In Re GL
John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, Dana C. Shoffner and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Carl Fabian, under appointment by the Court of Appeal, for Minor.
OPINION
IRION, J.—
Michael L. appeals a judgment declaring his minor daughter, G.L., a dependent of the juvenile court under
(1) We conclude ICWA‘s notice requirements for an Indian custodian were not violated, and to the limited extent Mary‘s rights as G.L.‘s Indian custodian were implicated, any error was harmless. We further conclude substantial evidence supports the court‘s finding that good cause existed to deviate from ICWA‘s statutory placement preferences. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 28, 2008, Agency filed a petition in the juvenile court alleging two-year-old G.L. was at substantial risk of harm because her parents had a history of substance abuse and domestic violence, and on May 6, 2008, Michael injured G.L. during a physical altercation he had with G.L.‘s mother, Elena P. (
At the time of the jurisdiction hearing on June 18, 2008, the parents’ whereabouts remained unknown. G.L., who was represented by counsel, was present in court. Mary was also present. The court sustained the allegations of the petition under
In a report prepared for the July 10 disposition hearing, Agency attached the Designation of Indian Custodian form signed by Elena. Agency also attached a letter from the Viejas tribe stating its preference for placing G.L. with Amber on the Viejas Indian Reservation. At the July 10 hearing, the court and counsel acknowledged and discussed Mary‘s Indian custodian status.
At the continued hearing on July 21, tribal counsel argued that because Mary had custody of G.L. at the time the petition was filed, Agency was required to seek removal from her. On August 7, Agency filed a subsequent petition under
At the time of the continued hearing on August 19, Elena filed with the court a document entitled “Revocation of Designation of Indian Custodian,” revoking her transfer of G.L.‘s care and custody to Mary and Amber. The court granted Agency‘s request to dismiss the
On September 8, Agency reported that G.L. had been placed in an Indian foster home approved by a foster family agency but not by the Viejas tribe. Agency was still trying to locate a Viejas-approved foster home. Michael had not contacted Agency or visited G.L. in several months. In October 2008, Michael was arrested following a shooting incident on the Viejas Indian Reservation.
At a disposition hearing that began on November 20 and concluded on December 1, the court admitted into evidence a declaration by Indian expert Phillip Powers, stating active efforts had been made to provide remedial and rehabilitative services to the parents to prevent the breakup of the Indian family, and those efforts had been unsuccessful. Powers recommended the court declare G.L. a dependent and remove her from parental custody based on evidence G.L. would be at great risk of serious physical and emotional harm in her parents’ care.
The social worker testified G.L. continued to live in the Indian foster home. The caregivers engaged in tribal cultural activities and had other
Michael testified he wanted G.L. placed with Mary or other paternal relatives. He said he signed a Designation of Indian Custodian form on May 22, 2008, transferring custody of G.L. to Mary. He did not revoke the transfer and intended that Mary remain G.L.‘s Indian custodian. The court admitted Michael‘s Designation of Indian Custodian form into evidence.
Mary testified she was present when both parents signed the Designation of Indian Custodian forms on May 22. G.L. was in Mary‘s custody from May 22 until June 2008. Mary explained that in 1995 she was arrested for driving under the influence with a child in the car, resulting in her conviction for child endangerment.
Mary further testified she had not seen any bruises on Elena, and was unaware of the domestic violence incident in May 2008. She believed the juvenile court previously intervened in 2006 because Elena was immature and jealous. Mary denied knowing Michael was physically abusive to Elena. She had never seen Michael hit Elena, but she would consider the possibility that domestic violence had occurred. Mary had not visited G.L. since she was placed in foster care.
Elena testified she voluntarily designated Mary as G.L.‘s Indian custodian on May 22, and she signed the form in the presence of Mary and Michael. Elena rescinded the designation in October 2008, but now wanted Mary to be G.L.‘s Indian custodian.
After considering the evidence and hearing argument of counsel, the court declared G.L. a dependent and removed her from parental custody under
The court declined to place G.L. with Mary, finding Mary was unlikely to adequately protect G.L., given her lack of insight regarding Michael‘s role in
DISCUSSION
I
THE COURT AND AGENCY DID NOT VIOLATE ICWA‘S NOTICE PROVISIONS FOR AN INDIAN CUSTODIAN
Michael contends the jurisdictional findings and dispositional order must be reversed because the court and Agency failed to comply with ICWA‘s notice requirements as to Mary, who was G.L.‘s Indian custodian. He asserts that under state and federal law, Mary was entitled to notice of her rights to intervene in the proceedings and have counsel appointed.
