IN RE ABBIGAIL A.

Respondent, J. A., Petition for Review

Cal.July 28, 2014

§$ 220187 CALIFORNIA SUPREME COURT COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT In re A.A., et al., ) SUPREME COURT A person coming under the Juvenile Law ) NO. SACRAMENTO COUNTY DEPARTMENT) OF HEALTH AND HUMAN SERVICES ) COURT OF APPEAL Plaintiff and Respondent, ) NO. C074264 V. ) J.A., et al., ) SACRAMENTO COUNTY Defendant and Appellant. ) JUVENILE COURT ) NO. JD232871-2 APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SACRAMENTO HONORABLEPAUL L. SEAVE, PRESIDING ~ PETITION OF RESPONDENT FATHER FOR REVIEW AFTER THE PUBLISHED DECISION OF THE COURT OF APPEAL, THIRD APPELLATE DISTRICT SUPREME COURT KONRADS. LEE, SBN 147130 FILED 23441 GOLDEN SPRINGS DRIVE DIAMOND BAR,CA 91765-2030 JUL 2 8 2014 909-333-6564 Frank A. McGuire Clerk COUNSEL FOR RESPONDENT,J. A’ Deputy BY APPOINTMENT OF THE COURT OF APPEAL UNDER THE CENTRAL CALIFORNIA APPELLATE PROGRAM’S INDEPENDENT CASE SYSTEM TABLE OF CONTENTS TABLE OF AUTHORITIES ........ 22.2 ccccceeeeeeeeeeeees ii PETITION FOR REVIEW .......ecceeeeeeeeeeeneeeeeeeees 1 ISSUES PRESENTED FOR REVIEW ...... 00000 eee eee eeeees 2 NECESSITY FOR REVIEW ...... cece eeeeceseeeeeennees 2 STATEMENT OF THE FACTS ....... 000 ccc cece eee eee ees 4 ARGUMENT........ccccceeeceeeeseveeteeeeeeeeeeennnes 5 CONCLUSION .......ccccceeeeeeeeeseeeeeeeeneeeeeeees 16 CERTIFICATE OF WORD COUNT.......00000 eevee eee ees 17 APPENDIX A: OPINION PROOF OF SERVICE TABLE OF AUTHORITIES CONSTITUTIONS California Constitution,article IV, § 6, subdivision (d) ....... 7,13 CASES Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 ...... 14 In re Abbigail A. (2014) 226 Cal.App.4th 1450 ............. 3, 7-8 In re Alonzo J. (2014) 58 Cal.4th 924 .. 0.0... eae 13 In re Brandon T. (2008) 164 Cal.App.4th 1400 ............... 12 In re Damian C. (2009) 178 Cal.App.4th 192 ............0... 4-5 In re Jack C. (2011) 192 Cal.App.4th 967 .............005. 2-3,8 In re Jeremiah G. (2009) 172 Cal.App.4th 1514 .............. 11 In re Junious M. (1983) 144 Cal.App.3d 786 ...........0.44. 12 In re Kahlen W. (1991) 233 Cal.App.3d 1414 .............4.. 11 Inre S.B. (2005) 130 Cal.App.4th 1148 ........ 0.0... eee ee 12 In re Santos Y, (2002) 92 Cal.App.4th 1274 ............ 00.00. 15 Inre W.B. (2012) 55 Cal.4th 30 0.0...eeeeee 6 Mississippi Band ofChoctaw Indians v. Holyfield (1989) 490 U.S. 30 2...cceee 5,10 il STATUTES 25 U.S.C. § 1901 0.eceet eee ete naes 11 25 U.S.C. § 1921 2... e eens 6, 11, 13 Welfare and Institutions Code section 224, subdivision (a)(1) ...........22 20 eee 2,4, 6 section 244, subdivision (C) .. 0... . eee eee eee eee 14 section 244, subdivision (d) ......... 0. eee eee ee eee eee 6 section 244.3, subdivision (C) ....... 0. cee eee ee eee eee 6 section 300.2 2... cece cece ee ee eee ete n ees 16 section 361.7, subdivision (a) ..... 2... cee eee eee 17 section 362, subdivision (€) ........ 0. ec eee ee 17, 20 section 16500 2... . ccc eee eee teens 16 section 16501, subdivision (a) .......... 0. ce eee eee ee 17 CALIFORNIA RULES OF COURT Rule 28(b)(1) . 6.eeeeee tenes 1 Rule 5.482(c) .... ccceeepassim Rule 5.484(c)(2) oo. ceeepassim OTHER AUTHORITY 44 Fed.Reg.67584, A(1), (Nov. 26, 1979) 2.0... cece eee eee 12 http://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf ..... 3 ill CALIFORNIA SUPREME COURT COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT In re A.A.,et al., A person coming under the Juvenile Law SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMANSERVICES Plaintiff and Respondent, V. J. A., et al., Defendant and Appellant. l e SUPREME COURT NO. COURT OF APPEAL NO. C074264 SACRAMENTO COUNTY JUVENILE COURT NO. JD232871-2 PETITION FOR REVIEW TO THE HONORABLECHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Joseph Angelica, respondent andpetitioner, hereby petitions this Honorable Court for review of the Published Opinion ofthe Court of Appeal of the State of California, Third Appellate District, issued on June 16, 2014. A copy of the Court of Appeal opinion (hereafter “Opinion”)is attached as Appendix A. Review is sought pursuant to California Rules of Court, rule 28(b)(1), to settle an important question of law and provide uniformity of decision. ISSUE PRESENTED FOR REVIEW Are California Rules of Court, rule 5.482(c) and rule 5.484(c)(2) consistent with Welfare and Institutions Code’ section 224, subdivision (a)(1), when they require a juvenile court to treat as if he were an Indian under the ICWA,a child whohas been found by a tribe to be eligible for tribal membership, but whohasnot yet obtained formal enrollment? NECESSITY FOR REVIEW There is a split of authority between two published opinions on the validity of California Rules of Court, rule 5.482(c) and 5.484(c)(2) which require a juvenile court to treat as if he were an Indian underthe federal ICWA,a child whois eligible for tribal enrollment, but not yet enrolled. The Court of Appeal, Fourth Appellate District, Division One, in In re Jack C. (2011) 192 Cal.App.4th 967 (Jack C.), holds that ' All statutory references are to this Code, unless indicated otherwise. 2 California Rule of Court, rule 5.482(c) and rule 5.484(c)(2) are in complete harmony with goal andintent of the Legislature because they promote the promptresolution of cases involving Indian children under the ICWA.(/d. at pp. 977-979.) In the presenting case, the Court of Appeal, Third Appellate District, in In re Abbigail A. (2014) 226 Cal.App.4th 1450 (Abbigail A.), reaches the exact opposite conclusion andfinds rule 5.482(c) and rule 5.484(c)(2) inconsistent with state law and, therefore, invalid. The court in Abbigail A. expressly rejects the reasoning and holding ofIn re Jack C. (Typed Opinionat pp. 12-13.) Because ofthere is a split of authority, trial courts areleft without direction on how to act in determining a child’s federal ICWAIndian status in cases where a child is eligible fortribal enrollment, but not yet enrolled. The issue is one of broad importance to California as thisstate, as of 2010, had a Native American population of over 700,000 persons.(http://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf (last visited July 23, 2014.) Moreover, issues involving California’s application of the ICWAin the juvenile courts of this state are of high importance to the Legislature as evidencedbyits incorporation of the federal IWCA into California statutory law in 2007. (§ 224 et seq.; In re Damian C. (2009) 178 Cal.App.4th 192, 197.) Finally, it is important for this court to resolve any disputes amongthestate’s intermediate appellate courts regarding the correct interpretation of a federal statute: the ICWA. STATEMENTOF FACTS Petitioner adopts the Factual and Procedural Background as presented by the Court of Appeal, Third Appellate Districtin its Opinion. (Typed Opinion at pp. 4-6.) ARGUMENT I TWO PUBLISHED CASES REACH OPPOSITE CONCLUSIONS ON THE INTERPRETATION OF CALIFORNIA RULES OF COURT GOVERNING THE APPLICATION OF THE FEDERAL INDIAN CHILD WELFARE ACT AND REVIEW IS NECESSARY TO RESOLVE THAT CONFLICT. Introduction to California’s Indian Child Law Requiring That Juvenile Courts Treat Children Eligible for Enrollment in a Tribe as if They Were Indians Underthe ICWA. The United States Congress enacted the ICWAto respond to a crisis in which large numbersof Indian children were being removed from their families for placement in non-Indian homes. (Mississippi Band ofChoctaw Indians v. Holyfield (1989) 490 U.S.30, 32.) To fully effectuate ICWA in state Indian child custody proceedings, and overcome the continuing problem ofstate courts and county agencies ignoring or mishandling ICWAcases,the California Legislature enacted a comprehensive reorganization of statutes related to the application of ICWA,effective January 1, 2007. (§ 224 et seq.; In re Damian C. (2009) 178 Cal.App.4th 192, 197.) This Court recognized that the revisions were intended to facilitate increased compliance. (Jn re W.B. (2012) 55 Cal.4th 30.) Aspart of that reorganization, section 224 was enacted. That section provides, in relevantpart, “the State of California has an interest in protecting Indian children who are membersof,or eligible for membershipin, an Indiantribe.” (§ 224, subd. (a)(1),italics added.) It further states in subdivision (a)(2) that “It is the interest of an Indian child that the child’s membership ... and connection to the tribal community be encouraged andprotected.” Section, 224, subdivision (d), under permission ofthe federal statute, was designed to provide a higherlevel of protection to the rights of the Indian child than the federal law. (25 U.S.C. § 1921; § 224, subd. (d) [the higher standard of protection also applies to the rights of the child].) Finally, subdivision (c) of section 224.3, reaffirmed the long- standing federal rule that formal enrollment in a tribeis not dispositive of membership ina tribe. To accomplish the purposes of California’s version of the ICWAthe Judicial Council formulated California Rule of Court, rules 5.482(c) and 5.484(c) to give direction to courts considering whether children qualified as Indians under the ICWA.(§ 265; Cal. Const., art. VI, § 6, subd. (d).) Rule 5.482(c) states, “If after notice has been provided as required by federal and state law a tribe respondsindicating that the child is eligible for membership if certain steps are followed, the court must proceed as ifthe child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.” (Italics added.) Rule 5.484(c) states, “In addition to any other required findings to place an Indian child with someoneother than a parent or Indian custodian, or to terminate parental rights, the court mustfind that active efforts have been made... to provide remedial services... to prevent the breakup of the Indian family and must find that these efforts were unsuccessful.” Rule5.484(c)(2) includes in “active efforts” includes “pursuit of any steps necessary to secure tribal membershipfor a child ifthe child is eligiblefor membership ina given tribe....” (Italics added.) In the presenting case ofAbbigail A., the Third District expressly rejected rule 5.482(c) and 5.484(c)(2) as valid rules. Specifically, the Third District Court concluded “rules 5.482(c) and 5.484(c)(2) are inconsistent with state law and consequently could not authorize the application of the ICWA”where children have only been foundeligible for tribal membership, but are not yet members of a tribe. (Typed Opinionat p. 13.) In reaching this conclusion, the court in Abbigail A. expressly contradicts the earlier holding ofJack C. The Third District stated “As our approachto the validity of the two rules understate law is at odds with In re Jack C., we do notfind it persuasive.” (Typed Opinionat p. 13.) The court in Jack C. held that rule 5.482(c), which required the courts to treat a child whois eligible for Indian tribe membership, but not yet enrolled, as ifhe or she were an Indian, was consistent with the intent of the California Legislature as it “promote[d] the timely resolution of dependency matters by avoiding protracted litigation concerning the applicability of ICWA. (Jack C., supra, 192 Cal.App.4th at p. 977.) B. The Court of Appeal, Third Appellate District, in Abbigail A. Erred When It Found Thatthe California Rules of Court, rule 5.482(c) and 5.484(c)(2) are Inconsistent With California Law. The juvenile trial court in this case, based on statements in a January 2013, letter from the Cherokee Nation of Oklahoma, determined that the children were eligible for membershipinthetribe. (CT 333; RT 51-52, 125.) Operating under authority ofrule 5.482(c), thejuvenile court treated the children as if they were Indian Children and ordered the Sacramento County Department of Health and Human Services (Department) to provide tribal enrollment services andassist the minorsin enrolling