A recently tragic case has been decided by California’s appellate court, involving the Indian Child Welfare Act (ICWA), two poor Native American children and their desperately indigent parents.  In its ruling, the appellate court justices affirmed a juvenile court ruling stating that the juvenile court did not err when it concluded that adequate ICWA notice had been given to applicable tribes, and that the ICWA did not apply, where tribes stated that filing additional notices would be futile and the two children could not be tribal members because their mother claimed Indian heritage through former freed slaves of the tribe.

The pertinent facts of the case In re D.N. (8/14/13) 2 Civ B245303, Div 4 (Epstein), are:  in June of 2010, the Los Angeles County Department of Children and Family Services (DCSF) filed dependency petitions that sought to have the two children (Child1 and Child2) of Mother and Father adjudged dependents of the juvenile court, based on Mother’s long history of substance abuse and Father’s failure to provide for his biological child, Child2.  Father was presumed to be the father of both Child1 and Child2.  Upon Mother claiming to have Choctaw Indian ancestry, the juvenile court ordered DCSF to send ICWA notices to appropriate Choctaw tribes as well as to the Bureau of Indian Affairs (BIA).

In July of 2010, DCFS sent notices to three (3) Choctaw tribes, the BIA, and the U.S. Department of the Interior, each of which listed Mother’s father and paternal grandmother as Choctaw.  Initially, Father had claimed Cherokee ancestry, but could provide no names of relatives who could provide any semblance of verifying information.

Although the juvenile court ordered DCFS to send notices to Cherokee tribes and the BIA.  DCFS reported that Father had failed to cooperate in that effort.  Father’s attorney stated on record in Father’s presence that “Dad says he’s got no ICWA.”  The juvenile court then made findings that ICWA did not apply to Father, that Father had rescinded his prior claim of Cherokee heritage, and the dependency petition should be sustained and amended.  The juvenile court placed the children with Father and transferred their case to another department.

In January of 2011, the DCFS filed a supplemental petition, alleging that Father was unable to provide for his two children.  The juvenile court ordered the children to be detained and placed them in foster care.  This juvenile court was unable to determine whether adequate ICWA notices had been given and ordered DCFS to file the responses it had received from the Cherokee and Choctaw tribes.  DCFS advised the juvenile court that ICWA had previously been found not to apply to Father and that three Choctaw tribes had found that neither child was eligible for tribe membership.  The juvenile court still ordered the case continued so that DCFS could send proper ICWA notices to the involved tribes.

In March of 2011, the DCFS sent new notices to the three Cherokee tribes, the Choctaw tribes, and the BIA.  One month later, the juvenile court sustained the supplemental petition, ordered both children removed from Father’s care, and ordered reunification services for Father and Mother.  But the juvenile court stayed those orders pending responses to ICWA notices.

In June 2011, DCFS re-sent the ICWA notices.  Between March 2011 and June 2011, DCFS received responses from all noticed tribes.  They all stated that the two children were not eligible for tribal membership.  The Cherokee Nation, along with its response, sent additional information from its files regarding Mother’s ancestors.  Nevertheless, the juvenile court found that the notices were incomplete because they did not include that information and ordered DCFS to send new notices using the parents’ birth certificates.

In September, the DCFS sent new ICWA notices that included the children’s, Mother’s, and Father’s birth certificates, along with additional information regarding Mother’s and Father’s ancestors.  In response, the Cherokee Nation requested additional information re father’s ancestry.  In the meantime, Father visited with the children only once, and had not contacted the DCFS in nearly a year.  DCFS then informed the Cherokee Nation that it could not provide any additional information.  Later, in response to all the September notices, all the tribes responded negatively regarding the children’s eligibility re tribal membership.

In January of 2012, Mother, at her hearing, submitted her aunt’s tribal enrollment number, which the DCFS later gave to the Choctaw Nation by letter and by phone.  The Choctaw Nation, in response, again stated that the children were not eligible for tribal membership.  They added:  “The Choctaw Nation has exhausted all resources and we have determined ICWA will not and does not apply, the tribe feels that we have done a thorough job and sees no reason to continue any further inquiries.”  In a follow-up e mail, the Choctaw Nation emphasized that they will not spend any more time on this case as “it is futile.”  The Choctaw Nation closed by reminding the DCFS that “eligibility for membership is determined by the tribe” and its decision “is entitled to deference and full faith and credit.”

The following month, the juvenile court in Los Angeles found that proper ICWA notices had been sent to the Cherokee tribes.  However, after Mother had submitted information to the effect that her ancestors were listed on the Choctaw Nation Freedman Role, the juvenile court considered sending a further notice to the Choctaw Nation.  Upon the DCFS reminding the juvenile court of the Choctaw Nation’s latest responses, the juvenile court found that adequate notice had been given and that the ICWA did not apply in this case.

Mother continued her efforts to get the children enrolled in the Choctaw tribes, but the juvenile court declined to give her any more time to do it.  The juvenile court then terminated Mother’s and Father’s parental rights and set adoption as the permanent plan for the children.  Both Father and Mother appealed, but California’s Second Appellate District affirmed.

In its holding the panel found that:

  1. That DCFS did attach adequate documentation of Mother’s ancestry to notices sent to the Choctaw tribes;
  1. Mother’s ancestors’ listing on tribal freedom rolls does not help Mother’s pursuit of tribal membership for her children because those rolls list former slaves of the Choctaw tribes who were freed after the Civil War but did not have blood ties to the tribe; and
  1. the Choctaw Nation made it clear that only those with blood ties to the tribe may be eligible for tribal membership.

And two more children were removed from their parents, and devoured up by the system.

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