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Name: In re L.D.
Case #: H045544
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/24/2019

A challenge to the sufficiency of ICWA notice was not timely where it was raised in an appeal from a jurisdictional order not related to or premised on any ICWA finding. The Agency filed a dependency petition on behalf of the nine-year-old minor based on abuse by mother and mother’s boyfriend. ICWA notices were sent to several tribes. The minor was declared a dependent of the court. A restraining order against mother issued, which included a requirement that she surrender her handgun. Mother waived reunification services and the court set a 366.26 hearing. At a subsequent hearing on the restraining order, mother failed to show proof that the gun had been surrendered, in violation of the restraining order. Since mother was in custody on criminal charges arising from abuse of the minor, the court did not lift the restraining order, but agreed to revisit the matter if mother showed proof of surrendering her handgun. Mother appealed the court’s finding that she was in violation of the restraining order. However, on appeal, mother did not address the restraining order, but argued that ICWA compliance was insufficient. Mother, relying on In re Isaiah W. (2016) 1 Cal.5th 1, argued that an appellate challenge to an ICWA finding may be raised at any time. The appellate court rejected the argument. The reasoning of Isaiah does not extend to the situation here, where the order made at the gun surrender hearing is not premised on any ICWA finding. Further, the appeal is moot because the Department sent amended ICWA notices based on new information concerning mother’s Indian ancestry.