For the second time in two weeks, the Fourth Appellate District Court of Appeal ruled that San Bernardino County Children and Family Services failed to follow a federal law to investigate Native American ancestry while terminating parental rights.
The mistake is the 21st of its kind in three years, and follows a published ruling March 23 in which the Fourth District Court of Appeal chastised the county agency and the San Bernardino Superior Court for failing in their obligations under the Indian Child Welfare Act (ICWA).
“We publish our opinion not because the errors that occurred are novel but because they are too common,” the appellate court wrote in April.
“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 April ruling continued.
Since 2019, children’s claims of Native American ancestry must be investigated by government agencies if they are attempting to place the child in the foster system, according to the March ruling. If a child’s claims hold up, the tribe they are descended from can request jurisdiction in the adoption proceedings.
Case background
In the case that led to the April 7 ruling, the child was born with methamphetamine in his system, causing Children and Family Services to remove him from his parents’ care days after his birth, according to the ruling.
He was the seventh child born to and removed from his parent’s custody due to prenatal drug exposure and parental neglect, according to the ruling. His father told a social worker that he might have Native American ancestry, from the Cherokee and Sioux tribes.
Because the court had already determined that ICWA did not apply to the child’s siblings, San Bernardino Superior Judge Annemarie Pace determined that ICWA did not apply to him either, according to the ruling.
Both parents appealed.
The appellate ruling reversed San Bernardino Superior Court’s determination, and directed the agency to investigate his claim.
Case precedent
A determination of tribal membership is based on an individual basis, the ruling said, citing the 2001 California appellation ruling In re Jonathan D, which drew precedent from the 2000 California appellation ruling In re Desiree F.
“A determination of tribal membership is made on an individual basis, and blood quantum is not determinative. The Tribe’s decision that a child is or is not a member, or eligible to be a member, is determinative. The juvenile court and the county welfare department have an affirmative duty to inquire whether the child subject to the dependency petition is or may be an Indian child,” the Desiree ruling stated.
Parties
Neale B. Gold, under appointment by the Court of Appeal, represented the mother.
Marissa Coffey, under appointment by the Court of Appeal, represented the mother.
County Counsel Tom Bunton and Deputy County Counsel David Guardado represented San Bernardino County Children and Family Services.
Fourth District Court of Appeal, Division Two, Presiding Justice Manuel Ramirez wrote the opinion, which Associates Justices Douglas Miller and Carol Codrington joined.
Superior Court case number J288814.
Appellate case number E078126.
Read the April ruling here, and our coverage of it here.
Read the ruling here.
