(a) InquiryThe 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, preadoptive placement, 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, preadoptive placement, or adoption must ask the child, if the child is old enough, and the parents, Indian custodian, or legal guardians, extended family members, others who have an interest in the child, and where applicable the party reporting child abuse or neglect, whether the child is or may be an Indian child and whether the residence or domicile of the child, the parents, or Indian custodian is on a reservation or in an Alaska Native village, 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, and all other participants 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, preadoptive placement, or adoption proceeding; and at each hearing that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement or adoptive placement, as described in Welfare and Institutions Code section 224.1(d)(1), or that may result in an order for guardianship, conservatorship, or custody under Family Code section 3041; the court must: (A) Ask each participant present whether the participant knows or has reason to know the child is an Indian child;(B) Instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child; and(C) 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 or believe 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 1903, to gather the information listed in Welfare and Institutions Code section 224.3(a)(5), Family Code section 180(b)(5), or Probate Code section 1460.2(b)(5); (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 who reasonably can be expected to have information regarding the child's membership status or eligibility. These contacts must at a minimum include the contacts and sharing of information listed in Welfare and Institutions Code section 224.2(e)(3).(5) The petitioner must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status, as well as evidence of how and when this information was provided to the relevant tribes. Whenever new information is received, that information must be expeditiously provided to the tribes. Advisory Committee Comment
Federal regulations (25 C.F.R. § 23.105) and state law (Welf. & Inst. Code, § 224.2(e)) contain detailed recommendations for contacting tribes to fulfill the obligations of inquiry, due diligence, information sharing, and notice under the Indian Child Welfare Act and state law.
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.
.