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Name: In re S.S.
Case #: B318794
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 04/14/2023

Tribes are a real party in interest who are prejudiced by the Agency’s failure to conduct an adequate initial ICWA inquiry. The minor was removed from his parents and placed with maternal relatives who wished to adopt them. The Agency followed up after receiving information that Mother may have Indian heritage, but did not question three paternal relatives, for whom they had contact information, about possible Indian heritage. Following the termination of parental rights, Mother appealed and the Court of Appeal reversed the ICWA findings. Tribes are real parties in interest and the Agency’s failure to conduct an adequate initial ICWA inquiry prejudices them. The 2018 initial inquiry amendment adds minimal extra work for the Agency because it already has the mandate to contact extended family members, and the effort is vital to tribes striving to locate children to sustain tribal cultures. This inquiry serves the goal of preserving and transmitting native cultures because there is a chance extended family members may have otherwise unavailable information that the child has Indian ancestry. In light of a long and troubling history, there is no good reason for the Agency to fail to ask about Indian ancestry when the cost of so slight. Placing the minor with maternal family members does not dispel this prejudice because the Tribe was not given the opportunity to assert tribal jurisdiction or formally intervene in the proceedings. When a relative does not acknowledge a tribe, that relative cannot be expected to carry forward a tribal heritage. [Editor’s Note: Dissent would have held that any ICWA error was harmless because the minor was placed with a biological relative, which is the first placement priority under ICWA.]

The full opinion is available on the court’s website here: