Right to counsel for certain parents or custodians of Indian children

In probate guardianship and conservatorship matters where the proposed ward or conservatee is an Indian child, indigent Indian custodians or biological parents of the child may have the right to counsel upon request.  Cal. Prob. § 1474 states: 

If an Indian custodian or biological parent of an Indian child lacks the financial ability to retain counsel and requests the appointment of counsel in proceedings described in Section 1459.5, the provisions of subsection (b) of Section 1912 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Section 23.13 of Title 25 of the Code of Federal Regulations are applicable.

Subsection (b) of Section 1912 of the Indian Child Welfare Act states in pertinent part, “In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding.”  

Section 1459.5 specifies that the Indian Child Welfare Act, 25 U.S.C. Sec. 1901 et seq., applies in certain guardianship and conservatorship matters in the probate division:

(a) The Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) shall apply to the following guardianship or conservatorship proceedings under this division when the proposed ward or conservatee is an Indian child:

(1) In any case in which the petition is a petition for guardianship of the person and the proposed guardian is not the natural parent or Indian custodian of the proposed ward, unless the proposed guardian has been nominated by the natural parents pursuant to Section 1500 and the parents retain the right to have custody of the child returned to them upon demand.

(2) To a proceeding to have an Indian child declared free from the custody and control of one or both parents brought in a guardianship proceeding.

(3) In any case in which the petition is a petition for conservatorship of the person of a minor whose marriage has been dissolved, the proposed conservator is seeking physical custody of the minor, the proposed conservator is not the natural parent or Indian custodian of the proposed conservatee and the natural parent or Indian custodian does not retain the right to have custody of the child returned to them upon demand.

The section also specifies other code sections that are applicable, including Cal. Welf. & Inst. Code § 224.3, which provides that notice to the Indian child’s parent or custodian must inform them of their right to appointed counsel if they are unable to afford counsel.