18 Cal.App.5th 891
Cal. Ct. App.2017Background
- Minors were in dependency proceedings; maternal uncle Rafael H. had been designated Indian custodian but mother revoked that status soon after detention.
- Prior appeal (In re E.R.) held revocation valid and juvenile court permissibly denied placement with Rafael due to children’s needs and Rafael’s limitations; Rafael was no longer a party to the dependency.
- Rafael filed a new appeal challenging a permanent plan order continuing minors in long-term foster care and alleging insufficient ICWA "active efforts," especially as to visitation.
- The Agency moved to dismiss as moot based on the prior opinion; the court ordered supplemental briefing on whether Rafael has standing (as Indian custodian, extended family, de facto parent, or person "important to the child").
- Court reviewed ICWA, California law, and newly issued federal ICWA regulations and guidelines submitted by Rafael.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring an ICWA challenge as an Indian custodian | Rafael asserts he qualifies as the Indian custodian from whose custody the children were removed and thus can invalidate ICWA-related orders | Agency: Rafael is no longer an Indian custodian (mother revoked status); ICWA standing limited to current Indian custodians/parents/tribe | Rafael lacks ICWA standing because he is not now an Indian custodian and custodian status was revocable upon temporary transfer of custody |
| Standing as an extended family member under ICWA | Rafael argues extended-family status gives him ability to challenge placement/visitation | Agency: Extended family members are not Indian custodians and do not gain ICWA invalidation rights | Extended-family status alone does not confer ICWA appellate standing |
| Standing as de facto parent to appeal visitation/permanent-plan orders | Rafael claims de facto parent status (day-to-day care) gives him rights to contest orders including visitation | Agency: De facto parent status allows participation but not rights to reunification, custody, or to appeal orders beyond those rights | Even if de facto parent, Rafael cannot appeal juvenile court visitation/permanent-plan orders beyond procedural participatory rights |
| Standing as a person "important to the child" under Welf. & Inst. Code §366.3(e) | Rafael claims designation as important person should allow him to challenge permanent-plan review orders | Agency: §366.3(e) focuses on child’s best interest; only the child or agency may seek/appeal such determinations; designation benefits the child, not the designee | Designation under §366.3(e) does not confer appellate standing to challenge permanent-plan review orders |
| Effect of new federal ICWA regulations/guidelines on standing | Rafael contends new ICWA regs/guidelines change standing analysis and support his challenge | Agency: Regulations are not retroactive to orders before Dec. 12, 2016; even if relevant, they do not alter that mother validly revoked custodianship | New ICWA regulations do not apply retroactively and do not change the conclusion that Rafael lacks standing |
Key Cases Cited
- In re E.R., 244 Cal.App.4th 866 (appeal sustaining revocation of Indian custodianship and affirming refusal to place children with uncle)
- In re Michael A., 209 Cal.App.4th 661 (grandparent/de facto parent lack ICWA standing unless an Indian custodian)
- In re G.L., 177 Cal.App.4th 683 (Indian custodianship based on temporary physical custody is revocable)
- Molly O. v. State, 320 P.3d 303 (Alaska) (once Indian custodian status revoked, person has no ongoing role in child protection proceedings)
- Clifford S. v. Superior Court, 38 Cal.App.4th 747 (de facto parent status confers participation rights but not reunification, custody, or visitation rights)
- In re Hirenia C., 18 Cal.App.4th 504 (juvenile court may recognize prior custodian as de facto parent)
- In re Kieshia E., 6 Cal.4th 68 (limitations on rights conferred by de facto parent status)
- In re J.T., 195 Cal.App.4th 707 (de facto parent status does not confer standing to appeal all juvenile orders)
- Amber R. v. Superior Court, 139 Cal.App.4th 897 (§366.3 designation protects child’s interests; designee lacks independent standing to appeal)
- In re Marilyn H., 5 Cal.4th 295 (after reunification services end, focus shifts to child’s need for permanency and stability)