Scope and Purpose of the Act

“In passing ICWA, Congress expressly assumed "the responsibility for the protection and preservation of Indian tribes and their resources...." (25 U.S.C. § 1901(2).) Congress found that the most vital resource to the continued existence and integrity of the tribes was their children, and that the United States has a direct interest in protecting Indian children. (25 U.S.C. § 1901(3).) Congress also found that too many Indian families had been broken up by the often unwarranted removal of their children by nontribal public and private agencies, which agencies placed the children in non-Indian foster care, adoptive homes, and institutions. (25 U.S.C. § 1901(4).)

Therefore, Congress's explicit purpose in passing ICWA was ‘to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.’ (25 U.S.C. § 1902.)

ICWA ‘seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.’ It does so by establishing ‘a Federal policy that, where possible, an Indian child should remain in the Indian community,’ (Id.), and by making sure that Indian child welfare determinations are not based on ‘a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.’” (R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 197 citing Mississippi Choctaw Indian Band v. Holyfield, supra, 490 U.S. at 37.)

Scope of Act Concerning Delinquency and Foster Care

“[I]n 2006 California passed legislation imposing upon the court, county welfare department, and probation department a duty of inquiry and notice in any proceeding brought pursuant to Welfare and Institutions Code section 602 where the child is at risk of entering foster care or is in foster care. Section 602 brings within the jurisdiction of the juvenile court cases involving the commission of a crime by a minor. The duty in such cases is to inquire whether a child is or may be an Indian Child, and to provide notice to the child's parents or guardian, Indian custodian, and tribe of the right to intervene in the proceeding, the right to counsel for the parents or Indian custodian, and the right to transfer the proceeding to tribal court.” (R.R. v. Super. Ct. (2009) 180 Cal.App.4th 185, 193-94 citing Welfare and Institutions Code sections 224.2, 224.3.)

Procedural Requirements

“In addition to this statutory mandate, the Judicial Council has adopted rules of court governing the requirements of inquiry and notice, as well as rules governing intervention, transfer, and the ultimate placement of the child. (Cal. Rules of Court, rules 5.481-5.484.) These rules are specifically made applicable to proceedings under section 602 in which the child is at risk of entering foster care or is in foster care.” (R.R. v. Super. Ct. (2009) 180 Cal.App.4th 185, 194 citing to Cal. Rules of Court, rule 5.480.)

Application of Cal. R. 5.480

“This chapter addressing the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) as codified in various sections of the Family Code, Probate Code, and Welfare and Institutions Code, applies to most proceedings involving Indian children that may result in an involuntary foster care placement; guardianship or conservatorship placement; custody placement under Family Code section 3041; declaration freeing a child from the custody and control of one or both parents; termination of parental rights; preadoptive placement; or adoptive placement. This chapter applies to:

1. Proceedings under Welfare and Institutions Code section 300 et seq.;
2. Proceedings under Welfare and Institutions Code sections 601 and 602 et seq., whenever the child is either in foster care or at risk of entering foster care. In these proceedings, inquiry is required in accordance with rule 5.481(a). The other requirements of this chapter contained in rules 5.481 through 5.487 apply only if:
1. The court's jurisdiction is based on conduct that would not be criminal if the child were 18 years of age or over;
2. The court has found that placement outside the home of the parent or legal guardian is based entirely on harmful conditions within the child's home. Without a specific finding, it is presumed that placement outside the home is based at least in part on the child's criminal conduct, and this chapter shall not apply; or
3. The court is setting a hearing to terminate parental rights of the child's parents.
3. Proceedings under Family Code section 3041;
4. Proceedings under the Family Code resulting in adoption or termination of parental rights; and
5. Proceedings listed in Probate Code section 1459.5 and rule 7.1015.
6. This chapter does not apply to voluntary foster care and guardianship placements where the child can be returned to the parent or Indian custodian on demand.”

(Cal. R. 5.480)

Court Procedures

If, at any time after the filing of a petition for appointment of a guardian or conservator for a minor child, the court or petitioner knows or has reason to know, within the meaning of Probate Code sections 1449 and 1459.5 and Welfare and Institutions Code section 224.3(b), that an Indian child is involved, the petitioner and the court must notify the child's parents or legal guardian and Indian custodian, and the Indian child's tribe, of the pending proceeding and the right of the tribe to intervene, as follows:

1. Notice to the Indian child's parents, Indian custodian, and Indian tribe of the commencement of a guardianship or conservatorship must be given by serving copies of the completed Notice of Child Custody Proceeding for Indian Child (form ICWA-030), the petition for appointment of a guardian or conservator, and all attachments, by certified or registered mail, fully prepaid with return receipt requested.
2. The petitioner and his or her attorney, if any, must complete the Notice and the petitioner must date and sign the declaration. If there is more than one petitioner, the statements about the child's ancestors and background provided in the Notice of Child Custody Proceeding for Indian Child (form ICWA-030) must be based on all information known to each petitioner, and all petitioners must sign the declaration.
3. When the petitioner is represented by an attorney in the proceeding, the attorney must serve copies of the Notice of Child Custody Proceeding for Indian Child (form ICWA-030) in the manner described in (1) and sign the declaration of mailing on the Notice.
4. [...]
5. The original of all Notices of Child Custody Proceeding for Indian Child (form ICWA-030) served under the act, and all return receipts and responses received, must be filed with the court before the hearing.
6. Notice to an Indian child's tribe must be sent to the tribal chairperson unless the tribe has designated another agent for service.
7. Notice must be served on all tribes of which the child may be a member or eligible for membership. If there are more tribes or bands to be served than can be listed on the last page of the Notice, the additional tribes or bands may be listed on an Attachment to Notice of Child Custody Proceeding for Indian Child (form ICWA-030(A)).
8. Notice under the act must be served whenever there is any reason to know that the child is or may be an Indian child and for every hearing after the first hearing unless and until it is determined that the act does not apply to the proceeding.
9. If, after a reasonable time following the service of notice under the act-but in no event less than 60 days-no determinative response to the Notice of Child Custody Proceeding for Indian Child (form ICWA-030) is received, the court may determine that the act does not apply to the proceeding unless further evidence of its applicability is later received.
10. If an Indian child's tribe intervenes in the proceeding, service of the Notice of Child Custody Proceeding for Indian Child (form ICWA-030) is no longer required and subsequent notices to the tribe may be sent to all parties in the form and in the manner required under the Probate Code and these rules. All other provisions of the act, this rule, and rules 5.480 through 5.487 continue to apply.

If the court finds that the Indian Child Welfare Act applies, petitioner(s) will need to give notice to the relevant tribes pursuant to California Rules of Court, rule 7.1015.