California Rule in Indian Custody Cases Invalidated

     SAN FRANCISCO (CN) — The California Supreme Court on Thursday said a state court rule intended to protect Indian children caught in custody proceedings is invalid because it conflicts with the state’s intent to comply with a federal mandate involving Indian families.
     In a bid to prevent the breakup of Indian families, Congress in 1978 passed the Indian Child Welfare Act. The act requires Indian guardians and tribes be notified of their right to intervene in custody proceedings involving an Indian child, and that families be provided with remedial services and rehabilitative programs in lieu of removing children from the home.
     The act defines “Indian child” as “any unmarried person who is under age 18 and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
     When a child is eligible for tribal membership but is not considered an Indian child under the act, rule 5.482(c) of the California Rules of Court requires a juvenile court to “proceed as if the child is an Indian child” and to help the child obtain tribal membership. Related rule 5.484(c)(2) directs the juvenile court to pursue tribal membership for a child who is Indian under the act.
     The California Supreme Court on Thursday upheld an appellate court ruling that 5.482(c) is invalid, finding that it conflicts with state law. But the high court reversed the appellate court’s finding that rule 5.484(c)(2) is also invalid, saying it is consistent with state law.
     “We conclude rule 5.482(c) is invalid because it conflicts with the Legislature’s intent to enforce Indian Child Welfare Act by codifying its provisions, including the federal definition of Indian child,” Associate Justice Kathryn Werdegar wrote in a 15-page opinion. “In contrast, the related rule 5.484(c)(2) merely directs the juvenile court to pursue tribal membership for a child who is already an Indian child as defined in the act, in order to prevent the breakup of the Indian family and to qualify the child for tribal services. This rule is consistent with state law and valid.”
     The appeal stemmed from child dependency proceedings in Sacramento County in which the juvenile court removed two children from their mother’s custody and placed them with their maternal grandmother.
     However, their father, Joseph A., claimed he had Cherokee ancestry and, following an inquiry, the Cherokee Nation confirmed that the children were eligible for tribal membership through their great-great grandmother, who was a member. But the children could not be legally considered Indian children unless a biological parent was also a member, the tribe said.
     Joseph told the juvenile court that he would apply for tribal membership, and the court proceeded as if the children were Indian while Joseph waited for his membership to be approved, in accordance with rule 5.482(c). Thus, the children remained in their parents’ custody under the provisions of the act.
     The Sacramento County Department of Health and Human Services appealed the juvenile court’s decision to proceed as if the children were Indian, arguing that the state court rules are invalid. The appeals court found that both rules conflict with state law and ordered the juvenile court to reverse its decision to apply the IWCA to the two children until they legally qualified as Indian.
     Joseph petitioned the state supreme court to review the case.
     In her opinion Thursday, Werdegar cited a state Senate bill seeking to incorporate the Indian Child Welfare Act’s provisions into California law, saying the Senate had passed the bill to increase compliance with the federal law and that rule 5.482(c) in fact precludes compliance.
     “Nothing in the bill’s language or history demonstrates the Legislature intended to apply the Indian Child Welfare Act’s requirements to, or require membership applications be made on behalf of, children who are not Indian children as defined in the act,” she said. “Instead, the Legislature left cases not involving Indian children subject to the statutes generally applicable in dependency proceedings. Rule 5.482(c) is inconsistent with those statutes, and with the Legislature’s intent, and thus invalid.”
     Joseph had used Welfare and Institutions Code section 224 to argue that as an Indian parent, he should be afforded a higher standard of protection than the act provides, and that rule 5.482(c) provides that higher standard.
     But Werdegar called the Joseph’s argument “unpersuasive” in light of the federal definition of “Indian child.”
     “The short answer to his argument is that Welfare and Institutions Code section 224, like the related federal statutes, speaks only to the rights of persons and tribes connected with ‘an Indian child,'” she said.
     Werdegar then turned to Joseph’s argument that rule 5.482(c) conforms to state law because it speeds custody proceedings in cases where children are about to obtain tribal membership.
     “The possibility that a child who is not an Indian child may become one while a custody proceeding is pending is something the juvenile court certainly should consider,” Werdegar said. But she countered that far from speeding custody proceedings, rule 5.482(c) delays them by requiring the court to help children secure tribal membership, which is at odds with the state’s intent to comply with the Indian Child Welfare Act.
     The judgment was remanded for further proceedings.
     Chief Justice Tani Cantil-Sakauye and Associate Justices Ming Chin, Carol Corrigan, Mariano-Florentino Cuellar, Leondra Kruger and Goodwin Liu joined the opinion.

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