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Name: In re H.A.
Case #: F040764
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 11/26/2002
Subsequent History: None

Prior to the 366.26 proceedings in this case, there was evidence that the minor dependent children might be Chumash Indian and eligible for membership in a federally recognized tribe. A hearing notice for the 366.26 proceedings was mailed to a tribal health clinic, and a return was received stating that the children were not affiliated with that tribe. The social worker did not attach this response or any copies of notices, proofs of certified mail, or responses to the 366.26 report. No mention of these representations was made at the 366.26 hearing. Mother’s parental rights were terminated. The appellate court here reversed and remanded for proper ICWA notice and a hearing. The Department failed to establish it gave sufficient notice. The Department’s reliance on certified mail was misplaced. The case cannot proceed to hearing until at least 10-court days after receipt of the notice by the tribe. Further, there was no indication that the health clinic was the tribe’s designated agent. The notice should have been sent to the Santa Ynez Band of Mission Indians, ICWA coordinator, not a health clinic. Notice to the BIA did not suffice because that notice did not comply with ICWA. The response that the children were not enrolled did not establish that the tribe had no interest in the proceedings. Enrollment is not required in order to be considered a member of a tribe.