe.
On January 17, 2003, DHHS sent the SOC 318, Request for Confirmation of Child's Status as Indian, and SOC 319, Notice of Involuntary Child Custody Proceedings Involving an Indian child, to the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, the Navajo Nation, the Ramah Navaj
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