A San Bernardino County appellate victory coincides with a Riverside County appellate loss, both involving the Indian Child Welfare Act.
The Court of Appeal ruled that a San Bernardino Superior Court termination of parental rights did not violate the ICWA, and ruled that Riverside Superior Court failed to follow ICWA in a separate custody termination case.
San Bernardino County’s custody terminations have been overturned 24 times in three years for not following ICWA — to the point that the Court of Appeal published an opinion admonishing the court and the child services agency for continued non-compliance.
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.
Under this law, a child’s Native American ancestry must be investigated during custody proceedings.
San Bernardino County: ICWA followed, parental appeal denied
The Court of Appeal affirmed San Bernardino Superior Court’s finding that the San Bernardino Children and Family Services investigated a child’s Native American heritage well enough to satisfy the ICWA.
San Bernardino Children and Family Services sought to gain custody over a child May 9, 2020, after hearing testimony that his parents left their approximately 2-year-old daughter, without support, with unrelated people for long periods of time.
The child’s parents did not appear at the detention hearing, and both denied having Native American heritage when contacted by social workers March 13, 2020.
The court found that the ICWA did not apply, and removed the child from the parents’ custody July 1, 2020. The child was placed with a paternal aunt.
Both parents later said they might have Native American ancestry. The father said Nov. 12, 2020, it was possible he did, and named his mother as someone who could provide more information. The mother, on the same date, said she had “Blackfoot and Law” ancestry, and said her sister could provide more information. The paternal grandmother and the maternal aunt eventually told the social worker that they had no Native American ancestry.
Later, Dec. 8, 2020, the mother checked a box saying an ancestor was a member of a tribe. She said the tribe was “Law,” and the band was Blackfoot.
The same day, the mother told the court that no one in her family was Native American.
In August 2021, the father said he did not have any Native American ancestry, and the mother said she thinks she does, but did not specify what nation.
The court formally terminated parental rights March 7, 2022, with the recommendation that the aunt adopt the child.
Case information
Christine Johnson, under appointment by the Court of Appeal, represented the defendant and appellant K.H.
Christy Peterson, under appointment by the Court of Appeal, represented the defendant and appellant J.W.
County Counsel Tom Bunton and Deputy County Counsel Joseph Barrell represented the county.
San Bernardino Superior Judge Lynn Poncin presided.
Justice Art McKinster wrote the opinion, which Presiding Justice Manuel Ramirez and Justice Carol Codrington joined.
San Bernardino Superior Court case number J284474.
Appellate number E078621.
Read the ruling here.
Riverside County: Court erred, three children returned
In a Riverside County case, the Court of Appeal temporarily reinstated custody of three children to their parents.
Riverside Superior Court terminated the parents’ custodial rights. The mother appealed, claiming the Riverside County Department of Public Social Services had not investigated the father’s claims of Cherokee ancestry.
The children had been removed from the father’s custody first. The county then kept the children with their mother until the court also vacated her parental rights, because of physical abuse, according to the appellate ruling.
The court and the DPSS should have investigated the children’s paternal Native American heritage before the court vacated the mother’s parental rights, the unpublished opinion says.
A Riverside County Department of Public Social Services report said that the mother’s boyfriend had used his belt to discipline the children.
A social worker detained the children after finding a large dark mark on the ear of one of the children, who said the mother burned her.
The mother and father did not oppose when DPSS moved to take custody of the children Oct. 28, 2020, the case documents say.
After the state took custody, the mother became homeless, stayed with the abusive boyfriend, and was pregnant with another child. The mother claimed she had completed a substance abuse program, but the social worker later found the mother had forged her completion letter, and had never attended the program, according to case documents.
Matthew Thue, under appointment by the Court of Appeal, represented the mother.
County Counsel Tom Bunton and Deputy County Counsel Julie Jarvi represented Riverside County.
Presiding Justice Manuel Ramirez wrote the opinion, which Justices Art McKinster and Carol Codrington joined.
Riverside Superior Judge Donal Donnelly presided.
Riverside Superior Court number RIJ2000509.
Appellate number E078465.
Read the ruling here.
