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Name: In re Isaiah W.
Case #: S221263
Court: CA Supreme Court
District CalSup
Opinion Date: 07/07/2016

Appellant parent may challenge the failure of the Department to provide notice pursuant to ICWA in an appeal from a subsequent order even though she did not raise the challenge earlier in the proceedings. A juvenile court removed newborn Isaiah W. from his parents and placed him in foster care. At the time, the juvenile court found that Isaiah was not an Indian child, that the ICWA did not apply, and did not order any tribe or the BIA noticed of the proceedings. Mother did not appeal from the initial orders. Over a year later, the juvenile court terminated mother’s parental rights. Mother appealed, arguing that the court failed to order the Department to comply with ICWA notice requirements. The appellate court found that because mother failed to timely appeal from the ICWA finding in the juvenile court’s dispositional order, she was foreclosed from raising the issue on appeal from the order terminating her parental rights, citing In re Pedro N. (1995) 35 Cal.App.4th 183, 189, which is an approach contrary to several other cases including In re Marinna J. (2001) 90 Cal.App.4th 731. The California Supreme Court granted review to resolve the conflict in the Courts of Appeal. Held: reversed and remanded. A juvenile court has an affirmative and continuing duty in all dependency proceedings to inquire into a child’s Indian status. The fact that mother did not allege ICWA notice error in an appeal from the dispositional order did not preclude her from raising the claim in this appeal. The approach taken by the Pedro N. court cannot be reconciled with the statutory scheme and In re Pedro N. is therefore disapproved.