Monday, August 18, 2014
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C.A. Orders Court to Reconsider Indian Child Placement
By a MetNews Staff Writer
The Court of Appeal for this district Friday overturned an order placing a child of Native American heritage with extended family members in another state, rather than with the non-Indian foster parents.
Los Angeles Superior Court Judge Amy Pellman applied the wrong legal standard in determining that the foster parents failed to establish an exception to the Indian Child Welfare Act’s preference that Indian children be placed with Indian families, Justice Sandy Kriegler wrote for the Court of Appeal.
Because the ruling was made a year ago, Kriegler said, the case should be sent back to juvenile court so that the judge can apply the correct standard, while considering any factual considerations that may have changed in the intervening period.
Evidence showed that the child, identified as Alexandria P., was removed from parental custody at the age of 17 months. Her father has an extensive criminal record, her mother a significant substance abuse problem, and the two have lost custody of at least seven other children between them.
Choctaw Tribe
The father is an enrolled member of the Choctaw Tribe of Oklahoma, making Alexandria an Indian child within the meaning of ICWA. The tribe consented to her placement with non-Indian foster parents in order to facilitate reunification with the father.
Her current foster parents are Rusty and Summer P., the third foster family she has had. She was placed with them 2.5 years ago at the age of two, and they are legally classified as her de facto parents.
Reunification failed, and the father, the tribe, and the Department of Children and Family Services all joined in recommending that the child be placed with her father’s relatives in Utah. The foster parents objected, citing an ICWA clause that holds the preference for placement with an Indian family may be overcome by a showing of good cause.
Minor’s counsel opposed placing the child with the foster parents. Pellman ordered the child placed with the Utah relatives, saying the foster parents failed to prove by clear and convincing evidence that it was a certainty the child would suffer emotional harm by the transfer.
The foster parents appealed, arguing that ICWA is unconstitutional, that the placement preferences do not apply because the tribe agreed to the child being placed in foster care with a non-Indian family, that the correct standard for the good-cause determination is preponderance of the evidence, and that the judge gave inadequate consideration to the strength of their bond with Alexandria and the risk to her from the severance of that bond.
One Good Argument
The Court of Appeal rejected all but the last contention.
The foster parents, Kriegler explained, lack standing to challenge the constitutionality of the placement-preference scheme because they do not have a constitutionally protected relationship with the child. The claims that the placement preferences can be ignored once the tribe consents to temporary placement with a non-Indian family, and that good cause for an exception can be proven by mere preponderance of the evidence, he said, are contrary to case law.
But their argument as to what constitutes good cause, he said, was well-taken.
“Although we are unaware of any published California case holding that a court must consider a child’s best interests when determining good cause, such an approach is consistent with the law in many other states and with California’s emphasis on best interests in dependency proceedings,” the jurist wrote, citing ICWA cases in other states in which courts held that the best interests of a child required a good-cause exception to the placement preferences.
The case is In re Alexandria P., B252999.
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