In re A.P. CA3
C092356
| Cal. Ct. App. | Jul 19, 2021Background
- A dependency petition was filed May 1, 2019. Mother denied Native American ancestry; father reported that his paternal grandfather (the child’s paternal great‑grandfather) was a tribal member in Oklahoma but did not identify the tribe. Father submitted an ICWA‑020 claiming possible tribal eligibility but gave no tribe name.
- On June 20, 2019 the Agency filed ICWA notice listing only mother (Cherokee ancestry) and sent notices to Cherokee Nation, United Keetoowah, Eastern Band of Cherokee Indians, and the BIA; the Agency did not document contacting living relatives despite having some names/addresses (including the paternal great‑grandfather).
- The juvenile court initially found ICWA did not apply (Sept. 11, 2019). The Agency later filed an amended ICWA notice (Sept. 9, 2020) that added father’s information and sent notice to ~39 Oklahoma‑region tribes and the BIA.
- Several tribes responded the child was not a registered member or eligible; 12 tribes did not respond. The juvenile court again concluded ICWA did not apply (Feb. 1, 2021). The juvenile court terminated parental rights at a contested § 366.26 hearing.
- Appellants (parents) appealed, arguing the Agency failed to satisfy ICWA’s further‑inquiry duty by not contacting extended family and by sending incomplete notices.
- The Court of Appeal conditionally reversed and remanded for limited proceedings directing the Agency to perform further inquiry and (if required) give proper notice; the termination orders will be reinstated if the child is found not to be an Indian child, or a new § 366.26 hearing will be held if ICWA applies.
Issues
| Issue | Plaintiff's Argument (Agency) | Defendant's Argument (Parents) | Held |
|---|---|---|---|
| Whether the Agency and juvenile court complied with ICWA's inquiry and notice duties | Amended notice to ~39 tribes and the BIA satisfied ICWA; tribe responses showed nonmembership | Agency failed to conduct required further inquiry (did not interview/contact living relatives, provided incomplete info to tribes) | Conditionallly reversed and remanded for further ICWA inquiry; if child not Indian, orders reinstated; if Indian, new § 366.26 hearing and full ICWA compliance required |
Key Cases Cited
- In re Levi U., 78 Cal.App.4th 191 (2000) (discusses ICWA purpose and tribal interests)
- In re A.W., 38 Cal.App.5th 655 (2019) (ICWA protects tribal stability and defines an Indian child)
- In re D.S., 46 Cal.App.5th 1041 (2020) (explains § 224.2 inquiry duties and the three‑step framework)
- In re M.W., 49 Cal.App.5th 1034 (2020) (agency may demonstrate inquiry efforts via reports, declarations, or testimony)
- In re A.B., 164 Cal.App.4th 832 (2008) (failure to perform proper ICWA inquiry requires limited reversal and remand)