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Rules and Forms | Juvenile Law: Indian Child Welfare Act (ICWA) Inquiry and Family Finding (Action Required)
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Summary
Summary
To implement new legislation and recent case law regarding the Indian Child Welfare Act (ICWA) and foster-care placement in juvenile cases, the Family and Juvenile Law Advisory Committee and the Tribal Court-State Court Forum recommend amending four rules of court and revising 22 forms. This proposal responds to Assembly Bill 81 (Ramos; Stats. 2024, ch. 656), which addressed the implementation of the Indian Child Welfare Act (25 U.S.C. §§ 1901 et seq.), including ICWA inquiry, and Assembly Bill 2929 (Carrillo; Stats. 2024, ch. 845), which addressed family finding in juvenile dependency cases. The proposal also responds to two recent decisions from the Supreme Court of California concerning ICWA inquiry: In re Kenneth D. (2024) 16 Cal.5th 1087 and In re Dezi C. (2024) 16 Cal.5th 1112. The proposal also corrects several technical issues in the rules and forms.
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Recommendation
Recommendation
The Tribal Court-State Court Forum and the Family and Juvenile Law Advisory Committee recommend that the Judicial Council, effective January 1, 2026:
1. Amend California Rules of Court, rule 5.481(a)(2) regarding who must be asked if they have information that the child is or may be an Indian child to better align with the language in recent revisions to section 224.2(c) of the Welfare and Institutions Code (all further code references are to the California Welfare and Institutions Code unless otherwise stated) and for consistency with the language used in other rules, to add the words “on the record” to the end of that paragraph, and to change the term “participant” in subdivision (a)(2)(A) to “party or other interested person” and the words “or may be” between “knows or has reason to know the child is” and “an Indian child.” In addition, the proposal would add to subdivision (a)(4)(B) language clarifying that contacting the Bureau of Indian Affairs (BIA) and California Department of Social Services (CDSS) for assistance should occur only if the contacting entities--after interviewing the parents, Indian custodian, and extended family members--still require assistance in identifying or contacting tribes. This language is proposed in response to comments from the BIA and the CDSS that they routinely have agencies contact them without having first interviewed available family members. Without the family background information, the BIA and the CDSS will not conduct these interviews and cannot assist with locating and contacting tribes (the assistance they are mandated to provide). Finally, there is a technical amendment to (a)(4)(C) to correct a code reference.
2. Amend rule 5.668(c) to make the language regarding Indian Child Welfare Act (ICWA) inquiry consistent with the new language in section 224.2 regarding asking each party or other interested person present who has not previously been asked and making this inquiry on the record.
3. Amend rule 5.708(b)(1) to require that the report discuss all efforts the agency has made to comply with its ICWA inquiry duty by adding new subsection (E) and new paragraph (b)(4) to state that the court must make a finding as to whether the agency has fulfilled its duty of ICWA inquiry.
4. Amend rule 5.725 to require in subdivision (c), governing reporting requirements, evidence of the affirmative and continuing duty to inquire whether the child is or may be an Indian child and to add a paragraph under subdivision (d), conduct of hearing, to require the court to make a finding as to whether the agency has fulfilled its duty of ICWA inquiry under the holdings of the California Supreme Court in Kenneth D. and Dezi C. These cases clarify that there must be robust evidence of ICWA inquiry throughout the life of the case and findings by the court on ICWA inquiry and ICWA status that are grounded in the record. Also, a technical change updates a rule reference in subdivision (g).
5. Revise Information Sheet on Indian Child Inquiry Attachment and Notice of Child Custody Proceeding for Indian Child (form ICWA-005-INFO) to clarify and explain the ongoing duty of inquiry of extended family members and make the technical correction of including notice to the Secretary of the Interior when the identity and location of the child’s parents or tribe are known.
6. Revise Indian Child Inquiry Attachment (form ICWA-010(A)) to clarify what must be asked of the individuals questioned and clarify steps of the inquiry process.
7. Revise Parental Notification of Indian Status (form ICWA-020) to clarify that the inquiry is related to relatives and lineal ancestors of the child rather than the parent, Indian custodian, or guardian; add the terms “citizen” and “citizenship” when the terms “member” and “membership” are used; and ask whether the parent or child has lived on tribal trust lands in the past as well as whether they currently live on such lands.
8. Revise Additional Children Attachment (form JV-101(A)) by reformatting it to ensure that ICWA inquiry is documented for each individual child and removing the reference to gender in item 4e, which is not required by statute.
