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A Better Partnership
May 21, 2014

COA finds that the slightest chance a child is an Indian requires notice to the tribe

The Court of Appeals has confirmed that the notice requirement for the Indian Child Welfare Act (ICWA) should not be taken for granted. In In re D Johnson, the Court conditionally reversed and remanded the lower court’s order terminating a mother’s parental rights after the Court found that no findings had been put into the record as to the child’s status as an Indian child. “At the preliminary hearing ... the minor’s father stated that his deceased grandmothers were both ‘full-blooded’ Native American, although he did not know to which tribe they belonged.” Based on this testimony, the trial court order called for the caseworker to make necessary inquiries as to the Child’s Native American Heritage. While subsequent case plans mentioned that the child did not identify as Native American and repeatedly indicated that there was no applicable tribal affiliation, the trial court did not state on the record that any determination had been made as to the child’s heritage. On appeal, after balancing the potentially high cost to plaintiff of not sending the notice against the low cost of sending the notice for defendant, the Court determined that it was the duty of the trial court to require notice even if there was only the “slightest possibility that the minor child is an Indian Child.” Next, the Court determined the trial court had not erred in terminating the mother’s parental rights, and conditionally reversed and remanded for the trial court to investigate the heritage of the child or to order service of the ICWA notice.  

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