in the Cherokee Nation tribe. (CT 449; RT 46-51, 54-55.) The Department objected to the orders and appealed them. (CT 480-481; RT 46-51.) On review, the Third District found that any rule allowing for a child who is merely eligible for tribal enrollment to be treated as an Indian in a dependencycase violated state law as an unlawful expansion of ICWA’s definitions. (Type Opinion at pp. 12-14.) The Third Appellate District is mistaken. First, the rule 5.482(c) is designed to effectuate the purposes of section 224, which allows for protections of Indian children and those children whoare eligible for Indian status. The rule does not expand the definition of Indian child, but mirrors the California statute and requiresthat if a child is eligible for membershipin tribe, a county agency and a juvenile court must proceed,as if, the child is an Indian until that question is resolved. Further, there is nothing in the ICWA which prohibits California from treating an eligible child, who has not yet perfected tribal membership,as a potential Indian child in such circumstances. Second, even if rule 5.482(c) expandedthe federal definition of an Indian Child, such expansion does no violence to ICWA orthe preemption doctrine. This is because the rule 5.482(c) and section 224, subdivision (d) are in complete harmony with the goals and purpose of ICWA. Indeed, ICWA wasintended to promote the stability and security of Indian tribes and families by ensuring the placement of Indian children in foster or adoptive homesreflecting the values of Indian culture. (25 U.S.C. § 1902; Mississippi Band ofChoctaw 10 Indians v. Holyfield (1989) 490 U.S. 30, 37, 109 S.Ct. 1597, 104 L.Ed.2d 29 [ICWAwasdesigned “to protect the rights of the Indian child as an Indian andthe rights of the Indian community andtribe in retaining its children in its society.”]; In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Additionally, the ICWAsets only minimum standards for achieving its goals and contemplates, in express language, that some states could invoke higher standards to effectuate its purposes.” The ICWAreads,in part, at 25 U.S.C. § 1921: “In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard ofprotection to the rights of the parent or Indian custodian of an Indian child than the rights provided underthistitle, the State or Federal court shall apply the ? The express purpose of ICWAisto do the following: 1) protect Indian children; preserve and strengthen Indian families; 2) ensure permanency for Indian children; 3) protect the continuing existence of Indian cultures; and 4) ensure that tribes can exercise their sovereign authority over child custody proceedings. (25 U.S.C. § 1901 et seq.) It is through relationship with family, elders, tribal community, and culture that the Indian child's sense of permanenceandidentity is protected (25 U.S.C. § 1901 et seq.). 11 State or Federal standard.” (emphasis added.) Also, ICWA,federal guidelines implementing ICWA,and any state statutes, regulations or rules promulgated to implement ICWA shall be liberally construed to effectuate its purpose and preferences. (Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584, A(1), (Nov. 26, 1979).)° Additionally, under California’s scheme, section 224, subdivision (d), in an obvious recognition by the Legislature of the latitude Congress intended to give states in the interpretation and enforcement of the ICWA,provides, in language which mirrors ICWA,that: “In any case in which this codeor other applicable state or federal law provides a higher standard of protection to the rights of the parent or Indian custodian or an Indian child, or the Indian child’s tribe, than the rights provided under the Indian Child Welfare Act, the court shall apply the higher standard.” > The Guidelinesare not intended to have bindinglegislative effect on state courts. (Guidelines, supra, § B.1; Jn re S.B. (2005) 130 Cal.App.4th 1148, 1157.) However, construction of a statute by the executive department charged with its administration is entitled to great weight. (In re BrandonT. (2008) 164 Cal.App.4th 1400, 1412; In re Junious M. (1983) 144 Cal.App.3d 786, 792, fn. 7.) 12 Accordingly, the rule 5.482(c) requiring a juvenile court to treat a child who has been found bya tribe to be eligible for enrollment as an Indian child until membership in a tribe can be perfected, is not an unlawful expansion of ICWA’sdefinition of an Indian child. Additionally, under the California Constitution, the Judicial Council may not adoptrules that are “inconsistent with statute.” (Cal. Const., art. VI, § 6, subd. (d).) Indeed, section 265 provides: “The Judicial Council shall establish rules governing practice and procedure in the juvenile court not inconsistent with law.” This Honorable Court has recently held that a “rule is inconsistent with a statute [only] if it conflicts with either the statute's express language or its underlying legislative intent [Citations].” (In re Alonzo J. (2014) 58 Cal.4th 924, 936.) In a better reasoned case, the court in In re Jack C. explained that these rules were not in conflict with statute. The court in Jack C., stated: “ICWAexpressly permits state or federal law to provide a higher standard of protection to the rights of the Indian child and his or her parent or Indian guardian than the protection of rights provided 13 under ICWA.(25 U.S.C. § 1921.) Thus ICWA does not preempt such higher state standards. (n re S.B., supra, 130 Cal.App.4th at p. 1158.) Rather, rule 5.482(c) promotes the timely resolution of dependency matters by avoiding protracted litigation concerning the applicability of ICWA.”