Justia Native American Law Opinion SummariesArticles Posted in California Court of Appeal
In re Alexandria P.
Alexandria P., an Indian child, was placed with her extended family in Utah, after the dependency court concluded that Alexandria's foster parents, de facto parents, failed to prove by clear and convincing evidence that there was good cause to depart from the adoptive placement preferences set forth in the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq. The court remanded the matter twice 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 foster parents as well as a number of other factors related to her best interests. The court affirmed the judgment because substantial evidence supports the court’s finding that the foster parents did not prove by clear and convincing evidence that there was good cause to depart from the ICWA’s placement preferences. View "In re Alexandria P." on Justia Law
In re E.R.
Four children were referred to the Mendocino County Human Services Agency, based on neglect. Their mother, who had a substance abuse problem, disappeared for days and left the children with their maternal uncle, Rafael, who was unable to provide adequately for their needs due to disabilities. The Agency had received seven prior referrals for mother and her children, members of the Cloverdale Rancheria of Pomo Indians. The Agency contacted Cloverdale's Indian Child Welfare Act (ICWA), 25 U.S.C. 1901, who stated that Cloverdale Rancheria opposed placement with Rafael. Mother was eventually arrested; the children were taken into protective custody. Rafael indicated that he loved the children and had provided care since they were born. Social workers helped him apply for relative placement. No Indian homes were available. Mother initially requested that Rafael be considered for placement. The children, who were found to have multiple developmental, physical, and emotional problems, were ordered into long-term foster care. The court of appeal affirmed, rejecting Rafael’s claims that he was not given mandatory ICWA notices as an Indian custodian; that active efforts were not provided to prevent the breakup of the Indian family; that the detriment finding was defective; and that he was provided ineffective assistance of counsel. Although the juvenile court failed to promptly investigate his Indian custodian status, any errors were harmless, given that mother revoked the custodianship. View "In re E.R." on Justia Law
In re Albert A.
Mother Kimberly L. appealed a trial court's orders terminating her parental rights to Albert A. (A.A.) and Veronica A. (V.A.). Mother argued: (1) the juvenile court’s jurisdictional orders finding the children were dependents within the meaning of Welfare and Institutions Code section 300, subdivision (b)(1), were not supported by substantial evidence; (2) the juvenile court abused its discretion by terminating reunification services and setting a section 366.26 permanency planning hearing; (3) the juvenile court abused its discretion by denying mother’s request to continue the permanency hearing to allow her time to file a petition under section 388 requesting additional reunification services; (4) the juvenile court’s orders finding the children were likely to be adopted were not supported by substantial evidence; and (5) the juvenile court erred by concluding legally sufficient notice was provided to relevant Indian tribes pursuant to the Indian Child Welfare Act. In the published portion of this opinion, the Court of Appeal concluded mother waived her claim of error regarding the jurisdictional orders by not appealing the dispositions. Mother was absent from the continued jurisdictional hearing and was not entitled to notice of her right to appeal under California Rules of Court, rule 5.590(a). Because the Court concluded the juvenile court did not provide mother with timely and adequate notice of her right to challenge the orders setting a permanency hearing, as mandated by rule 5.590(b), mother did not waive her claim of error respecting the termination of reunification services. In the unpublished portion of this opinion, the Court of Appeal concluded the juvenile court did not abuse its discretion by terminating reunification services or by denying a request to continue the permanency hearing because mother did not comply with her case plan and did not visit with the children. However, the Court agreed with mother that the juvenile court erred by not considering legal impediments to the children being adopted by their paternal grandmother when it found the children were likely to be adopted, and we agree with mother and CFS that the ICWA notice was inadequate. Therefore, the orders terminating parental rights was reversed and the case remanded for the juvenile court to consider legal impediments to the children being adopted, for CFS to provide new ICWA notice, and for the juvenile court to determine whether that notice was sufficient. View "In re Albert A." on Justia Law
Posted in: California Court of Appeal, Family Law, Government & Administrative Law, Native American Law
L.A. Cnty. DCFS v. Roland C.
Father appealed a jurisdictional finding and dispositional order in the dependency case of his three children, contending, among other things, that the evidence was insufficient to find he is a current abuser of marijuana. The court concluded that father’s admitted use of marijuana, his failure to ensure his very young children were adequately supervised, and his absent drug tests all constituted sufficient evidence to support both the jurisdictional finding and the dispositional order. The court concluded, however, that father provided sufficient information of possible Indian heritage to trigger the Indian Child Welfare Act's, 25 U.S.C. 1901-1963, notice provisions. Accordingly, the court reversed the trial court's finding in that regard and remanded with directions. The court otherwise affirmed the judgment. View "L.A. Cnty. DCFS v. Roland C." on Justia Law
LA Cnty. DCFS v. Shahida R.
Mother and Father appealed from the jurisdiction findings and disposition order declaring their infant daughter a dependent of the juvenile court and removing her from their custody after the juvenile court sustained an amended petition pursuant to Welfare and Institutions Code section 300. Mother and Father also contend that the juvenile court failed to comply with the requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. 1900 et seq. The court concluded that the juvenile court's jurisdiction finding is supported by substantial evidence where there was ample evidence that Mother was hiding her current drug use. In this case, the court concluded that, due to the juvenile court's failure to comply with the requirements of the ICWA by not giving notice to the Cherokee tribe, the disposition order may only be conditionally affirmed. Accordingly, the court remanded for compliance with the ICWA and related California law. The court affirmed in all other respects. View "LA Cnty. DCFS v. Shahida R." on Justia Law
Fresno Cnty. Dept. of Social Serv. v. Jimmie S.
Father appealed from a judgment entered pursuant to Welfare and Institutions Code section 366.26, selecting tribal customary adoption (TCA), as the permanent plan for his children. The court rejected Father's contention that the juvenile court erred in affording the TCA order full faith and credit. The court concluded that the Tribe “did not duly exercise subject matter jurisdiction prior to the initiation of the dependency proceedings under 25 U.S.C. section 1911(a), or by transfer under 25 U.S.C. section 1911(b).” In view of the legislative determination that an Indian child’s best interests normally will be best served by preserving his or her tribal connections, there being no evidence to the contrary, the juvenile court did not abuse its discretion in selecting the TCA as the permanent plan. The court rejected Father's claim that the juvenile court erred in affording the TCA order full faith and credit because he was not given an adequate opportunity to be heard on the visitation terms of the TCA order. Accordingly, the court affirmed the judgment. View "Fresno Cnty. Dept. of Social Serv. v. Jimmie S." on Justia Law
In re B.H.
Defendant-appellant S.H. (mother) was the biological mother of C.G. (born in 2013), the child at issue here, and B.H. (born in 2011), who was C.G.’s half sibling. Both children were removed from mother’s custody, and her parental rights were eventually terminated. On appeal, mother argued that the order terminating her parental rights as to C.G. should have been reversed for failure to comply with the notice requirements of the Indian and Child Welfare Act of 1978 (ICWA). After review of the specific facts entered into the trial court record, the Court of Appeal agreed, reversed and remanded. View "In re B.H." on Justia Law