California Court of Appeal

Cal. Court of Appeal — ICWA Notice Violations Not Reversible Error

Matthew L.M. Fletcher

Here is the opinion in In re E.W., from the California Court of Appeal, 4th District, Division 2. An exerpt:

Appellant V.P. (Mother) is the mother of E.W. and P.W. Mother appeals from the juvenile court’s order terminating her parental rights at a hearing held under Welfare and Institutions Code section 366.26 held on May 13, 2008.1 Mother makes a three-fold challenge under the Indian Child Welfare Act (ICWA): 1) DPSS did not provide proper notice to the Indian tribes; 2) DPSS did not receive responses from all of the noticed tribes or from the BIA; and 3) the juvenile court did not make a finding that ICWA did not apply. As discussed below, we find that any error was not prejudicial and so affirm the court’s orders.

“Comanche Princesses” and ICWA

Matthew L.M. Fletcher

The California Court of Appeals held the mere invocation that a distant ancestor was a “Comanche princess” likely does not rise ot probable cause that a child may be an Indian child under the Indian Child Welfare Act.

Opinion in In re Shane G.

California Court of Appeals Warns State Agency on Failure to Comply with ICWA Notice Requirement

Matthew L.M. Fletcher

Here is the partially published opinion in Justin L. v. Superior Court, decided by the 2nd District of the California Court of Appeal. In the published portion, the court notes:

We are growing weary of appeals in which the only error is the Department’s failure to comply with ICWA. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1254-1255 [14 published opinions in 2002 through 2005, and 72 unpublished cases statewide in 2005 alone reversing in whole or in part for noncompliance with ICWA].) Remand for the limited purpose of the ICWA compliance is all too common. ( Ibid.) ICWA’s requirements are not new. Yet the prevalence of inadequate notice remains disturbingly high. This case presents a particularly egregious example of the practice of flouting ICWA. The Department concedes it sent no notices, notwithstanding the juvenile court’s specific order that it do so. And, we have been given no indication that the Department has attempted to mitigate the damage it caused in failing to attend to ICWA’s dictates by sending notices while this proceeding was pending. ( In re Elizabeth W. (2004) 120 Cal.App.4th 900, 908.) “Noncompliance with ICWA has been a continuing problem in juvenile dependency proceedings conducted in this state, and, by not adhering to this legal requirement, we do a disservice to those vulnerable minors whose welfare we are statutorily mandated to protect.” ( In re I.G., supra, at pp. 1254-1255.) Delays caused by the Department’s failure to assure compliance with the law are contrary to the stated purpose of the dependency laws, to promptly resolve cases ( In re Marilyn H. (1993) 5 Cal.4th 295, 307, 309) and to provide dependent children with protection, safety and stability. ( Id. at p. 307; Welf. & Inst.Code, § 202.)