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In re Abbigail A.

California Court of Appeals, Third District, Sacramento

June 16, 2014

In re ABBIGAIL A. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Appellant,
v.
JOSEPH A. et al., Defendants and Respondents.

[REVIEW GRANTED BY CAL. SUPREME COURT]

APPEAL from a judgment of the Superior Court of Sacramento County, Nos. JD232871 & JD232872 Paul L. Seave, Judge.

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COUNSEL

John F. Whisenhunt, County Counsel, and Lilly C. Frawley, Deputy County Counsel, for Plaintiff and Appellant.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendants and Respondents.

OPINION

BUTZ, J.

After a combined hearing in May 2013 (Welf. & Inst. Code, §§ 355, 358), [1] the juvenile court found that minors Abbigail A. (born in 2008) and Justin A. (born in 2007) were subject to its jurisdiction (the bases for which are not pertinent to this appeal). It placed the minors in the custody of their maternal grandmother. At a prehearing status conference, it directed the Sacramento County Department of Health and Human Services (DHHS) to take active efforts to enroll the minors in the tribe of their paternal great-aunt and great-grandmother (the Cherokee Nation of Oklahoma, which had stated the minors were not members but were eligible for membership) even though the minors’ biological and presumed father Joseph A. was not yet enrolled as a tribe member.

The basis for this directive was the provision in both rule 5.482(c) and rule 5.484(c)(2) of the California Rules of Court[2] that includes this duty among the active efforts an agency must make on behalf of minors who are eligible for tribal membership but who are not “Indian children” as defined in the federal Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and state law.[3] The definition of “Indian children” in the ICWA and state law

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requires that minors be either (a) members of a tribe themselves or (b) biological children of members of a tribe and eligible for tribal membership. (25 U.S.C. § 1903(4); Welf. & Inst. Code, § 224.1, subd. (a) [the ICWA definition of “Indian child” will apply under state law (hereafter § 224.1(a))].)

DHHS appeals (§ 395), [4] challenging the validity of the two rules on various grounds. It contends federal law preempts the extension of services in the two rules to minors who are not Indian children under the ICWA; the rules are inconsistent with the definition of Indian children entitled to ICWA protections under section 224.1(a); and the rules are also inconsistent with the active efforts required under section 361.7. It is sufficient for us to agree with DHHS on its second point: These two rules are inconsistent with the legislative definition of the class of protected Indian children, and therefore the Judicial Council lacked authority to expand the definition. Accordingly, we do not need to reach the other two claims of DHHS (or the associated arguments). We will reverse the judgment with directions to enter a new judgment that ...


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