Judge Caution–ICWA in Delinquency

ICWA in Delinquency

The California Supreme Court ruled in In re W.B. (2012) that California law requires a court to inquire about a child’s Indian status at the outset of all juvenile proceedings, but that ICWA’s additional procedures, including notice, are not required in most delinquency cases.

ICWA notice and compliance with the act’s other procedures are required in a delinquency case only when the court is (1) exercising “dual status” jurisdiction over an Indian child; (2) placing an Indian child outside the family home for committing a “status offense” (see Welf & I C §§601, 602 [offenses that would not be criminal if committed by an adult]); or (3) placing an Indian child initially detained for “criminal conduct” outside the family home for reasons based entirely on harmful conditions in the home. In the third category ICWA notice is required when the delinquency court sets a permanency planning hearing to terminate parental rights, or when the court contemplates ordering the ward placed in foster care and announces on the record that the placement is based entirely on abuse or neglect in the family home and not on the ward’s delinquent conduct.