ICWA notice violation – Turtle Talk

California COA Decides ICWA Notice Appeal

October 28, 2013Matthew L.M. Fletcher

Here is the opinion in In re Brianna M.:

An excerpt:

Francisco contends finally that he is a member of the Gila River Community, a federally recognized Indian tribe. He urges that DCFS therefore was required by ICWA to provide notice of the proceedings to the tribe, and to give the tribe the opportunity to intervene. DCFS concedes that ICWA notice was not properly given and does not object to a remand with directions to the juvenile court to order DCFS to provide proper notice.

Pursuant to 25 United States Code section 1912(a), “[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, [DCFS] shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” Welfare and Institutions Code section 224.2, subdivision (a)(1) similarly provides that notice to the tribe “shall be sent by registered or certified mail with return receipt requested.”

Because DCFS failed to provide proper ICWA notice, we remand the matter to the juvenile court with directions to direct DCFS to comply with the notice provisions of ICWA. However, we decline to reverse the jurisdictional and dispositional orders because there is not yet a sufficient showing that Brianna is an Indian child within the meaning of ICWA. If after proper inquiry and notice a tribe determines Brianna is an Indian child, any interested party may petition the court to invalidate any orders that violated ICWA. (See In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467, 135 Cal.Rptr.3d 355; In re Damian C. (2009) 178 Cal.App.4th 192, 199–200, 100 Cal.Rptr.3d 110.)

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

June 27, 2013Matthew 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.