California Court of Appeals — Second District

Unpublished California ICWA Notice Case and the Passive Voice

Kate Fort

Opinion here. Court reversed termination and remanded for notice to Navajo Nation.

Classic example of the passive voice here:

The responsibility for compliance with ICWA falls squarely and affirmatively on the court and the Department. (Welf. & Inst.Code, § 224.3, subd. (a); In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409.)3 Both Robert and the paternal grandmother stated that there was native American heritage in the family. As early as the detention hearing, the juvenile court ordered the Department to make the necessary inquiries and send the required notices. Thereafter, as everyone acknowledges, the ball was dropped.

Reported California COA Opinion Reverses Termination of Parental Rights for Violation of ICWA

Matthew L.M. Fletcher

Ventura County Human Services Agency initially told the juvenile court that ICWA doesn’t apply to Alaska Natives (or, as stated in the opinion, “Eskimo families”).

Here is the opinion in In re H.G.:

In re HG — B255712

Two Additional Unpublished Notice Cases out of California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

Here.

In one line, this case summarizes why the Department’s failure to do notice properly harms kids and families:

[Infant]’s adjudication hearing was initially set for October 2013 but was continued approximately five months (due to the Department’s failure to properly serve notice under the ICWA) during which time the infant remained out of mother’s care.

And, for the record, in this case, “mother and maternal relatives had tribal enrollment numbers, and mother claimed father had Cherokee heritage. None of the ICWA notices sent reflected all of this information.”

California v. Miami Nation Enterprises: California SCT Materials (So Far)

Matthew L.M. Fletcher1 Comment

Here:

California Petition for Review

Public Justice Amicus Brief in Support of Petition

MNE Answer to Petition

California Petition Stage Reply

California Opening Merits Brief

MNE Merits Brief

California Reply

California Supplemental Brief

Lower court materials here.

Complaint

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 Affirms Tribal Immunity from Casino Employees’ Suit

Matthew L.M. Fletcher1 Comment

Here is the opinion in Chavez v. Morongo Casino Resort & Spa:

Opinion

ICWA Placement Preference Decision Out of California Involving Choctaw Tribe

Kate Fort3 Comments

Here.

This is a re-occurring and incredibly frustrating ICWA fact pattern–if the ICWA compliant placement is out of state, or far away from the parents, and the goal is reunification, it makes sense for the tribe and state to allow for a non-compliant ICWA placement near the parents. What happens, however, when reunification fails? As in this case, a court is often unwilling to remove the child from the home she has been in for anywhere from one to three years. Honest, actual, concurrent permanency planning could help with this, but while that is a best practice, it does not seem to be happening with any regularity at the state.

Concluding that the ICWA’s adoptive placement preferences do apply to this case, we then review the trial court’s order finding that the P.s failed to produce clear and convincing evidence of good cause to depart from those placement preferences. We determine that the court applied the correct burden of proof by requiring the P.s to prove by clear and convincing evidence that there was good cause to deviate from section 1915’s placement preferences. However, the court erroneously required the P.s to prove a certainty that Alexandria would suffer harm if moved, and failed to consider Alexandria’s best interests or her bond with the P.s in determining good cause.

***

We recognize that a final decision regarding Alexandria’s adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA’s placement preferences.

As also often happens, the parties start arguing about the very constitutionality of ICWA, making this case a “not as bad as it could have been” case–the court didn’t find ICWA is unconstitutional, nor does Adoptive Couple apply (as the de facto parents argued) to this fact pattern. And yet, the trial court decision placing the child with her extended family is still overturned based on the child’s best interest standard. Getting courts to acknowledge that the best interests of a child ought to include the child’s whole life, not just the one transition in front of the court at that moment, is both vital and seemingly impossible.

For the (depressing) record, here is Evelyn Blanchard writing the same thing in 1977 in The Destruction of American Indian Families, ed. Steven Unger (Association of American Indian Affairs 1977).

(Happy to post redacted briefs if we receive any)

California COA Affirms Immunity of Tribally-Owned Payday Lenders

Matthew L.M. Fletcher3 Comments

Here are the materials in People of the State of California v. MNE:

B242644_Opinion

California Opening Brief

MNE Brief

California Reply Brief

An excerpt from the opinion:

Applying the arm-of-the-tribe analysis as we directed in Ameriloan v. Superior Court (2008) 169 Cal.App.4th 81 (Ameriloan), the trial court dismissed for lack of subject matter jurisdiction this action by the Commissioner of the California Department of Corporations against five “payday loan” businesses owned by Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federally recognized Indian tribe. Because the two tribal entities and their cash-advance and short-term-loan businesses are sufficiently related to their respective Indian tribes to be protected from this state enforcement action under the doctrine of tribal sovereign immunity, we affirm.

A second related opinion from the same court:

B236547_Opinion

An excerpt:

The Commissioner of the California Department of Corporations (Commissioner),1 on behalf of the People of the State of California, sued Ameriloan, United Cash Loans, US Fast Cash, Preferred Cash and One Click Cash for injunctive relief, restitution and civil penalties, alleging they were providing short-term, payday loans over the Internet to California residents in violation of several provisions of the California Deferred Deposit Transaction Law (DDTL) (Fin. Code, § 2300 et seq.). Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federally recognized Indian tribe, specially appeared and moved to quash service of summons and to dismiss the complaint on the ground the lending businesses named as defendants were simply trade names used by the two tribal entities and, as wholly owned and controlled entities of their respective tribes operating on behalf of the tribes, they were protected from this state enforcement action under the doctrine of tribal sovereign immunity.

During the course of this litigation on the issue of subject matter jurisdiction, the trial court imposed $34,437.50 in discovery sanctions against the Commissioner after the court denied in substantial part her motion to compel further responses to a second set of requests for production of documents from MNE and SFS. We affirm.

California COA Decides ICWA Notice Appeal

Matthew L.M. Fletcher

Here is the opinion in In re Brianna M.:

In re Brianna M

An excerpt:

Francisco contends finally that he is a member of the Gila River Community, a federally recognized Indian tribe. He urges that DCFS therefore was required by ICWA to provide notice of the proceedings to the tribe, and to give the tribe the opportunity to intervene. DCFS concedes that ICWA notice was not properly given and does not object to a remand with directions to the juvenile court to order DCFS to provide proper notice.
Pursuant to 25 United States Code section 1912(a), “[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, [DCFS] shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” Welfare and Institutions Code section 224.2, subdivision (a)(1) similarly provides that notice to the tribe “shall be sent by registered or certified mail with return receipt requested.”

Because DCFS failed to provide proper ICWA notice, we remand the matter to the juvenile court with directions to direct DCFS to comply with the notice provisions of ICWA. However, we decline to reverse the jurisdictional and dispositional orders because there is not yet a sufficient showing that Brianna is an Indian child within the meaning of ICWA. If after proper inquiry and notice a tribe determines Brianna is an Indian child, any interested party may petition the court to invalidate any orders that violated ICWA. (See In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467, 135 Cal.Rptr.3d 355; In re Damian C. (2009) 178 Cal.App.4th 192, 199–200, 100 Cal.Rptr.3d 110.)