People v. Alejandro A.
In Re ALEJANDRO A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO A., Defendant and Appellant
- Area
- criminal
- Panel
- Patricia D. Benke (author)
Analysis
The juvenile court declared the appellant a ward of the court and committed him to the Breaking Cycles program without conducting an inquiry into his potential status as an Indian child under the Indian Child Welfare Act (ICWA). The Court of Appeal affirmed the judgment, holding that ICWA does not apply to delinquency proceedings unless the child is at risk of entering foster care, and that the record contained no evidence the appellant was an Indian child or that the program constituted foster care.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Failure to conduct ICWA inquiry regarding appellant's status as an Indian child prior to disposition“Most notably, there is simply no evidence appellant is an Indian child such that the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) applies to him.” | substantial evidence | error | agree with court The appellate court correctly applied the standard of review for sufficiency of evidence in the context of the ICWA inquiry requirement. It properly identified that the statutory duty to inquire is triggered only when there is reason to know the child is an Indian child, and that the record here (probation officer's report listing him as Mexican/Hispanic and his own statements) failed to meet that threshold. Furthermore, the court correctly applied the statutory limitation that ICWA applies to delinquency proceedings only if the child is at risk of entering foster care, a condition not met by the Breaking Cycles program as described in the record. |
Authorities
- relied: In re Enrique O. (2006) 137 Cal.App.4th 728 — ICWA generally does not apply to delinquency proceedings unless the child is at risk of entering foster care or is in foster care.
- relied: In re S.B. (2005) 130 Cal.App.4th 1148 — Foster care under ICWA involves a temporary restriction on parental rights based on abuse or neglect, which was not present in this case.
The appellate opinion: sound — The opinion is sound because it correctly interprets the statutory scope of ICWA in delinquency proceedings and applies the specific factual record to show that the threshold for an inquiry was not met. It effectively distinguishes the Breaking Cycles program from foster care by analyzing the statutory definition and the lack of parental rights restrictions in the record.
The juvenile court sustained two Welfare and Institutions Code section 602 petitions (rock-throwing assault and vandalism counts, then first degree burglary), revoked a deferred entry of judgment, declared Alejandro A. a ward, committed him to the Breaking Cycles program for up to 240 days, stayed the commitment pending review, and placed him with his mother, all without any inquiry into whether he was an Indian child under ICWA. The Court of Appeal affirmed, holding there was no evidence he was an Indian child, that ICWA does not generally apply to delinquency proceedings, that the Breaking Cycles commitment was not foster care, and that 25 U.S.C. § 1921 and Welfare and Institutions Code section 224.3 did not extend ICWA to this case.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Juvenile court's entry of a disposition order without conducting an ICWA inquiry into appellant's possible Indian child status“Most notably, there is simply no evidence appellant is an Indian child such that the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) applies to him.” | unclear | correct | agree with court The court did not articulate a standard but examined the record and found appellant told the probation officer he was not Native American, the social study listed him as Mexican/Hispanic, and he himself reported peers disliked him because he lived on a reservation but was not Indian. Living near reservations, volunteering there, using a reservation substance abuse program, and friendship with an Indian child do not suggest Indian ancestry. On this record no inquiry duty could have been triggered under any reading of ICWA or section 224.3, so the result follows. |
Whether ICWA applies to a section 602 delinquency disposition committing the minor to the Breaking Cycles program (i.e., whether the proceeding is a child custody proceeding or places the minor at risk of foster care)“The case before us is not a child custody proceeding nor is it one where appellant is at risk of entering foster care.” | de novo | correct | agree with court The court correctly read 25 U.S.C. § 1903(1), which excludes from 'child custody proceeding' placements based on acts that would be crimes if committed by an adult, consistent with In re Enrique O. It also correctly relied on the ICWA definition of foster care placement (removal where the parent cannot have the child returned on demand) and In re S.B.; here the commitment was stayed and appellant was placed in his mother's custody, so no restriction on parental rights appeared. The court also noted appellant made no record showing Breaking Cycles is a foster-care-type placement, which properly places the burden on the party asserting ICWA applicability. |
