Rule 7.1015 - Guardianship and certain conservatorship proceedings involving Indian children (Prob. Code, Sections 1449, 1459, 1459.5, 1460.2, 1511(b), (i); Welf. & Inst. Code, Sections 224-224.6; 25 U.S.C. 1901-1963; 25 C.F.R. Sections 23.1-23.144)(a) DefinitionsAs used in this rule, unless the context or subject matter otherwise requires:
(1) "Act" means the federal Indian Child Welfare Act (25 U.S.C. §§ 1901-1963) . (2) "Petitioner" refers to: (A) A petitioner for the appointment of a guardian of the person of a minor child; or(B) A petitioner for the appointment of a conservator of the person of a formerly married minor child whose marriage has been dissolved.(b) Applicability of this rule and rules 5.480 through 5.488(1) This rule applies to the following proceedings under division 4 of the Probate Code: (A) A guardianship of the person or the person and estate, including a temporary guardianship, in which the proposed guardian of the person is not the proposed ward's biological parent or Indian custodian; (B) A conservatorship or limited conservatorship of the person or of the person and estate, including a temporary conservatorship, of a formerly married minor whose marriage has been dissolved in which the proposed conservator of the person is not the proposed conservatee's biological parent or Indian custodian and is seeking physical custody of the proposed conservatee. (2) Unless the context requires otherwise, rules 5.480 through 5.488 apply to the proceedings listed in (1). (3) When applied to the proceedings listed in (1), references in rules 5.480 through 5.487 to social workers, probation officers, county probation departments, or county social welfare departments are references to the petitioner or petitioners for the appointment of a guardian or conservator of the person and to the appointed temporary or general guardian or conservator of the person. (4) If the court appoints a guardian or conservator of the person of a child in a proceeding listed in (1), the duties and responsibilities of a petitioner under the Act and this rule become the duties and responsibilities of the appointed guardian or conservator. The petitioner must cooperate with and provide any information the petitioner knows or possesses concerning the child to the appointed guardian or conservator.(c)Inquiry (1) The court, the court investigator or county officer appointed to conduct an investigation under Probate Code section 1513 or 1826, and each a petitioner and an appointed temporary or general guardian or conservator of the person of a minor child each have an affirmative and continuing duty to inquire whether each child who is the subject of a proceeding identified in (b)(1) is or may be an Indian child.(2) Before filing a petition for appointment of a guardian or conservator of the person, the petitioner must ask the child who is the subject of the proceeding, if the child is old enough, the parents, any Indian custodian or previously appointed guardian of the person, and available extended family members, as defined in 25 U.S.C. § 1903(2), or other persons having an interest in the child whether the child is or may be an Indian child, complete Indian Child Inquiry Attachment (form ICWA-010(A)), and attach that form to the petition.(3) At the beginning of any proceeding identified in (b)(1) and at any hearing in such a proceeding that may result in the appointment of a guardian or conservator, the court must: (A) Ask each participant present whether the participant knows or has reason to know that the child is an Indian child;(B) Instruct the parties to inform the court if they subsequently receive information that provides reason to know that the child is an Indian child; and(C) Order the parent, Indian custodian, or existing guardian, if available, to complete Parental Notification of Indian Status (form ICWA-020).(4) If the parent, Indian custodian, or guardian is not available at the beginning of a proceeding identified in (b)(1), the court must order the petitioner to use reasonable diligence to find and inform the parent, Indian custodian, or guardian that the court has ordered that person to complete and deliver to the petitioner a Parental Notification of Indian Status (form ICWA-020).