Case Types in Which ICWA Inquiry Is Necessary
In the following types of child custody cases in California, an affirmative and continuing duty exists to inquire whether the child is or may be an Indian child (25 USC §1912(a); Cal Rules of Ct 5.480, 5.481):
- Juvenile dependency cases under Welf & I C §300 (Welf & I C §224.3).
- Juvenile delinquency and status offense cases under Welf & I C §601 or §602 if the child is at risk of entering foster care or is in foster care (Welf & I C §224.3(a)–(c)).
- Family law cases in which custody may be awarded to a nonparent, parental rights may be terminated, or the child may be adopted and the parents won’t retain the right to have the child returned to them (Fam C §170(c)).
- Probate guardianship or conservatorship cases in which any of the following is true (Prob C §1459.5; Cal Rules of Ct 7.1015(b)):
- The proposed guardian is not the natural parent or Indian custodian, and the child cannot be returned to the custody of the parents or Indian custodian on demand; or
- The proceeding is a guardianship proceeding to have the child declared free from the custody and control of one or both parents; or
- The proceeding is for conservatorship of a formerly married minor, the proposed conservator is not the natural parent or Indian custodian, and the child would not be returned to the custody of the parent or Indian custodian upon demand.