California Court of Appeals — First District

Cal. COA Decides ICWA Case involving Yurok Traditional Adoption Statute

Matthew L.M. Fletcher

Here is the opinion:

In re HR

An excerpt:

In 2010, legislation was enacted establishing “tribal customary adoption” as an alternative permanent plan for a dependent Indian child who cannot be reunited with his or her parents. Tribal customary adoption is intended to provide an Indian child with the same stability and permanency as traditional adoption under state law without the termination of parental rights, which is contrary to the cultural beliefs of many Native American tribes. In this case, the Yurok Tribe (the tribe) intervened in the dependency proceedings prior to the jurisdictional hearing and recommended tribal customary adoption as the permanent plan for the minor. The tribe now contends the juvenile court erred in terminating parental rights and selecting traditional adoption as the permanent plan. We disagree with the tribe’s contention that the court was required to select tribal customary adoption as the child’s permanent plan simply because the tribe elected such a plan but conclude that, in the absence of a finding that tribal customary adoption would be detrimental to the minor, the court erred in failing to select such a permanent plan in this case.

California Appeals Court Decides ICWA Notice Case; Admonishes Alameda County Social Services Agency

Matthew L.M. Fletcher

Here is the opinion in In re A.G. (Cal. App. Dist. 1):

A132447

An excerpt:

Father’s sole contention is that the order terminating his parental rights as to A.G. must be reversed because the Agency did not provide notice as required under ICWA. Although the Agency strenuously contested this appeal, it does not dispute that it failed to comply with ICWA’s inquiry and notice requirements. Instead, it raises a battery of contentions that arise out of a theory that Father has “renounced” his paternal rights and worked a fraud on the family and juvenile courts. The Agency also says the appeal is barred by res judicata and, in any event, that reversal is not required because its ICWA violations were not prejudicial. These arguments are long on novelty, but short on merit. We are reluctant to impose further delay before this young child may finally gain permanence and stability in an adoptive family. Unfortunately, the Agency’s unexplained failure to follow the law leaves us with no choice. We therefore order a limited reversal and require the Agency to fulfill its ICWA-related duties, as it should have done long ago.

Cal. Appellate Court Terminates Parental Rights over Tribal Objections

Matthew L.M. Fletcher

Here is the opinion in In re S.H.

An excerpt:

On October 16, 2008, the juvenile court found the Indian Child Welfare Act applied based upon proof that mother is a member of the Manchester Point Arena Band of Pomo Indians (Tribe). The Tribe advised the juvenile court that, although minor is considered an adoptable child, it would only support legal guardianship as a permanent plan in order to protect her best interest in a continued tribal relationship.

The trial court bypassed the reunification services route, and the appellate court upheld, writing:

Having reviewed the record in this case, we would indeed conclude mother suffered no prejudice from the juvenile court’s refusal to consider granting her reunification services, as there is simply no evidentiary basis for doing so. In particular, while the department opposed mother’s request for consideration of reunification services after the dependency proceedings were reinstated and the original guardianship was terminated, it nonetheless addressed the reunification issue in a report dated May 6, 2010, in anticipation of the post-permanency planning review hearing. In this report, the department advised the court that mother “has been informed numerous times by the Tribe, and the Department concurs, that she would need to complete the attached ten-point treatment goal plan in order for any consideration of reunification for any of her children to be considered. She has not participated in any planning for reunification, much less participated in any of the ten-point plan.”8 The report also noted that mother remained consumed by anger, had made threats to minor’s foster family, and had generally been unsupportive of minor’s placement despite the negative impacts her conduct had on her relationship with both minor and the Tribe. This evidence of mother’s poor conduct in the post-permanency period, which mother does not appear to have addressed, is in addition to the clear and convincing evidence underlying the juvenile court’s initial decision to bypass services for her, including her role in the death of another child through abuse or neglect and in the severe physical abuse of minor’s half-sibling, her failure to make a reasonable effort to treat the problems that had led to the removal of minor’s half-siblings, and her failure to rehabilitate despite extensive efforts on her behalf by the department and the Tribe. Under these circumstances, there is no reasonable probability that mother would have obtained a more favorable result had the juvenile court reopened the reunification services issue before appointing the successor guardians.

 

 

Runyon v. River Rock Entertainment Authority–Tribal Immunity Forecloses Employment Arbitration

Matthew L.M. Fletcher

Here is the unpublished opinion from the California Court of Appeals. River Rock is owned by the Dry Creek Rancheria Band of Pomo Indians.

Yurok Juvenile Wins Ineffective Assistance of Counsel Claim

Matthew L.M. Fletcher

The case is In re Edward S., from the California appellate court, first district. An excerpt:

We shall conclude that Hauschild’s performance was deficient in that he (1) failed to investigate potentially exculpatory evidence, (2) sought an inadequate continuance based on a mistake of law, and, (3) failed to move for a substitution of counsel knowing he was unable to devote the time and resources necessary to properly defend appellant. Further concluding that these deficiencies were prejudicial, we shall reverse the judgment.