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Name: In re K.R.
Case #: E069276
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/22/2018
Summary

Limited remand for proper ICWA noticing was required after the juvenile court found ICWA notices were adequate without ensuring that the Agency had completed an adequate investigation. Mother informed the court that neither she nor the children had Indian ancestry, and the juvenile court found that ICWA did not apply. The Department sent notice to three Cherokee tribes and the BIA in response to information concerning the children’s father’s heritage. The court found the notices proper, and concluded that ICWA did not apply. The social worker’s reports were silent as to any efforts to contact other family members for information. At no time did mother object to the notices or the noticing procedures. On appeal from the termination of parental rights, mother contended that the Department did not properly investigate the children’s possible Cherokee heritage and that it omitted mandatory information from the ICWA notices sent to the tribes. She contended that the court had a continuing duty through the 366.26 hearing to make ICWA inquiries, and that the sufficiency of the investigation is therefore cognizable on appeal from the termination of parental rights order. The appellate court agreed, finding the issue cognizable in this appeal. The parent’s failure to appeal from an earlier order does not preclude the parent from raising the issue of ICWA compliance in an appeal from a later order, including from the termination of parental rights. Further, there was insufficient proof that the social services agency made a meaningful effort to contact specified family members who might have had pertinent information. Some extended family members were not interviewed, including the living paternal grandfather or great-grandmother. The court has the responsibility to ascertain that the agency has conducted an adequate investigation. Since the court did not inquire as to what efforts The Department had made to contact the living relatives, it failed in its duty to ensure compliance with ICWA, and a limited remand was required.