A
Rights of the Indian Custodian Under ICWA
(2) In 1978, Congress enacted ICWA in an effort to protect and preserve Indian tribes and their resources. (
Among ICWA‘s procedural safeguards is the duty to inquire into a dependent child‘s Indian heritage and to provide notice of the proceeding to any tribe or potential tribes, the parent, any Indian custodian of the child and, under some circumstances, to the Bureau of Indian Affairs. ICWA‘s notice requirement provides: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the
Notes
ICWA defines “‘Indian custodian‘” as “any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.” (
One particular concern of Congress “was the failure of non-Indian child welfare workers to understand the role of the extended family in Indian society.” (Mississippi Choctaw Indian Band v. Holyfield, supra, 490 U.S. at p. 35, fn. 4.) “‘An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them to be socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus as grounds for terminating parental rights.‘” (Ibid., quoting H.R.Rep. No. 95-1386, supra, reprinted in 1978 U.S. Code Cong. & Admin. News, at p. 7532.)
(4) Although ICWA provides for notice to the parent or Indian custodian, the Guidelines recommend notice be sent to both the parent and Indian custodian because doing so “is in keeping with the spirit of” ICWA. (Guidelines, 44 Fed.Reg. at p. 67589.) This is consistent with California law governing custody proceedings involving Indian children,3 which provides for notice and other rights to both the parent and Indian custodian. (
Mary Was G.L.‘s Indian Custodian from May 22, 2008, to August 19, 2008
Mary‘s status as G.L.‘s Indian custodian was created by the parents’ temporary transfer of G.L.‘s physical care, custody and control under ICWA to Mary on May 22, 2008. The parties do not dispute that G.L. was in Mary‘s exclusive custody from May 22 until G.L. was taken into protective custody on June 18. The parents, who signed and submitted Designation of Indian Custodian forms, testified it was their intent to confer Indian custodian status on Mary.4
(5) We disagree with Agency‘s assertion that the documents signed by the parents were insufficient to show Mary was G.L.‘s Indian custodian. The statutory authority for designation of an Indian custodian by a parent does not require a writing. (
As the juvenile court here noted, Elena had temporarily “signed over her rights under [ICWA] to the paternal grandmother[,] making her the Indian custodian.” The record supports a finding that Mary was G.L.‘s Indian custodian from May 22 to August 19, 2008, the date Elena revoked that status.
The Failure to Send Statutory Notice to Mary Did Not Violate ICWA
The record shows Mary was aware of the dependency proceedings because she attended the jurisdiction hearing on June 18. She did not inform the court or social worker that she had a Designation of Indian Custodian document signed by Elena. The court sustained the allegations of the petition and the proceedings concluded without the court or Agency ever knowing Mary was G.L.‘s Indian custodian. Although Mary was not required or expected to understand the legal implications of ICWA, disclosure of her status as G.L.‘s Indian custodian was a matter entirely within her control. Because the court and Agency did not know or have reason to know Mary was G.L.‘s Indian custodian at the time of the jurisdiction hearing, they cannot be faulted for failing to provide her with notice under ICWA.
When Agency took G.L. into protective custody immediately following the jurisdiction hearing on June 18, Mary gave the social worker a Designation of Indian Custodian form, thus putting Agency on notice that she was G.L.‘s Indian custodian. At that point, it was incumbent on Agency to provide ICWA notice to Mary as an Indian custodian, so that she could exercise her right to intervene and request appointment of counsel. (
The court first became aware of Mary‘s Indian custodian status at a hearing on July 10. Although the court acknowledged Mary was G.L.‘s Indian custodian, it did not inquire whether Agency had sent Mary ICWA notice or order Agency to do so. Instead, it continued the date for disposition so Agency could file a
However, the failure to send Mary statutory notice did not violate ICWA. Although the court should have earlier ensured compliance with ICWA notice requirements, Mary‘s status as G.L.‘s Indian custodian was revoked on August 19. From the time the court and Agency learned of Mary‘s Indian
D
Revocation Effectively Terminated Mary‘s Indian Custodian Status
Michael contends the revocation of Mary‘s Indian custodian status was ineffective and thus, the ICWA notice violation continued throughout the proceedings, including the disposition hearing. He asserts: (1) Elena did not have the ability or authority to revoke Mary‘s Indian custodian status once G.L. was no longer in Elena‘s custody; and (2) he did not revoke his designation of Mary as G.L.‘s Indian custodian.
