Since April, the California courts of appeal have been wrestling with California’s new law defining “reason to know” from ICWA’s section 1912 and “reason to believe” (state law standard). In addition, the department has been regularly petitioning to make cases reported rather than unreported. Since April with the In re Austin J. case, California courts have been reshaping their very low bar for notice to tribes into a much higher one, with the caveat that the California standard of “reason to believe” does require contact with tribes though not necessarily formal notice. Given California’s outsized role in notice and inquiry ICWA cases, this is a trend that bears watching, with the understanding this is based on California state law, and not the federal ICWA.
Here is In re M.W., decided on May 11. The Department petitioned for publication on May 15 and it was published on June 5. Under the reason to believe standard, the social worker,
The report documented the social worker’s contact with the 12 tribes by telephone, fax, e-mail, and/or mail, the name of the designated agent for each tribe, the dates of attempted contact with each designated agent (all between May 15 and June 4, 2019), and that each tribe was provided with the minor’s “ICWA Family Tree.” As of the date of the report, four of the tribes had confirmed the minor was not an Indian child. As of the July 10, 2019 hearing, six additional tribes had confirmed the minor was not an Indian child, and the two remaining tribes (the Navajo Nation and the White Mountain Apache Tribe) had acknowledged contact but had not yet provided a definitive response.
I am curious to know how out of state tribes are feeling this system is working, given that while California may change its ways, tribes are generally set up to receive the paperwork to confirm a family’s tribal membership, and we already know that informal phone calls to confirm or deny a child’s eligibility can be problematic. Early outreach is great, if it works to give tribes MORE information and not less.
The question of whether Mom could have her child back with his siblings came down to his best interest–which kept him in the guardianship, despite the mom’s sobriety, job, handling a child with cancer, and raising a number of children. The Tribe, fearful of losing contact with the child entirely if they picked a side in the case, supported the mom but also ended up not weighing in on the final decision, instead asking the court to order whoever had the child keep him in contact with the Tribe. But this conclusion from the court is simply heartbreaking. It is not clear the child is related to the guardians, and as such the court equates a biological parent to non-relative foster care in a troublesome way:
We recognize this case was a difficult one for the juvenile court, not least because it was forced to choose between two families, both of whom love minor very much and both of whom may have been able to provide a stable, loving home where he remains connected to his siblings, other relatives, and his tribe. We can only express our hope, as did the juvenile court, that these families can find a way to remain connected in the interest of allowing minor to be loved and cared for by as many people as possible. It is also a difficult case because mother demonstrated her commitment to regaining custody by complying with her case plan, maintaining her sobriety and full employment, and garnering the support of the Department and the Tribe to have minor returned to her care. *** On this record, we perceive no abuse of discretion in the juvenile court’s determination that mother failed to meet her burden to demonstrate return to mother’s custody would be in minor’s best interest.
And no, I don’t entirely understand why the court isn’t using much higher ICWA standards here.
In re EH (Fourth District, 1st Div). For reference, so far this year California has had 48 unpublished notice decisions and 19 unpublished inquiry decisions. This is the first published notice case this year.
We agree with Mother that, considering Sally Y.H.’s statement to the Agency that her paternal family had Tohono O’odham Nation heritage, the Agency had a duty to attempt to obtain Sally Y.H.’s father’s identifying information and to provide notice of any such information obtained to the Tohono O’odham Nation. We further conclude that the Agency has not demonstrated that it fulfilled that duty by providing the Tohono O’odham Nation with information pertaining to an individual named Bruno Y. since it is not clear from the record that Bruno Y. is Sally Y.H.’s father. Moreover, if Bruno Y. is Sally Y.H.’s father, and E.H.’s great-great-grandfather, the Agency failed to properly describe his ancestral relationship to E.H. on the notice provided to the Tohono O’odham Nation. Finally, given that Sally Y.H. told the Agency that her paternal family had heritage from the Tohono O’odham Nation, we cannot conclude that the Agency’s errors were harmless. Accordingly, we reverse the judgment for the limited purpose of having the Agency provide the Tohono O’odham Nation with proper notice of the proceedings in this case, including accurate information pertaining to all known direct lineal ancestors of E.H., in accordance with all applicable law.3
FN 3. Mother also contends that the notice that the Agency provided to the Tohono O’odham Nation was deficient for several additional reasons, including that the Agency erred in listing her current address as being “no information available,” and in failing to update the notice when information about her residence became available. In light of our reversal, we need not consider these contentions, but we direct the juvenile court to ensure that the Agency provides Mother’s correct current address at the time of noticing upon remand, if known.
In addition, Mother contends that the Agency provided the tribe an incorrect address for Sally Y.H. The Agency concedes that the address that it provided for Sally Y.H. contained typographical errors, including listing the city of her residence as ” ‘Alpaso’ ” rather than ” ‘El Paso,’ ” but argues that any errors were harmless. In support of its harmlessness argument, the Agency asks this court to take judicial notice of the fact that “El Paso is a city in the state of Texas and Alpaso is not.” The juvenile court is directed to ensure that the Agency provides Sally Y.H.’s correct current address at the time of noticing upon remand, if known. We deny the Agency’s request for judicial notice as moot.
Finally, Mother states that the Agency was required to list Mother’s and Sally Y.H.’s telephone numbers on the notice that it provided to the Tohono O’odham Nation. On remand, the juvenile court shall direct the Agency to provide Mother’s and Sally Y.H.’s telephone numbers, if known. (See Welf. & Inst. Code, § 224.2 [specifying that notice sent to a tribe shall include “[a]ll names known of the Indian child’s biological parents . . . and great-grandparents . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known”], italics added; unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.)