Rejection of appellant's argument that 25 U.S.C. § 1921 and Welfare and Institutions Code section 224.3, read together, required an ICWA inquiry in this wardship proceeding“While Welfare and Institutions Code section 224.3 expands its reach to proceedings brought pursuant to Welfare and Institutions Code section 602, it does so only where those proceedings relate to parents or Indian custodians. Appellant is neither a parent nor Indian custodian.” | de novo | correct (statutory interpretation) | unsure The result is defensible because section 224.3, subdivision (a) by its own terms imposes the inquiry duty in wardship proceedings only 'if the child is at risk of entering foster care or is in foster care,' and the court found no such risk. However, the court's stated rationale—that section 224.3 applies to section 602 proceedings 'only where those proceedings relate to parents or Indian custodians' and that appellant is 'neither a parent nor Indian custodian'—does not track the statutory text, which imposes a duty concerning the child and does not condition the inquiry on the identity of the appellant. The reasoning appears to import the parent-protective focus of 25 U.S.C. § 1921 into a state statute that has its own trigger. The outcome is correct on the foster care prong, but the statutory interpretation offered in this paragraph is imprecise. |
Authorities
- relied: In re Enrique O. (2006) 137 Cal.App.4th 728 — ICWA's definition of 'child custody proceeding' in 25 U.S.C. § 1903(1) excludes placements based on an act which, if committed by an adult, would be deemed a crime, so ICWA generally does not apply to delinquency proceedings.
- relied: In re S.B. (2005) 130 Cal.App.4th 1148 — ICWA's definition of foster care placement contemplates at least a temporary restriction on parental rights based on parental abuse or neglect while the parent participates in reunification.
The appellate opinion: sound with gaps — The court answered the sole contention with the correct federal definitions, the controlling Court of Appeal precedent on delinquency proceedings, and a sufficient review of the record showing no indication of Indian ancestry. Its final paragraph, however, construes Welfare and Institutions Code section 224.3 as limited to proceedings 'relating to parents or Indian custodians,' a gloss not found in the statute's text, when the simpler and textually grounded answer was the absence of any risk of foster care placement.
Opinion — Benke
Opinion
BENKE, Acting P. J.In this delinquency proceeding, appellant Alejandro A. alleges there was evidence he was an Indian child and inquiry should have been made as to his status before the disposition was entered. We reject the contention and affirm the judgment.
BACKGROUND
The November 15, 2005, Petition
On November 11, 2005, shortly before 10:30 p.m. appellant, who was 14 years old, and a 17-year-old companion threw rocks at vehicles that were being driven down Old Highway 80 in Boulevard. One of the rocks struck the driver’s side windshield of Brian Hicks, causing $450 in damage. The passenger in another car nearly struck by a rock tried to place appellant and his companion under citizen’s arrest. A passer-by gave that driver enough information that appellant was identified.
In a petition filed on November 15, 2005, pursuant to Welfare and Institutions Code section 602, the San Diego District Attorney charged *1346 appellant in count 1 with assault in violation of Penal Code section 245, subdivision (a)(1), in count 2 with willfully and maliciously throwing rocks or other items capable of doing serious bodily harm at a vehicle or its occupants in violation of Vehicle Code section 23110, subdivision (b), in count 3 with unlawfully and maliciously damaging and destroying real and personal property in violation of Penal Code section 594, subdivisions (a) and (b)(1), and in count 4 with throwing a substance at a vehicle or occupant thereof on a highway, a misdemeanor in violation of Vehicle Code section 23110, subdivision (a). He admitted the allegations at an adjudication hearing held on April 3, 2006. On April 24, 2006, pursuant to Welfare and Institutions Code section 790, the court deferred judgment and placed appellant on probation without an order of wardship.
The March 9, 2007, Petition
At approximately 7:00 p.m. on November 12, 2006, one of the owners of the Live Oaks Spring Resort in Boulevard saw appellant and another juvenile leave cabin No. 7 and walk downstairs. The owner asked what they were doing. When they jumped over a fence, the owner drove around trying to find them but was unsuccessful.
At approximately 9:00 p.m. on November 12, Angela Rodriguez, who rented cabin No. 7 with her husband, returned from dinner. When she went inside, she noticed that a duffle bag with their clothes, a basket with gifts from the cabin owners, her medication, and her cell phone were gone. She returned to the restaurant and notified the clerk. A San Diego sheriff’s deputy responding to the break-in at cabin No. 7 noticed the screen was cut and the window opened, allowing the suspects to reach in and open the door. When contacted by the deputy, appellant admitted he broke into cabin No. 7 and told the deputy where the stolen property was located.
