Nicole K. v. Superior Court

In this dependency proceeding, we must decide what the remedy is when, after failing to provide notice to a tribe as required by the Indian Child Welfare Act of 1978 ( 25 U.S.C. § 1901 et seq.; ICWA), a juvenile court terminates reunification services and schedules a hearing to select a permanent plan for the child.

In re Brooke C. (2005) 127 Cal.App.4th 377 [ 25 Cal.Rptr.3d 590 ] (hereafter Brooke C.) held that orders other than the termination of parental rights may be affirmed despite the lack of ICWA notice, and the matter simply can be remanded to the juvenile court with directions to comply with the notice requirements of ICWA. Brooke C. reasoned that ICWA errors are not jurisdictional and that if, upon remand, the child is determined to be an Indian child, the parent can petition the juvenile court to invalidate the orders it issued in violation of ICWA. (127 Cal.App.4th at pp. 384-386.)

We disagree with Brooke C. As we will explain, when there has been a lack of ICWA notice, the juvenile court’s orders must be vacated because they are based on different standards than should have been applied if ICWA notice was provided and showed the child is an Indian child.…