ORIGINAL PROCEEDING; application for a writ of mandate. Writ Issued. (Super. Ct. No. JV125357).
The opinion of the court was delivered by: Blease, Acting P. J.
CERTIFIED FOR PUBLICATION
The issue presented by this petition is whether provisions of the Indian Child Welfare Act apply in juvenile delinquency proceedings where the child is at risk of entering foster care, but where a termination of parental rights is not involved.
Congress passed the Indian Child Welfare Act of 1978 (ICWA) in response to a concern over the "consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32 [104 L.Ed.2d 29, 36].) ICWA creates concurrent, but presumptively tribal jurisdiction in custody cases of Indian children not domiciled on the reservation. (Id. at p. 36 [at pp. 38-39].) For custody proceedings that do take place in state court, ICWA provides certain procedural safeguards, including requirements for notice, appointment of counsel, parental and tribal rights of intervention and petition for invalidation of illegal proceedings, and for consent to termination of parental rights. (Ibid.) Substantively, ICWA mandates placement preferences for Indian children. (Id. at p. 37 [at p. 39].)
Federal law expressly exempts from ICWA's reach cases involving the placement of a child based upon an act by the child that would be deemed a crime if committed by an adult. (25 U.S.C. § 1903.) Historically, this has meant that most juvenile delinquency proceedings have been exempt from ICWA, because they are based on a juvenile's act of committing a crime. However, in 2006 California passed legislation imposing upon the court, county welfare department, and probation department a duty of inquiry and notice in any proceeding brought pursuant to Welfare and Institutions Code section 602 where the child is at risk of entering foster care or is in foster care.*fn1 Section 602 brings within the jurisdiction of the juvenile court cases involving the commission of a crime by a minor. The duty in such cases is to inquire whether a child is or may be an Indian Child, and to provide notice to the child's parents or guardian, Indian custodian, and tribe of the right to intervene in the proceeding, the right to counsel for the parents or Indian custodian, and the right to transfer the proceeding to tribal court. (§§ 224.2, 224.3.)
In addition to this statutory mandate, the Judicial Council has adopted rules of court governing the requirements of inquiry and notice, as well as rules governing intervention, transfer, and the ultimate placement of the child. (Cal. Rules of Court, rules 5.481-5.484.) These rules are specifically made applicable to proceedings under section 602 in which the child is at risk of entering foster care or is in foster care. (Cal. Rules of Court, rule 5.480.)
In spite of this authority, respondent Sacramento County Juvenile Court determined pursuant to its own standing order that California law does not require the application of ICWA to a juvenile delinquency proceeding where the case plan does not include the termination of parental rights.*fn2
We disagree with the juvenile court's conclusion. While ICWA may not by its own terms apply to a juvenile delinquency case in which the case plan anticipates foster care placement, the California Legislature has expressly made the inquiry and notice requirements of ICWA applicable in such cases, and impliedly made the remaining ICWA requirements applicable in such cases as well. Because ICWA sets the minimum standards for the protection of Indian children with respect to their tribal relationships, California law imposing a higher standard is not inconsistent with the purpose of the federal law, and is not preempted.
FACTUAL AND PROCEDURAL BACKGROUND
R.R. first appeared in Sacramento County Juvenile Court pursuant to a section 602 petition alleging misdemeanor battery with serious bodily injury and felony assault with a deadly weapon. The petition alleged R.R. beat his mother's boyfriend with a baseball bat during an argument between the mother and the boyfriend.
At the time of the initial detention, R.R. was under the jurisdiction of the Contra Costa Juvenile Court as a dependent child pursuant to section 300. R.R. admitted the misdemeanor battery, and the felony assault allegation was dismissed in the interest of justice. The court determined R.R.'s best interest would be served through dependency, and the matter was transferred to Contra Costa County. Contra Costa County placed R.R. on six months probation. When R.R. violated probation, Contra Costa terminated dependency jurisdiction and transferred the delinquency case to Sacramento, where R.R.'s mother lived.
