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Name: In re K.L.
Case #: C079100
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/18/2018
Summary

ICWA procedures and requirements were not triggered where Indian child was placed with his presumed father because placement was not foster care within meaning of the ICWA. The Agency filed a petition concerning the minor and his older half sibling when mother was arrested. The petition alleged that the minor’s father was unknown. L.V. was the father of the half sibling and believed for several months that he was the minor’s father. He took the minor into his home and treated him as such. When DNA testing showed he was not the father, he continued to treat the minor as his own. The juvenile court found him to be the minor’s presumed father and placed both the minor and the half sibling with L.V. Paternity results showed A.A. to be the minor’s biological father. A.A. had never met the minor and had only recently learned of his existence. A.A. was an enrolled member of the Karuk Indian Tribe. The Agency sent ICWA notice to the Tribe, and the Tribe confirmed it was in the process of enrolling the minor and wished to intervene in the case. At the jurisdiction/disposition hearing, the court placed the minors with L.V. Although the court acknowledged that the minor was an Indian child, it found the ICWA procedures were not triggered because the minor was placed with his presumed father. Appellant, the biological father, was not given services because he was a registered sex offender. Appellant and the Tribe appealed, arguing that ICWA required that the placement of the minor had to be supported by the testimony of an expert witness and otherwise comply with the ICWA placement preferences. The appellate court rejected the argument, finding that the minor was not placed in “foster care” and the proceeding was not a “child custody proceeding” within the meaning of the ICWA. Therefore, compliance with ICWA provisions were not required at disposition. Unlike guardians and foster parents, a presumed parent has legal status as a parent. The plain meaning of the statutory language in both the ICWA and California statutes precludes an expansion of the definition of foster care to include placement with a nonbiological presumed parent. ICWA requires more than just a removal of the minor from a parent–it requires placement in one of the specified categories, none of which apply here.