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The Court of Appeal restored parental rights in two cases after ruling the San Bernardino Department of Child and Family Services failed to investigate the children’s Native American heritage.

Frequent reversals under law

The Indian Child Welfare Act, 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 California Supreme Court.

A child’s Native American ancestry must be investigated during custody proceedings under the law.

The Court of Appeal published an opinion admonishing San Bernardino County for the frequent reversal of custody orders due to ICWA March 23.

“Over the past three years there have been a significant number of cases from (San Bernardino) county in which the failure to adequately investigate ICWA’s application required the reversal of orders terminating parental rights,” the panel wrote.

“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 panel wrote.

These restorations mark the 23rd and 24th times that parental rights have been restored due to this error in the past three years, according to an outdated count report by the Court of Appeal, supplemented with a recent count by Follow Our Courts.

New case

In a June 14 ruling, the court reinstated parental rights even though both the mother and the father denied having Native American heritage.

CFS should have asked extended family members whether the baby, whom we will call “M,”  had Native American heritage, the court ruled.

“(W)hen CFS takes a child into temporary custody, state law requires the agency to ask ‘the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child,’ and the reporting party whether the child is or may be an Indian child,” the court ruled.

According to the appellate ruling, in this case, M’s mother shook and yelled at M, a 5-month-old. The mother also abandoned M with the father’s sister, claiming she needed time to work on herself and get back on her medication. The mother and father had a history of domestic violence, and the mother had untreated mental health issues.

After the mother and the father denied having any Native American heritage when asked by a social worker, the mother told CFS that she did not have any Native American heritage, and the father did not show for his scheduled interview. Mother later denied having Native American ancestry in two forms.

One month after CFS began investigating the family, San Bernardino Superior removed M from the parents’ care, and eight months after that, the court terminated parental rights.

The mother argued that CFS failed to comply with the duty of initial inquiry under the ICWA.

The appellate court agreed, and reinstated parental rights until CFS interviewed extended family members.

Megan Schirn, under appointment, represented the mother.

County Counsel Tom Bunton and Deputy County Counsel Kaleigh Ragon represented San Bernardino County Children and Family Services.

San Bernardino Superior Judge Annemarie Pace presided.

Fourth District Court of Appeal, Division Two, Associate Justice Frank Menetrez wrote the opinion, which Acting Presiding Justice Richard Fields and Associate Justice Michael Raphael joined.

San Bernardino Superior Court case number J288526.

Appellate case number E078247.

Read the ruling here.

“Descended from Pocahontas”

In a separate May 31 ruling, the Court of Appeal conditionally restored parental custody of two daughters because CFS did not ask the children’s paternal grandfather if the family was descended from Pocahontas, as the father claimed.

According to the ruling, the following occurred: 

The mother had claimed Cherokee, Blackfoot or Sioux ancestry. None of those tribes responded when CFS reached out to them. The father and the paternal grandmother both denied having Native American ancestry.

After CFS reached out to the tribes, the father and the paternal grandmother both claimed to be descended from Pocahontas. CFS reached out to the Pamunkey Tribe, which they believed was Pocahontas’ tribe. The CFS worker did not report back on whether the Pamunkey Tribe had responded.

CFS erred by not not asking the paternal grandfather if the paternal grandmother had Native American heritage, according to the ruling.

“(The paternal grandfather) may have had Indian ancestry that the father and (the paternal grandmother) were unaware of or forgot. Also, it is conceivable that (the paternal grandfather) may have known something about (the paternal grandmother’s) Indian ancestry that she herself had forgotten,” the court said.

The appellate ruling claimed the parents were abusive, and that both of the daughters had tested positive for marijuana at birth. The father had slapped, punched and knocked the mother down in November, 2018, according to the ruling. The mother alleged the father raped her in December, 2018. 

CFS attempted to gain custody of the children in February, 2019, when one daughter was 17 months old and the other was 4 months old.

According to the ruling, the girls’  father was incarcerated at that time, but was released in April, 2019. The mother took the children to see the father in violation of a restraining order. The father was reincarcerated June, 2019, and again October, 2020.

The court terminated parental rights in February, 2022.

This case was started in Los Angeles, and was moved to San Bernardino County.

The Court of Appeal directed CFS to ask the paternal grandfather if the child might have Native American ancestry. If he did not give reason to believe the children are Native American, the Court of Appeal ordered the juvenile court to reinstate the order terminating parental rights.

Rich Pfeiffer, under appointment, represented the father.

County Counsel Tom Bunton and Deputy County Counsel Dawn Martin represented San Bernardino County Children and Family Services.

San Bernardino Superior Judge Erin Alexander presided.

Fourth District Court of Appeal, Division Two, Presiding Justice Manuel Ramirez wrote the opinion, which Associate Justice Art McKinster and Richard Fields joined.

San Bernardino Superior Court numbers J282885 and J282886.

Appellate case number E078454.

Read the ruling here.

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