California SCT Decides Case involving Interaction between ICWA ...

Here is the opinion:

In re W.B.

An excerpt:

Passed in 1978, the Indian Child Welfare Act (25 U.S.C. ? 1901 et seq.) (ICWA, or the Act) formalizes federal policy relating to the placement of Indian children outside the family home. State courts presiding over adoption, guardianship, and dependency matters have become familiar with the many requirements of this federal law. Historically, however, ICWA provisions have not been applied in the juvenile delinquency context because ICWA includes an express exemption for placements ?based upon an act which, if committed by an adult, would be deemed a crime.? (25 U.S.C. ? 1903(1).) The minor argues state legislation has expanded ICWA to delinquency proceedings under Welfare and Institutions Code section 602.1 The Courts of Appeal have considered the question with varying results. Here, we determine the federally required scope of ICWA in juvenile delinquency proceedings and whether our Legislature has expanded those requirements. Consistent with the federal statutes, we hold that California law requires the court to inquire about a child?s Indian status at the outset of all juvenile proceedings, but that ICWA?s additional procedures are not required in most delinquency cases. A delinquency court must ensure that notice is given and other ICWA procedures are complied with only when (1) exercising ?dual status? jurisdiction over an Indian child (see post, at pp. 9-11); (2) placing an Indian child outside the family home for committing a ?status offense? (?? 601-602; see post, at p. 5); or (3) placing an Indian child initially detained for ?criminal conduct? (? 602; see post, at pp. 5-6) outside the family home for reasons based entirely on harmful conditions in the home. In this narrow third category, ICWA notice is required when the? delinquency court sets a permanency planning hearing to terminate parental rights, or when the court contemplates ordering the ward placed in foster care and announces on the record that the placement is based entirely on abuse or neglect in the family home and not on the ward?s delinquent conduct. Without a clear announcement from the court to the contrary, it will be presumed that a placement of a section 602 ward is based on the ward?s delinquent conduct, rather than conditions in the home, and thus not subject to ICWA.

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Source: http://turtletalk.wordpress.com/2012/08/07/california-sct-decides-case-involving-interaction-between-icwa-and-juvenile-delinquency-context/

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