California Court of Appeals — First District

Three (Unpublished) California ICWA Cases

Kate Fort

One notice opinion involving relationships with the Pala Band of Mission Indians and perhaps a Cahuilla tribe, but of course, the department would have to send notice to determine that.

A second opinion holding the rules requiring CPS to help enroll a child in her tribe (Cherokee) as active efforts are valid

Consistent with this state interest in protecting an Indian child’s interest in tribal membership, rules 5.482 and 5.484 impose an affirmative duty on the juvenile court and the county welfare department to make an active effort to obtain tribal membership for a child when the tribe has notified the county welfare department that the child is eligible. To the extent the rules require CPS to make a reasonable, active attempt to obtain tribal membership for a child, we conclude the rules do not expand or conflict with the state or federal statutory definition of an Indian child. The rules’ requirement that CPS “provide active efforts under rule 5.484(c) to secure tribal membership for the child” (rule 5.482(c)) furthers the objective of ICWA and has no bearing on the ICWA definition of “Indian child.”

***

CPS received four requests to complete an enrollment application, beginning in December 2012, and still had not done so over six months later. The record does not show any reason for CPS not providing the Tribe with a completed, signed enrollment application by the time of the section 366.26 hearing in June 2013.
We therefore conclude CPS failed to comply with rules 5.482(c) and 5.484(c) by not taking reasonable, active steps to secure tribal membership for the children. Such error was not harmless. Active efforts to obtain membership for the children likely would lead to the children becoming Tribe members subject to ICWA protections, and would enable the Tribe to intervene if it so chose.

Finally, a fairly standard ICWA notice case, where even after the following, the parents were asked in court to stipulate that this was not an ICWA case.

In this case, Father provided the name and contact information for his uncle who he believed could provide more information about the children’s grandmother who was alleged to have Cherokee ancestry. There is no evidence in the record the Agency contacted the uncle. Further, the agency did not respond to the repeated requests from the Cherokee Nation for additional information. The Agency failed to make reasonable efforts to obtain any additional family history. Under these circumstances, we find the ICWA notice was inadequate because the Cherokee Nation was deprived of a meaningful opportunity to determine if M.S., E.S., and A.S. were Indian children.

Two Additional Unpublished Notice Cases out of California

Kate Fort1 Comment

Apparently this is the week for notice cases with particular cause for posting.

Here. While the court in this case remands for notice violations in a guardianship case, it sadly does not also hold that Wikipedia is not a solid source for determining whether a tribe is federally recognized or not.

Here. And in this case, the appellate court wrote:

We begin with a concern not addressed by either party. California Rule of Court, rule 5.481(b) mandates that in asection 300 proceeding, the social services agency must send a “Notice of Child Custody Proceeding for Indian Child.” This form is designated ICWA–030. The ICWA–030 form sent by the Bureau here, however, differs from the ICWA–030 form available on the Judicial Council website.7 Significantly, that ICWA–030 form, which consists of 10 pages, requests identifying information on the biological mother (section 5c), the mother’s biological mother (section 5c), and the mother’s biological grandmother (section 5d).8 The ICWA–030 used by the Bureau, which was 12 pages, appears at first glance to be the same, but upon closer examination materially differs. It requests information on the biological mother (section 5c) and the mother’s biological mother (section 5c), but it then skips to the mother’s biological great grandmother and great, great grandmother (section 5d). Nowhere does it contain a section for information on the mother’s biological grandmother.9 By using what may be a faulty ICWA–030, the Bureau completely omitted all information on R.K.’s grandmother—Robin’s great grandmother.10
*6 Additionally, although the ICWA–030 requested information regarding R.K.’s mother, the Bureau omitted all information for her, stating “No information available” for every single category, including her name. This is, quite simply, inexplicable. At the very least, we can only assume that an inquiry of R.K. would have revealed her mother’s name and, quite likely, additional information called for by the notice. But it is also probable that the Bureau could have obtained the information from R.K.’s mother herself. At the outset of the dependency proceeding, R.K. informed the social worker that her mother was involved in her own dependency proceeding. Additionally, R.K.’s mother was present at the June 5, 2013, 12–month review hearing, as evidenced by the reporter’s transcript from the hearing. At one point, the court interrupted the proceeding to ask audience members to identify themselves, and one person responded, “I’m the mother of [R.K.]” Both of these circumstances suggest that R.K.’s mother was accessible had the Bureau made an effort to speak with her. Additionally, the Bureau omitted the current and former addresses and the place and date of birth for R.K.’s great, great grandmother.

