Case Highlight: Right to Information, California Court of Appeals

For this reported, NON-inquiry or notice case from California, I want to focus on the legal issue of tribal access to documents.

ICWA states that each "party" in a "foster care placement" or "termination of parental rights proceeding" "shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such an action may be based." 25 U.S.C. 1912.

So first, we have to have a party, which means for tribal interests, the tribe may have to intervene. That should be relatively easy, since tribes have a right of intervention in those two proceedings (foster care and TPR). However, in many states, tribes face hurdles with state agencies refusing to release information the agency deems confidential if other state law doesn't expressly allow the sharing of that information with the tribe. Or if the agency will not share it, the court will determine what the scope of the tribe's access should be, as the trial court did in this case.

There is no question the information in dependency proceedings are sensitive and confidential; however, ICWA makes pretty clear that information must be released to parties for examination. And ICWA makes crystal clear that a tribe has a right to be party in those two proceedings. And ICWA's language around documents is not limited by anything other than "any decision with respect to such an action," so a trial court saying, for example, that a document the court believes has nothing to do with active efforts (???) shouldn't be shared with the tribal party, *4, is probably incorrect (spoiler alert).

This decision, obviously, bases a lot of its reasoning on Cal-ICWA and California law. However, it also has a lot of useful reasoning for all tribes, and the section of Cal-ICWA it cites to uses the exact same language as ICWA.

The Tribe was an intervening party and a sovereign Native American government carrying out its social services responsibilities on behalf of the Tribe and its child members. In addition, the Tribe was presumptively authorized to view the evaluation under section 827 . . .

Rule 5.534(e) provides: “The tribe of an Indian child is entitled to intervene as a party at any stage of a dependency proceeding concerning the Indian child.” Rule 5.534 also authorizes a tribe of an Indian child to intervene in a juvenile dependency proceeding, and even if it does not, the court may permit an individual affiliated with the tribe to “[e]xamine all court documents relating to the dependency case.” (Rule 5.534(e)(2)(D).) In addition, the Tribe, which intervened in A.H.'s juvenile dependency case, is entitled to the psychological evaluation under section 224. Section 224, subdivision (f)(1) which states: “In any proceeding in which the federal Indian Child Welfare Act of 1978 applies, the Indian child's tribe shall have the right to examine all reports or other documents filed with the court, including, but not limited to, the reports or other documents upon which any decision to place the Indian child in the custody of someone other than a parent or Indian custodian, or terminate parental rights, will be based.”

That last bit sounds familiar . . . Now, California law absolutely shores up both ICWA and Cal-IWA with section 827 of their Welfare & Institutions Code, with a list that explicitly includes tribal representatives down in subsection (f). The court relies on that argument first, and that is always going to be the best practice for addressing these issues. But the appellate court here helpfully continues, pointing to Cal-ICWA and ICWA as well:

Viewing sections 224, 827, ICWA, and the juvenile dependency statutes as a whole, we conclude that, regardless of whether a tribe has intervened in a juvenile dependency case or a document intrinsic to a juvenile dependency proceeding has been filed with the court, the Legislature intended that an Indian child's tribe is entitled to receive copies of such “documents contained in and information related to the juvenile case file.” (§ 224, subd. (f)(2).) Therefore, the Tribe was entitled to view the Guardian's psychological evaluation, which contained significant information related to A.H.'s juvenile dependency proceeding. As reflected in DPSS's 12-month hearing report, DPSS relied on information in the psychological evaluation when considering whether A.H. could be safely returned to Guardian.

Federal law is consistent with state law authorizing release of the Guardian's psychological evaluation to the Tribe. Title 25 U.S.C. § 1912(c) of ICWA, provides that “[e]ach party to a foster care placement or termination of parental rights proceeding under State law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.”

For what it's worth, the Uniform State ICWA couches all of this in terms of discovery and the right to have access to such documents. For tribes in states where this is an on-going fight, state law is probably the best bet to address it.