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Name: In re Elizabeth W.
Case #: B172202
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 07/21/2004
Summary

The minor originally became a foster child in 1996 when she tested positive for cocaine at the time of her birth. She was returned to her mother on the condition that her father not reside with them as her father had sexually abused two siblings. She was removed from her mother again when it was discovered that the father was living with them. The minor lived in multiple foster homes and had severe learning, emotional, and behavior problems. Her behavior deteriorated, and she was placed in residential treatment, and then a group home. Eventually, she was placed with a sibling’s adoptive parents where she made a positive adjustment. Visits with her parents were limited and the the new foster parents wished to adopt her. Parental rights were terminated with adoption as the permanent plan. On appeal, father contended that the Department had failed to comply with the ICWA notice requirements. The appellate court reluctantly agreed and reversed the termination order, remanding for ICWA compliance. Father notified the court in 2000 that he had Indian heritage. The Department claimed to have noticed a Blackfoot tribe in Montana, but provided no evidence to show that the notice was sent or received. The notice was insufficient in that it did not name father’s birthplace. The tribe responded with a request for additional information. The Department submitted nothing to the court showing that the request had been complied with and the ICWA was not mentioned again. Where the record shows unequivocally that proper notice was given and responses were received, and the only omission is the failure to provide a proof of service showing that the the notice was sent by certified mail, error will not be presumed and compliance will be deemed sufficient. But here, there was nothing more than a conclusory statement that the notice was sent, and the only document submitted to the court was incomplete. No return receipt was filed. The response from the tribe was not filed, nor the Department’s purported reply to the response. The appellate court must now enforce the law ignored by the department, at the risk of turning the minor’s life upside down again.