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Name: In re A.T.
Case #: A160454
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 04/20/2021

The Indian Child Welfare Act (ICWA) is not applicable when a minor is removed from one parent and placed with the other. A.T. was detained from mother in California after concerns arose regarding mother’s mental health. Mother had taken A.T. from Washington two months prior, in violation of Washington family court orders. The juvenile court asserted emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and placed A.T. temporarily with father in Washington. The Washington family court found mother in contempt, issued a restraining order against her, and ordered her to return A.T. to father’s care in Washington. The Wiyot tribe intervened in the California dependency case and confirmed that A.T. was eligible for enrollment in that tribe. Mother and the tribe asserted that A.T. was an Indian child and requested that the California court retain jurisdiction. The court found that Washington had exclusive jurisdiction over the case and that the ICWA was inapplicable because A.T. was not an Indian child. While A.T. was eligible for membership in the Wiyot tribe, Mother was not an enrolled member. Further, because A.T. had been placed with a nonoffending parent, the ICWA did not apply. The court dismissed the case and mother appealed. The appellate court affirmed the dismissal order. Child custody proceedings are not subject to the UCCJEA to the extent they are governed by the ICWA. Although the ICWA empowers an Indian child’s tribe to intervene in any “Indian child custody proceeding,” the ICWA is not implicated in every dependency case in which the child may have some degree of Native American heritage. An “Indian child custody proceeding” includes proceedings for temporary or long-foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement. This list does not include a proceeding in which a dependent child is removed from one parent and placed with the other. The conclusion that ICWA does not apply to placement with a parent comports with the legislative intent behind the ICWA, as well as the related California statutory scheme, which expressly focus on the removal of Indian children from their homes and parents. The juvenile court correctly terminated its emergency jurisdiction in favor of the Washington family court proceedings, in conformance with the UCCJEA.