In this opinion, the Court held ICWA applies to any proceeding that may lead to a foster care placement–even if the child is placed with a parent. These are important cases because the state can have jurisdiction over a family even if the child is placed in the home. Indeed, ICWA is written assuming the state will work to “prevent the breakup” of the Indian family.
The Department initiated this proceeding after an emergency proceeding in which it removed the child from his parents’ care. At the shelter hearing, the court granted the Department’s request to return the child home. But the court was not bound to follow the
Department’s recommendation. That is, although the shelter hearing did not result in foster care placement, it could have. And, because the dependency and neglect action remains open, the Department could request custody and foster care placement at any
time. For purposes of ICWA, it is immaterial that the child is not presently placed out of the home
Unlike other cases that addressed this issue, this is a very straightforward reading of the law and regulations.
In the second opinion, the Court of Appeals raised the issue of inquiry sua sponte (!).
The juvenile court must ask each participant on the record at the beginning of every emergency, voluntary, or involuntary child custody proceeding whether the participant knows or has reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a) (2017); see also L.L., ¶ 19. Termination of parental rights is one type of child custody proceeding under ICWA. 25 U.S.C. § 1903(1) (2012). The inquiry must be made at the commencement of the proceeding and all responses should be on the record. 25 C.F.R.
If there was ever a question of whether judicial education (and good clerks with Indian law backgrounds) makes a difference, here you go.