The other day, I had the opportunity to be involved in a hearing where the Department of Children and Family Services was attempting to terminate my client’s parental rights pursuant to a Welfare and Institutions Code Section 366.26 hearing. The minors’ attorneys was adamantly against my client, and the social worker and her attorney was adamantly against my client as well.

Prior to the hearing, I filed a Welfare and Institutions Code Section 388 petition in order to ask for return of the children, to liberalize her visits with the children, and to ask for further family reunification services. Before the hearing began, the court indicated that as a tentative ruling, it was going to grant our 388 petition, and set it for a hearing.

The minors’ counsel and county counsel argued against the court granting such a hearing, because they knew it was going to delay the .26 hearing. However, the court stood by its tentative and granted the hearing. I believe we will be able to prevail on part or all of our 388 petition, next month.

However, this was not the most important thing that happened during the hearing. One of the children’s fathers showed up in court for the first time, and to the surprise of all he indicated that he had American Indian ancestry. This is important because the federal law, Indian Child Welfare Act (ICWA) may apply, and put a wrench in the social worker’s plan to terminate all of the parents’ rights.

Additionally, as I was explaining this to my client after the hearing; she told me that she also had Indian ancestry through her father and her mother. Since I had not been her attorney at the beginning of the case, I was not aware of this ancestry; and the court had previously made findings that ICWA did not apply. Apparently, this may be incorrect.

It is my opinion, that until all the tribes are notified and allowed to decide whether to get involved in the case and assert the tribe’s ICWA rights, nothing more can be done; including the termination of my client’s parental rights. Effectively, this will give my client additional time with her drug counseling, drug testing and parenting classes. The more time she has the stronger case she has at possibly getting her children back in her custody.

So, whatever stage of the case you are, if there is any possibility that you or your children have American Indian ancestry, immediately notify, in writing, your attorney and the social workers.

If you’d like a consultation, a case analysis or legal representation, please give me a call. Vince Davis, Trial Lawyer

888 888 6582

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