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Name: In re B.R.
Case #: A122581
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 08/13/2009

ICWA applies where the minors’ presumed father alleges that his adoptive father had Indian heritage. During the dependency proceeding, the Department and court were on notice that the minors’ presumed father was adopted, and his adoptive father was one-fourth Apache Indian. No ICWA notices were sent to the Apache tribes. In an appeal from the termination of her parental rights, mother argued that the order had to be reversed because of the failure to notice the Apache tribes. The appellate court agreed and conditionally reversed the order so that the tribes could be noticed. First, the court rejected the argument that mother had waived the issue by not raising it prior to the 366.26 appeal, specifically disagreeing with the holding in In re Pedro N. (1995) 35 Cal.App.4th 183. Further, the definition of Indian child under the ICWA does not by its terms automatically exclude children adopted by Indian families. The ICWA focuses on membership, not on racial origins.