A second petition pursuant to Welfare and Institutions Code section 602 was filed on March 9, 2007. In this petition, appellant was charged with first degree burglary in count 1 in violation of Penal Code sections 459 through 460. On June 6, 2007, following a contested jurisdictional hearing, the juvenile court found the allegations of the petition to be true.
On June 27, 2007, the juvenile court revoked the deferred entry of judgment on the November 15, 2005, petition, reinstated the charges and set a *1347 combined dispositional hearing on both petitions for July 20, 2007. On that date appellant was declared a ward of the court and committed to the Breaking Cycles program for a period not to exceed 240 days. The court stayed the commitment pending a review to be held October 26, 2007. Appellant was placed in his mother’s custody.
Appellant filed a timely notice of appeal.
DISCUSSION
Appellant’s sole contention is that there is substantial evidence to conclude he may be an Indian child and therefore an inquiry should have been made to determine if he actually was an Indian child before any disposition order was made.
We disagree.
There are several reasons we reject appellant’s contention. Most notably, there is simply no evidence appellant is an Indian child such that the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) applies to him. Appellant told the probation officer he is not Native American. The social study prepared by the probation officer lists appellant, without contradiction anywhere in the record, as “Mexican/Hispanic.” Indeed, in the probation officer’s social study it is reported that appellant stated he did not get along well with other students at school because they disliked the fact he lived on a reservation and was not Indian. The fact appellant may live near four reservations does not make him an Indian child. Nor does his volunteer work at a reservation, his use of a reservation’s substance abuse program, or his friendship with another Indian child create sufficient evidence to raise the possibility he may be an Indian child.
Even if appellant might establish he is an Indian child, there is no authority for the proposition that the provisions of the act generally apply to delinquency proceedings. By the terms of 25 United States Code section 1903(1), the act applies to child custody proceedings. This expressly excludes placement based on an act which, if committed by an adult, would be deemed a crime. {In re Enrique O. (2006) 137 Cal.App.4th 728, 735 [40 Cal.Rptr.3d 570].) However, where a petition is to be, or has been, filed pursuant to Welfare and Institutions Code section 602, ICWA will apply in any wardship *1348 proceedings if the child is at risk of entering foster care, or is then in foster care. (Welf. & Inst. Code, § 224.3, subd. (a).) The case before us is not a child custody proceeding nor is it one where appellant is at risk of entering foster care.
Appellant invites us to categorize the Breaking Cycles program as a form of “foster care.” The argument is without merit. ICWA clearly defines foster care as “any action removing an Indian child from its parent or Indian custodian ... or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.” (25 U.S.C. § 1903(l)(i).) The definition contemplates at a minimum a temporary restriction on parental rights based on parental abuse or neglect, while the parent or parents participate in reunification. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162-1164 [30 Cal.Rptr.3d 726].) No such restriction on parental rights appears in this record. Moreover, there was no attempt at the disposition hearing to demonstrate Breaking Cycles is a foster program, and there is nothing in the record before us indicating the Breaking Cycles program is in the nature of a foster home.
Appellant argues we should read 25 United States Code section 1921 and Welfare and Institutions Code section 224.3 together and conclude they reach this case. His argument is misplaced. Title 25 United States Code section 1921 expressly provides: “In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard.” Thus it provides states may pass more stringent laws affecting the rights of Indian children with respect to protecting the rights of a parent or Indian custodian.
Welfare and Institutions Code section 224.3, subdivision (a), provides: “The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.” While Welfare and Institutions Code section 224.3 expands its reach to proceedings brought pursuant to Welfare and Institutions Code section 602, it does so only where those proceedings relate to parents or Indian custodians. Appellant is neither a parent nor Indian custodian.
*1349 DISPOSITION
The judgment is affirmed.
O’Rourke, J., and Aaron, J., concurred.
Cites, in this corpus
- People v. Enrique O. F046608 · 2006-03-13
- In Re SB E036823 · 2005-07-28
Cited by
- In Re W.B. E047368 · 2010-01-25
- R.R. v. Superior Court C060573 · 2009-12-17