How Does Child Welfare Law Apply to Native American Children?

San Jose Native American Children Lawyer And Santa Clara Child Dependency Attorney

If Child Protective Services is threatening to take your children away through a California dependency proceeding, it is essential that you understand your legal rights. For example, if you or your child is descended from a recognized Indian or Alaskan native tribe, California officials must follow certain federal laws that may supersede state child welfare laws. Under the United States Constitution, Congress has the exclusive right to govern relations with Indian and indigenous peoples, and to that end there is a federal law—the Indian Child Welfare Act of 1978 (ICWA)—that strives to prevent state officials from breaking up Native American families.

Juvenile Courts Must Make “Continuous” Inquiries Regarding Child’s Indian Status

The California Supreme Court recently decided two cases involving the ICWA. In the first case, the Los Angeles County Department of Child and Family Services removed a newborn child from his parents and placed him in foster care. At a subsequent juvenile court hearing, the mother told the judge that “she may have American Indian ancestry.” Under the ICWA, state officials must notify a tribe of a dependency proceeding if there is reason to believe the child is eligible for membership. After investigating the mother’s claims in this case, however, the Department said there was only a “remote” possibility the child was eligible for membership in a recognized tribe and therefore no notice was necessary.

The juvenile court subsequently terminated the mother’s parental rights. On appeal, more than a year later, a California Court of Appeals panel declined to review the juvenile court’s findings regarding the ICWA, holding the mother failed to raise a timely challenge. But, because other appeals courts in the state interpreted the law differently on this issue, the Supreme Court agreed to review the mother’s case.

In a July 7 opinion, the Supreme Court held the mother’s failure to raise a timely appeal was irrelevant. The ICWA imposes “an affirmative and continuing duty in all dependency proceedings to inquire into a child’s Indian status.” The Supreme Court emphasized “that social services departments and juvenile courts should inquire about a child’s Indian status early in the proceedings and should provide notice at the soonest possible opportunity.”

Juvenile Courts Do Not Have to “Secure Tribal Membership” for Indian Children

In the second ICWA case, the Supreme Court invalidated a state court rule that previously directed juvenile court officials to not only notify an Indian tribe to ascertain a child’s status, but also “secure tribal membership for the child.” The case involved two children removed from their mother’s home by Sacramento officials. During the juvenile court’s dependency proceeding, the Cherokee Nation informed California officials that the children were “eligible for enrollment and affiliation” with the Tribe should their father became a member, which he planned to do. The court decided that under the circumstances—and applying the existing California court rule—it had to proceed as if the ICWA applied to the children.

The Supreme Court disagreed. In a July 14 decision, the Court said the court rule conflicted with state law, which adopts the ICWA’s more restrictive definition of “Indian children.” The children in this case are therefore subject to the regular state laws governing child dependency proceedings.

Get Help From a California Dependency Attorney

The threat of losing a child is every parent’s worst fear. That is why you must always take a child dependency case seriously. If you are facing such a threat and require immediate legal assistance from a qualified San Jose child protective services action attorney, contact Wesley Schroeder, Attorney at Law, today.

Sources:

https://scholar.google.com/scholar_case?case=1692934431301447833&hl=en&as_sdt=6,47

https://scholar.google.com/scholar_case?case=10859275380161799837