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Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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XIII.  Recent ICWA Issues.

A. When must the department give notice?.

B. Who must make the inquiry regarding Indian heritage?.

C. What constitutes adequate notice?.

D. What tribes should be noticed?.

E. Must the notice be filed with the court?.

F. Did the court use the correct standard when removing an Indian child from parental custody or when continuing an Indian child in an out-of-home placement?

XIII.  Recent ICWA Issues.

  1. When must the department give notice?
    1. The notice requirement applies even when the Indian status of a child is uncertain. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.)
      1. Where the mother told the department investigator that her father may have Indian heritage, the department was required to comply with the notice obligations under ICWA. (In re Amirah H. (2003) 113 Cal.App.4th 709, 718.)
      2. It does not apply when the information is too vague and speculative to give the court reason to believe that the minor may have Indian heritage, such as in the case where the extent of the information was the paternal grandmother that the child "may have Indian in him." (In re O. K. (2003) 106 Cal.App.4th 152, 157.)
      3. The court has no duty to make an ICWA inquiry where there is no indication that the child has Indian heritage. (In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.)
    2. If a parent comes forth with new information regarding the child's Indian heritage, the court or department must inquire further into the claim of Indian heritage, including sending out new notices to the tribes, even if notices were sent out earlier. (In re Kassandra W. (Aug. 27, 2003, F042820) [nonpub. opn.].)

    3. The parents cannot waive the notice. (In re Marinna J. (2001) 90 Cal.App.4th 731, 735‑736.)
  2. Who must make the inquiry regarding Indian heritage?
    1. When the parent comes forth with the name of the tribe to which the child's ancestors may belong, the department must provide notice to the BIA or identified tribe. The court's statement that the family must come forward with further information in order for the notices to be send was wrong. (In re Heather E. (Feb. 7, 2003, C039906) [nonpub. opn.].)

    2. Appellate counsel may consider asking appellant if the child has Indian ancestry if the record does not reflect how the social worker determined that the child had no Indian ancestry. If appellant represents to appellate counsel that the child has Indian ancestry and it appears that the parties lacked this knowledge, a writ may need to be pursued.
  3. What constitutes adequate notice?
    1. The notice sent to the BIA was insufficient where it included only the names, birth dates, and birthplaces of the children and their parents, but did not include other helpful and available information, such as the mother's married name, the mother's and father's current addresses, the names of the children's grandparents, and that the claimed tribal affiliation was Cherokee. (In re D. T. (2003) 113 Cal.App.4th 80, 85-86.)

    2. Where the proofs of service did not indicate what documents were served on the tribes, many blanks were left on the SOC 318 form that made it impossible to determine whether the omitted information was unavailable, inapplicable, or simply omitted, and the maiden names and birth places for the child's paternal family members, who claimed Cherokee ancestry were omitted, the Fifth District Court of Appeal found the notice inadequate. (In re Joseph W. (July 22, 2003, F042336) [nonpub. opn.].)

    3. The Fifth District found the notice inadequate where the department did not use the standard SOC 318 and 319 forms. (In re A.S. (July 22, 2003, F042223) [nonpub. opn.].)

    4. Where the notices contained only minimal information about the child's background, the Fourth District, Division Three, remanded for a hearing on whether the department complied with ICWA. (In re Nikki R. (2003) 106 Cal.App.4th 844, 855.)

    5. The Second District, Division Seven, has held that the SOC 319 form is deficient in that it contains no place for the names of the child's grandparents, so this form fails to provide sufficient notice of dependency proceedings to a tribe under ICWA when an agency knows additional information about a child's family history, such as the names of the grandparents. (In re C. D. (2003) 110 Cal.App.4th 214, 225.)

    6. Moreover, both form SOC 319 and form SOC 318 do not include spaces for inserting the current or former addresses of any of a child's relatives (other than a reservation name). The forms also do not include spaces for inserting the place of death of any family member. Thus, even using both forms to provide notice to a tribe will not be sufficient in every case for providing all of the information identified in 25 Code of Federal Regulations section 23.11, subdivision (d)(3). (In re C. D. (2003) 110 Cal.App.4th 214, 225‑226.)
  4. What tribes should be noticed?
    1. The Fifth District held that notice was incomplete when the social worker sent notice to the BIA only where the case worker had information that the child's paternal grandfather was Apache and the mother was of Cherokee heritage, and the social worker did not send the SOC 319 form but instead sent only the form entitled, "Request for confirmation of child's status as Indian." (In re Cole F. (June 17, 2003, F042095) [nonpub. opn.].)

    2. The Fifth District also held notice was inadequate where appellant alleged her relatives were members of the "Cherokee tribe in Oklahoma," but the agency sent notice only to the Cherokee Nation of Oklahoma, and not to the other two federally-recognized tribes in the United States - the United Keetowah Band of Cherokee Indians of Oklahoma and the Eastern Band of Cherokee Indians of North Carolina- or to the Secretary of the Interior. (In re Axsana S. (May 6, 2002, F039101) [nonpub. opn.].)

    3. Where the parent had identified potential Indian heritage through a specific tribe, notice sent to the BIA was inappropriate, and notice should have been sent to the specified tribe. (In re Jessica S. (Sept. 15, 2003, C042874) [nonpub. opn.].)
  5. Must the notice be filed with the court?
    1. There is a split of authority:
      1. The Fourth District, Division One, held that the trial court must review the notices to determine whether they complied with ICWA. (In re Karla C. (2003) 113 Cal.App.4th 166, 178.) Likewise, the Fourth District, Division Three, held that ICWA notice and any return receipt and response must be filed by with the trial court and it is prejudicial error not to do so. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 705.) The First District Court of Appeal, Division Three, has held the social worker's testimony that she served the BIA and tribes with forms SOC 318 and SOC 319 was insufficient. (In re Asia L. (2003) 107 Cal.App.4th 498, 507-508.)
      2. In contrast, the Third District Court of Appeal has held that ICWA notice and proof of service need not be filed with the court, and a statement in the social worker's report that she notified the BIA sufficed. (In re Levi U. (2000) 78 Cal.App.4th 191, 198.) The same court later held that when a social worker's report or other documentation indicates that ICWA notice has been provided, it can be presumed that such notice complied with the requirements of ICWA in the absence of any evidence in the record to the contrary. (In re L. B. (2003) 110 Cal.App.4th 1420, 1425.)
  6. Did the court use the correct standard when removing an Indian child from parental custody or when continuing an Indian child in an out-of-home placement?
    1. The department must show that "continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(e).)
      1. When the removal is temporary, the department must make these showings by clear and convincing evidence. (25 U.S.C. § 1912(e)-(f).)
      2. When the removal is due to termination of parental rights, the department must make this showing by proof beyond a reasonable doubt. (25 U.S.C. § 1912(e)-(f).)
      3. To meet these burdens, the department must present testimony of at least one qualified expert that demonstrates that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C. § 1912(e)-(f).)
       
    2. The standard for non-Indian children is less onerous for the department to meet, i.e., the court can order out-of-home placement on proof that parental custody presents "a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor." (Welf. & Inst. Code, § 361, subd. (c)(1).)

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