A Positive ICWA Case Out of California

We almost never see a positive case out of California. Here is one (In re C.S.), and the words of the juvenile referee Sobel from state court:

The court granted the section 388 petitions filed by mother and father, concluding, “We have an American Indian child. That’s different. We have siblings who are with relatives. That’s different. We have a new baby who has been safely in the mother’s care since the [non-detain] petition was filed. That’s different. So, when you say that the children who are placed with foster parents at birth, that is their parent, the parent that is there night and day, you are correct, in every case, that’s correct. But the point of this is what happens to parents in the part that we call reunification? Where at some point do the parents earn the right to become those people? Where is that transference into being able to be a parent? Now, with the two other children . . . , they are with relatives. Those relatives are glad to step back and be relatives. If they need to adopt, they will. But the fact is they are grandparents. They prefer to be grandparents. I have two parents in complete compliance with their original case plan and American Indian. As to [C.’s older sibling and half-sibling], there’s no question there are changed circumstances here. The issue is best interest and I find it’s in the best interest of [the older sibling and half-sibling] to grant the 388 and place the children home of parents: mom for [the half-sibling and sibling], dad and mom for [the sibling]. We’ve already taken [the baby] off the track [by dismissing the non-detain petition as to her]. . . . [C.] is American Indian. She has three siblings. Those siblings are going home. . . . I am telling you, from my heart, an American Indian child belongs in an American Indian home, especially when that home has siblings in it and parents who are appropriate. There is no question that ICWA requires that I do what is right under ICWA; that I do what’s right for this family, understanding and knowing that C. loves [her de facto parents] both as a primary attachment. . . .    I’m granting mother[’s] and father’s 388 as to C., finding there are changed circumstances and that it is in the child’s best interest to be returned to her parents.”

California COA Decides ICWA-Related Appeal Involving Cherokee/Choctaw Freedmen Descendants

The opinion in In re D.N. is here.

An excerpt:

The “by blood” requirement in the Choctaw Nation‟s Constitution, as well as others, has been interpreted as excluding the descendants of freedmen. (Allen v. Tribal Council (2006) 9 Okla. Trib. 255.) The exclusion of the descendants of former slaves of the Five Civilized Tribes is a matter of ongoing controversy. (See, e.g., Cherokee Nation v. Nash (N.D.Okla. 2010) 724 F.Supp.2d 1159.) It cannot be addressed in this dependency proceeding since membership criteria are the tribe‟s prerogative, and its determination of a child‟s eligibility for membership is conclusive for purposes of ICWA. (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979); § 224.3, subd. (e)(1); In re Jack C., III (2011) 192 Cal.App.4th 967, 978.)

Cal. COA Decides ICWA Notice Case — Information about Great-Great-Ancestors Not Required

Here:

In re JM

An excerpt:

V.M. (mother) challenges the juvenile court’s order terminating her parental rights to now four-year-old J.M. and three-year-old B.M. Father is not a party to this appeal. Mother contends that the order must be reversed because the Department of Children and Family Services failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) in that: (1) the notices sent did not include the names of maternal great-great-grandparents, alleged by the maternal grandmother to have Papago Indian heritage; and (2) J.M. was not included in the notices. We disagree, finding the law does not require the inclusion of information about great-great-ancestors in ICWA notices, and any error in failing to include J.M. was harmless. We therefore affirm.

California Appellate Court Dismisses Claims by Urban Indians against American Indian Health Consortium

Here are the materials in Jaimes v. American Indian Health & Services (Cal. App.):

Jaimes Opinion

AIHS Opening Brief

Jaimes Opening Brief

AIHS Reply Brief

Briefing in Cal. Appellate Case Involving State Recognition of Nonrecognized Tribes & the Indian Health Care Improvement Act

Here are the materials so far in Jaimes v. American Indian Health & Services:

AIHS Opening Brief

Jaimes Response Brief