Tribal Rights Vindicated in Child Custody

To protect American Indian culture, a tribe has the right to intervene when a Native American child is placed in foster care or a parent faces termination of rights.

A child welfare agency’s failure to notify the tribe and thus prevent its intervention is cause for reversal of the loss of parental rights, California’s Second District Court of Appeals has ruled.

On September 5, 2014, a Southern California juvenile court terminated the parental rights of a mother who said she had Blackfoot and Cherokee ancestry.  She was diagnosed with multiple mental health problems that the Los Angeles Department of Children and Family Services found rendered the mother unfit to care for her child.

The Indian Child Welfare Act of 1978 entitles tribes to intervene at any point in state court dependency proceedings.

The Cherokee tribe was initially notified in February 2013. The tribe sought the dates of birth of two of the mother’s relatives, which it received.  But it was never provided any subsequent notices, according to the court’s August 11 ruling.

“The tribe’s right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending,” according to Justice Willhite.

Prior to filing the petition, the Los Angeles Department of Children and Family Services filed its 2013 petition, the mother had told the department social worker that neither she nor her child had Indian heritage.

Then during her detention hearing in 2013, the mother signed a Parental Notification of Indian Status form, stating that she may have Indian heritage with the “Blackfoot” tribe. Later she told social workers she had Blackfoot, Cherokee and other Indian heritage.

A month later, the Department notified all the relevant Indian tribes of the hearing to determine the mother’s parental rights.

The Cherokee Nation Indian Child Welfare had written the Department after receiving notice, stating that its notice was not complete. The Cherokee Nation agency asked for the dates of birth of two of the mother’s relatives. The Department wrote back to the agency with the information requested, but did not send this updated information to the originally noticed tribes in later notices.

The Department argued that any error in the later notices was harmless, since the April 2013 notices were proper. The appellate court disagreed, reasoning that the tribes had a right to complete information, and that the Department had an affirmative and ongoing duty to provide it.

The appellate court reversed the juvenile court’s termination of the mother’s parental rights, sending the case back down to the lower court.

The trial court was instructed to provide the updated date of birth information to all the tribes who had received the original notice. If after this updated notice the juvenile court finds the child to be an Indian child, the juvenile court must hear the case again.  If the juvenile court determines the child is not Native American, the order terminating the mother’s rights will stand.

Justice Willhite was joined by Justices Norman Epstein and Nora Manella.

Case: Los Angeles County v. W.H., No. B259021.

 

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