Guardianship of Mishley Leah-Mikayla Silva

Case Number

25PR00502

Case Type

Hearing Date / Time

Tue, 10/14/2025 - 09:00

Nature of Proceedings

Petition: Appoint Temporary Guardian of Person

Tentative Ruling

Probate Notes

Appearances required. 

The petition is recommended for approval. However, the following is provided for the Court at the hearing, because Petitioner indicated a great grandparent was a member of a federally recognized tribe:

It is common for individuals to claim that their family has Indian ancestry.  The Indian Child Welfare Act, however, only applies to an “Indian Child.” 

The term “Indian Child” means “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”  (25 U.S.C. § 1903.)  In other words, if the child is not a tribe member, and the mother and the biological father are not tribe members, the child is not an Indian child.  (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.)  In addition, ICWA only applies if the child is a member of or eligible for membership in a federally recognized tribe.

“[B]oth the federal regulations and the California Welfare and Institutions Code require more than a bare suggestion that a child might be an Indian child.”  (In re Jeremiah G., supra, at p. 1520 [affirming trial court decision to proceed without ICWA notice when father stated his great-grandfather might be of Native American ancestry].)