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Name: In re W. B.
Case #: S181638
Court: CA Supreme Court
District CalSup
Opinion Date: 08/06/2012

The Indian Child Welfare Act (ICWA) applies in juvenile delinquency cases to the extent that the court must inquire about Indian status at the outset and other ICWA procedures are invoked in limited circumstances. W.B. had been the subject of several juvenile delinquency petitions. W.B.’s mother indicated that there was Cherokee ancestry and the probation department reported that ICWA may apply. There was no active dependency case. A new delinquency petition was filed with a burglary allegation and it was found true. The court followed the probation recommendation of placing W.B. in foster care. The disposition was challenged on appeal because the juvenile court failed to comply with ICWA notice requirements. The Court of Appeal affirmed based on the reasoning that California law, purporting to expand the application of ICWA to delinquency cases, is invalid under federal preemption principles. The California Supreme Court affirmed based on different reasoning. The federal ICWA statute includes an express exemption for placements based on an act which would be a crime if committed by an adult. California’s statutes that implement ICWA impose a duty on the probation and county welfare department to inquire about a minor’s Indian status in any juvenile wardship proceeding in which a child is in foster care or at risk of entering foster care. However, notice to the tribes and other ICWA procedures must be provided only if the court temporarily or permanently removes an Indian child from the home due to abuse or neglect in the home. All dependency cases within Welfare and Institutions Code section 300 require ICWA notice and procedures. Three types of delinquency cases also require ICWA notice and procedures before an Indian child may be placed outside the home. (1) A minor who refuses to obey orders of a parent or guardian is a “status offender” under Welfare and Institutions Code section 601 and ICWA applies. (2) If a Welfare and Institutions Code section 602 petition alleges that the minor committed a status offense (such as consuming alcohol or purchasing cigarettes), ICWA compliance is required. (3) In rare cases, if a section 602 petition alleges that the minor committed an act that would be deemed a crime if committed by an adult and the court removes the minor based entirely on harmful conditions in the home, ICWA applies. Finally, if a dual status minor is removed due solely to harmful conditions in the home, ICWA compliance is required. [Editor’s note: The California Supreme Court has extended time for grant or denial of rehearing in this case.]