(lbid.) In Jack C. the children were foundby thetribe to be Indian children “who would be enrolled in the Band” upon completion of the enrollment procedures. (Jack C., supra, 192 Cal.App.4th at p. 980.) Likewise, in the instant case, the Cherokee Nation confirmed that the children case were eligible for enrollment and would be declared membersofthe tribe upon enrollment. (CT 333.) Indeed, the January 29, 2013, letter from the tribe states “the abovelisted child/children [are] eligible for enrollment andaffiliation with the Cherokee Nation by having direct lineage to an enrolled member” but that the tribe needed an official enro!lment before it could seek intervention. (CT 333.) Accordingly, there is no difference, whatsoever, in these two factual situations in Abbigail A. and Jack C. other than use of different words, which have substantially the same meaning. 14 Finally, the decision in the present case is fundamentally incorrect, becausetribal eligibility and membership are notclear cut notions, which can beso easily identified as the court Jn re Abbigail A. presumes. (§ 224, subd. (c).) It is a tribe, not a juvenile court, which is empowered, within the limits of the ICWA,to determine the tribal membership or enrollment status of an Indian child and that the trial court determines whether the ICWAapplies. (DwayneP.v. Superior Court (2002) 103 Cal.App.4th 247, 255; In re SantosY. (2002) 92 Cal.App.4th 1274, 1300.) In other words, membership mayexist absent of enrollment. Consequently, for manytribes eligibility is enrollment. The decision in Abbigail A. does not accountfor this principle. The holding ofJn re Jack C.is the better view. 15 CONCLUSION. Because California Rules of Court, rule 5.482(c) and rule 5.484(c)(2) are not inconsistent with section 224, subdivision (a)(1), whenthey require a juvenile court to treat as if he were an Indian under the ICWA,a child who has been found bya tribe to be eligible for tribal membership, but whohasnot yet obtained formal enrollment, this Honorable Court should grant this petition for review and overturn Abbigail A. Dated: 23 July 2014. Konrad S. Lee 16 CERTIFICATE OF NUMBER OF WORDS (California Rules of Court, rule 8.204(c)(1), 8.360(b), & 8.412(a).) I, Konrad S. Lee, counsel for appellant, verify pursuant to the California Rules of Court, that the word count for this documentis 3213 words, excluding the tables, this certificate, and any attachment permitted underrule 8.204(d). This document wasprepared in Wordperfect, and this is the word count generated by the program for this document. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: 23 July 2014. Respectfully submitted, /konrad S. Lee 17 APPENDIX A 18 Filed 6/16/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) In re ABBIGAILA.et al., Persons Coming C074264 Under the Juvenile Court Law. (Super. Ct. Nos. SACRAMENTO COUNTY DEPARTMENT JD232871 & JD232872) OF HEALTH AND HUMANSERVICES, Plaintiff and Appellant, Vv. JOSEPHA.et al., Defendants and Respondents. APPEAL from a judgmentof the Superior Court of Sacramento County, Paul L. Seave, Judge. Reversed with directions. John F. Whisenhunt, County Counsel, and Lilly C. Frawley, Deputy County Counsel, for Plaintiff and Appellant. Konrad S. Lee, under appointment by the Court ofAppeal, for Defendants and Respondents. After a combined hearing in May 2013 (Welf. & Inst. Code, §§ 355, 358),! the juvenile court found that minors Abbigail A. (born in 2008) and Justin A. (born in 2007) were subject to its jurisdiction (the bases for which are not pertinent to this appeal). It placed the minors in the custody of their maternal grandmother. At a prehearing status conference, it directed the Sacramento County Department of Health and Human Services (DHHS)to take activeefforts to enroll the minorsin the tribe oftheir paternal great-aunt and great-grandmother(the Cherokee Nation of Oklahoma, which hadstated the minors were not membersbut were eligible for membership) even though the minors’ biological and presumedfather Joseph A. was notyet enrolled as a tribe member. Thebasis for this directive was the provision in both rule 5.482(c) and rule 5.484(c)(2) of the California Rules of Court? that includes this duty amongthe active efforts an agency must make on behalf of minors whoare eligible for tribal membership but whoare not “Indian children” as defined in the federal Indian Child Welfare Act (ICWA)andstate law. The definition of “Indian children” in the ICWAandstate law 1 Undesignatedstatutory referencesare to the Welfare and Institutions Code. 2 Undesignatedrule references are to the California Rules of Court. 3 Rule 5.482(c) states, “If after notice has been provided as required by federal andstate law a tribe respondsindicatingthat the child is eligible for membership if certain steps are followed, the court must proceed asifthe child is an Indian child and direct the appropriate individual or agencyto provideactive efforts under rule 5.484(c) to secure tribal membership for the child.” Rule 5.484(c) states, “In addition to any other required findings to place an Indian child with someoneother than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made, in any proceedinglisted in rule 5.480, to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and mustfind that these efforts were unsuccessful. “(1) The court must consider whetheractive efforts were made in a manner consistent with the prevailing social and cultural conditions and way oflife of the Indian child’s tribe. requires that minorsbe either (a) membersofa tribe themselvesor(b) biological children of membersofa tribe andeligible for tribal membership. (25 U.S.C. § 1903(4); Welf. & Inst. Code, § 224.1, subd. (a) [the ICWA definition of “Indian child” will apply under state law (hereafter § 224.1(a))].) DHHSappeals (§ 395),4 challenging the validity of the two rules on various grounds. It contends federal law preempts the extension of services in the two rules to minors whoare not Indian children under the ICWA;therules are inconsistent with the definition of Indian children entitled to ICWA protections under section 224.1(a); and the rules are also inconsistent with the active efforts required under section 361.7. Itis sufficient for us to agree with DHHSonits second point: These two rules are inconsistent with the legislative definition of the class of protected Indianchildren,and therefore the Judicial Council lacked authority to expand the definition. Accordingly, we do not need to reach the other two claims of DHHS(orthe associated arguments). We will reverse the judgment with directions to enter a new judgmentthat does not provide the minors with any ofthe protections for an Indian child under ICWAorstate law,until such time that Joseph A.or the minors havein fact become enrolled membersofthe Cherokee Nation of Oklahoma. “(2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.” 