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Name: In re Justin S.
Case #: H030732
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/21/2007
Summary

Upon remand for ICWA notice issues, parent is entitled to be present and represented by counsel at the remand hearing. The order terminating appellant’s parental rights was originally reversed, and remand was ordered because the ICWA notices did not include the date of birth of the children’s paternal grandmother, with whom they had been placed, and from whom their Indian ancestry derived. The trial court concluded that the matter did not involve the parties, but only the tribes. Mother was not noticed of the remand hearing, and was not present, nor was counsel appointed to represent her interests. Following the hearing, an order was signed reflecting that proper ICWA notice had been given and the order terminating parental rights was reinstated. The appellate court again reversed and remanded. A parent is entitled to litigate the ICWA notice issue to protect the interests of the child, and must be given the opportunity to participate in the proceedings on remand. This participation would be of limited benefit without the assistance of counsel. Remand was required to hold a hearing, at which appellant was to be represented by counsel, to determine whether ICWA applies based on further responses from the tribes.