California Court of Appeals — District 2

Two Unpublished Notice Cases out of California

Kate Fort

Two unpublished cases, both out of the second district.

Here.

Where the court spends considerable time interpreting the California statute regarding generations and ICWA notice. CWS has to notice the federally recognized tribes mentioned (Cherokee, Apache, Oglala).

Here.

Posted for the response CWS gives the Cherokee Nation:

The Cherokee Nation tribe responded, stating it could not verify whether the child had Indian heritage from its tribe. It needed additional information, including, among other things, dates of birth for some ancestors. In bold highlighted letters, it said it needed the middle name of the child’s great-great-great-grand
father [B.W.] and “also his wife’s name.” (We use initials instead of the family members’ full names for confidentiality purposes.)

CWS responded to the tribe’s letter. It said, “Our Department only sends ICWA-030 notices after all avenues of research have been completed, therefore we have already supplied your tribe with as much information as possible. Our notice provided all information known to the family.”

Of course, if you’ve been reading along with the California notice cases, you too know this is often not the case. Regardless, the court found notice sufficient in this case (no way to know if “B.W. even had a middle name.”).

 

Unpublished California ICWA Opinion Reversing for Non-Compliance

Kate Fort2 Comments

A long and sad opinion here, but a few things of note:

-as usual, Jay Treaty arguments are brushed aside.

-the State’s assumption that a claim of tribal membership is vague doesn’t mean ICWA might apply. And families might involve many tribes, from geographically diverse areas.

-there is or was a dedicated ICWA court or docket in Los Angeles County.

-the foster parents were not interested in helping with reunification in the slightest.

California COA (Los Angeles) Reverses Guardianship Case for Violation of ICWA Notice Requirement

Matthew L.M. Fletcher

Here is the opinion in In re S.E.:

In re S.E.

An excerpt:

A.A.-E. (Father) and S.S. (Mother) appeal from an order of the juvenile court establishing guardianship of their son, S.E. Both parents contend that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the inquiry and notice requirements of the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and the analogous California statutes governing custody proceedings involving Indian children. (Welf. & Inst. Code, § 224 et seq.) We conclude that the inquiry and notice conducted was not in full compliance with the requisites of the statute. We reverse for the limited purpose of full compliance with ICWA, as explained below.

Also:

Although we are sympathetic to DCFS‟s contention that Mother‟s objection will result in regrettable delay in the proceedings, we cannot say that the failure to thoroughly  investigate the child‟s Indian heritage constitutes harmless error. The information which was omitted here pertained directly to the ancestor Mother and the maternal grandmother affirmatively claimed was Indian. Under these circumstances we cannot say that the omission was harmless and that providing the ancestor‟s name might not have produced different results concerning the child‟s Indian heritage. (Cf. In re Antoinette S., supra, 104 Cal.App.4th 1401 [omission of information concerning non-Indian relatives is harmless error if the notice included all known information about the Indian parent and relatives].) Where the information was known, its inclusion was required regardless of the lack of a preprinted line on the Judicial Council form asking for it.