ICWA Notice Decision in the Colorado Court of Appeals

Opinion here

This is a fairly standard notice decision, but the instructions on remand are the kind that more courts of appeals need to provide in ICWA cases. As they are nearly four full pages long, I’m not quoting them here, but I am posting the opinion because of them.

Also, by “fairly standard notice decision”, I mean the Department was aware of possible American Indian/Cherokee heritage in May, and no one did any notice till December, a month after the Department filed the TPR. The Court of Appeals sent it back down to fix that.

Three Recent California ICWA Cases

Reported case on notice, where the social service agency attempted to fix the notice issues while the case was on appeal. Fourth District remanded for proper notice.

An unreported case where the trial court refused to apply ICWA because of a lack of written communication from the tribe, though the agency received verbal confirmation of the children’s membership. The case was reversed, also by the Fourth District.

Finally, an unreported case using the “family lore” argument to find there was no notice necessary. Haven’t seen a family lore case in California since 2011. Those cases were all out of the Second District, while this one is out of the First.

Two Additional Unpublished Notice Cases out of California

Apparently this is the week for notice cases with particular cause for posting.

Here. While the court in this case remands for notice violations in a guardianship case, it sadly does not also hold that Wikipedia is not a solid source for determining whether a tribe is federally recognized or not.

Here. And in this case, the appellate court wrote:

We begin with a concern not addressed by either party. California Rule of Court, rule 5.481(b) mandates that in asection 300 proceeding, the social services agency must send a “Notice of Child Custody Proceeding for Indian Child.” This form is designated ICWA–030. The ICWA–030 form sent by the Bureau here, however, differs from the ICWA–030 form available on the Judicial Council website.7 Significantly, that ICWA–030 form, which consists of 10 pages, requests identifying information on the biological mother (section 5c), the mother’s biological mother (section 5c), and the mother’s biological grandmother (section 5d).8 The ICWA–030 used by the Bureau, which was 12 pages, appears at first glance to be the same, but upon closer examination materially differs. It requests information on the biological mother (section 5c) and the mother’s biological mother (section 5c), but it then skips to the mother’s biological great grandmother and great, great grandmother (section 5d). Nowhere does it contain a section for information on the mother’s biological grandmother.9 By using what may be a faulty ICWA–030, the Bureau completely omitted all information on R.K.’s grandmother—Robin’s great grandmother.10
*6 Additionally, although the ICWA–030 requested information regarding R.K.’s mother, the Bureau omitted all information for her, stating “No information available” for every single category, including her name. This is, quite simply, inexplicable. At the very least, we can only assume that an inquiry of R.K. would have revealed her mother’s name and, quite likely, additional information called for by the notice. But it is also probable that the Bureau could have obtained the information from R.K.’s mother herself. At the outset of the dependency proceeding, R.K. informed the social worker that her mother was involved in her own dependency proceeding. Additionally, R.K.’s mother was present at the June 5, 2013, 12–month review hearing, as evidenced by the reporter’s transcript from the hearing. At one point, the court interrupted the proceeding to ask audience members to identify themselves, and one person responded, “I’m the mother of [R.K.]” Both of these circumstances suggest that R.K.’s mother was accessible had the Bureau made an effort to speak with her. Additionally, the Bureau omitted the current and former addresses and the place and date of birth for R.K.’s great, great grandmother.

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

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.


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.

Michigan COA Issues First “Conditional Reversal” in ICWA Notice Case


In re Grochowalski

The Michigan SCT decision instructing lower courts on ICWA notice violations and adopting the “conditional reversal” requirement is here.

New Book on Cherokee Syllabary

ICT has two articles on Ellen Cushman’s new book, The Cherokee Syllabary: Writing the People’s Perseverance.

Here is the interview with the author, and here is the review of the book.

Cushman, a Cherokee Nation citizen, writes in her preface about the questions generated by a poster of the Cherokee syllabary chart that hangs in her office. Visitors ask, “Why so many characters? How is this learned? Why these shapes? Where can I find samples of writing in Sequoyan? Is it even still used? What does it all mean?”

Cushman, wondering herself, set out to answer these and other queries. Her first few chapters detail the story of Sequoyah and how the writing system evolved from handwritten script to the printing press. Then the author delves into the deeper meaning of the syllabary itself. In theorizing about how the original handwritten script may have had many linguistic meanings built into its very shapes, she actually strips down the syllables digitally to their core shapes and creates a table comparing them. All this makes for a fascinating discussion.

The narrative then flows into how the script was later adapted to the printing press. Cushman notes that despite the influence of missionary groups, the final product was not informed by the English alphabet, even though some Cherokee syllables ended up resembling English alphabetic shapes. It was a Cherokee product from start to finish.