Unpublished Notice Case out of California

Kate Fort

We don’t post all of the unpublished ICWA notice cases, but they are obviously still out there. An appellate court cannot determine if ICWA notice has happened if there is nothing in the record at the trial court level:

Nor can we find that the error was harmless. While father filed an ICWA–020 form indicating that he was not aware of any Indian ancestry, no such form appears in the record with respect to appellant. Similarly, the record contains no copies of either the certified notices sent to the Cherokee tribes in 2009 or 2010 or any responses from those tribes. Finally, it does not appear that any proof of the juvenile court’s ICWA finding from the prior matter was submitted to the juvenile court in this matter. Consequently, it was not possible for the juvenile court in the present case to assess the propriety of the notice given, whether all three federally recognized Cherokee tribes received notice, whether either of the two Cherokee tribes besides the Cherokee Nation responded, or precisely what the juvenile court’s finding that ICWA did not apply was based on. (Cf. In re Jennifer A. (2002) 103 Cal.App.4th 692, 703 [finding prejudicial error where Agency stated in a report that it had sent notices to tribes in compliance with ICWA, but no evidence was presented to juvenile court concerning Agency’s communications with tribes].)

 

Case here.

State Court Challenge to Graton Rancheria Compact Fails

Matthew L.M. Fletcher1 Comment

Here are the materials in Stop the Casino 101 Coalition v. Brown (Cal. App.):

Opinion

Stop the Casino Opening Brief

California Brief

Stop the Casino Reply Brief

Three Remanded for ICWA Notice Deficiency Cases out of California

Kate Fort1 Comment

Cases from the Second District, the Fourth District and the First District.

From the Second District:

Before the next scheduled hearing on January 31, 2013, DCFS submitted the following documents to the court: signed return receipts for the entities noticed; a letter from the Bureau of Indian Affairs acknowledging receipt of the ICWA notice but indicating it does not determine tribal eligibility; a letter from the United Keetoowah Band of Cherokee Indians in Oklahoma declining to intervene in the case because there was no evidence T.M. was a descendant of anyone on the Keetoowah Roll based on the information supplied; a letter from the Cherokee Boys Club, Inc., on behalf of the Eastern Band of Cherokee Indians, declining to intervene in the case because T.M. was neither registered nor eligible to register as a member of the tribe based on the information supplied; and a letter from the Cherokee Nation seeking further information. The Cherokee Nation letter asked DCFS to “verify correct spelling of maternal great great grandmother Lual Made [D.], also need her date of birth. Relationship of Eleonora [H.] to the above named child. [¶] We need dates of birth for everyone involved, their relationship to the child or children in question, and maiden names of all females listed. It is impossible to validate or invalidate this claim without more complete information.” (Boldface and capitalization removed.)

At the January 31, 2013 hearing, which was presided over by a different hearing officer than Commissioner Lewis, the court stated the tribes were properly noticed and it had received letters back from the tribes indicating T.M. was not an Indian child. The court found the ICWA did not apply. The court did not acknowledge the Cherokee Nation’s request for further information.

Just spit balling here, but maybe the reason Cherokee Nation puts part of its response in BOLDFACE CAPITALIZATION is to help a state court out, so it doesn’t find ICWA doesn’t apply when it might.

California COA Rules in Favor of American Indian Model Schools in Oakland

Matthew L.M. Fletcher1 Comment

Here is the opinion in American Indian Model Schools v. Oakland Unified School District (Cal. App.):

A139652

An excerpt:

The American Indian Model Schools (AIMS) operates three public charter schools in the City of Oakland (Oakland). The Oakland Unified School District (the District) decided to revoke AIMS’s three charters after an independent audit uncovered evidence of conflict of interest violations, fiscal mismanagement, and improper use of public funds at the three charter schools. Funding of the charter schools was to halt while AIMS appealed the revocation decision.