(6) The transfer of an Indian minor‘s care and custody to an Indian custodian is, by definition, “temporary,” and thus revocable. (
E
Michael Was Not Prejudiced by the Lack of ICWA Notice to Mary
To the extent Mary was entitled to ICWA notice before her Indian custodian status was revoked, any error was harmless. We agree with the line of cases holding a notice violation under ICWA is not jurisdictional in the fundamental sense, but instead is subject to a harmless error analysis. (See In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385 [25 Cal.Rptr.3d 590];
Even had Mary received ICWA notice, intervened and had counsel appointed before her Indian custodian status was revoked, substantial evidence supports a finding that the parents exposed G.L. to their substance abuse and ongoing domestic violence, and that G.L. was injured during a physical altercation on May 6, before Mary was her Indian custodian. Although G.L. was no longer in the parents’ physical custody when the petition was filed, she remained at substantial risk of harm without the court‘s intervention. Contrary to Michael‘s position, the lack of ICWA notice to Mary did not undermine the validity of the court‘s jurisdictional findings or require the court to dismiss the petition. With the exception of the period when Mary was G.L.‘s Indian custodian, the proceedings were conducted in accordance with ICWA and the court properly applied ICWA‘s substantive provisions. This is not a case where the court ignored a minor‘s Indian ancestry or deprived a tribe of its right to intervene. (In re Nikki R. (2003) 106 Cal.App.4th 844, 855 [131 Cal.Rptr.2d 256].) There is no reasonable probability the result would have been more favorable to Michael had Mary received ICWA notice. (See In re Alexis H. (2005) 132 Cal.App.4th 11, 16 [33 Cal.Rptr.3d 242] [defective ICWA notice was harmless error].) Further, given the unusual procedural posture in which we address the issue of notice to an Indian custodian, even a conditional reversal and remand for further ICWA notice would be futile, “an empty formality and a waste of ever-more-scarce judicial resources.” (In re E.W. (2009) 170 Cal.App.4th 396, 402 [88 Cal.Rptr.3d 338].)
II
THE COURT DID NOT VIOLATE ICWA‘S PLACEMENT PREFERENCES
Michael challenges the sufficiency of the evidence to support the court‘s deviation from ICWA‘s placement preferences. (
A
ICWA‘s Placement Preferences and Standard of Review
(7) ICWA provides placement preferences and standards to be followed in foster care placements of Indian children. (
(8) In deciding whether good cause exists to deviate from the statutory placement preferences, the court should consider various factors set forth in ICWA‘s Guidelines, including: (1) the request of the biological parents; (2) the request of the child; (3) the extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness; and (4) the unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria. (Guidelines, 44 Fed.Reg. at p. 67594;
In reviewing the court‘s good cause determination to bypass ICWA‘s placement preferences, we apply the substantial evidence test. (Fresno County Dept. of Children & Family Services v. Superior Court, supra, 122 Cal.App.4th at pp. 644-646.) Under this standard, we do not pass on the
B
Good Cause Existed to Place G.L. in an Indian Foster Home Instead of with Mary
Here, substantial evidence supports the court‘s finding that good cause existed to deviate from ICWA‘s statutory placement preferences. The evidence showed that even though Mary had a relationship with G.L., had cared for her in the past and could maintain ties between G.L. and the Viejas tribe, she had been unable to protect G.L. from the parents’ ongoing substance abuse and domestic violence. Mary had little or no insight into the effects of domestic violence on G.L., and denied Michael was violent toward Elena. Instead, Mary placed the blame on Elena. The court was entitled to disbelieve Mary‘s testimony that her relationship with Elena was amicable, and that Mary would consider Michael‘s culpability for the domestic violence and cooperate with Agency if the court placed G.L. with her. (See In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Given the evidence of Mary‘s inability to provide G.L. with a safe, secure and stable home or to facilitate reunification between G.L. and Elena, good cause existed for the court to bypass the placement preference for Mary as G.L.‘s extended family member.7
Further, the court recognized it could not place G.L. in an Indian foster home approved by the Viejas tribe because none existed. In accordance with ICWA‘s third level of placement preferences, the court placed G.L. in an Indian foster home approved by a non-Indian licensing authority, where she had been living since she was taken into protective custody. (See In re K.B. (2009) 173 Cal.App.4th 1275, 1290 [93 Cal.Rptr.3d 751] [placement of minor with Indian caregiver who was not member of minor‘s tribe satisfied requirements of ICWA].) The court also ordered Agency to continue searching for a foster home approved by the Viejas tribe, and to evaluate all relatives for placement. Substantial evidence supports the court‘s dispositional order.
The judgment is affirmed.
Benke, Acting P. J., and Huffman, J., concurred.