Depublication of In re R.H. by the California Supreme Court

On January 31, 2018, the Second District Court of Appeal issued a ruling which could have had a detrimental state-wide impact on the likelihood of Indian children involved in dependency cases being placed into Indian homes. (In re R.H. (2018) 2018 WL 636192.) CILS, in partnership with the California Tribal Families Coalition, recently succeeded in petitioning the California Supreme Court for depublication of the case, so that it cannot be used as precedent in future cases.

If an Indian child is removed from parental custody by a county social services agency, the federal Indian Child Welfare Act, accompanying federal regulations, and California law all require that the county make a “diligent search” for another home which meets the ICWA’s placement preferences. For adoptive placements, if an extended family member is not available, other members of the child’s tribe and other Indian homes are preferred. Such homes provide the child with the best opportunity for a connection to his or her tribal community and a strong cultural identity.

The Second District’s decision could have been interpreted to absolve a county from searching for an Indian home if the child’s tribe said that it would search within the tribe. CILS and CTFC contended that, in addition to conflicting with existing law, such a position would be harmful to Indian children whom the ICWA was designed to protect, in that it would almost certainly result in fewer Indian homes outside of a child’s tribe being identified in the future.

“We’re grateful the California Supreme Court saw fit to grant our request, and we thank the Round Valley Indian Tribes for submitting their own letter in support,” said Jedd Parr, Directing Attorney in CILS’s Sacramento office, who co-authored the request. “It’s already difficult in some counties to be confident that a serious attempt at finding an Indian home has been made. Often the child’s tribe does much of the leg work on their own. Allowing R.H. to stand as precedent could have shifted that burden further.”

“The ICWA’s policy of placing Indian children in Indian homes whenever possible is clear,” said Delia Sharpe, Executive Director of CTFC and the request’s other co-author. “The law says the child’s best interests are protected by doing so, and the child’s best interests are what courts and counties are supposed to be looking out for in these cases. The fact that a child’s tribe searches for a placement within the tribe does not remove a county’s own duty to try to meet that objective.”