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In Re W.B., Jr., A Person Coming v. W.B.

August 6, 2012

W.B., JR.,

Ct.App. 4/2 E047368 (Super. Ct. No. RIJ114127) Court: Superior County: Riverside Judge: Christian F. Thierbach

The opinion of the court was delivered by: Corrigan, J.

Riverside County

Passed in 1978, the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA, or the Act) formalizes federal policy relating to the placement of Indian children outside the family home. State courts presiding over adoption, guardianship, and dependency matters have become familiar with the many requirements of this federal law. Historically, however, ICWA provisions have not been applied in the juvenile delinquency context because ICWA includes an express exemption for placements "based upon an act which, if committed by an adult, would be deemed a crime." (25 U.S.C. § 1903(1).)

The minor argues state legislation has expanded ICWA to delinquency proceedings under Welfare and Institutions Code section 602.*fn1 The Courts of Appeal have considered the question with varying results. Here, we determine the federally required scope of ICWA in juvenile delinquency proceedings and whether our Legislature has expanded those requirements. Consistent with the federal statutes, we hold that California law requires the court to inquire about a child's Indian status at the outset of all juvenile proceedings, but that ICWA's additional procedures are not required in most delinquency cases. A delinquency court must ensure that notice is given and other ICWA procedures are complied with only when (1) exercising "dual status" jurisdiction over an Indian child (see post, at pp. 9-11); (2) placing an Indian child outside the family home for committing a "status offense" (§§ 601-602; see post, at p. 5); or (3) placing an Indian child initially detained for "criminal conduct" (§ 602; see post, at pp. 5-6) outside the family home for reasons based entirely on harmful conditions in the home. In this narrow third category, ICWA notice is required when the delinquency court sets a permanency planning hearing to terminate parental rights, or when the court contemplates ordering the ward placed in foster care and announces on the record that the placement is based entirely on abuse or neglect in the family home and not on the ward's delinquent conduct. Without a clear announcement from the court to the contrary, it will be presumed that a placement of a section 602 ward is based on the ward's delinquent conduct, rather than conditions in the home, and thus not subject to ICWA.


The minor, W.B., Jr. (W.B.), has been the subject of several delinquency petitions. He was referred to probation in 2003 and 2006 on allegations of felony burglary and robbery, but these matters were closed for lack of evidence. Referred to diversion in November 2006 for possessing marijuana on school grounds, he failed to complete the program. On March 27, 2007, shortly before his 15th birthday, a section 602 petition alleged he committed felony burglary and receipt of stolen property. On May 3, 2007, a second section 602 petition alleged he committed battery with serious bodily injury. On May 23, 2007, a third section 602 petition alleged residential burglary. At a combined hearing, after W.B. admitted the battery and one burglary allegation, he was declared a ward of the juvenile court. The court ordered that he be placed outside the home. The court later reconsidered this order, released him to his mother, and directed that both participate in the Wraparound Program.*fn2

In June 2008, another section 602 petition was filed alleging robbery. At a contested jurisdiction hearing, the victim testified that as he was leaving school W.B. approached from behind and hit him in the jaw, causing him to drop his cellular phone. A boy with W.B. picked up the phone, and the two ran off with it. The court found the allegation true and continued the minor as a ward. The probation officer's dispositional report noted that "ICWA may apply" because W.B.'s mother had reported possible Cherokee ancestry. There was no history of physical, sexual, or emotional abuse. Although the probation department recommended that he continue on home supervision and in the Wraparound Program, the People urged a placement outside the home because W.B. had not "learned to appreciate the seriousness of his conduct." Following the probation department's recommendation "with some misgivings," the court released him to his mother's custody and ordered continued participation in the Wraparound Program.

On October 14, 2008, just two months after disposition of the robbery case, a subsequent 602 petition was filed alleging residential burglary. W.B. and two others broke into a home through a sliding glass door and stole a number of items. The court found the burglary allegation true and set the maximum confinement time at six years. The probation officer's report once again stated that "ICWA may apply" because W.B.'s mother had reported Cherokee ancestry. No history of abuse was reported, and the child welfare agency confirmed that it had no active dependency case involving the family.