(5) If the court or county investigator, the petitioner, or the attorney for the petitioner knows or has reason to know or believe that an Indian child is the subject of the proceeding but has not conclusively determined that the child is an Indian child, that person must, as soon as practicable, conduct further inquiry by: (A) Interviewing the parents, Indian custodian, and "extended family members" to gather the information listed in Welfare and Institutions Code section 224.3(a)(5);(B) Contacting the federal Bureau of Indian Affairs and the California Department of Social Services for assistance in identifying the names and contact information of the tribes of which the child may be a member or eligible for membership; (C) Contacting the tribes and any other persons who reasonably can be expected to have information regarding the child's tribal membership or eligibility for membership. These contacts must at a minimum use the methods and share the information listed in Welfare and Institutions Code section 224.2(e)(2)(C); and(D) Filing with the court documentation of that further inquiry, including, at a minimum: (i) The names of all persons contacted and interviewed or attempted to be interviewed under subparagraph (A), the dates of those contacts and interviews, and any information gathered from them; and(ii) The dates and methods of contact with the agencies listed in subparagraph (B) and the tribes and persons in subparagraph (C) and any information gathered as a result of those contacts.(6) If the court knows or has reason to know or believe that an Indian child is involved in the proceeding but does not have sufficient evidence to determine that the child is an Indian child, and the further inquiry conducted in (5) has not been conducted, the court must order one or more of the persons named in (5) to conduct the inquiry and submit the documentation described in that paragraph.(7) The circumstances that may provide reason to believe the child may be an Indian child are those set forth in Welfare and Institutions Code section 224.2(e)(1). The circumstances that may provide reason to know the child is an Indian child are those set forth in Welfare and Institutions Code section 224.2(d) and rule 5.481(b).(d) Temporary guardianships and conservatorships of an Indian childIn addition to the applicable requirements in Probate Code sections 2250- 2257 and California Rules of Court, rules 7.1012 and 7.1062, the following requirements apply to temporary guardianship and conservatorship proceedings if the court knows or has reason to know that the proposed ward is an Indian child:
(1) Before appointing a temporary guardian or conservator of the person for an Indian child over the objection of a parent, tribe, or Indian custodian, the court must: (A) Advise the parent or Indian custodian that if they cannot afford counsel, the court will appoint counsel for them under section 1912(b) of the Indian Child Welfare Act; and(B) Find, in addition to facts in the petition establishing good cause for the appointment and any other showing the court may require under Probate Code section 2250(b), that the appointment is necessary to prevent imminent physical damage or harm to the child.(2) At a hearing under Probate Code section 2250(f) or on a petition, including an ex parte petition, to terminate a temporary guardianship or conservatorship of an Indian child, the court must determine whether the temporary guardianship or conservatorship is still necessary to prevent imminent physical damage or harm to the child. If the court determines that the temporary guardianship or conservatorship is no longer necessary, the court must terminate the temporary guardianship or conservatorship and, if a parent or Indian custodian is available, order the child returned to the physical custody of the parent or Indian custodian.(3) Before extending a temporary guardianship or conservatorship of an Indian child, under Probate Code section 2257(b), more than 30 days from the date of its establishment, the court must, in addition to finding good cause for the extension, determine that: (A) Terminating the temporary guardianship or conservatorship would subject the child to imminent physical damage or harm;(B) The court has been unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe; and(C) It has not been possible to hold a hearing on the petition to appoint a guardian that complies with the substantive requirements of the Act for a foster care placement proceeding.(e) NoticeIf, at any time after the filing of a petition for appointment of a guardian or conservator for a minor child, the court or petitioner knows or has reason to know, within the meaning of Welfare and Institutions Code section 224.2(d) and rule 5.481(b), that an Indian child is the subject of the proceeding, the petitioner and the court must give notice of the proceeding and the right of the child's tribe to intervene in the manner prescribed by Welfare and Institutions Code section 224.3(a) and rule 5.481(c) to the child's parents, the child's Indian custodian or previously appointed guardian of the person, if any, and the child's tribe or, if the child's tribe has not been determined, all tribes of which the child may be a member or eligible for membership.
Rule 7.1015 amended effective 9/1/2023; amended effective 1/1/2022; amended effective 7/1/2012; adopted effective 1/1/2008.