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CALIFORNIA: In re A.G.
04.19.2012 | Termination of Parental Rights
The Court of Appeal of California, First Appellate District, conditionally reversed the decision of the Alameda Superior Court terminating appellant-father’s parental rights, holding that appellant’s behavior throughout the proceedings did not excuse appellee-agency’s failure to comply with ICWA’s inquiry and notice requirements. Citing In re Kahlen W., 233 Cal.App.3d 1414, the court found that notice is a key component in the Indian Child Welfare Act (ICWA), and that failure to provide proper notice would deem the rights protected by ICWA meaningless. The court additionally determined that ICWA created an ongoing duty for the appellee to seek relevant information with respect to the child’s heritage, and that appellee should have included information about the child’s extended family in any notice to the tribe. Here, appellee admitted it failed to conduct a proper inquiry into the child’s Indian heritage and to reveal information about the child’s extended family to the tribe, but argued that these violations should be overlooked because of appellant’s alleged attempt to commit fraud upon the court. The court rejected appellee’s argument, finding that it was based on conjecture and had no foundation in fact. The court further rejected arguments that appellee’s failure to comply with ICWA constituted harmless error, finding no merit in that the allegations that appellant had not made the required showing to invoke ICWA. Although the court recognized the potential harm in further delaying adoption of the child, it reversed the termination of appellant’s paternal rights so that appellee could comply with ICWA, and held that the termination be reinstated if no tribe intervened.
Cite: No. A132447, 2012 Cal. App. LEXIS 429 (Cal. Ct. App., April 16, 2012)
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