Dwayne P. v. Superior Court

Dwayne P. and Rosemary P. seek review of the juvenile court’s order terminating reunification services and scheduling a selection and implementation hearing under Welfare and Institutions Code section 366.26, subdivision (l) and California Rules of Court, rule 39.IB. The parents contend the court committed reversible error by not complying with the notice requirements of the Indian Child Welfare Act (the ICWA) ( 25 U.S.C. § 1901 et seq.). The San Diego County Health and Human Services Agency (the Agency) counters that the ICWA is inapplicable because there was insufficient indication the children are Indian children, and in any event, under In re Pedro N. (1995) 35 Cal.App.4th 183 [ 41 Cal.Rptr.2d 819 ] (Pedro N.), this court lacks jurisdiction to proceed because the parents did not appeal the jurisdictional and dispositional order in which the juvenile court addressed the ICWA issue.

We conclude the ICWA notice requirement is applicable. Further, we respectfully disagree with Pedro N, and conclude that given the court’s continuing duty throughout the dependency proceedings to ensure the requisite notice is given (rule 1439(f)(5)), and the protections the ICWA affords…