4 Preparation of the record and briefing was completed in March 2014. FACTUAL AND PROCEDURAL BACKGROUND In light of the issue on appeal, there is only a limited amountofbackground we need to addto the introduction. In March 2012, mother Jamie S.5 had agreed to informal supervision from DHHS. In August 2012, she signed authorization for her motherto be the voluntary caretaker of the minors. DHHSfiled the instant petitions in December 2012. Attheinitial hearing (§ 319), Jamie S. disclaimed any Indian heritage andstated her belief that Joseph A. did not have any Indian heritage as well. However, the father appeared at a January 2013 status conference, where he informedthe court that he believed he was the biological father of the minors and his maternal grandmother was an Indian; he provided the name and address of his maternal aunt, who wasa registered memberofthetribe and kept track of the family tree, as a person who wasbetter informed on the issue. The juvenile court determined at this time that Joseph A. was the biological and presumedfather of the minors. The Cherokee Nation of Oklahomasent a letter to DHHSin late January 2013 that confirmed the minors were descendants oftribal members (Joseph A.’s maternal grandmother; his mother, unlike his aunt, had never enrolled) and eligible fortribal membership, but neither the minors nor Joseph A. were enrolled members.© The Cherokee Nation declinedto intervene in the proceedings unless Joseph A.or the minors completed the application forms that it had enclosed. Thetribe also “recommended”the 5 Appellate counsel for Jamie S. has notified us that she will not be filing a respondent’s brief on her client’s behalf (who was indifferent to the application of ICWAprotections in these proceedings). 6 The United Keetoowah Band of Cherokee Indians in Oklahomaand the Eastern Band of Cherokee Indians notified DHHSthat the minors were not descendants of any member of their tribes. application of ICWAprotections to the minors from the outset of the proceedings in order to avoid any delays if Joseph A. or the minors became enrolled members. Onthe basis ofthis letter, DHHS argued at the February 2013 status conference that the juvenile court should not apply ICWAprotections because the minors were not Indian children. Counselfor Joseph A.stated that he intended to applyfortribal membership. The juvenile court expressed its intent to treat the minorsas if they were Indian children in order to preventrelitigation in the event they or their father were to becometribal members,inviting DHHSto file a “reconsideration”brief as to whether the juvenile court was precluded as a matter of law from proceeding in this manner. Shortly afterward, the Cherokee Nation of Oklahomasenta followupletter noting that it had not received any completed application forms and enclosing new ones. At the March 2013 status conference, the juvenile court directed counsel to make reasonable efforts to enroll Joseph A. and the minorsin the tribe. DHHSnoted that in an abundanceof caution it was scheduling an Indiantribal expert for the combined hearing (jurisdiction/disposition) in the event it was necessary. The juvenile court then continued the proceedings. At the April 2013 status conference, the juvenile court concluded it was required to treat the eligible minors as Indian children underrules 5.482(c) and 5.484(c)(2) and denied DHHS’s motion for reconsideration. It therefore directed DHHStotake active efforts to enroll the minors, authorizing it to release their birth certificates to the tribe as part of the application process. Joseph A. notedthat he hadsentthe necessary documents to the tribe for his own enrollment and was awaiting his enrollment number. At the May 2013 combinedhearing, Joseph A. noted at the outset thathis tribal application was stalled because the tribe wanted a state-certified copy of his mother’s birth certificate rather than the one he had submitted, and because an updateto thetribe’s registration system had prevented access for six weeks. The juvenile court then received 5 testimony from an ICWAexpert whonotedthe tribe would not act on the membership applications of the minors until Joseph A. was enrolled. (§ 224.6.) The court sustained the allegations of the petitions; it also made findings pursuantto the ICWAbyclear and convincing evidence (incorporating the Indian expert’s testimony) that continued parental custody of the minors would likely result in serious emotional or physical damage (§ 361, subd.(c)(6)), that reasonable efforts had been madeto prevent the breakup of an Indian family (§ 361, subd. (d) & § 361.7, subd. (a)), and that the placement of the minors met the preferences of ICWA(§ 361.31). The court set six- and 12-month review hearings (§ 366.21, subds. (e) & (f)) for November 2013 and February 2014.7 DISCUSSION Theinterpretation of statutes and court rules is a question of law that we review de novo. