California Supreme Court Limits Forfeiture Doctrine in ICWA Cases

In only its third opinion on the Indian Child Welfare Act, the California Supreme Court issued its In re Isaiah W. ruling regarding a parent’s forfeiture of the right to appeal ICWA violations. Isaiah W. involved a mother’s tardy appeal of the Act’s notice and inquiry provisions. The mother, Ashlee R., failed to appeal ICWA’s application at a dispositional hearing and was permanently foreclosed from raising the notice (and substantive application) violations at a later stage.

Under California law the “dispositional hearing” is treated as a final judgment for dispositional issues and must be appealed within 60 days, or else any objections are waived. The appeal rule in California appeared to be inconsistent with the ICWA’s continuing duty to give notice, and to make an inquiry, and a tribe’s right to raise ICWA violations at later hearings. California Indian Legal Services, along with the United States filed Amicus Briefs supporting the mother’s continuing right to appeal ICWA errors.

The dispute in Isaiah W. was arisen after the mother informed the juvenile court that her son may have had Native American ancestry, but Court nevertheless found ICWA inapplicable and did not order the social service agency to notice the specified tribes or the BIA. The mother did not object to the Court’s inaction, and never appealed the juvenile court’s dispositional order. Later, the mother did appeal the ICWA non-notice, but not until the final Dependency stage, which is called the Selection and Implementation Hearing. Isaiah’s mother’s appealed occurred after the order was made terminating her parental rights, on the ground that “the juvenile court had reason to know Isaiah was an Indian child yet failed to order the Department to comply with ICWA‘s notice requirements.” The Court of Appeal denied her challenge because, under Dependency procedural law, Ashlee R. should have appealed after disposition.

The California Supreme Court’s July 7, 2016, decision acknowledged the Agency and Juvenile Court’s continuing duty of notice and inquiry, and did not preclude a parent from appealing a juvenile court order—even if the dispositional issues were subsumed, or included in a subsequent order terminating parental rights.” The 6-1 ruling reaffirmed the juvenile court’s continuing, and ongoing duty to inquire whether a child is an Indian child, or eligible for membership.

Significantly, the Court’s ruling recognized that:

(1) Indian tribes have interests protected by ICWA that are separate and distinct from the interests of parents of Indian children, and parents cannot waive a tribe’s rights.

(2) The affirmative and continuing duty of inquiry belong to the Court, not the parents, and that duty is not excused after 60 days elapse. An earlier finding of insufficient data did not relieve the Court and Agency of its inquiry and notice obligations.

(3) Notice is the cornerstone of a tribe’s participation in an ICWA case, and the law was clearly written to protect the integrity and stability of Indian tribes despite the potential for delay in placing a child, while being mindful of a child‘s need for a permanent and stable home.

The Supreme Court’s opinion impliedly recognized that the Agency and the trial court, as well as the parents, have a role and obligation in the inquiry process, but did not incentivize delay in making inquiry or notice. Although the dissenting opinion was correctly concerned about the effect on a child’s need for permanency and a stable home, a parent’s failure to perfect an appeal does not give the Agency an open-ended pass on compliance.

On balance, this decision is consistent with many tribes’ interpretation of the ICWA, but it is the first time the state Supreme Court has weighed in on the issue. To the extent that the lower court imposed a one-strike-and-you’re-out rule on appeals of ICWA violations, this Court acknowledged a parent (and tribe’s) continuing ability to appeal notice and other types of non-compliance.

Should you have any questions about the ruling please feel free to contact any of our California Indian Legal Services field offices, or contact us by email. [mradoff@calindian.org; dparr@calindian.org; mvezzola@calindian.org].