Latest Legal Developments in California ICWA Case

Written by: Kathryn Fort

Primary Source : Turtle Talk, March 31, 2016

From the docket:

The writ of supersedeas was denied. Here.

The application to transfer the case out of the court of appeals and directly to the California Supreme Court was also denied. Here.

The underlying appeal against the placement order remains open in the California court of appeals. Here.

What is a writ of supersedeas? It’s what California still calls a stay of proceedings. A writ of supersedeas is defined in California’s Rules of Court here. Under rule 8.824, a writ of supersedeas is a stay of a judgment or order pending appeal. The petition for the writ must bear the same title (or name) as the appeal (hence a lot of confusion). In this case, the petition for the writ was filed to in an attempt to stop the transfer placement to Utah while the California court of appeals hears the foster parents’ appeal of the March 8th placement order. The court of appeals denied the petition for the writ of supersedeas on March 18. The first time this case went up on appeal, the appeal process took nine months from filing to opinion.

In addition, the California Rules of Court allow for a transfer of a case pending in the court of appeals to the California Supreme Court. Rule 8.552 allows a party to petition for the transfer, but the case must present “an issue of great public importance that the Supreme Court must promptly resolve.” in order for the transfer to be granted.

Tl;dr? The case is ongoing, it will stay in the California court of appeals for now, but the child will not be moved back to California during the pendency of the appeal.

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Kathryn Fort
Kathryn (Kate) E. Fort is the Staff Attorney and Adjunct Professor for the Indigenous Law and Policy Center at Michigan State University College of Law. She joined the Center in 2005 as the Indigenous Law Fellow. In her role with the Center, she co-teaches an experiential learning class, researches and writes on behalf of Center clients and on topics in federal Indian law and manages administrative aspects of the Center. Ms. Fort has written articles on laches and land claims and the Indian Child Welfare Act. Ms. Fort graduated magna cum laude from Michigan State University College of Law with the Certificate in Indigenous Law, and is licensed to practice law in Michigan. Prior to law school, Ms. Fort worked for Congresswoman Lois Capps' 1998 congressional campaign, the Democratic National Committee during the 2000 Presidential race, the National Association of Letter Carriers, and the Democratic Legislative Campaign Committee. She received her B.A. in History with honors from Hollins University in Roanoke, Virginia.