Persons Coming Under the Juvenile Court Law.Sacramento Cnty. Dep't of Health v. Joseph A. (In re Abbigail A.)

• Decision Date: 16 June 2014
• Docket Number: C074264.
• Parties: In re ABBIGAIL A. et al., Persons Coming Under the Juvenile Court Law.SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Appellant, v. JOSEPH A. et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

226 Cal.App.4th 1450

In re ABBIGAIL A. et al., Persons Coming Under the Juvenile Court Law.SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Appellant,

v.JOSEPH A. et al., Defendants and Respondents.

No. C074264.

Court of Appeals of California, Third District.

June 16, 2014.

John F. Whisenhunt , County Counsel, and Lilly C. Frawley , Deputy County Counsel, for Plaintiff and Appellant.

Konrad S. Lee , under appointment by the Court of Appeal, for Defendants and Respondents.

OPINION

BUTZ, J. —

After a combined hearing in May 2013 (Welf. & Inst. Code, §§ 355, 358),¹ the juvenile court found that minors Abbigail A. (born in 2008) and Justin A. (born in 2007) were subject to its jurisdiction (the bases for which are not pertinent to this appeal). It placed the minors in the custody of their maternal grandmother. At a prehearing status conference, it directed the Sacramento County Department of Health and Human Services (DHHS) to take active efforts to enroll the minors in the tribe of their paternal great-aunt and great-grandmother (the Cherokee Nation of Oklahoma, which had stated the minors were not members but were eligible for membership) even though the minors' biological and presumed father, Joseph A., was not yet enrolled as a tribe member.

The basis for this directive was the provision in both rule 5.482(c) and rule 5.484(c)(2) of the California Rules of Court² that includes this duty among the active efforts an agency must make on behalf of minors who are eligible for tribal membership but who are not "Indian children" as defined in the federal Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and state law.³ The definition of "Indian children" in the ICWA and state law requires that minors be either (a) members of a tribe themselves or (b) biological children of members of a tribe and eligible for tribal membership. (25 U.S.C. § 1903(4); Welf. & Inst. Code, § 224.1, subd. (a) [the ICWA definition of "Indian child" will apply under state law (hereafter § 224.1(a))].)

(1) DHHS appeals (§ 395),⁴ challenging the validity of the two rules on various grounds. It contends federal law preempts the extension of services in the two rules to minors who are not Indian children under the ICWA; the rules are inconsistent with the definition of Indian children entitled to ICWA protections under section 224.1(a); and the rules are also inconsistent with the active efforts required under section 361.7. It is sufficient for us to agree with DHHS on its second point: These two rules are inconsistent with the legislative definition of the class of protected Indian children, and therefore the Judicial Council lacked authority to expand the definition. Accordingly, we do not need to reach the other two claims of DHHS (or the associated arguments). We will reverse the judgment with directions to enter a new judgment that does not provide the minors with any of the protections for an Indian child under ICWA or state law, until such time that Joseph A. or the minors have in fact become enrolled members of the Cherokee Nation of Oklahoma.

FACTUAL AND PROCEDURAL BACKGROUND

In light of the issue on appeal, there is only a limited amount of background we need to add to the introduction. In March 2012, mother, Jamie S.,⁵ had agreed to informal supervision from DHHS. In August 2012, she signed authorization for her mother to be the voluntary caretaker of the minors. DHHS filed the instant petitions in December 2012.

At the initial hearing (§ 319), Jamie S. disclaimed any Indian heritage and stated her belief that Joseph A. did not have any Indian heritage either. However, the father appeared at a January 2013 status conference, where he informed the court that he believed he was the biological father of the minors and his maternal grandmother was an Indian; he provided the name and address of his maternal aunt, who was a registered member of the tribe and kept track of the family tree, as a person who was better informed on the issue. The juvenile court determined at this time that Joseph A. was the biological and presumed father of the minors.

The Cherokee Nation of Oklahoma sent a letter to DHHS in late January 2013 that confirmed the minors were descendants of tribal members (Joseph A.'s maternal grandmother; his mother, unlike his aunt, had never enrolled) and eligible for tribal membership, but neither the minors nor Joseph A. were enrolled members.⁶ The Cherokee Nation of Oklahoma declined to intervene in the proceedings unless Joseph A. or the minors completed the application forms that it had enclosed. The tribe also "recommended" the application of ICWA protections to the minors from the outset of the proceedings in order to avoid any delays if Joseph A. or the minors became enrolled members.

