The DSS Defendants miss the point of the court’s findings. The issue is not what the Indian parents knew about the reasons their children were initially removed from the parents’ custody, but rather the factual basis supporting continued separation of the family. This is the information mandated for disclosure to the parents and for consideration by the state court judges in determining whether continued separation of the family is necessary under ICWA. (Docket 150 at pp. 27-28).
The court acknowledged the DSS Defendants claimed to have provided the ICWA affidavit. See id. at p. 13. What was troubling to the court and justified the findings made on the issue was that “disclosure of an ICWA affidavit and petition for temporary custody to a parent was not mentioned in 77 out of 78 cases.” Id. at pp. 13-14. Then in seven cases there were specific references in the transcripts to complaints by the parents or the Tribe’s counsel that they had not received the documents allegedly justifying continued placement with DSS. Id. at pp. 14-15.