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In re Abbigail A.

Supreme Court of California

July 14, 2016

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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