Now Published Case out of California on Application of ICWA to Eligible Children

Here. (original unpublished opinion we posted last week). Appellants requested this opinion be published, so the published opinion is here.

We’d like to point out that the fact that mother was a minor and a dependent of the court meant that the state should have been treating MOTHER’S own case as an ICWA case, which does not seem to have happened (and if you’re keeping track, yes, I’ve now used italics, allcaps, AND red ink on this one).

In this case, BOTH the Red Cliff Band of Lake Superior Chippewa AND the Bad River Band of Lake Superior Chippewa Tribe responded to the Department’s notice. Both Bands stated the children were eligible for enrollment, and Red Cliff asked for more information. Mother was a minor and a runaway from her placement. But instead of sending the information, or following up to assist in getting the children enrolled, or provide active efforts, the Department requested the juvenile court find that ICWA did not apply. Which the juvenile court did. Specifically:

Our record discloses no further action after November 2013, until an interim review report, dated April 22, 2014, stated, “[i]t is respectfully requested that the Court make a finding as to the children’s Indian Child Welfare Act Status.” The report further stated that ICWA “does or may apply” as each child might be an Indian child in the Chippewa tribe and was ICWA “eligible” (capitalization & boldface omitted). SSA proposed the court find “ICWA does not apply,” and the juvenile court’s minute order, dated April 22, 2014, contains the finding, “ICWA does not apply.” In a minute order dated June 19, 2014, the juvenile court again stated: “Court finds ICWA does not apply.”

The Court of Appeals held:

Given the above cited authorities, the juvenile court erred by finding ICWA did not apply. Not only did insufficient evidence support that finding, but also two tribes responded to SSA’s ICWA notice, by stating that the children were eligible to enroll in them. The court was thereafter required to proceed as if the children were Indian children.

Under these circumstances, we must reverse the order terminating parental rights and remand with directions for the juvenile court to order SSA to make active efforts necessary to secure tribal membership for the children. (In re K.M. (2015) 242 Cal.App.4th 450, 458–459.)

This entry was posted in Author: Kate E. Fort, Child Welfare, ICWA and tagged , , , , , , , . Bookmark the permalink.

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