California Law Helps Tribes Keep Kids Out of Foster Care. A New Court Ruling Strengthens Their Hand

For nearly a century, California and other states forced Native American youth into boarding schools, aiming to erase their cultural practices while separating children from their parents and placing them in a foster system that often left them without any ties to their communities.

It was only in the late 1970s that the federal government passed a law to protect families from separation, ensuring that child welfare agencies inquire about Native ancestry and work to keep tribes, relatives and communities together. Decades later, contested cases continue to appear regularly before California courts, where state protections are stronger than federal law.

The California Supreme Court on Monday reinforced those rules in a new decision, stressing that child welfare agencies must investigate (PDF) whether children have Native American ancestry before placing them in foster care. It’s a decision that could strengthen tribes’ hand in disputes over separating families by compelling social workers to go a step further before removing a child.

Incidentally, the case turned on parents who do not claim to have any tribal affiliations or Native ancestry.

The Los Angeles Department of Children and Family Services in 2019 accused two children’s parents of substance abuse and domestic violence, eventually getting their custody terminated in court. Their mother, Angelica A., has not indicated in court documents that she is Native American, but she appealed the decision on the grounds that officials did not complete a proper inquiry into her children’s heritage. Her last name is not listed in the ruling.

By a 5–2 majority, the justices agreed with the mother, calling into question not just this family’s case but nearly two dozen other cases involving child custody and California courts. They gave little weight to concerns over whether an additional review would make a difference in the actual placement of the children.

“The department’s inquiry extended no further than mother and father, both of whom have long-standing issues with substance use disorder, even though their parents, siblings, and father’s cousin were readily available and had been interviewed by the department,” Justice Kelli Evans wrote in the majority opinion.

The justices reversed a juvenile court’s decision to terminate the parents’ rights on the condition that the agency conduct an “adequate inquiry, supported by record documentation.”

Shiara Davila-Morales, a spokesperson for the Los Angeles Department of Children and Family Services, said the department could not comment in time for publication.

Indian Child Welfare Act recently upheld

The issue of child custody and Native Americans has long been a point of painful history in the United States. In June 2023, the U.S. Supreme Court upheld the 1978 Indian Child Welfare Act, which regulates the removal and out-of-home placement of Native children. A July 2024 report from the U.S. Department of the Interior found that over 900 children died nationwide in forced boarding schools from 1819 to 1969.

In California, over half of Native American youth in California’s foster care system end up in non-relative and non-Native households, a number that has remained relatively steady in the past decade, according to state data analyzed by researchers at UC Berkeley. Tribes have long argued they have a necessary stake in ensuring the well-being of Native youth and that social workers must make good-faith attempts to inquire about ancestry.

“Ironically, such (an) inquiry could take only a few days to complete — which is significantly faster than the nearly two years that this appeal was litigated,” wrote Michelle Castagne, executive director of the California Tribal Families Coalition, in a statement. “The court’s decision recognizes the vital role that tribes have in the lives of tribal children and families.”

Dissent emphasizes children’s ‘instability’

The two dissenting justices blasted the majority for taking a “formulaic approach” that “needlessly condemns these children and others like them to more uncertainty, more instability and more trauma.” The two children were taken into the care of their paternal grandparents, according to the ruling, who are ready to formally adopt them.

They wrote that the children would have been better off by resolving the case quickly.

“Nonetheless, because the department failed to ask additional family members about the children’s ancestry, my colleagues invoke a rule of automatic conditional reversal that is wholly inconsistent with the way in which California courts have assessed state law error for almost seven decades,” Justice Joshua Groban wrote in the dissent.

John L. Dodd, an attorney representing the mother, said those concerns are overblown. For far too long, he said, social workers have been making inadequate inquiries about Native ancestry. It’s an often unintentional omission, he said, because investigators are juggling delicate family dynamics involving substance abuse or mental health.

Though the family he represented did not indicate having any Native ancestry, he said the case matters because it sends a message to child welfare agencies that they can’t ignore state and federal regulations.

“All the social worker has to do is ask three or four questions when the social worker is doing a report,” he told CalMatters. “So the parade of horribles that the dissent is concerned about is not going to occur because now everybody knows that you can’t just risk it.”

The children at the center of the case are now 8 and 6 years old, according to the decision, and for the four years it has lasted, they have been in their grandparent’s custody. California is home to around 350,000 Native American youth under 18, according to the First 5 Center for Children’s policy.