This argument is unpersuasive since the letter from the Tohono O’odham Nation does not indicate the basis upon which the tribe made its determination as to E.H.’s Indian child status. Nor can we agree with the Agency’s suggestion that the fact that the Tohono O’odham Nation did not ask for further information demonstrates that the Agency’s error was harmless. The tribe was not required to ask the Agency to provide information that the record indicates the Agency should have reasonably attempted to obtain and provide to the tribe. Thus, we decline to find the Agency’s error harmless simply because the tribe did not indicate that further information might have altered its determination, particularly given the other noticing errors acknowledged by the Agency.
This is a follow up appeal related to an earlier Indian Custodian case. The Court determined the appellant was not an Indian Custodian, and then here tries to determine if he still had standing (he didn’t). Maybe useful for some of the de facto parent language in it.
(Why yes, I am again catching up on the ICWA cases from the holidays. But also the last time there were this many reported ICWA cases in a row was in August.)
It’s not clear from the docket who requested this case be published from Nov. 29, but tribal attorneys should take note of the reasoning in the section regarding the tribal government’s ability to change ICWA’s placement preferences. This is the second time (and state) I’ve heard this reasoning, but the first published opinion. It’s contrary to what I’ve advised in the past, and some tribal practices I’m aware of.
Here are the available materials in Brown v. Garcia:
Here is the opinion in Brown v. Garcia. PDF
This case is different. As the trial court noted, Maxwell and Pistor make clear that the general rule is not dispositive if the lawsuit will encroach upon the tribe’s sovereignty. (See Maxwell, supra, 708 F.3d at p. 1088.) Here, substantial evidence established that defendants were tribal officials at the time of the alleged defamation and that they were acting within the scope of their tribal authority when they determined that, for the reasons stated in the allegedly defamatory Order of Disenrollment, plaintiffs should be disenrolled from the Tribe pursuant to a validly enacted tribal ordinance. On this record, which we have carefully reviewed, the trial court concluded that plaintiffs sought to hold defendants liable for actions they took as tribal officials in pursuing plaintiffs’ disenrollment from the Tribe on the basis of plaintiffs’ alleged unlawful acts. The court further found that adjudicating the dispute would require the court to determine whether tribal law authorized defendants to publish the Order and disenroll plaintiffs, “which itself requires an impermissible analysis of Tribal law and constitutes a determination of a non-justiciable inter-tribal dispute.”
Here are the briefs in Brown v. Garcia:
Here is a description of the matter from the appellant brief:
This is a tort case concerning Respondents’ publication of defamatory statements against Appellants and whether Appellants are entitled to monetary damages from Respondents in their individual capacities as a result.
Opinion here. The Court of Appeals upholds that the order placing Alexandria P. with her family in Utah.
Information page with previous posts and holdings here.
We have twice remanded the matter because the lower court used an incorrect standard in assessing good cause. The dependency court has now correctly applied the law governing good cause, considering the bond Alexandria has developed over time with the P.s, as well as a number of other factors related to her best interests. Those other factors include Alexandria’s relationship with her extended family and half-siblings; the capacity of her extended family to maintain and develop her sense of self-identity, including her cultural identity and connection to the Choctaw tribal culture; and the P.s’ relative reluctance or resistance to foster Alexandria’s relationship with her extended family or encourage exploration of and exposure to her Choctaw cultural identity.
The P.s also do not—and in our view cannot—provide an adequate response to an issue raised most effectively by minor’s appellate counsel. Even though they appear before the court by virtue of their status as de facto parents, the P.s’ efforts to show good cause are motivated by their own interests. Minor’s counsel, not the P.s, has a legal and ethical obligation to represent Alexandria’s interests.(In re Josiah Z. (2005) 36 Cal.4th 664, 675-677.) The P.s lack the right to assert Alexandria’s interests because Alexandria has her own counsel, who represents her interests and also acts as her guardian ad litem.
We recognize that the P.s are claiming that Alexandria’s best interests are served by a finding of good cause, but their argument is undermined by the fact that minor’s counsel argued just the opposite. We are unaware of any published case where a court has upheld a departure from the ICWA’s placement preferences contrary to the position of the minor. In other words, in every published case upholding a good cause finding,
counsel for the minor either advocated for the finding, was aligned with the party advocating for a finding of good cause, or was silent.
From the docket:
The writ of supersedeas was denied. Here.
The application to transfer the case out of the court of appeals and directly to the California Supreme Court was also denied. Here.
The underlying appeal against the placement order remains open in the California court of appeals. Here.
What is a writ of supersedeas? It’s what California still calls a stay of proceedings. A writ of supersedeas is defined in California’s Rules of Court here. Under rule 8.824, a writ of supersedeas is a stay of a judgment or order pending appeal. The petition for the writ must bear the same title (or name) as the appeal (hence a lot of confusion). In this case, the petition for the writ was filed to in an attempt to stop the transfer placement to Utah while the California court of appeals hears the foster parents’ appeal of the March 8th placement order. The court of appeals denied the petition for the writ of supersedeas on March 18. The first time this case went up on appeal, the appeal process took nine months from filing to opinion.
In addition, the California Rules of Court allow for a transfer of a case pending in the court of appeals to the California Supreme Court. Rule 8.552 allows a party to petition for the transfer, but the case must present “an issue of great public importance that the Supreme Court must promptly resolve.” in order for the transfer to be granted.
Tl;dr? The case is ongoing, it will stay in the California court of appeals for now, but the child will not be moved back to California during the pendency of the appeal.