In re ABBIGAIL A. et al., Persons Coming Under the Juvenile Court Law. JOSEPH A., et al. Defendants and Respondents.
Court
Ct.App. 3 C074264 Superior County Nos. JD232871, JD232872
Sacramento Paul L. Seave Judge
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COUNSEL
John F.
Whisenhunt and Robyn Truitt Drivon, County Counsel, Traci F.
Lee, Assistant County Counsel, and Lilly C. Frawley, Deputy
County Counsel, for Plaintiff and Appellant.
Stacey
Kim-Jackson for Home Forever as Amicus Curiae on behalf of
Plaintiff and Appellant.
Jennifer
B. Henning; Theresa G. Goldner, County Counsel (Kern), Karen
S. Barnes, Chief Deputy County Counsel, and Bryan C. Walters,
Deputy County Counsel, for The California State Association
of Counties as Amicus Curiae on behalf of Plaintiff and
Appellant.
Konrad
S. Lee, under appointment by the Supreme Court, and M.
Elizabeth Handy for Defendants and Respondents.
Mark
Radoff, Delia Parr and Mark Vezzola for California Indian
Legal Services, 45 California Indian Tribes, California
Indian Law Association and Tribal STAR as Amici Curiae on
behalf of Defendants and Respondents.
Kimball
J.P. Sargeant, under appointment by the Supreme Court, for
Minors.
John C.
Cruden, Assistant Attorney General, Amber Blaha, Assistant
Section Chief, and J. Brett Grosko, Trial Attorney, for The
United States as Amicus Curiae.
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OPINION
WERDEGAR,
J.
The
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et
seq.) (ICWA) establishes minimum federal standards a state
court must follow when removing an Indian child from his or
her family. Congress has defined “Indian child”
for these purposes as “any unmarried person who is
under age eighteen and is either (a) a member of an Indian
tribe or (b) is eligible for membership in an Indian tribe
and is the biological child of a member of an Indian
tribe.” (Id., § 1903(4).)
We
granted review to consider whether two state court rules
adopted to implement ICWA are valid. When a child is eligible
for tribal membership but is not an Indian child as defined
in ICWA, rule 5.482(c) of the California Rules of Court
requires the juvenile court to “proceed as if the child
is an Indian child” and to take steps “to secure
tribal membership for the child.”
(Ibid.)[1] We conclude rule 5.482(c) is invalid
because it conflicts with the Legislature’s intent to
enforce ICWA by codifying its provisions, including the
federal definition of Indian child (see Welf. & Inst.
Code, §§ 224-224.6; id., § 224.1,
subd. (a); 25 U.S.C. § 1903(4)), thus leaving cases not
involving Indian children subject to the statutes generally
applicable in dependency proceedings. Rule 5.482(c) is
inconsistent with those statutes, and with the
Legislature’s intent, and thus invalid. In contrast,
the related rule 5.484(c)(2) merely directs the juvenile
court to pursue tribal membership for a child who is already
an Indian child as defined in ICWA, in order to prevent the
breakup of the Indian family and to qualify the child for
tribal services. This rule is consistent with state law and
valid.
I.
Background
This is
an appeal from a child dependency proceeding involving the
minors Abbigail A. (born 2008) and Justin A. (born 2007). In
December 2012, the Sacramento County Department of Health and
Human Services (DHHS) filed petitions in the juvenile court
alleging the children were dependents of the court because
their mother, Jaime S., could not adequately supervise and
protect them. (See Welf. & Inst. Code, § 300, subd.
(b)(1).) The court removed the children from Jamie’s
custody and placed them temporarily with their maternal
grandmother. At a subsequent hearing Joseph A. acknowledged
paternity, and the court found he was the children’s
biological and presumed father. Joseph, while not a member of
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