CENTRAL CALIFORNIA APPELLATE PROGRAM

Eligibility as a “naturalized member” but not as an enrolled member of a tribe is insufficient to trigger the substantive and procedural safeguards of the Indian Child Welfare Act (ICWA). The minors were removed from Mother and placed in foster care. Father and his relatives denied any Indian ancestry. Mother was an enrolled member of the Jemez Pueblo tribe. The Agency contacted the tribe who said that the tribe requires individuals to have ¼ Jemez Pueblo blood quantum to be eligible for membership.  Therefore, the minors were only eligible to be “naturalized members” (qualifying for tribal health services) but not fully enrolled members receiving federal funds from the tribe. The tribe would not intervene in the dependency case because the minors were only naturalized members of the tribe. The juvenile court found that ICWA did not apply and terminated parental rights at the section 366.26 hearing. The parents appealed and the reviewing court affirmed. Indian tribes determine whether a child is a member of the tribe or eligible for membership and each tribe has sole authority to determine tribal eligibility. While the information that the Jemez Pueblo tribe had about the minors’ blood quantum may have been incorrect, Mother never challenged the tribe’s conclusion that the minors were not eligible to become enrolled members. The minors being “naturalized members” of the tribe is insufficient to trigger ICWA. Thus, the juvenile court did not err in finding that ICWA did not apply.

https://www.courts.ca.gov/opinions/documents/E079176.PDF

There was sufficient evidence to support jurisdictional findings where the parents’ custody order was insufficient to protect the minor and this was not the only basis for jurisdiction. The minor was removed from Mother due to domestic violence with the father of Minor’s younger siblings and Mother’s mental and physical health, including substance abuse. The minor had been residing with Father prior to removal. Mother had sent him to live with Father because of the domestic violence in her home. The custody order provided for the minor to spend the summer with Father and the school year with Mother. Following detention, the minor was left in the care of Father. After a contested jurisdiction and disposition hearing, the juvenile court found true section 300, subdivision (b) allegations and removed the minor from Mother’s custody. The court dismissed the dependency, granting sole physical custody to Father, with joint legal custody to both parents, and supervised visitation to Mother. The appellate court affirmed the orders. Mother argued on appeal that recent changes to section 300 made the jurisdiction finding untenable. Effective January 1, 2022, section 300, subdivision (b)(1) was amended to include the following language: “A child shall not be found to be a person described by this subdivision solely due to the failure of the child’s parent or alleged parent to seek court orders for custody of the child.” Based on the plain language of the statute, this new provision only applies when the child is described by section 300 solely due to the failure of a parent to seek custody orders.  Here, the lack of appropriate custody orders was only one of many factors placing the minor at risk, and thus the recently amended section 300 is not relevant. The custody orders in place at the time of jurisdiction allowed Mother to remove the minor from Father’s care and Mother’s behavior and denial of domestic violence in her home created a risk to the minor if she did so.

https://www.courts.ca.gov/opinions/documents/A165001.PDF

The Indian Child Welfare Act (ICWA) inquiry duties mandated by section 224.2 are not limited to biological relationships. Mother is the adoptive mother of the minor. The minor was removed from Mother due to allegations of physical abuse. Mother denied Indian ancestry and provided contact information for several relatives. At the jurisdictional and dispositional hearing, the juvenile court found that ICWA did not apply, denied Mother further reunification services, and set the matter for a section 366.26. hearing. Subsequently, Mother filed a section 388 petition seeking to have minor returned to her home, which the juvenile court summarily denied. Mother appealed. The appellate court noted that the ICWA issue Mother raised on appeal was outside the scope of her appeal from the denial of her section 388 petition because the issue of ICWA was not raised in the petition. However, it construed Mother’s appeal as a petition for extraordinary writ seeking to order the juvenile court to comply with ICWA, and so ordered. Under California law, an adopted person and the adopting person are, by law, in a parent-child relationship the same as a natural parent and child and section 224.2, subdivision (b) makes no distinction when using the term “parent.” Additionally, the section 224.2, subdivision (b) duty of initial inquiry includes legal guardians, Indian custodians, and others who have an interest in the child, thus suggesting no limitation on the duty based upon a biological connection to the child. Here, the record did not show that the Agency made any attempt to inquire of Mother’s extended family members despite Mother having provided their contact information. The Agency’s argument that it had no duty to conduct an ICWA inquiry in this case because Mother was an adoptive mother is incorrect.

https://www.courts.ca.gov/opinions/documents/E079017M.PDF