Latest Legal Developments in California ICWA Case

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

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

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.

ICWA Placement Preference Decision Out of California Involving Choctaw Tribe


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)