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Name: In re Jennifer A.
Case #: G030368
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 11/13/2002
Subsequent History: Opn. mod. on 12/11/02 without change in judgment

The minor was removed from her mother and first placed in a foster home. She was ultimately placed with her father under Department supervision. At the detention hearing, both parents notified the court that they believed that they had Cherokee and Yaki heritage. The jurisdiction hearing report noted that ICWA might apply. The Department sent notice to the BIA and both tribes. No further mention was made of ICWA during the subsequent proceedings. On appeal, mother claimed that the juvenile court erred in failing to apply the notice and other procedural requirements of ICWA. The Department contended that any violation of the ICWA notice requirements was harmless because the minor was placed with her father, and not in foster care. The appellate court here rejected the Department’s argument, finding that the potential for foster care placement was before the court at the time it ignored the ICWA requirements. ICWA applied since Jennifer was removed from her mother in an involuntary proceeding. The Department also contended that ICWA does not apply to marital dissolution proceedings, and did not apply here because Jennifer was not taken from both parents. The appellate court rejected that argument because the parents were not married and these were not marital dissolution proceedings. It also found that proper ICWA notice procedures had not been followed, as there was no receipt of notice, nor any response from the BIA or the tribes provided to the juvenile court. Further, father could not waive the notice requirement because the notice requirement is intended to protect the interests of Indian tribes, not the parent. Therefore, the juvenile court erred in failing to determine whether proper notice was provided to the tribes, and reversal and remand were required.