234 Cal. App. 4th 906
Cal. Ct. App.2015Background
- Two children of Eskimo descent were subject to dependency proceedings in Ventura County; parents appealed from an order terminating parental rights and selecting adoption under § 366.26.
- At intake father submitted an ICWA-020 indicating possible Eskimo heritage; HSA and the juvenile court concluded ICWA did not apply and did not follow ICWA procedures.
- On appeal new evidence (including an NNC enrollment letter) showed the children are lineal descendants and enrolled members of Noorvik Native Community (a federally recognized Alaskan tribe), making them Indian children under ICWA.
- HSA subsequently sent ICWA-030 notices to tribes and received confirmation from NNC that the children are eligible/enrolled, but NNC was not given an opportunity to intervene before termination.
- Because the juvenile court found ICWA inapplicable, it did not make ICWA-required findings (active efforts; parental custody likely to cause serious harm supported beyond a reasonable doubt by expert testimony) prior to terminating parental rights.
- The Court of Appeal reversed the termination order and remanded for a new § 366.26 hearing complying with ICWA; the court declined to disturb the dispositional order for lack of authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA applied to the minors | HSA originally argued ICWA did not apply to "Eskimo" families | Parents argued ICWA may apply and protections must be afforded | Court: ICWA applies because minors are tribe members; initial noncompliance was erroneous |
| Whether termination order valid without ICWA findings (active efforts; serious harm beyond reasonable doubt) | HSA now concedes error but sought to avoid remand by serving notices after the fact | Parents sought reversal of termination for failure to satisfy ICWA safeguards | Court: Termination reversed; remand for new § 366.26 hearing complying with ICWA requirements |
| Whether tribe was entitled to notice and opportunity to intervene before termination | HSA had not notified tribes originally; later served ICWA-030 on appeal | Parents argued lack of notice/intervention violated ICWA | Court: Tribe should have been afforded notice/intervention; failure requires reversal/remand |
| Whether the appellate court should also reverse the dispositional order | HSA/parents asked for broader relief in light of ICWA error | Parents requested reversal of dispositional order | Court: Lacks authority to reverse dispositional order; limited to remanding § 366.26 for ICWA compliance |
Key Cases Cited
- In re B.R., 176 Cal.App.4th 773 (explaining federal definition of "Indian" includes Eskimos)
- In re Jonathon S., 129 Cal.App.4th 334 (ICWA requires active efforts and heightened proof before parental termination)
- In re Riva M., 235 Cal.App.3d 403 (expert testimony and beyond-a-reasonable-doubt standard required under ICWA)
- In re Kahlen W., 233 Cal.App.3d 1414 (tribal notice and opportunity to intervene under ICWA)
- In re Jonathan D., 92 Cal.App.4th 105 (remand required when ICWA procedures not followed)
- In re Francisco W., 139 Cal.App.4th 695 (procedural remedies and remand for ICWA compliance)
- In re Desiree F., 83 Cal.App.4th 460 (ICWA's policy to preserve tribal ties and culture)
- In re Alice M., 161 Cal.App.4th 1189 (delay in permanency does not excuse ICWA noncompliance)