The probation officer reported that the county's interagency placement committee (CIPC) unanimously recommended that W.B. be placed in foster care. The committee believed his treatment needs, which included "anger management, victim awareness, [and] impulse control," would be best met in a placement program. Although he had appeared to be making progress at home, he had continued to commit criminal acts and posed a threat to the community's safety. The probation department endorsed the CIPC recommendation. The court ordered placement in a foster care facility and directed W.B. to comply with terms of probation. He would be returned to his mother's custody upon successful completion of the placement. The aggregate term of potential confinement was eight years eight months.

On appeal, W.B. argued the dispositional order placing him in foster care had to be reversed because the juvenile court had failed to comply with the notice requirements of ICWA. The Court of Appeal disagreed, holding notice was not required because federal law specifically excludes delinquency cases from ICWA, and any interpretation of California law that would expand ICWA's application to delinquencies would be invalid under federal preemption principles. We granted review.


A. Overview of California's Juvenile Court Law

In California, the juvenile court's jurisdiction over a minor can be invoked in two ways: (1) by a dependency petition (§ 300), which alleges the child's home is unfit due to parental abuse or neglect; or (2) by a delinquency petition, which accuses the child of either disobedience or truancy (§ 601) or the violation of a law that defines a crime (§ 602). The terms "delinquency" and "status offense" have been employed somewhat loosely in various contexts. Before beginning our analysis, it is useful to clarify the definitions of these terms and explain how they fit into the statutory framework.

Allegations that a minor refuses to obey orders of a parent or guardian, is beyond parental control, violates age-based curfew ordinances, or is truant or disobedient in school, must be brought in a petition filed under section 601. (§ 601, subd. (a).) These allegations, which are specifically delineated in section 601, are commonly called "status offenses" because they address conduct that is not criminal but is nevertheless subject to punishment because of the offender's status as a person under age 18. (See In re Lucas (2004) 33 Cal.4th 682, 731; R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 198.) Strictly speaking, "[a]n adjudication under section 601 neither requires nor implies a finding of 'delinquency.' " (In re Bettye K. (1991) 234 Cal.App.3d 143, 151.) Section 601 allegations are not the only status offenses considered by the juvenile court, however.

Section 602 confers broad juvenile court jurisdiction over allegations that the minor's conduct "violates any law." (§ 602, subd. (a).) Some penal statutes proscribe conduct only when it is committed by a minor. For example, although an adult may legally consume alcohol, underage drinking is not permitted. (Cal. Const., art. XX, § 22; see generally In re Jennifer S. (2009) 179 Cal.App.4th 64 [discussing local and state laws prohibiting underage drinking].) Likewise, although an adult may lawfully purchase cigarettes, a minor cannot. (Pen. Code, § 308, subd. (b).) Offenses like these, which can be committed only by a person under 18, are technically status offenses, but they are adjudicated under section 602 because they describe a minor's conduct that "violates any law." (§ 602, subd. (a); see, e.g., In re Jennifer S., at p. 67.) Section 602 also encompasses conduct by a minor that would be a crime if committed by an adult.

In the broadest sense, adjudications under section 300 are "dependency" proceedings, and adjudications under sections 601 and 602 are "delinquency" proceedings. When the juvenile court assumes jurisdiction over a child under section 601 or 602, the minor is described as a "ward" of the court.

In the course of our discussion, we will occasionally refer to a minor's "criminal conduct" as a shorthand to differentiate behavior that would constitute a crime if committed by an adult from status offenses, which are punishable only because of the minor's age. However, in juvenile court, a minor is not designated as a "defendant," nor accused of a "crime," even though the allegation would describe a crime in adult court. (§ 203.) The determination whether a minor has violated a criminal provision is made solely in order to establish that the juvenile court has jurisdiction. Once this determination is made, the juvenile court can declare the minor a ward of the court and order a disposition that will address the minor's behavior. A juvenile adjudication is not a "conviction" (In re Bernardino S. (1992) 4 Cal.App.4th 613, 618), and thus a ward of the juvenile court is not "sentenced" for violating the law, even when disposition of the ward's case involves removal from home for a period of confinement.

