R.S.
Orange County Social Services Agency v. R.S.
Opinion
lead Opinion
Aronson, J.
*1404 Opinion
R.S. (father) contends the juvenile court’s failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA, or the Act) deprived the court of jurisdiction to terminate his parental rights to five-year-old Antoinette S. The court held the termination hearing without waiting “at least ten days after receipt of notice” by the Secretary of the Interior. ( 25 U.S.C. § 1912 (a); subsequent statutory citations are to this title unless otherwise noted.) While broad language utilized by some of our sister Courts of Appeal and other state courts suggests such error is jurisdictional, we agree with those courts reaching the opposite conclusion. In our view, the error is not jurisdictional. Nor does it always require reversal or remand for strictly proper notice. Here, the failure to ensure a 10-day window after notice to the Secretary was harmless. Finally, father’s argument that the court should have applied the substantive provisions of the ICWA is also without merit. We therefore affirm the judgment.
I
Orange County Social Services Agency (SSA) placed a hospital hold on then four-year-old Antoinette because blood tests ruled out her mother’s…
dissent Opinion
Moore, J.
The juvenile court was put on notice that Antoinette “[might] be of Indian ancestry,” when the dependency petition containing that statement was filed. Subsequently, the father appeared on the scene and said his maternal grandparents had Indian ancestry. In an addendum report filed the day of the termination hearing, Orange County Social Services Agency (SSA) informed the court of the father’s *1415 claimed Indian heritage. The report also reflected that just one day before the termination hearing, SSA had sent correspondence to the Bureau of Indian Affairs (BIA) regarding Antoinette’s possible Indian ancestry. The court accepted the report into evidence. Inexplicably, the court chose to ignore the information concerning the possible Indian heritage of Antoinette. The court made no findings as to the applicability of the Indian Child Welfare Act (ICWA) and failed to ensure compliance with the ICWA notice requirements.
Having been informed about Antoinette’s possible Indian heritage twice, the court certainly was on notice that she might be an Indian child. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255 [ 126 Cal.Rptr.2d 639 ] (Dwayne P.) [court has reason to believe…