This is a special one:
In this case, the trial court first inquired about the applicability of ICWA at a termination hearing regarding J.A. after orally ordering termination of parental rights. For purposes of ICWA, this was the second child-custody proceeding involving J.A. Under 25 C.F.R. § 23.107(a), the trial court should have made that inquiry at the first hearing after the petition in dependency and neglect was filed and again at the start of the termination proceeding.
(emphasis in original)
The Department asserts that mother did not provide a relative affidavit identifying her biological parents. It is true that the Department should try to provide sufficient information for the tribe to make the determination as to whether the child is a member or eligible for membership. L.L., ¶ 37. But the lack of complete information does not relieve the Department of its duty to send notice with the information it has. Accord 25 C.F.R. § 23.111(d)(3) (notice shall include direct lineal ancestors if known). Thus, we must remand the case to the trial court so the Department may comply with the notice requirements of ICWA.
At the termination hearing, mother’s counsel stated that he had spoken with mother’s adoptive family and determined that “the ICWA relationship that [mother] had brought to the [c]ourt’s attention was not viable.” But he did not elaborate, so we don’t know the basis for his representation. Moreover, it was for the Kiowa and Pueblo of Taos tribes, not mother’s adoptive family, to determine whether the children were members or eligible for membership.
The Court of Appeals remanded the case, focusing on the Guidelines and Regulations:
We recognize that the 2015 Guidelines, unlike the regulations promulgated in 2016, were not binding on the trial court. But, as recognized by both the 2015 Guidelines and the 2016 Guidelines, early identification of ICWA applicability promotes proper implementation of ICWA at an early stage, protects the rights of Indian children and their families, prevents delays, and avoids sometimes tragic consequences. See 2016 Guidelines at 11; 80 Fed. Reg. at 10,148.
Regardless, as discussed above, the termination proceeding was subject to the 2016 Guidelines and regulations. And, more importantly, the Department failed to send notice to the appropriate tribes when mother identified a reason to believe the children were Indian children. Under these circumstances, the record does not support the trial court’s finding that ICWA does not apply.
(Emphasis added, if we had a nickel for every time any ICWA trainer said that, etc.)
Here. Another reason for more parent attorney partnerships and training. Matthew noted this happened last September in Arkansas too. From the opinion, it’s not remotely clear the agency notified the Cherokee tribes of dad’s claim here.
In addition to the termination of Daniel’s parental rights, the trial court found ICWA did not apply. His counsel explains that this finding does not provide a meritorious basis for reversal, and we agree. Daniel attempted to establish the applicability of ICWA at the outset of the termination hearing—despite the fact the trial court had earlier determined that ICWA did not apply in the probable-cause order dated July 8, 2015. The only documentation he submitted in support of his assertion was a form application for membership in the Cherokee Nation he filed only a couple of days prior to the hearing. In order to establish the applicability of ICWA, a child who is the subject of a dependency neglect action must be an “Indian child,” which is defined as any unmarried person who is under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Here, there was no evidence A.B. and D.B. satisfied these requirements. It is undisputed the children are not members of an Indian tribe, and the only evidence submitted was the form application prepared by Daniel two days before the hearing—there was no evidence the application had been accepted or that the children were in any other way eligible for membership, and there was not even any evidence Daniel was their biological father, although he did not dispute that fact. This issue provides no meritorious basis for reversal.
In more than one state, this would provide a meritorious basis for remand at minimum, and maybe reversal. It’s fair that it might not yet be a basis for reversal in Arkansas, but it’s clearly time for someone to bring the argument.
(Why yes, I am currently on a four hour flight, and have a backlog of ICWA cases to post . . .)
The court found that the agency has to ask about tribal citizenship each time a the agency initiates proceedings against a parent, and not rely on findings in a separate, previous proceeding.
Moreover, while not applicable here, we note that new federal regulations that codify this inquiry obligation became effective on December 12, 2016. See 25 C.F.R. §§ 23.107-.109, .111 (2016). The new regulations were quickly followed by new guidelines issued in December 2016. See Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016),https://perma.cc/3TCH-8HQM (2016 Guidelines). Consistent with the 2015 Guidelines applicable here, these new regulations and guidelines require the court to ask all participants in the case whether there is reason to know the child is an Indian child and to instruct the participants to inform the court if they later discover information that provides reason to know the child is an Indian child. See 25 C.F.R. § 23.107(a); 2016 Guidelines at 11. And, if a new child custody proceeding is initiated for the same child, the court must again inquire into whether there is a reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a).
The father ultimately dropped his appeal of the ICWA inquiry, but the court’s comment is worth noting:
To be sure, the juvenile court’s analysis whether the evidence is sufficient to trigger ICWA’s notice requirements for Andrew and Kailey will be enhanced if additional information concerning Jonathan’s Indian ancestry is presented to the court. But the burden of developing that information is not properly placed on Jonathan alone. Section 224.3, subdivision (a), imposes on child protection agencies, as well as the juvenile court, the affirmative and continuing duty to inquire whether a dependent child is or may be an Indian child. (See In re Kadence P., supra, 241 Cal.App.4th at p. 1386; In re H.B. (2008) 161 Cal.App.4th 115, 121; see also Cal. Rules of Court, rule 5.481(a).) As soon as practicable, the social worker is required to interview the child’s parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. (§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal. Rules of Court, rule 5.481(a)(4).) From the record presented to us, it appears the Department and the juvenile court failed to satisfy that duty; neither the court nor the Department made any effort to develop additional information that might substantiate Jonathan’s belief he may have Indian ancestry by contacting his siblings or other extended family members. Both federal and state law require more than has been done to date. On remand, an adequate investigation by the Department with a full report to the court must be promptly completed.
Here. Out of Ventura County.
Although mother and the maternal grandmother advised HSA of Olivia’s Choctaw ancestry, no further inquiry was made. Had HSA asked, it would have learned that the maternal great-grandmother, Roberta Mae J., is alive, is an enrolled member of the Choctaw Nation, and was born on the Kiowa Reservation in Lawton, Oklahoma.
After the writ petition was filed, mother’s counsel submitted certificates and enrollment applications to the Choctaw Nation tribe. On May 5, 2015, we granted mother’s request to take additional evidence that Choctaw Nation issued membership cards to mother and Olivia on April 15, 2015. The tribe’s determination that Olivia is a member of Choctaw Nation is conclusive. (§ 224.3, subd. (e)(1); In re Jack C.III (2011) 192 Cal.App.4th 967, 980; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.) HSA’s failure to comply with the ICWA notice requirements before the six month review hearing requires that we reverse the February 2, 2015 order terminating reunification services, the order granting Olivia’s caretakers de facto parent status, and the order for a section 366.26 hearing.