R.R. was adjudged a ward of the Sacramento Juvenile Court in April 2008, and was committed to the Warren E. Thornton Youth Center. In June 2008, the probation department filed a motion for violation of probation, alleging R.R. failed to follow youth center rules, engaged in fighting, and participated in gang related activities. R.R. was arraigned on the violation and ordered detained in juvenile hall. The probation department recommended that after R.R. completed a commitment to juvenile hall, he should be committed to the custody of the probation officer for suitable in-state out-of-home foster care placement. Specifically, the probation officer determined such placement was appropriate "based on [R.R.'s] previous dependency history, the fact that all his siblings remain in long term placement and the minor[']s refusal to participate in counseling programs[.]"
At a regularly scheduled settlement conference, R.R.'s counsel requested the court find ICWA applicable to R.R.'s case. R.R. is a registered member of the Crow Creek Sioux Tribe of Fort Thompson, South Dakota. The ICWA matter was argued to the referee, and the referee issued a ruling finding that R.R. was an Indian child and that ICWA applied. The judge of the juvenile court became aware of the ruling, and granted a rehearing on the court's own motion.
Relying on its own standing order SSC-JV-05-057, the juvenile court vacated the referee's order and found ICWA was not applicable to the proceeding. Standing Order SSC-JV-057 concluded that Senate Bill No. 678 does not require application of the inquiry and notice provisions of ICWA in a juvenile delinquency proceeding for a minor for whom the case plan does not include the termination of parental rights. For purposes of this discussion, Senate Bill No. 678 is now codified at sections 224, et seq.
The standing order further concluded that rule 5.480(1) of the California Rules of Court, which requires the application of ICWA to any delinquent minor's case when the minor is "at risk of entering foster care or is in foster care" directly contradicted the expressed intent of Congress and the California Legislature. In reaching this conclusion, the standing order pointed to Title 25 United States Code section 1903(1), which states that child custody proceedings for purposes of ICWA "shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime[,]" and section 224.1, subdivision (c), which states that an "`Indian child custody proceeding' means a `child custody proceeding' within the meaning of Section 1903 of the Indian Child Welfare Act...."
The juvenile court found that the Judicial Council "exceeded its authority to clarify the federal ICWA statute and California statutory scheme by applying California Rules of Court, rule 5.480(1) to delinquency cases...."
R.R. filed a petition for writ of mandate to compel the juvenile court to vacate its order refusing to apply ICWA. We issued an alternative writ, directing the juvenile court to grant the requested relief or show cause why it had not done so. Further proceedings in this matter were stayed pending disposition of this petition.*fn3
I. The Federal Indian Child Welfare Act Does not Apply by Its Own Terms in Most Juvenile Delinquency Proceedings
In passing ICWA, Congress expressly assumed "the responsibility for the protection and preservation of Indian tribes and their resources...." (25 U.S.C. § 1901(2).) Congress found that the most vital resource to the continued existence and integrity of the tribes was their children, and that the United States has a direct interest in protecting Indian children. (25 U.S.C. § 1901(3).) Congress also found that too many Indian families had been broken up by the often unwarranted removal of their children by nontribal public and private agencies, which agencies placed the children in non-Indian foster care, adoptive homes, and institutions. (25 U.S.C. § 1901(4).)
Therefore, Congress's explicit purpose in passing ICWA was "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." (25 U.S.C. § 1902.) ICWA "`seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.' [Citation.] It does so by establishing `a Federal policy that, where possible, an Indian child should remain in the Indian community,' ibid., and by making sure that Indian child welfare determinations are not based on `a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.' [Citation.]" (Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 U.S. at p. 37 [104 L.Ed.2d at p. 39], fn. omitted.)
As is relevant to this case, if ICWA applies, the consequences are to require notice to the child's parent or Indian custodian and to the child's tribe, to provide for the transfer of the proceedings to the jurisdiction of the tribe if the parent, Indian guardian, or tribe petitions for transfer and the tribe accepts such jurisdiction, to allow the intervention of the child's tribe in the state court proceeding, and to mandate placement preferences for the child. (25 U.S.C. §§ 1911, 1912(a), 1915(b).) In determining whether ICWA applies in this case, we turn to the language of the federal statute.
The transfer and intervention provisions of ICWA are applicable, "[i]n any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child...." (25 U.S.C. § 1911(b)-(c).) The notice provisions are applicable, "[i]n any involuntary proceeding in a State court," seeking the "foster care placement" of a child, "where the court knows or has reason to know that an Indian child is involved...." (25 U.S.C. ...