Turtle Talk

Here.

This is the In re Isaiah H. decision, where amici included the United States and California Indian Legal Services on behalf of appellant mother. Briefing was completed in this case more than a year ago, and oral arguments were heard in May.

We granted review to decide whether a parent who does not bring a timely appeal from a juvenile court order that subsumes a finding of ICWA‘s inapplicability may challenge such a finding in the course of appealing from a subsequent order terminating parental rights. Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, we hold that the parent may a challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order.

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The continuing nature of a juvenile court‘s duty to inquire into a child‘s Indian status appears on the face of section 224.3(a). As noted, that provision reads: “The court . . . ha[s] an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been . . . filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.” (§ 224.3(a).) The plain language of this provision — declaring an “affirmative and continuing duty” that applies to “all dependency proceedings” — means that the juvenile court in this case had a present duty to inquire whether Isaiah was an Indian child at the April 2013 proceeding to terminate Ashlee‘s parental rights, even though the court had previously found no reason to know Isaiah was an Indian child at the January 2012 proceeding to place Isaiah in foster care. Because the validity of the April 2013 order is necessarily premised on the juvenile court‘s fulfillment of that duty, there is nothing improper or untimely about Ashlee‘s contention in this appeal that the juvenile court erred in discharging that duty.

Briefs here.