9. Revise Orders Under Welfare and Institutions Code Sections 366.24, 366.26, 727.3, 727.31 (form JV-320), which is used to document the findings and orders at a permanency hearing, to add a required finding as to the sufficiency of ICWA inquiry and to fix a typographical error at item 19(b)(3) by changing the first word from “an” to “a.”
10. Revise Continuance--Dependency Detention Hearing (form JV-405) to correct the name of the hearing in item 2 from “dispositional” to “detention,” change existing item 12b to 12a(2), renumber the subitems in 12, modify renumbered item 12b to include language that the court has reviewed evidence of ICWA inquiry submitted for the hearing, remove the finding in original item 12c(2)(a) that ICWA does not apply, add language in item 12b(4) that ICWA applies when the court makes a finding that the child is an Indian child, and revise the wording and format for the countersignature line for a judge that may be required under section 249 to be consistent with other forms that include this countersignature.
11. Revise Findings and Orders After Detention Hearing (form JV-410) to add a new item 9 ordering the county agency to make diligent efforts to locate and evaluate appropriate kin, add an instruction to the ICWA status language in renumbered item 11 to clarify that the court must choose one of the alternative findings, add a new sentence to renumbered item 11a ordering the county agency to continue to inquire about the child’s Indian status, and delete the language in renumbered item 11b(1) that ICWA does not apply.
12. Revise Findings and Orders After Jurisdictional Hearing (form JV-412) to update the language in item 5 regarding ICWA inquiry and status.
13. Revise Findings and Orders After Dispositional Hearing (form JV-415) to move current item 5, which addresses ICWA status, into item 7, ICWA Inquiry; renumber the remaining items; and delete the language in original item 7d(1) finding that ICWA does not apply unless new information is received and add language requiring the agency to continue its ICWA inquiry efforts.
14. Revise Dispositional Attachment: Removal From Custodial Parent--Placement With Nonparent (form JV-421) to update the language and clarify the findings regarding ICWA inquiry and status by adding item 4, include the family finding requirements in renumbered item 8, and revise language in item 34 to provide a link to rule 5.650 rather than direct litigants to the court clerk.
15. Revise Findings and Orders After Six-Month Status Review Hearing
(form JV-430) to include language about continuing ICWA inquiry and revise language in item 15 to provide a link to rule 5.650 rather than direct litigants to the court clerk.
16. Revise Six-Month Permanency Attachment: Reunification Services Continued (form JV-432) to add language concerning family finding and engagement as item 14.
17. Revise Six-Month Permanency Attachment: Reunification Services Terminated (form JV-433) to add as new item 15 language regarding family finding and engagement and to require in renumbered item 18(c) that the report that the agency is required to prepare for the permanency hearing include evidence of ICWA inquiry throughout the life of the case.
18. Revise Findings and Orders After 12-Month Permanency Hearing
(form JV-435) to include language about continuing ICWA inquiry, and revise language in item 15 to provide a link to rule 5.650 rather than direct litigants to the court clerk.
19. Revise Twelve-Month Permanency Attachment: Reunification Services Continued (form JV-437) to add language concerning family finding and engagement.
20. Revise Twelve-Month Permanency Attachment: Reunification Services Terminated (form JV-438) to add language regarding family finding and engagement at item 13 and to require that the agency’s permanency hearing report include evidence of ICWA inquiry throughout the life of the case at item 18.
21. Revise Findings and Orders After 18-Month Permanency Hearing
(form JV-440) to delete existing item 4 concerning ICWA status and replace it with new item 6 to include language about continuing ICWA inquiry and ICWA status findings, and revise language in item 15 to provide a link to rule 5.650 rather than direct litigants to the court clerk.
22. Revise Eighteen-Month Permanency Attachment: Reunification Services Terminated (form JV-442) to add language regarding family finding and engagement and to require that the agency’s permanency hearing report include evidence of ICWA inquiry throughout the life of the case.
23. Revise Eighteen-Month Permanency Attachment: Reunification Services Continued (form JV-443) to add language concerning family finding and engagement.
24. Revise Findings and Orders After Postpermanency Hearing--Permanent Plan Other Than Adoption (form JV-446) to add language regarding notice to the Bureau of Indian Affairs when such is required and about family finding and engagement.
25. Revise Findings and Orders After 24-Month Permanency Hearing
(form JV-455) to delete existing item 4 concerning ICWA status and replace it with new item 6 to include language about continuing ICWA inquiry and ICWA status findings, and revise language in item 15 to provide a link to rule 5.650 rather than direct litigants to the court clerk.
26. Revise Twenty-Four-Month Permanency Attachment: Reunification Services Terminated (form JV-457) to require the county agency to include evidence of ICWA inquiry in its report for the permanency hearing and to add language about family finding and engagement.
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