ICWA Notice compliance

California Appeals Court Decides ICWA Notice Case; Admonishes Alameda County Social Services Agency

Matthew L.M. Fletcher

Here is the opinion in In re A.G. (Cal. App. Dist. 1):

A132447

An excerpt:

Father’s sole contention is that the order terminating his parental rights as to A.G. must be reversed because the Agency did not provide notice as required under ICWA. Although the Agency strenuously contested this appeal, it does not dispute that it failed to comply with ICWA’s inquiry and notice requirements. Instead, it raises a battery of contentions that arise out of a theory that Father has “renounced” his paternal rights and worked a fraud on the family and juvenile courts. The Agency also says the appeal is barred by res judicata and, in any event, that reversal is not required because its ICWA violations were not prejudicial. These arguments are long on novelty, but short on merit. We are reluctant to impose further delay before this young child may finally gain permanence and stability in an adoptive family. Unfortunately, the Agency’s unexplained failure to follow the law leaves us with no choice. We therefore order a limited reversal and require the Agency to fulfill its ICWA-related duties, as it should have done long ago.

Michigan Appellate Court Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the unpublished opinion in In re J.L. Gordon.

Colorado Appeals Court Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In the Interest of J.C.R.

An excerpt:

A notice obligation arises under the ICWA when the court has reason to know or believe that an Indian child is involved in the case. State courts have read this notice obligation broadly, redressing violations when the child’s Indian status is unclear and when Indian descent has been merely asserted. See B.H., 138 P.3d at 303-04. And, because the ICWA protects tribal interests, otherwise sufficiently reliable information cannot be overcome by a parent’s actions or be disregarded as untimely. Id. at 304.

Here, however, there was no information provided by anyone during the proceedings, much less sufficiently reliable information, or even a mere assertion concerning the children’s possible Indian heritage. Thus, the trial court had no reason to know or believe that the children had Indian ancestry and, therefore, no reason to notify the children’s or parents’ tribe, or the Bureau of Indian Affairs concerning the proceeding.

Parents’ Counsel Bears Responsibility for ICWA Notice Compliance

Matthew L.M. Fletcher

Here is the opinion in In re S.B., from the California Court of Appeals, 2d District.

An excerpt:

An attorney practicing dependency law in the juvenile court should be sufficiently familiar with ICWA notice requirements to point out a flaw in notice if the record shows that there is one-especially when specifically asked to do so. One court has observed that “trial counsel for a parent in dependency proceedings rarely brings ICWA notice deficiencies to the attention of the juvenile court. That job, it seems, is routinely left to appellate counsel for the parent.” ( In re Justin S. (2007) 150 Cal.App.4th 1426, 1436.) That practice ignores the importance to a child’s well-being in achieving permanence as soon as possible. The court in Justin S. “implore [d] counsel for the Department, and certainly counsel for the minor, to make more robust efforts, early on in dependency proceedings,” to insist on adherence to the ICWA notice requirements. ( Ibid.)

We agree, and add that counsel for the parents bear a responsibility to raise prompt objection in the juvenile court to any deficiency in notice so that it can be corrected in a timely fashion. This will best serve the interests of the dependent children, the Indian tribes, and the efficient administration of justice.