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 81; California Court Reporters Assn. v. Judicial Council ofCalifornia (1995) 39 Cal.App.4th 15, 22 (Court Reporters).) Underourstate charter, the Judicial! Council is authorized to adopt rules of court that are “not .. . inconsistent with statute.” (Cal. Const., art VI, § 6, subd. (d).) A rule of court inconsistent with legislative intent is invalid even absent an expresslegislative prohibition on the promulgationofa rule on the subject, and a rule can also be inconsistent even though it can operate harmoniously with a statute. (Court Reporters, 7 The parties have not given us any indication that either of these hearings,if they took place as scheduled, have any bearing on this appeal. Nor, apparently, have Joseph A.or the minors given any notice that they have completed the tribal enrollment process. Even if the treatment of the minors as being subject to the ICWAis moot, however, we would nonetheless exercise our discretion to addressthe issue of the validity of the two rules becauseit is a matter of broad public importancelikely to recur in the future, yet evade reviewin light of the slow paceof appellate proceedings lagging behind the expedited pace of dependency proceedings. (Jn re Raymond G. (1991) 230 Cal.App.3d 964, 967; In re Jody R. (1990) 218 Cal.App.3d 1615, 1622.) supra, 39 Cal.App.4th at pp. 23, 25-26 [rejecting Judicial Council’s claimsto the contrary]; id. at p. 22 [Judicial Council’s rulemaking authority subordinate to Legislature]; accord, In re Robin M. (1978) 21 Cal.3d 337, 346; cf. Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011 [courts not bound by Judicial Council’s interpretation of statute].) In 2006, the Legislature incorporated the provisions of the ICWAinto California law. (Stats. 2006, ch. 838, §1, pp. 6535-6536 [summarizing changes].) This was intended to facilitate increased compliance. (Un re W.B. (2012) 55 Cal.4th 30, 52 (W.B.).) Aspart of this process, it added section 224.1. Section 224.1(a) provides, “As used in this division [(§ 200 et seq.)], unless the [statutory] context requires otherwise, the term[] ... ‘Indian child’ . . . shall be defined as providedin [title 25 United States Code] Section 1903 of the [ICWA].” Wethusfirst turn to the federal definition ofthe term. ICWAis veryspecific in limiting the definition of Indian child to children who are tribal membersor are children of tribal members (25 U.S.C. § 1903(4)), and this was not an inadvertent definitional choice. “The legislative history of the ICWA showsthat Congress considered, but ultimately rejected, an expansive definition of ‘Indian child’ .... [A]n earlier draft of the ICWAdid not define ‘Indian child,’ but rather defined ‘Indian’ as ‘any person who is a memberofor whois eligible for membership in a federally recognized Indian tribe.’ {Citation.] ... But the final draft of the statute limited membership [to] those children who were eligible for membership because they had a parent who is a member.” (Nielson v. Ketchum (10th Cir. 2011) 640 F.3d 1117, 1124 (Nielson) [tribe cannot broaden definition oftribal members in order to invoke ICWAprotections on behalf of children not otherwise within definition of Indian child]). This restricted definition of Indian child undoubtedly reflects the understanding of the United States Congress about the limits on its authority over Indian affairs, and the issues of equal protection that would be raised had it employed racial rather than political classifications. (See, e.g., Jn re Vincent M. (2007) 150 Cal.App.4th 1247, 1267 [choice of political rather than racial affiliation avoids issue of equal protection]; In re A.W. (Iowa 2007) 741 N.W.2d 793, 811-812 [noting boundary of congressional authority over Indian affairs extends only to tribal Indians and noting failed 1980’s amendments to ICWAto expanddefinition to include Indiansas a racial classification without reference to tribal membership had been decried asracist, before concludingstate’sracial definition of Indian child violated equal protection]; Jn re Adoption ofC.D. (N.D. 2008) 751 N.W.2d 236, 244 [ICWAdefinition reflects limitation on congressional authority to tribal Indians]; Jn re A.B. (N.D. 2003) 663 N.W.2d 625, 636 [no equalprotection violation under ICWAbecauseclassification political].) As a matter ofstatutory interpretation, we are directed to presumethat the Congress intended uniform national application of definitions in federal statutes in the absence of evidenceofintent to the contrary. (Mississippi Band ofChoctaw Indiansv. Holyfield (1989) 490 U.S. 30, 43 [104 L.Ed.2d 29, 43] (Holyfield) [traditional definition of “domicile” used in ICWAfor purposes of exclusivetribal jurisdiction over Indian children domiciled on reservation is not subject to more expansivestate definition].) That the Congress intended this limited definition to apply uniformly is not called into question by the declarationin title 25 United States Code section 1902 that ICWA establishes “minimum Federal standards.”8 This broad languagearises in the context of the two subjects of the determination of the removal and placementof Indian children, 8 In whole,the statute provides, “The Congress hereby declaresthat it is the policy of this Nation to protect the best interests of Indian children and to promotethestability and security of Indian tribes and families by the establishment ofminimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indiantribes in the operation of child and family service programs.” (25 U.S.C. § 1902.) and the provision of assistance to tribes with child andfamily service programs. Section 1902 does notpurport to describe the definition of “Indian child”itself as a class upon which states may expand. (State ex rel. State Office for Services to Children & Families vy. Klamath Tribe (2000) 170 Or. App. 106, 114 [11 P.3d 701, 705] [grammarofstatute not susceptible of interpretation that definition is a minimum standard].) By the same token, the ICWA authorization for a state to provide a higher standard of protection for the rights of parents or Indian custodiansof an Indian child in custody proceedings than are provided underthis subchapter (25 U.S.C. § 1921 [referencing 25 U.S.C. § 1911 et seq.]) does not