AIMS filed a writ petition in the superior court against the District and others (collectively, defendants),1 challenging the District’s revocation of its charters. AIMS also requested a preliminary injunction to stop the implementation of the revocation order during the appeal process.
The trial court granted in part AIMS’s request for a preliminary injunction. The court highlighted the outstanding scholastic achievements of the students at AIMS’s three charter schools and the harm these students and schools would suffer if instruction were interrupted and the schools were no longer able to operate. The court concluded that the hardships weighed in favor of granting a preliminary injunction and that AIMS had demonstrated a likelihood of prevailing at trial because the record did not contain substantial evidence that the District complied with the requirements under Education Code section 47607, subdivision (c)(2).2 The court issued a preliminary injunction to maintain the status quo pending resolution of the appeal of the revocation decision.
Defendants appeal from the preliminary injunction order, arguing that the trial court abused its discretion in finding that AIMS is likely to prevail at trial. Defendants maintain that section 47607, subdivision (c)(2) requires the District to consider academic achievement but the trial court incorrectly interpreted this provision as requiring the District to make findings supported by substantial evidence that it complied with this provision. Defendants also challenge the trial court’s interpretation of section 47607, subdivision (i), and claim that issuing an injunction, which requires continued funding to the charter schools during the pendency of AIMS’s appeal, contravenes the mandate of section 47607, subdivision (i). Additionally, defendants maintain that the court failed to give sufficient deference to the District’s decision when it ruled AIMS was likely to prevail on the merits, that the court usurped the jurisdiction of the State Board of Education (the SBE), and that the court should not have issued any ruling in the absence of the California Department of Education (the CDE), which they maintain was an indispensable party.
We are not persuaded by defendants’ arguments and affirm the order granting the preliminary injunction.

Placement Preferences, Guardianship, and Identifying Tribe Unpublished ICWA Case from California

Kate Fort1 Comment

Unpublished opinion here.

California COA Decides ICWA Placement Preferences Matter

Matthew L.M. Fletcher1 Comment

Here is the opinion (Cal. App.):

In re Autumn K

An excerpt:

This appeal challenges an order terminating the parental rights of mother Patricia M. and father Bryan K. to their daughter Autumn K. and placing the child for adoption. Because Autumn was of Chickasaw descent and thus an Indian child, the dependency proceeding fell within the provisions of the Indian Child Welfare Act, 25 U.S.C. section 1901, et seq. (ICWA). As such, there were particular substantive requirements with which the juvenile court was obligated to comply when selecting a permanent plan for Autumn. Most significantly, absent good cause to deviate from this requirement, ICWA obligated the court to place Autumn with a member of her extended family, a member of her tribe, or another Indian family. (25 U.S.C. § 1915.) Here, there were two potentially viable, ICWA-compliant placements: maternal grandmother Teresa, who had custody of Autumn’s six siblings and had sought placement of Autumn from the outset of the dependency case, and maternal aunt Beatrice. Despite that, the court, relying on a conclusion by respondent Del Norte County Health and Social Services Department (Department) that Autumn could not be placed in her grandparents’ home, placed Autumn in a non-Indian home with a distant relative.

On appeal, the parents contend the juvenile court erred for a multitude of reasons. We agree with one argument that necessitates reversal: the Department erred in determining maternal grandfather José had a nonexemptible criminal conviction such that Autumn could not be placed with her grandparents. We conclude two different statutory provisions instructed that the conviction was in fact exemptible, and the Department was thus obligated to evaluate the request for an exemption on its merits. We therefore reverse.

California COA Appeals Decides ICWA Notice Case, Reversing and Remanding for Proper Notice to Karuk Tribe

Matthew L.M. Fletcher

Here is the opinion in In re Guardianship of D.W.

An excerpt:

The record in the present case discloses that from the outset of these proceedings until respondent was appointed the minor‟s guardian, appellant consistently informed the court that the minor had Indian ancestry, and that his father was an enrolled member of the Yurok or Karuk tribes. “Because „biological descendance‟ is often a prerequisite for tribal membership . . . [a relative‟s] suggestion that [the child] „might‟ be an Indian child [is] enough” to satisfy the minimal showing required to trigger the statutory notice provisions. (Antoinette S., supra, 104 Cal.App.4th at p. 1408, fn. omitted.) In carrying out its obligation under the ICWA to provide notice, the court incorrectly assigned appellant, the party objecting to the guardianship, the responsibility of providing notice to the possible Indian tribes.

California COA Grants Habeas Petition of Oklahoma Indian w/ AIM Ties Who Was Denied Parole

Matthew L.M. Fletcher

Over a dissent, I might add. Here is the opinion in In re Stoneroad:

A132591