California Court of Appeals

Latest Legal Developments in California ICWA Case

Kate Fort

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.

 

Indian Country Statements and Some Law Regarding the California ICWA Case

Kate Fort4 Comments

NICWA’s statement.

Choctaw Nation’s statement.

NCAI’s statement.

California Children’s Law Center statement.

NAJA’s statement.

We will continue to add statements from other groups as we receive them. And, because it’s what we do, we’ve created a page with all of the publicly available primary source documents in this case. You can find that here.

The foster parents’ attorney has issued a statement claiming she will use this case to appeal ICWA up to the U.S. Supreme Court if necessary. We’ve heard this before, and there are very few legal routes left for them to do that, but we still expect they will try them all.

Meanwhile, this case is not just about Indian Country. The role of foster care in this country is clear–to provide a temporary, loving home for a child while her family receives services to so the child can go home safely. It is also provides time for the state to search for other -relative- homes for the child. This is a best practice regardless of whether the child is Native or not. It’s actually state law in California. Ann.Cal.Welf. & Inst.Code § 361.3. In fact, it’s the law in a lot of states. That’s because relative preference in placement is also required by the federal government for states to receive Title IV-E funding. 25 U.S.C. 671(a)(19). Preventing a child from living with her siblings and relatives –family she knows, and who have spent considerable time planning this transition– contrary to court order is not the role of foster parents.

Finally, the use of the media in this case to inflame opinion, spread false information about the situation, publicize a child’s name and face, and to try to dismantle ICWA itself [again] is deplorable. The type of comments that NICWA, the California Children’s Law Center, Choctaw Nation and other individuals are receiving, particularly on social media, should disturb us all. Those taking the brunt of this deserve our full support and thanks.

Additional Resources:

The Michigan Legislature

The Washington Legislature

The Nebraska Legislature

The Minnesota Legislature

The Wisconsin Legislature

The California Legislature

2013 Statement of National Council Juvenile and Family Court Judges

2013 Position Statement of Casey Family Programs

2013 Press Release of the following child welfare organizations in support of ICWA: Casey Family Programs, Children’s Defense Fund, Child Welfare League of America, Annie E. Casey Foundation, Donaldson Adoption Institute, North American Council on Adoptable Children, Voice for Adoption, Black Administrators in Child Welfare, Inc., Children and Family Justice Center, Family Defense Center, First Focus Campaign for Children, Foster Care Alumni of America, FosterClub, National Alliance of Children’s Trust and Prevention Funds, National Association of Public Child Welfare Administrators, National Association of Social Workers, National Court Appointed Special Advocate Association, and National Crittenton Foundation.

 

Response to Media Dustup in California ICWA Case

Kate Fort1 Comment

NICWA’s statement:

We are disturbed by this weekend’s flurry of negative media attention regarding the attempted reunification of a child with her family in Utah. In this contentious custody case, there have never been any surprises as far as what the law required. The foster family was well aware years ago this girl is an Indian child, whose case is subject to the requirements of the Indian Child Welfare Act (ICWA), and who has relatives who were willing to raise her if reunification with her father was unsuccessful.
In fact, the only surprising turn of events is the lengths the foster family has gone to, under the advice of an attorney with a long history of trying to overturn ICWA, to drag out litigation as long as possible, creating instability for the child in question. That the foster family now argues bonding and attachment should supersede all else despite testimony of those closest to her case, seems like a long-term, calculated legal strategy based on the simple fact that the law was always clear, they understood it, but just chose not to abide by it.
The purpose of foster care is to provide temporary care for children while families get services and support to reunite with their children, not to fast-track the creation of new families when there is extended family available who want to care for the child. The temporary nature of these relationships is also the reason we view those who serve as foster parents as selfless and nurturing individuals. Reunification and placement with extended family whenever possible is best practice for all children, not just Native American children.
We call on the media to provide balanced reporting and to ask vital questions regarding these facts before inflaming the public and subjecting the privacy and future well-being of a little girl to national debate.

 

Our previous coverage of the appeal of this case is here.

As always, we remain concerned with the lack of privacy for a child who doesn’t get to make decisions about her identity being put forward into the press. In perhaps no surprise to anyone, this case involves repeat players from the Adoptive Couple v. Baby Girl case.

Update in Sharp Image Gaming v. Shingle Springs Miwok

Matthew L.M. Fletcher

The tribe here is appealing a state court trial decision holding that a jury should determine whether the tribe’s waiver of immunity was “reasonable.” There are other issues as well (for example, the NIGC issued an opinion on the underlying contract that the state trial court disregarded on various grounds). Here are the materials in Sharp Image Gaming v. Shingle Springs Band of Miwok Indians (Cal. App.):

2009-11-17 Ruling re Motion to Dismiss

2012-10-10 Tribes Opening Brief

Prior post on this case here.