1. Foster Care Placements in Delinquency Proceedings

A temporary or permanent foster care placement typically arises in the context of juvenile dependency proceedings, in which the court determines whether a child's home is unfit. If allegations of parental abuse or neglect are substantiated, the court assumes jurisdiction and removes the child from the family home for the child's own well-being. Such a child is adjudged to be a "dependent" of the court. (§ 300 et seq.) When a dependent child is placed in a foster home, the family generally participates in reunification services, with the goal of the child's safe return to parental custody.*fn3 Meanwhile, the dependency case proceeds through an intricate system of review hearings. Because family reunification is not always possible, child welfare workers also explore alternatives for a child's permanent placement outside the home through guardianship or adoption. The dependency process culminates in a permanency planning hearing, at which the court determines whether the child can be safely returned home or, if not, whether parental rights must be terminated and the child released to a permanent placement. (§ 366.26.)

Although the great majority of children enter foster care through the dependency process, a child may also enter foster care in a delinquency placement.*fn4 Foster care placement is one of several dispositional options available to the delinquency court. If the allegations of a section 602 petition are found true, the court may dismiss the petition in the interest of justice (§ 782), place the child on informal probation for up to six months without a declaration of wardship (§ 725, subd. (a)), or declare the child a ward of the juvenile court (§ 725, subd. (b)) and proceed to disposition.

While a delinquent ward may be allowed to remain at home, the grounds for removing a ward from parental custody are established by statute. Removal is warranted only if the court finds: (1) the parent has not or cannot provide "proper maintenance, training, and education" for the child; (2) previous attempts at in-home probation have failed to reform the child; or (3) the child's welfare requires that custody be taken from the parent. (§ 726, subd. (a).) When removed from the family home, the ward comes under the supervision of the probation department. (§ 727, subd. (a).) Depending on the severity of the offense and other rehabilitative considerations, the juvenile court may direct that the ward be placed in a non-secure home or facility or may order that the ward serve a period of physical confinement, either in a secure local facility (§ 730, subd. (a) [juvenile home, ranch, camp, forestry camp, or juvenile hall]) or in the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) [formerly the California Youth Authority], which is the most restrictive placement. (§ 731; In re Eddie M. (2003) 31 Cal.4th 480, 488.) If a non-secure placement is found to be appropriate, the probation department may place a removed ward in the home of a relative, in a licensed community care facility, or in foster care. (§ 727, subd. (a).) A group home is the predominant out-of-home placement chosen for delinquent wards.*fn5

If a delinquent ward is removed from parental custody, even temporarily, reunification services must usually be provided to address the minor's needs and facilitate a safe return to the family home. (§ 727.2, subd. (a).) The reunification process generally mirrors that followed in dependency. Although dependency and delinquency law differ in several ways, the Legislature has announced that both types of proceedings serve the purpose of preserving and strengthening family relationships. (In re James R. (2007) 153 Cal.App.4th 413, 430.) Family preservation and reunification are "appropriate goals" for a court to consider in determining the disposition of a delinquent minor, so long as they are consistent with public safety and the best interests of the minor. (§ 202, subd. (b); see In re L.M. (2009) 177 Cal.App.4th 645, 650.)

Every six months, the court must review the status of a ward removed to foster care. (§ 727.2, subd. (c).) At each review hearing, the court considers: (1) the appropriateness and continuing need for the placement; (2) the probation department's compliance with the case plan for either returning the child home or finalizing an alternative permanent placement; (3) whether limitations should be placed on the parent's ability to make educational decisions for the child; (4) progress made by the child and parent in correcting the conditions that created the need for the foster care placement; (5) the likely date when the child can be returned home or released for a permanent placement; and (6) whether services are necessary for a child age 16 or older to transition from foster care to independent living. (§ 727.2, subd. (e).) If the child is not returned home within 12 months after entering foster care, the court must hold a permanency planning hearing. (§ 727.3, subd. (a)(1).) At this hearing, it may return the child home, order the child into a different permanent placement, or order that further services be provided. (§ 727.3, subd. (b).) Possible permanent plans include a termination of parental rights, followed by release for adoption; a legal guardianship; placement with a relative; or placement in a "planned ...

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