have any bearing onthe definition of “Indian child,” a term which does not appearin the referenced subchapter. Furthermore, broad and vague statements of purpose cannot overcomethe plain language of expressstatutory provisions. “[N]olegislation pursues its purposesat all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essenceoflegislative choice—andit frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective mustbe the law. Where,as here, ‘the language of a provision ... is sufficiently clear in its context and not at odds with the legislative history,. . . “(there is no occasion] to examine the additional considerationsof ‘policy’ . . . that may 9909099 have influenced the lawmakersin their formulation ofthestatute. (Rodriguez v. United States (1987) 480 U.S. 522, 525-526 [94 L.Ed.2d 533, 538] (Rodriguez); accord, Foster v. Workers’ Comp. Appeals Bd. (2008) 161 Cal.App.4th 1505, 1510 (Foster) [remedial purpose of law cannotsupplantlegislative intent expressed in particular statute].) With all this in mind, we return to discerning legislative intent in the enactment of section 224.1(a). If we assume(as we must) legislative recognition of the presumptionin favor of uniform nationalapplication of federal law, of the evidence that the Congressin fact did not intend a broaderdefinition, and of the constitutional implications of giving a broader definition to the class of Indian children (which would allow tribal intervention in the lives of minors on racial rather than a political basis), it makes as “little sense” here asit did in W.B. to interpret the express incorporation of the ICWAdefinition as allowing for the application of ICWAprovisions to a broader class of children. (W.B., supra, 55 Cal.4th at pp. 50-55, 57 [invalidating rule of court applying ICWA procedures in delinquency proceedings involving criminal conduct because statute chose to employ ICWAdefinition, which excludes such proceedings from its reach].) It is true, as DHHS commendably admits, that the Legislative Counsel’s summary of the 2006 legislation describedit as an overhaul of“various provisionsofstate law to, amongother things, apply to certain children who do not come within the definition of an Indian child [under the ICWA]’(Legis. Counsel’s Dig., Sen. Bill No. 678, 6 Stats. 2006 (2005-2006 Reg.Sess.), Summary Dig., p. 465), and we generally presume the Legislature acted in accord with Legislative Counsel’s summary (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1170). However,this is an abbreviated summary of a 69-page bill amending the Family and Probate Codesin addition to the Welfare andInstitutions Code. Atbest, it is a vague reference that is not strong evidence oflegislative intent with respect to the intent behind section 224.1(a) in particular. Furthermore, as with the statementoflegislative findings and declarations set forth in section 224,? these broad pronouncements donot prevail over the intent to be 9 Section 224 provides,in relevantpart, “the State of California has an interest in protecting Indian children who are membersof,or are eligible for membership in, an Indian tribe” and encouraging placementsthat “assist the child in establishing ...a political .. . relationship with the . . . tribal community” (§ 224, subd. (a)(1),italics added); subdivision (a)(2) states, “It is in the interest of an Indian child that the child’s membership . . . and connectionto the tribal community be encouraged and protected” (italics added); and subdivision (d) contains a broad paraphrase of 25 United States Code section 1921, allowing application ofthe highest standardofprotection for rights of parentor of Indian custodian of Indian child under any law in anycase. 10 gleaned from the specific legislative act of incorporating the ICWAdefinition of “Indian child.” (Rodriguez, supra, 480 U.S.at pp. 525-526 [94 L.Ed.2d at p. 538]; Foster, supra, 161 Cal.App.4th at p. 1510; cf. W.B., supra, 55 Cal.4th at p. 56 [legislative history does not have any express indication of intent to expand definition of child custody proceeding].) Indeed, subdivision (c) of section 224, which declares that an Indian tribe’s determination of a child’s membership to be “a significant political affiliation with the tribe”(italics added) that requires application of the ICWA,is limited to children who are under 18 and who are membersorbiological children of members—i.e., the ICWA definition of Indian child. This qualification would not be present if these findings in fact represented any intent on the Legislature’s part to allow a broader definition of Indian child. Thereis a surprising dearth ofauthority on this issue, since (according to the DHHSbrief) the 2010 census data show that California has the largest Indian population in the United States. Neitherof the first two cases that the parties cite have any extended analysis. In re Jose C. (2007) 155 Cal.App.4th 844,849, antedating the 2008 promulgation of the tworules at issue, held only that ICWA procedures (other than notice) do not apply to minors whoareeligible for membership but are not children of a member, and that authority did not exist “for the proposition that a court mustenroll eligible minors in a tribe or . . . has the authority to do so.” In a long and complex case, In re C.B. (2010) 190 Cal.App.4th 102 held (amongother issues) that authority was lacking to delay a hearing on permanencyplanningin orderto allow eligible minors to become members of a tribe and qualify for the “Indian child” exception to termination of parentalrights (also concluding the parents had failed to produce sufficient evidence to qualify for the exception in any event). (/d. at pp. 132-133.) In response to a claim that the agency failed to make sufficient active efforts to enroll the minors (in accord with § 361.7’s 11 mandate to prevent the breakup ofan Indian family), the court musedthat rules 5.482(c) and 5.484(c)(2) might be inconsistent