California Appellate Court Decides ICWA Notice Case — Parents Cannot Waive ICWA Inquiry Requirements

Matthew L.M. Fletcher

Interesting, since the parents were the ones who failed to bring it up first.

Here’s the opinion — In re Noreen G.

ICWA Applies to Juvenile Proceedings Involving Foster Care in California

Matthew L.M. Fletcher

Here is the California Court of Appeals (3rd Dist.) opinion in R.R. v. Superior Court. An excerpt:

We disagree with the juvenile court’s conclusion. While ICWA may not by its own terms apply to a juvenile delinquency case in which the case plan anticipates foster care placement, the California Legislature has expressly made the inquiry and notice requirements of ICWA applicable in such cases, and impliedly made the remaining ICWA requirements applicable in such cases as well. Because ICWA sets the minimum standards for the protection of Indian children with respect to their tribal relationships, California law imposing a higher standard is not inconsistent with the purpose of the federal law, and is not preempted.

Dicara v. Cahuilla Band — Immunity Waiver in Gaming Contract Dispute

Matthew L.M. Fletcher

Here is the opinion from the California Court of Appeals (4th Dist., Div. 2).

An excerpt:

The trial court issued a postjudgment assignment order (Code of Civ. Proc., § 708.510) against the Cahuilla Band of Indians (Cahuilla), in favor of Mary DiCara dba Scott Leasing (Scott). Cahuilla contends the assignment order should be reversed because (1) the superior court did not have jurisdiction to issue the order; (2) the lease agreement, upon which the underlying damage award was based, was void since inception; and (3) federal law and Cahuilla’s revenue allocation plan preempt the superior court’s order. Scott contends that it should be awarded attorney’s fees on appeal. We affirm the judgment and award attorney’s fees to Scott.

The trial court issued a postjudgment assignment order (Code of Civ. Proc.,§ 708.510)1, 2 against the Cahuilla Band of Indians (Cahuilla), in favor of Mary DiCaradba Scott Leasing (Scott). Cahuilla contends the assignment order should be reversedbecause (1) the superior court did not have jurisdiction to issue the order; (2) the leaseagreement, upon which the underlying damage award was based, was void sinceinception; and (3) federal law and Cahuilla’s revenue allocation plan preempt thesuperior court’s order. Scott contends that it should be awarded attorney’s fees onappeal. We affirm the judgment and award attorney’s fees to Scott.

ICWA Applies Even If Adoptive Parent is the Only Indian

Matthew L.M. Fletcher

Here is the opinion in B.R. v. G.R. from the California Court of Appeals, First District. Interesting case….

An excerpt:

This appeal presents the issue of whether the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA), applies when the minors’ presumed father in a juvenile dependency proceeding alleges that his adoptive father has one-quarter ancestry in a federally recognized Indian tribe. We hold that the ICWA notice provisions do apply in these circumstances, and conditionally reverse the juvenile court’s order terminating parental rights so that notice of the proceedings may be given to the tribe in question.

California Court of Appeals Allows Adopted Indian Woman to Prove Ancestry

Matthew L.M. Fletcher

Here is an interesting case captioned Wynn v. Superior Court (opinion here). From the opinion:

Karen Victoria Dahlberg Wynn (appellant) filed a petition in the superior court seeking an order correcting her original birth certificate to state the actual names of her birth parents rather than the fictitious names her mother used when the original certificate was prepared. Appellant’s situation is unusual because her original birth certificate is sealed and her legally operative birth certificate lists her adoptive parents.

The superior court denied the petition on the ground that it lacked the legal authority to modify the original, sealed birth certificate because a subsequent certificate was in effect.

We conclude appellant qualifies as an interested person who may bring an action to adjudicate her parentage and, therefore, the superior court had the authority to adjudicate the facts concerning a possible biological relationship between mother and daughter. Furthermore, if the superior court determines appellant’s original birth certificate is not accurate regarding her parentage, then it must order the issuance of a new birth certificate.

California Appellate Court Affirms Termination of Parental Rights over Tribal Objection

Matthew L.M. Fletcher

Here is the opinion in In re T.S. An excerpt:

Appellant claims that a statutory exception to adoption applied because the minor’s Indian tribe had identified guardianship as the permanent plan for the minor. (§ 366.26, subd. (c)(1)(B)(vi)(II).) In the published portion of the opinion, we reject this contention.