• Foreword
• Table of Contents
• Introduction

§1.05 Indian Child Welfare Act

[1] Background
[2] Initial Requirements
[3] Details of Notice
[4] Member of Tribe
[5] Special Findings
[6] Indian Custodian Status

[1] Background

The Indian Child Welfare Act (referred to as “ICWA”) applies to all proceedings involving Indian children that may result in an involuntary foster care placement. [25 USC §§1901–1923; WIC §§224, 224.2; CRC 5.480.] Congress passed ICWA in 1978 to establish minimum federal standards governing involuntary out-of-home placement of Indian children to protect an Indian child’s tribal ties and cultural heritage and the tribe’s interests in its children. [25 USC §§1901–1902.] California codified many of these requirements to govern Indian child custody proceedings in dependency, delinquency, probate guardianship, and family court cases. [See Stats 2006, ch 838 (SB 678).]

Placement of an Indian child with the noncustodial parent is impliedly excluded from the definition of “Indian child custody proceeding.” [In re J.B. (2009) 178 CA4th 751, 757–758.]

[2] Initial Requirements

In every dependency proceeding in which the child is at risk of involuntary foster care placement, you and the social services agency are required to inquire whether a child is or may be an Indian child, and you must ensure that proper notice is given in compliance with ICWA. [WIC §§224.2, 224.3; CRC 5.481.] The legal standard triggering the duty of inquiry into a child’s Indian status is a lesser standard than the one for formal ICWA notice duties. [In re Alice M. (2008) 161 CA4th 1189, 1200.] You must also ensure that the agency’s inquiry into the child’s Indian status complies with ICWA and an Indian Child Inquiry Attachment form has been completed by the agency and attached to the petition (form ICWA-010(A)).

At the first court appearance by a parent, Indian custodian, or guardian in any dependency case, you must order the parent, Indian custodian, or guardian to complete the Parental Notification of Indian Status form (form ICWA-020). If the parent, Indian custodian, or guardian does not appear at the proceeding, you must order the agency to use reasonable diligence to find and inform them that the court has ordered them to complete form ICWA-020. [CRC 5.481.]

Counsel for the parents have a duty to raise prompt objection in the juvenile court to any deficiency in ICWA notice so that it can be corrected in a timely fashion. Moreover, from the outset of a case, counsel for the county department of children and family services and the minor’s counsel are required to make robust efforts for adherence to ICWA notice requirements. [In re S.B. ( 2009) 174 CA4th 808, 813.]

[3] Details of Notice

If it is known or there is reason to know that an Indian child is involved in the dependency proceedings, you must ensure that the Notice of Child Custody Proceeding for Indian Child (form ICWA-030) is sent to the Indian child’s tribe, parent or legal guardian, and Indian custodian in compliance with WIC §224.2. [CRC 5.481(b).]

You must ensure accurate and full compliance with the ICWA notice provisions. [See, e.g., Nicole K. v Superior Court (2007) 146 CA4th 779 (notice to tribe inadequate because it was sent to wrong address); In re Mary G. (2007) 151 CA4th 184 (termination of parental rights reversed because agency sent notice to another tribe at wrong address, and record contained no response from the tribe nor any evidence that the tribe received actual notice); In re J.T. (2007) 154 CA4th 986 (notice sent to Bureau of Indian Affairs (BIA), rather than to all federally recognized tribes identified by mother, was inadequate and had to be addressed to tribal chairperson or designated agent for service).]

The ICWA notice provisions are to be strictly construed because inadequate notice may forestall participation by the tribe. [In re Robert A. (2007) 147 CA4th 982 (ICWA notice in a half-sibling’s separate case in a different juvenile court does not constitute adequate notice for the other child’s case).] Notice must be sent to all tribes of which the child may be a member or may be eligible for membership. [WIC §224.2(a)(3); CRC 5.481; In re J.T. (2007) 154 CA4th 986; In re Alice M. (2008) 161 CA4th 1189, 1202.] Moreover, notice must be addressed to the tribal chairperson or a designated agent for service. [WIC §224.2(a)(2); CRC 5.481(b); In re J.T. (2007) 154 CA4th 986 (receipt by an unidentified person at the tribe’s address is insufficient).] It must also be sent to the Secretary of the Interior’s designated agent, the Sacramento Area Director, Bureau of Indian Affairs, and directly to the Secretary of the Interior in some circumstances. [See WIC §224.2(a)(4).]

Notice to the tribes must include specified information about the child, family, and the case. [See WIC §224.2(a)(5).]  It must also advise the child’s parents, Indian custodian, and tribe of their rights to intervene, to petition the court to transfer the case to the tribal court, to be granted up to an additional 20 days from receipt of the notice to prepare for the hearing, and to have counsel appointed (for the parents and Indian custodian) if unable to afford counsel, and of the potential legal consequences of the proceeding and the duty to maintain confidentiality of the information contained in the notice. [WIC §224.2(a)(5)(G).] 

