In an appeal from an order terminating parental rights, the Court of Appeal granted appellant’s motion to augment the record with documents considered by the juvenile court. Although the motion was untimely, the court noted the importance of ensuring the Department of Human Services’ (Department) further inquiry under the Indian Child Welfare Act (ICWA) was proper, adequate and duly diligent.

The court additionally rejected respondent’s argument that appellant forfeited his ICWA claims because he failed to object during the proceedings on remand following his prior appeal. The law is clear that the burden of ICWA compliance rests with the juvenile court and child welfare agencies, and cannot be shifted to the parents. (In re Dezi C. (2024) 16 Cal.5th 1112, 1145–1146.) Further, although “‘dependent children have a critical interest in avoiding unnecessary delays to their long-term placement’” (id. at pp. 1142–1143, quoting In re A.R. (2021) 11 Cal.5th 234, 249), “‘[b]ecause tribes have a right to intervene and even overturn prior judgments for failure to comply with ICWA [citations], the lack of timely and proper inquiry can undermine expeditious resolution and call into doubt the finality of juvenile court orders.’” (Dezi C., supra, at p. 1143, italics added, quoting Kenneth D., supra, 16 Cal.5th at pp. 1106–1107.) Concerns of gamesmanship also do not justify application of the forfeiture doctrine, as there appears to be little incentive for parents to engage in such conduct, nor is there much indication that the unlikely concern of gamesmanship outweighs, or is on equal footing with, the critical importance of ensuring an adequate and proper ICWA inquiry. (See Dezi C., supra, 16 Cal.5th at pp. 1149–1150.)

The court agreed with appellant that the juvenile court’s decision to make its ICWA finding without waiting a reasonable amount of time after the final wave of informal notices was sent to tribes was improper. Because the premature ICWA finding was made in conjunction with the termination of parental rights, jurisdictional constraints on the juvenile court’s ability to act should the notices yield actionable information preclude a finding that the error is harmless. The court accordingly conditionally reversed the order terminating appellant’s parental rights and remanded the matter to ensure completion of the further inquiry, in compliance with ICWA and Cal-ICWA. (§ 224.2, subd. (e).) The court encouraged the parties to stipulate to the immediate issuance of the remittitur in order to expedite proceedings in the juvenile court.