On the basis of this letter, DHHS argued at the February 2013 status conference that the juvenile court should not apply ICWA protections because the minors were not Indian children. Counsel for Joseph A. stated that he intended to apply for tribal membership. The juvenile court expressed its intent to treat the minors as if they were Indian children in order to prevent relitigation in the event they or their father were to become tribal members, inviting DHHS to file a "reconsideration" brief as to whether the juvenile court was precluded as a matter of law from proceeding in this manner. Shortly afterward, the Cherokee Nation of Oklahoma sent a followup letter noting that it had not received any completed application forms and enclosing new ones.

At the March 2013 status conference, the juvenile court directed counsel to make reasonable efforts to enroll Joseph A. and the minors in the tribe. DHHS noted that in an abundance of caution it was scheduling an Indian tribal expert for the combined hearing (jurisdiction/disposition) in the event it was necessary. The juvenile court then continued the proceedings.

At the April 2013 status conference, the juvenile court concluded it was required to treat the eligible minors as Indian children under rules 5.482(c) and 5.484(c)(2) and denied DHHS's motion for reconsideration. It therefore directed DHHS to take active efforts to enroll the minors, authorizing it to release their birth certificates to the tribe as part of the application process. Joseph A. noted that he had sent the necessary documents to the tribe for his own enrollment and was awaiting his enrollment number.

At the May 2013 combined hearing, Joseph A. noted at the outset that his tribal application was stalled because the tribe wanted a state-certified copy of his mother's birth certificate rather than the one he had submitted, and because an update to the tribe's registration system had prevented access for six weeks. The juvenile court then received testimony from an ICWA expert who noted the tribe would not act on the membership applications of the minors until Joseph A. was enrolled. (§ 224.6.) The court sustained the allegations of the petitions; it also made findings pursuant to the ICWA by clear and convincing evidence (incorporating the Indian expert's testimony) that continued parental custody of the minors would likely result in serious emotional or physical damage (§ 361, subd. (c)(6)), that reasonable efforts had been made to prevent the breakup of an Indian family (§§ 361, subd. (d), 361.7, subd. (a)), and that the placement of the minors met the preferences of ICWA (§ 361.31). The court set six- and 12-month review hearings (§ 366.21, subds. (e) & (f)) for November 2013 and February 2014.⁷

DISCUSSION

The interpretation of statutes and court rules is a question of law that we review de novo. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 81 ; California Court Reporters Assn. v. Judicial Council of California (1995) 39 Cal.App.4th 15, 22 (Court Reporters).)

(2) Under our state charter, the Judicial Council is authorized to adopt rules of court that are "not ... inconsistent with statute." (Cal. Const., art. VI, § 6, subd. (d).) A rule of court inconsistent with legislative intent is invalid even absent an express legislative prohibition on the promulgation of a rule on the subject, and a rule can also be inconsistent even though it can operate harmoniously with a statute. (Court Reporters, supra, 39 Cal.App.4th at pp. 23, 25-26 [rejecting Judicial Council's claims to the contrary]; id. at p. 22 [Judicial Council's rulemaking authority subordinate to Legislature]; accord, In re Robin M. (1978) 21 Cal.3d 337, 346 [146 Cal.Rptr. 352, 579 P.2d 1]; cf. Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011 [32 Cal.Rptr.3d 89, 116 P.3d 550] [courts not bound by Judicial Council's interpretation of statute].)

In 2006, the Legislature incorporated the provisions of the ICWA into California law. (Stats. 2006, ch. 838, §1, p. 6536 [summarizing changes].)

This was intended to facilitate increased compliance. (In re W.B. (2012) 55 Cal.4th 30, 52 [144 Cal.Rptr.3d 843, 281 P.3d 906] (W.B.).) As part of this process, it added section 224.1. Section 224.1(a) provides, "As used in this division [(§ 200 et seq.)], unless the [statutory] context requires otherwise, the term[] ... `Indian child' ... shall be defined as provided in [title 25 United States Code] Section 1903 of the [ICWA]." We thus first turn to the federal definition of the term.

(3) ICWA is very specific in limiting the definition of Indian child to children who are tribal members or are children of tribal members (25 U.S.C. § 1903(4)), and this was not an inadvertent definitional choice. "The legislative history of the ICWA shows that Congress considered, but ultimately rejected, an expansive definition of `Indian child' .... [A]n earlier draft of the ICWA did not define `Indian child,' but rather defined `Indian' as `any person who is a member of or who is eligible for membership in a federally recognized Indian tribe.' [Citation.] ... But the final draft of the statute limited membership [to] those...