Case Highlight: Inquiry, California Court of Appeals

As usual, I'm reading the ICWA cases that come in from Westlaw (though I no longer read unpublished opinions on the regular. If you have one for me to take a look at, feel free to flag it in an email to me).

Even when they are published, California Court of Appeals cases are usually not particularly notable because they keep addressing the same question of inquiry and notice over and over again. You may have heard me rant about this, since I've been writing about it for, oh, nineteen years (guys, elder status is almost upon me).

However, I thought this one was worth flagging for two reasons. The first is it unfortunately involves a broken adoption. We know these cases exist, but rarely find evidence of them on appeal. There is no information that I see in the decision that talks about how the adoption happened (private or from foster care), but it is a reality that despite how agencies and others speak about adoption, it is not a guarantee that children will stay in the same home or that it is a safe home.

Ok, the second reason to flag this is of whom the court is requiring inquiry. Adoptive parents denied any tribal membership or citizenship or affiliation. The child was in touch with her biological mother and sister, and the agency did not follow up with them. The court ordered inquiry of the child's biological family. Absolutely. If for no other reason, ICWA provides that if an adoption fails, the biological parent has the option to petition the court for return of custody. 25 U.S.C. 1916(a). However, the court also ordered inquiry of the adoptive parents' extended relatives. The court reasoned, that of course a tribe is the only determiner of citizenship, and perhaps the child had been adopted into the tribe as a member. Ok–this is not wrong on its face. But we need to get into the definition of parent.

Both ICWA and Cal-ICWA define parent as:

“Parent” means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.

So in other words, if the adoptive parent is not an Indian person (defined as a member of a federally recognized tribe), they are not a "parent" under ICWA or Cal-ICWA. A child could be an Indian child--having been adopted out to non-Indian adoptive parents--and it would be the one time the application of ICWA and Cal-ICWA turns on the status of the parent, not the child.

I don't think the court is wrong to order additional inquiry here, just that it's reasoning is incorrect:

Assuming an adoptive extended relative had Indian ancestry, there could then be reason to believe the minor could be eligible for membership in an Indian tribe.

at *7

The inquiry is not, in this situation, about the minor's status. Rather, that inquiry would need to determine the adoptive parent's status. You could, for example, have a minor who is an Indian child because of their biological parents, and adoptive parents who are Indian adults from a different tribe, and ICWA would apply. But you could arguably have an Indian child of non-Indian adoptive parents and ICWA would not apply to the case. In addition, both Cal-ICWA and ICWA require if a child is eligible for membership they must also be the "biological child of a member," which may be why the definition of parent is written the way it is.

This isn't a big nuance, but I did think it was an interesting wrinkle on the usual inquiry question. I think I would have preferred the reasoning to be based on the right of the biological parent to petition for custody, which isn't mentioned in the opinion at all.