Arizona Court of Appeals ICWA Notice Case


I always find it useful when parts of the transcript make it into the appellate court decision:

During her direct examination at trial, Mother testified as follows:

Q. You advised me earlier that you are affiliated with the Sioux tribe; is that correct?

A. Yes.

Q. And tell us, if you will, what your affiliation is?

A. My mom is Oglala, enrolled in the Oglala Sioux tribe in South Dakota, and my dad is an enrolled member in Spirit Lake in North Dakota.

Q. Okay. And are you an enrolled member?

A. Not yet, but I can be.

Q. You’re eligible for enrollment?

A. Yes.

Q. Do you know whether your daughter would be eligible [for] enrollment?

A. Yes, she would.

So of course DCS notified both the Oglala Sioux and Spirit Lake, oh wait, what was that?

DCS does not argue that Mother’s testimony was insufficient to provide notice that H.N. might be an Indian child under ICWA. Instead, DCS argues that, “by the time Mother testified about her tribal affiliation, there were no [pending] proceedings for the tribe to intervene in.” That argument, however, ignores the fact that Mother’s testimony occurred before the motion to terminate was granted. Accordingly, DCS’ argument regarding the application of ICWA to “post-termination proceedings” is inapplicable. Cf. Gila River Indian Cmty. v. Dep’t Child Safety, 242 Ariz. 277 (2017) (discussing transfer of matters under ICWA both pre- and posttermination).

¶13 DCS’ argument also does not address case law from other jurisdictions directing that “[n]otice is mandatory, regardless of how late in the proceedings a child’s possible Indian heritage is uncovered” and that the notice requirement in ICWA cannot be waived by a parent. See In re Suzanna L., 127 Cal. Rptr. 2d 860, 866 (App. 2002) (quoting In re Kahlen W., 285 Cal. Rptr. 507, 513 (App. 1991)); accord Gila River Indian Cmty., 242 Ariz. at 292 ¶ 27 (noting “courts have historically been reluctant to imply a waiver of Indian rights under ICWA”).

(emphasis added)

The appellate court remanded the case for proper notice under ICWA.