Proof of notice, including copies of all notices sent and all return receipts and responses, must be filed with the court in advance of any proceeding, except for the detention hearing, which permits filing within 10 days after the petition is filed if notice of the detention hearing is given as soon as possible after filing of the petition. [WIC §224.2(c), (d); CRC 5.482(a).]

Once proper ICWA notice is provided, if a tribe responds that a child is eligible for membership if certain steps are taken, you should also ensure that the agency provides active efforts to secure tribal membership for the child. [CRC 5.482(c).]

Once notice is provided, it must be sent for each subsequent hearing until it is determined that the ICWA does not apply. [In re K.P. (2009) 175 CA4th 1, 5.]

[4] Member of Tribe

This act applies to dependency cases when a child is at risk of entering foster care or is in foster care and may be [25 USC §1903(4); WIC §§224(a)(1), (c), 224.3; CRC 5.480]:

• A member of an Indian tribe ; or
• Eligible for membership in one and is the biological child of a member of a federally recognized tribe.

The tribe, or the Bureau of Indian Affairs when no particular tribe can reasonably be identified, determines if a child is a member or eligible for membership. [25 USC §1911(a); WIC §§224(c), 224.3(e)(2); In re Jack C., III (2011) 192 CA4th 967, 977–978.] The tribe may intervene or request transfer to tribal jurisdiction at any point in the proceeding. [25 USC §1911(b), (c); WIC §§224.4, 305.5(b);CRC 5.482(e).] If no tribe intervenes or requests transfer, you may proceed to exercise jurisdiction regarding an Indian child under state law, but in accordance with ICWA’s standards and procedures. [WIC §224(b), (d).] If after a reasonable period (not less than 60 days) no determinative response is received, you may determine that the act does not apply unless further evidence is later received. [WIC §224.3(e)(3); CRC 5.482(d).] On proper ICWA notice, if tribes respond that a child is not a member, you may immediately find that ICWA does not apply, even if the 60-day period has not fully elapsed. But, in any event, the juvenile court should not set a termination of parental rights hearing any sooner than 10 days after actual notice is received by the tribes. [In re N.M. (2008) 161 CA4th 253, 266.]

Tribal membership may even be imposed by the tribe without the consent of the individual or the individual’s parents. [In re Adoption of C.D.K. (2009) 629 F Supp 2d 1258, 1264.]

Most California courts now consider the former existing-Indian-family doctrine to be nullified by state statutes. [In re Vincent M. (2007) 150 CA4th 1247, 1262–1263.] The doctrine was previously created and used by some courts to not apply ICWA protections when there was no improper removal of an Indian child from an existing Indian family environment. [In re Santos Y. (2001) 92 CA4th 1274, 1303.]

[5] Special Findings

Special findings and procedures are required before you may place an Indian child in foster care, establish a guardianship, make other out-of-home placements [see 25 USC §§1912(d), (e), 1915(a), (b); WIC §§361(c), (d), 361.7; CRC 5.484], or terminate parental rights [see 25 USC §1912(f); WIC §366.26(c)(1)(B)(iv), (vi); CRC 5.485]. Cautions appear throughout the course to alert you to situations when ICWA may apply. For more guidance, see the Bench Handbook: The Indian Child Welfare Act (Cal CJER).  

ICWA ICWA

[6] Indian Custodian Status

An Indian custodian is defined as “any Indian person who has legal custody of an Indian child under tribal law or custom or under [s]tate law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.” [25 USC §1903(6); WIC §224.1(a).]

The purpose of Indian custodian status is to recognize and protect the practice of parents in many Indian communities who entrust their children temporarily to the care of extended family members and to mandate that such entrustment does not constitute abuse or neglect. Congress sought to redress an historical failure of non-Indian child welfare workers to understand the role of the extended family in Indian society. [In re G.L. (2009) 177 CA4th 683, 692.]

The designation of an Indian custodian by a parent does not have to be in writing, and is often done on an informal basis. [In re G.L. (2009) 177 CA4th 683, 693; 25 USC §1903(6).]

Like parents, Indian custodians are entitled to ICWA’s protections, including notice of the pending proceedings and the right to intervene. [25 USC §1912(a); WIC §224.2(a).] Moreover, an Indian custodian has a right to court-appointed counsel in a “removal, placement, or termination proceeding” [25 USC §1912(b); WIC §224.2(a)(5)(G)(v)] and the right to an additional 20 days to prepare for the proceeding. [WIC §224.2(a)(5)(G)(iii); CRC 5.482(a)(3).] Notice of proceedings involving Indian children should be sent to both the parent and Indian custodian. [WIC §§224.2(a), 224.4; CRC 5.481(b)(1), (2), 5.482(e).]

Indian custodian status is, by definition, “temporary,” and thus revocable. Either parent has power to revoke Indian custodian status so long as parental rights are intact, even though the parent may not have physical custody of the child. [In re G.L. (2009) 177 CA4th 683, 695; 25 USC §1903(6); WIC §224.1(a).]