California Court of Appeals 4th District

California COA Affirms Application of Sovereign Immunity in Employment Termination Dispute

Matthew L.M. Fletcher

Here is the unpublished opinion in Mapp v. Viejas Band Of Kumeyaay Indians (Cal. Ct. App.):

Opinion.PDFDownload

An excerpt:

Mapp’s claims in this case relate to his employment by the Band and its potential termination based on the Band’s provision of a conditional license via its officials. He seeks to allege a violation of Family Code section 5290, which permits assessment of a civil penalty against an “employer” for specified conduct.9 That remedy and any judgment would be expressly against the Band. Mapp’s other damages related to negative employment decisions likewise would effectively obligate the Band, not personally the individuals who were implementing the Band’s gaming license rules and conditions. In short, the Band is the real party in interest, and sovereign immunity extends to the individual defendants.

Unpublished Active Efforts Case out of California

Kate Fort

Here.

Though unpublished, this case addresses many of the issues surrounding active efforts, standards of evidence, 2015 Guidelines, and much of the frustration in child welfare.

For example, this is not active efforts:

Before the jurisdiction and disposition hearing, the Agency’s social worker, Sara Whitney, met with Amber while in custody at Las Colinas Detention and Reentry Facility. The social worker discussed services available to Amber as a member of a Native American tribe and provided contact information for specific service providers.

Nor is this:

Shortly thereafter, Whitney spoke with the parenting coordinator at one of Southern Indian Health’s partners, who indicated she would follow up with Amber to help her obtain counseling. Whitney then followed up with Amber and provided her with contact information for the parenting coordinator, as well as additional referrals for residential drug treatment services.

This case also highlights the way each state manages to remove children using just different enough procedures:

This case highlights a gap between federal law and the manner in which California’s dependency proceedings are conducted. “[B]ecause the ‘ “critical decision[s] regarding parental rights … [and] that the minor cannot be returned home” ‘ [are] made at the earlier review hearing, the issues at the section 366.26 hearing are generally limited to the questions whether the child is adoptable and whether there is a statutory exception to adoption.” (In re Matthew Z. (2000) 80 Cal.App.4th 545, 552–553.) “[U]nlike the termination hearings in most states, the purpose of the final termination hearing in California ‘is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement.’ “ (Ibid.)

to make implementing federal standards incredibly difficult, because of the state-by-state, and case-by-case, determinations in our dependency courts:

Amber concedes, however, that the new BIA Guidelines are “consistent with statutes and Rules of Court from this State” and also recognizes that the Guidelines are not binding authority. As we recently held “[e]ven in light of the new guidelines information, the general principle still applies[ ] that ‘[t]he adequacy of reunification plans and the reasonable of [the Agency’s] efforts are judged according to the circumstances of each case.’ “ (A.C., 239 Cal.App.4th at p. 657.)

California Court of Appeals Decides Against Tribal Enterprise in Contract Dispute

Matthew L.M. Fletcher

Here is the unpublished opinion in 29 Palms Enterprises v. Cadmus Construction:

29 Palms Enterprises v Cadmus Construction

In re Z.A.: Stackbridge or Stockbridge

Kate Fort

Here.

California Court of Appeals, 4th district, 2nd division, remands for DPPS to notify the proper tribe:

Here, DPSS was informed at the earliest point in the proceedings that the biological grandmother was an enrolled member of a tribe and that mother, herself, was an enrolled member of an Indian tribe. DPSS was therefore aware that an Indian child might be the subject of the involuntary custody proceeding. The problem arose when mother completed the ICWA 020 form, in which she listed the possible tribe to which she belonged as the “Stackbridge” tribe. Without conducting any inquiry on her own, the social worker accepted information from an unnamed noticing clerk indicating that the “Stackbridge” tribe did not exist, and did not send any notice to that tribe.

Without difficulty, we found the tribe. The Department of Interior’s list of “Indian Entities Recognized and Eligible to Receive Services From the Bureau of Indian Affairs” (otherwise known as the list of Federally Recognized Tribes) includes the “Stockbridge Munsee Community, Wisconsin.” (77 Fed.Reg. 47868, 47871 [No. 155, 2012].) The Stockbridge–Munsee Community of Wisconsin reveals that the tribe descended from a group of Mohican Indians who joined the Oneida Indians in New York in 1785, and, together, both tribes were relocated to Wisconsin. (Stockbridge–Munsee Band of Mohican Indians, http:// witribes.wi.gov/docview.asp?docid=19080 & locid=57 [as of Aug. 31, 2013], p. 2.)