San Bernardino County’s child protective agencies and juvenile courts have frequently added unnecessary uncertainty and delay by not investigating claims of Native American ancestry as required by law, a panel from the Fourth Appellate District, Division Two, said in a published opinion March 23.
San Bernardino County Children and Family Services (CFS) failed to investigate a 9-year-old and 2-year-old’s Native American claims when they sought to terminate their parents’ parental rights, and San Bernardino Superior Court failed their duties by terminating the parents’ rights despite CFS’ lack of investigation, the panel ruled.
The panel counted 19 similar cases, resolved by the Fourth District Court of Appeal, from San Bernardino Superior Court in the past three years.
According to the opinion written by Fourth District Court of Appeal Acting Presiding Justice Marsha Slough
San Bernardino Superior Judge Erin Alexander had presided over the case.
Since 2019, these claims must be investigated under federal law, to determine if the Indian Child Welfare Act (ICWA) applies to the proceedings.
ICWA, enacted more than 40 years ago, gives child custody jurisdiction to Native American tribes if the children involved are members of the tribe. It is intended to keep Native American children in Native American homes, due to “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,” according to the ruling.
The panel counted 19 similar cases, resolved by the Fourth District Court of Appeal, from San Bernardino Superior Court in the past three years.
“This is concerning, especially considering our court’s admonishment from nearly a decade ago that we were ‘well past the stage of “growing weary of appeals in which the only error is the [agency’s] failure to comply with ICWA,”’” the panel said, quoting a 2015 case out of Riverside, which quoted a 2008 case from Los Angeles.
The panel published their opinion to send a message to juvenile courts and child protective agencies.
“We publish our opinion not because the errors that occurred are novel but because they are too common. Child protective agencies and juvenile courts have important obligations under ICWA. Failing to satisfy them serves only to add unnecessary uncertainty and delay into proceedings that are already difficult for the children, family members, and caretakers involved. Delayed investigation may also disadvantage tribes in cases where it turns out ICWA does apply, as their opportunity to assume jurisdiction or intervene will come at a late stage in the proceeding,” the appellate panel said.
In this case, CFS began investigating the family for physical abuse in January, 2019, after one of the mother’s children died in her care with signs of purposeful trauma. The mother claimed Blackfeet ancestry through her father at a March, 2019, hearing. She, and other members of her family, provided her father’s full legal name, phone number, birth date and birth place, and his mother’s birth date and birth place, and an aunt’s name, phone number and address.
CFS sent notice to the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana that omitted some of the tribal and biological information provided at the hearing.
The father, who is imprisoned, also claimed Cherokee, Blackfeet and Choctaw ancestry, and his mother provided dates and birth places for herself and her father. The father later claimed he only had Choctaw ancestry. CFS sent notice to the Blackfeet and Cherokee tribes, but not to any of the three federally recognized Choctaw tribes.
The court took control of the two children in February, 2020. In June, 2020, the court found that ICWA did not apply to the youngest child. They reunited the family in August, 2020. The mother threw the youngest child to the floor two months later, and the court detained the children in foster care.
The court found the ICWA did not apply to the oldest child in April, 2021, and terminated the parents’ parental rights in September, 2021, putting the children up for adoption.
The panel reversed the court’s termination of the parents’ parental rights, and directed CFS to comply with the ICWA.
Fourth District Court of Appeal Acting Presiding Justice Marsha Slough wrote the opinion, joined by Associate Justices Michael Raphael and Frank Menetrez.
San Bernardino Superior Judge Erin Alexander presides over the case.
Suzanne Davidson, Christopher Blake and Pamela Tripp individually represented the defendants and appellants, under appointment.
County Counsel Tom Bunton and Deputy County Counsel Dawn Martin represented San Bernardino County Children and Family Services.
Appellate case number E077791.
Superior case numbers J280205 and J282898.
Read the ruling here.
