Skip to content
Name: In re N.G.
Case #: E070338
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 09/21/2019
Summary

The juvenile court has a continuing and affirmative duty to inquire whether a child may be an Indian child; reversal was required where there was an incomplete inquiry despite available information. When the minor was taken into protective custody, father filed a notice indicating that he may have Blackfeet or Navajo Indian ancestry, with a notation stating that he was “not exactly sure.” Also, the minor’s paternal grandfather reported that his grandfather was Native American and the tribe was “out of Michigan.” The Agency noticed the Blackfeet Tribe of Montana, the Navajo Nation, the Colorado River Indian Tribes, and the Colorado River Tribal Council. The notices included no other identifying information concerning the minor’s paternal lineal ancestors. The court found that ICWA notice had been given and that ICWA did not apply. Before the court made this finding, the Agency reported that father told the Agency he had been in contact a year earlier with paternal cousins who were registered members of the Cherokee tribe, and that he and grandfather may have Cherokee ancestry. Father was subsequently killed in a motorcycle accident. The record did not show that any ICWA notices were given to any federally recognized Cherokee tribes or the BIA. The record did not show the Agency attempted to interview father, paternal grandfather, or any of the cousins or any other persons in order to obtain the names and other identifying information concerning the minor’s paternal lineal ancestors. Further, mother’s whereabouts were unknown when the minor was taken into protective custody. But the Agency and mother were in contact some months later, and the record did not show that mother ever completed or that the Agency asked her to complete a Parental Notification of Indian Status form, or asked her whether she had any Indian ancestry. The Agency was also in contact with a maternal uncle, but the record did not show he was asked for identifying information concerning the maternal lineal ancestors. Mother appealed from the order terminating her parental rights, contending that the juvenile court erroneously failed to ensure the Agency fully investigated the minor’s paternal lineal ancestry and sent ICWA notices to all federally recognized Cherokee tribes and the BIA. The appellate court agreed and reversed the orders. On remand, the court was ordered to fully investigate the minor’s paternal lineal ancestry and include any newly discovered information in the ICWA notices to all the Cherokee tribes, the BIA, and all previously noticed tribes. The Agency was also ordered to inquire whether the minor had maternal Indian ancestry, and if so, send appropriate ICWA notices. Juvenile courts and protective agencies have an affirmative and continuing duty to inquire whether a child for whom a petition has been filed is an Indian child. Here, the record failed to show that the Agency ever attempted to inquire whether there was Indian ancestry on the maternal side, or attempted to contact the paternal cousins it knew about for identifying information concerning the minor’s ancestors. Further there was no record of notice to the Cherokee tribes. The Agency had a duty to make all inquiries into the minor’s Indian ancestry, and the record did not show this was done.