by Christopher Zoukis

The California Court of Appeal for the First Appellate District has reversed a lower court's order terminating the parental rights of two imprisoned parents due to a failure to comply with the Indian Child Welfare Act of 1978.

The children, O.C., age two, and M.C., age four, were detained after their parents' residence was raided and their parents jailed. Over a period of months, the Mendocino County Health & Human Services Agency, Children and Family Services (the Agency) attempted to provide reunification services to the mother while the father remained jailed. The mother was eventually imprisoned as well, and the Agency abandoned reunification efforts. As required by California law, the Agency instituted proceedings to terminate parental rights and to put the children up for adoption. After several hearings, the trial court terminated both parents' rights, and approved the children for adoption.

The mother appealed, arguing that the children had possible Native American ancestry on both sides of their family. As such, notice to potential tribes was required pursuant to the Indian Child Welfare Act of 1978 (ICWA). According to the appellate court, the ICWA "reflects a congressional determination that it is in the best interest of Indian children to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations." The ICWA, therefore, includes a requirement that "[i]n any voluntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right to intervention."

Here, the Agency did provide notice to the suspected tribes, but only two out of 22. Reasoning that "[n]otice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families," and relying on California legal precedent, the appellate court ruled that the Agency provided insufficient notice.

"In this case, the information provided by parents concerning the minors' potential Indian ancestry was sufficient to trigger a duty of an inquiry and notice under both state and federal law," held the court. "No one argues otherwise, and the trial court found it sufficient to require notice to two of 22 Pomo-affiliated tribes. In light of the authorities . . . the trial court erred in failing to require notice to the remaining Pomo-affiliated tribes." See:  In re O.C.., Case No. A147577 (Ct. App. Cal. 1^st App. Ct.).

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