San Diego County Dep't of Social Servs. v. L.

51 Cal. Rptr 2d 16 (Ct. App. 1996); No. D024180 (Cal. Ct. App. Mar. 7, 1996) ; Clearinghouse Number: 51136

Description

Indian Children's Parent Not Domiciled on Reservation May Veto Transfer of Dependency Proceeding to Tribal Jurisdiction

Abstract

In this child dependency case, the California Court of Appeal has held that the trial court erred in suspending appellant mother's visitation and in transferring jurisdiction to the Navajo Nation over her objection. Appellant mother's twin daughters were removed from her custody and placed in foster care pursuant to allegations that mother had abused the twins' half-brother and that mother and father, a registered Navajo Indian, engaged in violent confrontations. At a six-month review, the juvenile court suspended mother's visitation; later it transferred jurisdiction to the Navajo Nation pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq. The appellate court found that mother was clearly severely troubled but that her deficiencies did not clearly affect visitation or adversely affect her children in connection with visitation. Mother had veto power over the transfer of jurisdiction to the Navajo Nation, and this veto power did not frustrate the policy of the ICWA. Section 1911(b) accommodates the interests of the tribe as to nonreservation children by affording it rights to notice and intervention as well as placement preference and by giving the parent ultimate say over jurisdiction but barring the parent from applying the ICWA in a state court proceeding. The statutory scheme protects the tribe's significant rights in the Indian child while honoring the child's fundamental rights. Section 1911(b) gives an Indian child's parent not residing on the reservation veto power over any decision to transfer to the tribe's jurisdiction a proceeding for foster care placement or termination of parental rights.

Additional Information

Attorney Information
Intervenor/Respondent represented by James Cohen, Nancy Rank, California Indian Legal Services, 120 W. Grand Ave. Suite 204, Escondido, CA 92025, (619) 746-8941.
Docket Date
1970-01-01 06:00:00+00:00