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2014 California Rules of Court

Rule 5.481. Inquiry and notice

(a) Inquiry

The court, court-connected investigator, and party seeking a foster-care placement, guardianship, conservatorship, custody placement under Family Code section 3041, declaration freeing a child from the custody or control of one or both parents, termination of parental rights, or adoption have an affirmative and continuing duty to inquire whether a child is or may be an Indian child in all proceedings identified in rule 5.480. The court, court-connected investigator, and party include the county welfare department, probation department, licensed adoption agency, adoption service provider, investigator, petitioner, appointed guardian or conservator of the person, and appointed fiduciary.

(1)The party seeking a foster-care placement, guardianship, conservatorship, custody placement under Family Code section 3041, declaration freeing a child from the custody or control of one or both parents, termination of parental rights, or adoption must ask the child, if the child is old enough, and the parents, Indian custodian, or legal guardians whether the child is or may be an Indian child and must complete the Indian Child Inquiry Attachment (form ICWA-010(A)) and attach it to the petition unless the party is filing a subsequent petition, and there is no new information.

(2)At the first appearance by a parent, Indian custodian, or guardian in any dependency case; or in juvenile wardship proceedings in which the child is at risk of entering foster care or is in foster care; or at the initiation of any guardianship, conservatorship, proceeding for custody under Family Code section 3041, proceeding to terminate parental rights proceeding to declare a child free of the custody and control of one or both parents, or adoption proceeding; the court must order the parent, Indian custodian, or guardian if available, to complete Parental Notification of Indian Status (form ICWA-020).

(3)If the parent, Indian custodian, or guardian does not appear at the first hearing, or is unavailable at the initiation of a proceeding, the court must order the person or entity that has the inquiry duty under this rule to use reasonable diligence to find and inform the parent, Indian custodian, or guardian that the court has ordered the parent, Indian custodian, or guardian to complete Parental Notification of Indian Status (form ICWA-020).

(4)If the social worker, probation officer, licensed adoption agency, adoption service provider, investigator, or petitioner knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable by:

(A)Interviewing the parents, Indian custodian, and "extended family members" as defined in 25 United States Code sections 1901 and 1903(2), to gather the information listed in Welfare and Institutions Code section 224.2(a)(5), Family Code section 180(b)(5), or Probate Code section 1460.2(b)(5), which is required to complete the Notice of Child Custody Proceeding for Indian Child (form ICWA-030);

(B)Contacting the Bureau of Indian Affairs and the California Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership; and

(C)Contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility.

(5)The circumstances that may provide reason to know the child is an Indian child include the following:

(A)The child or a person having an interest in the child, including an Indian tribe, an Indian organization, an officer of the court, a public or private agency, or a member of the child's extended family, informs or otherwise provides information suggesting that the child is an Indian child to the court, the county welfare agency, the probation department, the licensed adoption agency or adoption service provider, the investigator, the petitioner, or any appointed guardian or conservator;

(B)The residence or domicile of the child, the child's parents, or an Indian custodian is or was in a predominantly Indian community; or

(C)The child or the child's family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the U.S. Department of Health and Human Services, Indian Health Service, or Tribal Temporary Assistance to Needy Families benefits.

(Subd (a) amended effective January 1, 2013.)

(b) Notice

(1)If it is known or there is reason to know that an Indian child is involved in a proceeding listed in rule 5.480, except for a wardship proceeding under Welfare and Institutions Code sections 601 and 602 et seq., the social worker, petitioner, or in probate guardianship and conservatorship proceedings, if the petitioner is unrepresented, the court must send Notice of Child Custody Proceeding for Indian Child (form ICWA-030) to the parent or legal guardian and Indian custodian of an Indian child, and the Indian child's tribe, in the manner specified in Welfare and Institutions Code section 224.2, Family Law Code section 180, and Probate Code section 1460.2.

(2)If it is known or there is reason to know that an Indian child is involved in a wardship proceeding under Welfare and Institutions Code sections 601 and 602 et seq., the probation officer must send Notice of Child Custody Proceeding for Indian Child (form ICWA-030) to the parent or legal guardian, Indian custodian, if any, and the child's tribe, in accordance with Welfare and Institutions Code section 727.4(a)(2) in any case described by rule 5.480(2)(A)-(C).

(3)The circumstances that may provide reason to know the child is an Indian child include the circumstances specified in (a)(5).

(4)Notice to an Indian child's tribe must be sent to the tribal chairperson unless the tribe has designated another agent for service.

(Subd (b) amended effective July 1, 2013; previously amended effective January 1, 2013.)

Rule 5.481 amended effective July 1, 2013; adopted effective January 1, 2008; previously amended effective January 1, 2013.

Advisory Committee Comment

Except for purposes of inquiry, the requirements of the Indian Child Welfare Act (ICWA) and related provisions of state law do not apply to most cases adjudicated under section 602 of the Welfare and Institutions Code for conduct that would be criminal if committed by an adult (see In re W.B. (2012) 55 Cal.4th 30). But in those cases where ICWA does not apply, following inquiry and receipt of information about Indian ancestry, the court is encouraged to communicate with and voluntarily provide informal or formal notice to the Indian child's tribe regarding resources and services to benefit the Indian child and his or her family. Such notice should particularly be encouraged wherever the Indian child's tribe has previously intervened or participated in other proceedings involving the child, such as earlier dependency or probate guardianship proceedings. The California Legislature has stated: "[i]t is in the interest of an Indian child that the child's membership in the child's Indian tribe and connection to the tribal community be encouraged and protected...." (See Welf. & Inst. Code, §§ 224(a)(2), 306.6.) Further, Welfare and Institutions Code section 727.1(a) mandates that in selecting a placement for a child under the supervision of a probation officer, the court "shall consider, in order of priority, placement with relatives, tribal members, and foster family...." (Emphasis added.) This mandate applies even if the case is not governed by ICWA.

As a matter of policy and best practice, culturally appropriate placements and services provide psychological benefit for the Indian child and family. By engaging the Indian child's tribe, tribal members, Indian Health Services, or other agencies and organizations providing services to Native Americans, additional resources and culturally appropriate services are often identified to assist in case planning. (See Welf. & Inst. Code, §§ 727.4(d)(5),(6) & 16501.1(c)(1) for information on services and case planning for children adjudicated under section 602.) Outreach to these entities is also an important part of family finding and engagement efforts for Indian children and of finding appropriate placements. By contacting the child's tribe, placement options and services-such as substance abuse treatment, counseling, and other services-may be available to Indian children and their families. A list of available services can be found on the California Courts website at Program, Tribal/State Programs, ICWA, Statewide Directory of Services for Native American Families, at www.courts.ca.gov/5807.htm.

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