Siskiyou Cnty. Health & Human Servs. Agency v. A.A. (In re K.L.)
Siskiyou Cnty. Health & Human Servs. Agency v. A.A. (In re K.L.)
Opinion of the Court
*334Appellant, the noncustodial biological father of the minor, appeals from the juvenile court's dispositional judgment, removing the minor from his mother and placing him with his presumed father, L.V. ( Welf. & Inst. Code, § 395 [unless otherwise set forth, statutory section references that follow are to the Welfare and Institutions Code].) The Karuk Indian Tribe has intervened on appeal. They contend the juvenile court failed to comply with the procedural requirements of the Indian Child Welfare Act of 1978 (hereafter ICWA) in entering its dispositional judgment. (
FACTS AND PROCEEDINGS
In August 2014, the Siskiyou County Health and Human Services Agency (hereafter Agency) filed a section 300 petition on behalf of the two-year-old minor and his older half sibling, after mother was arrested for child cruelty and possession of a controlled substance. The minors were temporarily detained together in a nonrelative foster home. L.V. is the father of the minor's half sibling. (The minor's half sibling is not a subject of this appeal.) The petition alleged that the minor's father's identity was unknown. Shortly after the minor was born, L.V. took the minor into his home where he lived for several months. Initially, L.V. believed he was quite probably the minor's father and treated him as such. When the minor was four months old, a DNA test, requested by mother, confirmed L.V. was not the minor's biological father. Nonetheless, L.V. continued to treat the minor as his own. The juvenile court found L.V. to be the minor's presumed father. The Agency *917thereafter placed the minor and his half sibling with L.V.
Shortly after these proceedings commenced, paternity test results revealed appellant, A.A., to be the minor's biological father. Appellant had never met the minor and had only recently learned of the minor's existence. Appellant is an enrolled member of the federally recognized Karuk *335Indian Tribe (hereafter the Tribe). (
The combined jurisdiction and dispositional hearing took place on December 8, 2014. The juvenile court acknowledged that the minor was an Indian child but, because the minor was being removed from one parent and placed with L.V., his presumed father, the juvenile court found the ICWA procedures, including expert testimony and placement preferences, were not triggered. The juvenile court sustained the allegations in the section 300 petition, declared the minor a dependent child of the court, placed the minor (along with his half sibling) with his presumed father, L.V., and ordered family maintenance services for L.V. Mother was also provided with reunification services. Because appellant was required to register as a sex offender, he was bypassed for reunification services pursuant to section 361.5, subdivision (b)(16). The case was then transferred to Humboldt County, where L.V. lives.
DISCUSSION
Appellant and the Tribe argue extensively that the ICWA required that the juvenile court's order removing the minor from his mother and placing him with his presumed father be supported by the testimony of an expert witness and otherwise comply with the ICWA placement preference requirements. Since we agree with the juvenile court that the minor was not placed in "foster care" and the proceeding was not a "child custody proceeding" within the meaning of the ICWA, we hold that compliance with ICWA provisions was not required at disposition.
Congress passed the ICWA "to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children 'in foster or adoptive homes which will reflect the unique values of Indian culture ....' " ( In re Levi U. (2000)
In furtherance of that policy, the ICWA provides for a heightened standard of proof prior to removal of a minor at disposition. Specifically, the ICWA provides that "[n]o foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." ( *336
Likewise, section 361, subdivision (c), provides that a dependent child may not be taken from a parent's custody unless the circumstances listed in paragraphs (1) to (5) are found to be true by clear and convincing evidence, and , in an Indian child custody proceeding , paragraph (6), which requires a finding that "continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child, and that finding is supported by testimony of a 'qualified expert witness' as described in Section 224.6." (§ 361, subd. (c)(6).) An " 'Indian child custody proceeding,' " in turn, is defined by section 224.1, subdivision (d), as "a 'child custody proceeding' within the meaning of Section 1903 of the Indian Child Welfare Act, including a proceeding for temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement." Thus, the plain language of section 361, subdivision (c)(6), establishes that the statute applies only in an "Indian child custody proceeding," the definition of which expressly includes various proceedings, but not a proceeding for placement with a parent. (§ 224.1, subd. (d);
We agree with respondent and the court in In re J.B., supra ,
*337We reject the Tribe's argument that there is a direct conflict between the definition of "parent" under the ICWA and state law that requires resolution. The ICWA defines "parent" as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established." (
*919(
Appellant argues that placing the minor with a nonbiological, nonadoptive presumed parent is akin to placing the minor with a guardian. We disagree. Unlike guardians (and foster parents), a presumed parent has legal status as a "parent" and enjoys the full panoply of rights attendant to parenthood, including custody of his or her child. ( In re Shereece B. (1991)
Appellant and the Tribe ask this court to expand the definition of foster care to include placement with a nonbiological presumed parent. They argue that the policy behind the ICWA supports such an expansion and that, *338because a nonbiological (and nonadoptive) parent is not a "parent" as defined by the ICWA, such an individual should be considered a guardian or foster parent. Indeed, appellant takes the position that placement with any non-Indian parent conflicts with ICWA's goals of promoting the stability and security of Indian tribes and families and therefore, implicates ICWA, despite the definitions of "foster care" and "Indian child custody proceeding" set forth in the statutes.
We need not determine whether an expansion of the ICWA procedures, as proposed by appellant and the Tribe, would promote the purpose of the ICWA. The plain meaning of the statutory language in both the ICWA and the California statutes precludes such an expansion. "Foster care" and "Indian child custody proceeding" are defined and do not, by their terms, include a proceeding wherein the Agency seeks, and the juvenile court orders, placement of the minor with a presumed parent. (See In re J.B., supra , 178 Cal.App.4th at pp. 755-759,
Our reasoning is consistent with In re J.B. , supra ,
Our reasoning is also consistent with In re M.R. , supra ,
*339The issue now squarely presented, we conclude that the ICWA requires more than just removal from a parent-it requires placement in one of the specified categories, none of which apply here. Nothing in the statutory language suggests that the ICWA applies when custody of an Indian child is transferred from one parent to another parent from whom no Indian ancestry flows. (Accord, In re J.B., supra , 178 Cal.App.4th at pp. 757-758,
Finally, appellant argues the juvenile court erred in bypassing him for reunification services. He bases his assignment of error, however, on the juvenile court's failure to make "active efforts to avoid the breakup of the Indian family" as required by ICWA. (See
DISPOSITION
The judgment is affirmed.
We concur:
MURRAY, J.
RENNER, J.
Indeed, if a nonbiological presumed parent is akin to any other status, it would be most akin to an adoptive parent.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.