Recent Family Law Cases

6/25/21, CA 4/2:  E075333

https://www.courts.ca.gov/opinions/documents/E075333.PDF

This is an Indian Child Welfare Act (ICWA)* case that involves a complete failure to inquire into the father’s status – about whether the ICWA might apply through his status or ancestry. Confusion arose as the mother was a confirmed tribal member (and her tribe had assumed jurisdiction over her previous minor dependent) so eligibility and hence applicability of the ICWA was erroneously (initially) presumed by all – the consequence of which was no need to bother inquiring into ICWA applicability from the father.  Such a failure is a clear legal error which was essentially undisputed. However, nowhere had the father claimed nor alluded to actually having Native American ancestry.  Furthermore, the appellate court recognized that in such a rare case as this, the appellate court would have considered evidence on that point outside (above and beyond) the record to which the appellate court is normally confined. The error was therefore deemed harmless by the appellate court.

7/9/21, CA 4/1:  D078574

https://www.courts.ca.gov/opinions/documents/D078574.PDF

This is an Indian Child Welfare Act (ICWA)* case where father alleges a failure to adequately inquire into the mother’s Native American status. Notably, the full siblings’ cases wherein adequate inquiries had been made had not resulted in the applicability of the ICWA. It is true that the mother never submitted the required ICWA-020 form memorializing her status. Additionally, the trial court did not directly inquire of the mother’s status during a live hearing. The only reason a question arose is because mother dutifully answered initial questions about the ICWA.  Her answers, which indicated some Native American ancestry, were (presumably) the same that led to the inapplicability findings historically for the full siblings.  During the live hearing referenced, at which mother was present, mother’s counsel twice asserted that mother had no Native American ancestry and further indicated that the previous ICWA-020 form was still accurate. The appellate court affirmed that inquiry as adequate under the ICWA.

*The ICWA is a federal Act of 1978 implemented through state law designed to preserve tribal (and therein cultural) integrity and heritage severely threatened by historical acts and omissions related to the children of Native Americans.