Los Angeles County Department of Children & Family Services v. Ashlee R., 1 Cal. 5th 1

Background

Newborn Isaiah W. was removed from parents in Dec 2011 for parental drug use; juvenile court placed him in foster care and ordered the Department to investigate possible American Indian ancestry.
At the Jan 2012 jurisdictional/dispositional hearing the court found any Indian connection too attenuated to trigger ICWA notice and did not order notice to tribes or the BIA. Mother did not appeal that order.
Reunification services were later terminated; in April 2013 the juvenile court terminated mother Ashlee R.’s parental rights and again found no reason to know Isaiah was an Indian child.
Mother timely appealed the April 2013 termination order, asserting for the first time that the court had erred by failing to order ICWA notice at earlier proceedings.
The Court of Appeal held the ICWA challenge was forfeited because mother did not timely appeal the Jan 2012 dispositional order; the California Supreme Court granted review to resolve conflicting Court of Appeal authority.
The Supreme Court reversed, holding a juvenile court has an affirmative and continuing duty to inquire about Indian status in all dependency proceedings, so a parent may challenge a current ICWA finding in a timely appeal from a later order terminating parental rights.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a parent who failed to timely appeal an earlier dispositional order may challenge in a later, timely appeal the juvenile court’s finding that ICWA did not apply	Ashlee: parental challenge to the April 2013 termination order can raise present ICWA inquiry error because the juvenile court has a continuing duty to inquire in all dependency proceedings	Department/Court of Appeal: earlier dispositional finding became final; failure to timely appeal that order bars belated ICWA challenge on appeal from a later order; permitting delay undermines permanency	Court: Parent may challenge the court’s contemporaneous ICWA finding in a timely appeal from a later termination order because the juvenile court’s duty to inquire is affirmative and continuing; disapproved In re Pedro N.
Whether a prior finding of ICWA inapplicability forecloses later duty to give notice absent new information or proper notice procedure	Ashlee: earlier finding does not relieve the court of ongoing inquiry obligations under §224.3(a) unless proper notice was given and 60 days passed without determinative tribal/BIA response	Department: final dispositional finding should end ICWA inquiry absent new triggers; allowing later challenges causes delay and harms children’s permanency	Court: Prior finding does not eliminate continuing inquiry; only after proper and adequate notice and a 60‑day nonresponse may the court conclusively determine ICWA doesn’t apply (and even then it must reverse if tribe/BIA later confirms membership)
Whether parent’s inaction waives or forfeits ICWA-based notice claims on appeal	Ashlee: parents’ inaction does not waive tribes’ interests and does not bar appellate review of a current finding tied to a later order	Department: parent's failure to appeal earlier order should bar later challenge; parents can and should appeal early to avoid delay	Court: Parental inaction does not constitute waiver of ICWA protections; appellate review is allowed for errors in the court’s present compliance tied to the appealed order
Proper remedy/timing concerns balancing ICWA protections against child permanency	Ashlee: ICWA’s notice requirements protect tribal interests and may justify later scrutiny; remedies can be tailored without per se precluding later appeals	Department: late appeals will cause lengthy delay, harming child’s need for permanency; early resolution preferable	Court: Emphasizes early inquiry and notice as best practice but prioritizes statutory scheme protecting tribes; allowing the challenge is not likely to cause more delay than separate collateral proceedings and is compatible with ICWA enforcement provisions

Key Cases Cited

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (ICWA’s purpose to protect Indian children and tribes)
Sara M. v. Superior Court, 36 Cal.4th 998 (2005) (unappealed dispositional orders are generally final and may not be attacked on later appeals)
Dwayne P. v. Superior Court, 103 Cal.App.4th 247 (2002) (court’s duty to give ICWA notice continues until proper notice is given)
In re Pedro N., 35 Cal.App.4th 183 (1995) (held parent cannot raise ICWA claim later; disapproved by this decision)
In re B.R., 176 Cal.App.4th 773 (2009) (permitting appellate review of ICWA notice failures despite prior unappealed orders)
In re Marinna J., 90 Cal.App.4th 731 (2001) (ICWA notice defects may be raised on appeal even if not raised earlier)
In re Samuel P., 99 Cal.App.4th 1259 (2002) (failure to object below does not waive ICWA notice claim for appellate review)
In re X.V., 132 Cal.App.4th 794 (2005) (cautioning against successive appeals on ICWA notice after remand procedures)
In re Marilyn H., 5 Cal.4th 295 (1993) (importance of prompt permanency and harms from delay)