with statute because they extended the duty to take active efforts to something not included in the statute, and included minors who were not Indian children (C.B., supra, 190 Cal.App.4th at pp. 134-135 & fn. 11), but found “[iJn any event”that the agency had “made reasonable efforts to pursue ‘any steps necessary to secure tribal membership for a[n eligible] child....’” (/d. at p. 136.) Neither case thus provides muchin the way of guidance for our review ofthis issue. This leaves In re Jack C. (2011) 192 Cal.App.4th 967 (Jack C.), which involved a petition to transfer dependencyjurisdiction to a tribe pursuantto section 305.5, available only if there are Indian children domiciled on the tribe’s reservation (a provision giving effect to the ICWAstatute at issue in Holyfield). (Jack C., at p. 971.) The parents argued the juvenile court erred in denying the petition on the groundthat the minors were not Indian children within the meaningofthe ICWA,claiming rule 5.842(c) required the court to proceed “as if” the minors were Indian children. (Jack C., at p. 976.) The Court of Appeal acknowledged the children were not enrolled membersat the time of the proceedings but concluded the children “were Indian children within the meaning of the federal andstate definitions of ‘Indian child.’ ” (/d. at p. 977.) In reachingits conclusion, the court alluded to broad statements (§ 224, subd. (d); 25 U.S.C.§ 1921) that—as discussed above—donot have any bearing on the issue (Jack C., at pp. 977-979, 981); it noted that the Indian tribe had found the minorsto be Indian children despite the fact that neither they northeir parents were membersat that time (id.at pp. 979-980 [quoting tribal official who acknowledged the minors were notyet enrolled as members of the tribe]);19 and then—incorrectly, in our view—admixed the conclusive nature of a tribe’s determination of a minor’s membership oreligibilityfor membership (§ 224.3, 10 Wenotethisis the exact action Nielson proscribed, though we do not weigh in on the issue. (Nielson, supra, 640 F.3d at p. 1124.) 12 subd. (e)(1)) with the issue of whether a minor is an Indian child under the ICWA. (Jack C., at p. 980.)11 It also concluded the ICWAdid not preemptrule 5.482 (Jack C., at pp. 981-982), which as we havenoted is not an issue we need to reach. As our approachto the validity of the tworules understate law is at odds with Jack C., we do not find it persuasive. Moreover, unlike the tribe in Jack C., the Cherokee Nation of Oklahomahas abjuredtreating the minors as if they were near-members. Joseph A. suggests that the Legislature has implicitly approved the holding of Jack C. because it has not taken any action to abrogate it. However,legislative inaction over a period of only a few years in responseto a judicial decision or an administrative action is a rather “ ‘weak reed upon whichto lean’ ”in divining intent. (Troy Gold Industries, Ltd. vy. Occupational Safety & Health Appeals Bd. (1986) 187 Cal-App.3d 379, 391, fn. 6, cited with approval in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1156.) We accordingly decline to ascribe any significanceto this legislative silence. Wetherefore conclude rules 5.482(c) and 5.484(c)(2) are inconsistent with state law and consequently could not authorize the application of the ICWAinthe present proceedings to minors who are not Indian children within the meaning of the ICWA. This conclusion does not require us to address the additional DHHS arguments that the ICWA preemptsthese rules, or that including enrollment among active efforts required under section 361.7 is also inconsistent with state law. DHHS doesnot claim that the application ofthese rules to the combined hearing wasprejudicial with respect to either the jurisdictional or dispositional findings, but requests we reverse the judgment and 11 We note Jack C., although it invoked section 224, subdivision (c) in support ofits conclusion that the children were Indian children, did not acknowledgethe limitation in this provision to Indian children as defined in the ICWA. (Jack C., supra, 192 Cal.App.4th at p. 980.) 13 remand with directions to enter a new judgmentthat omits any duty to comply with the ICWAin subsequent proceedings. Weshall do so. DISPOSITION The judgmentis reversed with directions to enter a new judgmentthat does not direct the application of ICWAprovisions to the minors, until such time as they may qualify as Indian children under the ICWA and California definitions ofthe class. (CERTIFIED FOR PUBLICATION.) BUTZ ,J. Weconcur: BLEASE , Acting P. J. HOCH iJ. 14 PROOF OF SERVICE (By Mail) I, the undersigned, say that I am over the age of 18 years and not a party to the within action or proceeding; that my business address is 23441 Golden Spring Drive, Diamond Bar, California, 91765. That on 24 July 2014, I personally served a copyofthe papers to which this proof of service is attached, namely: PETITION FOR REVIEW by mailing a copy thereof, by depositing said copy enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail box addressed as follows: J. A. (Appellant) Address of Record. CENTRAL CALIFORNIA APPELLATE PROGRAM 2407J Street, Suite 301, Sacramento, CA 95816. SACRAMENTO COUNTY COUNSEL 3331 Power Inn Road, Suite 350, Sacramento, CA 95826. SACRAMENTO JUVENILE COURT3341 Power Inn Road, Third Floor, Sacramento, CA 95826. RUTHI ROBERTS(Appellant's Trial Attorney) 2001 21st Street, Suite 205, Sacramento, CA 95818. REGINA QUAYNOR(Minors' Attorney) 8950 Cal Center Drive, Suite 301B, Sacramento, CA 95826. ELIZABETH HANDY(Respondent Mother) 1286 University Avenue, San Diego, CA 92103. CHEROKEE NATION OF OKLAHOMA,ATTENTION: INDIAN CHILD WELFARE ACT P. O. Box 948, Tahlequah, OK 74465 THIRD DISTRICT COURT OF APPEAL,621 Capital Mall, 10th Floor, Sacramento, CA 95814 Executed 24 July 2014, I declare under penalty ofperjuryu the laws of the State of California that theforegding ist correct. /Xonrad S.Lee “