In re E.R. et al., Persons Coming Under the Juvenile Court Law. MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.R. et al., Defendants and Respondents; Rafael H., Defendant and Appellant.
Nos. A139939, A142253, A143702
First Dist., Div. Four.
Feb. 8, 2016.
244 Cal. App. 4th 866
COUNSEL
Seth Gorman, under appointment by the Court of Appeal, for Defendant and Appellant.
Douglas L. Losak, Acting County Counsel, and Rachel M. Bavis, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendants and Respondents.
OPINION
REARDON, J.—These consolidated dependency appeals involve the proper application of those portions of the Indian Child Welfare Act of 1978 (ICWA),
Although the juvenile court failed to promptly investigate and confirm Rafael‘s Indian custodian status in this matter, we conclude that any errors in that regard were harmless under the specific facts of this case. In particular, we find that the mother (mother) revoked Rafael‘s Indian custodianship in January 2013, only three months after the commencement of these proceedings.3 Seeing no error requiring reversal of any of the challenged findings and orders, we affirm.
I. BACKGROUND*
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II. DISCUSSION
A. Status of the Indian Custodian
Congress enacted the ICWA in 1978 “in an effort to protect and preserve Indian tribes and their resources.” (In re G.L. (2009) 177 Cal.App.4th 683, 690 (G.L.); see
As stated above, the ICWA defines an 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.” (
Under the ICWA, an Indian custodian “stands in the shoes of the parent and enjoys favored status.” (G.L., supra, 177 Cal.App.4th at p. 692.) Thus, for instance, an Indian custodian—like a parent or the Indian child‘s tribe—is entitled to notice of any involuntary child welfare proceeding involving foster care placement of, or termination of parental rights to, the Indian child. (
Here, mother executed a “Designation of Indian Custodian” (Designation) on October 4, 2012, several days before the minors were taken into protective custody by the Mendocino County Health and Human Services Agency (Agency). The Designation was revocable by its express terms and transferred temporary care and custody of the minors to Rafael as their Indian custodian under the ICWA. The record in this case reveals that the Agency was made aware of the existence of the Designation on the same day that it was executed, when the Cloverdale Rancheria ICWA Representative (ICWA Representative) told the social worker that mother and Rafael had stopped by her office and dropped off the signed document. The ICWA Representative, however, further informed the social worker that the tribe would not recognize the Designation because they were not involved with it and mother did not have an ICWA representative sign it.
We disagree with the Cloverdale Rancheria of Pomo Indians (Cloverdale Rancheria) that the Designation executed by mother and Rafael in this case was insufficient to establish Rafael as the minors’ Indian custodian. In fact, the statutory authority for designation of an Indian custodian does not even require a writing, and such temporary transfers to extended family are often done on an informal basis. (G.L., supra, 177 Cal.App.4th at p. 693.) We thus conclude that—as an Indian person “to whom temporary physical care, custody, and control [had] been transferred by the parent“—Rafael became
Unfortunately, although the Agency was made aware of the Designation on the day it was executed, it did nothing to verify or implement its contents, perhaps relying on the Cloverdale Rancheria‘s conclusion that the document was invalid. Moreover, the existence of the Designation was reported in the social worker‘s case notes attached to the Agency‘s October 12, 2012, detention summary. Yet neither the juvenile court nor any of the parties raised the issue of Rafael‘s status until Rafael finally provided the court with a copy of the Designation over four months later, on February 19, 2013. Under these circumstances, we believe it was error for the Agency and the juvenile court not to have inquired further with respect to the import of the Designation at the commencement of these proceedings.
However, our review of the record further reveals that, on January 16, 2013, mother spoke with the social worker by telephone from her residential treatment center. During that conversation, mother told the social worker that she wanted her children to remain in foster care rather than being placed with Rafael because there were drugs at the house, Rafael did not have a car, and she did not want her children living with Rafael. Specifically, she stated: “‘There are drugs on that property, and I want my kids safe, away from all of that, and the drugs.‘” Mother contacted the social worker from residential treatment a second time on February 4, 2013, reiterating her position and noting that “‘living out there was a bad situation with me, and I don‘t want that for the kids.‘”11
Under strikingly similar circumstances, the Supreme Court of Alaska recently concluded that—by informing the child welfare agency of their opposition to their dependent children being placed in the Indian custodian‘s care—the parents acted to terminate the Indian custodianship. (Molly O. v. State of Alaska (Alaska 2014) 320 P.3d 303, 308-309 (Molly O.) [by telling the child welfare agency “that they did not want their children placed with
Further, courts in both California and Alaska have recognized a parent‘s authority to revoke an Indian custodianship despite the fact that a child welfare agency has intervened and taken over custody and control of the minors subject to that custodianship. As the Fourth District opined in G.L.: “At the time [mother] revoked [grandmother‘s] Indian custodian status, [mother‘s] parental rights remained intact and [mother] retained legal custody of G.L., even though she did not have physical custody of her. Thus, [mother] could properly revoke the transfer of G.L.‘s care and custody to [grandmother].” (G.L., supra, 177 Cal.App.4th at p. 695; see also Molly O., supra, 320 P.3d at pp. 305–309 [parents’ objection to placing minor children with Indian custodian during child welfare proceedings operates to revoke Indian custodianship].)
We find unavailing Rafael‘s attempts to distinguish this persuasive precedent because the revocations in the cited cases occurred prior to disposition. Although the juvenile court may remove a dependent minor from the physical custody of the parents at disposition pursuant to
In contrast, when, in the present case, mother indicated through counsel on February 26, 2013, that she wanted the Designation to remain in place, she was at that point without authority to reinstate the custodial relationship that she had revoked by her actions over the previous month. This is because, at both the detention hearing on October 12, 2012, and the dispositional hearing on January 8, 2013, the Agency was given the responsibility for placement and care of the minors by the juvenile court. The dispositional orders also formally placed the minors in the care, custody, and control of the Agency. Thus, mother no longer had the ability to informally transfer “temporary physical care, custody and control” of the minors to any third party. (See
Under these circumstances, we conclude that Rafael was the designated Indian custodian with respect to the minors only from October 4, 2012, through January 16, 2013. Indeed, an argument could be made that Rafael‘s Indian custodian status was even more limited. Although mother signed the Designation on October 4, 2012, the record is not clear that she actually transferred physical custody of the minors to Rafael at that time. According to
In addition, since an Indian custodian “stands in the shoes of the parent” (G.L., supra, 177 Cal.App.4th at p. 692), it is not certain whether or to what extent both a parent and an Indian custodian can be actively involved in a child welfare proceeding at the same time (cf. Ted W., supra, 204 P.3d at p. 339, fn. 23 [identifying but not deciding the issue]). Thus, mother‘s actions in taking a dominant role in these proceedings and accepting reunification services—presumably with the intent to herself reunify with the minors—may also have been sufficient to revoke Rafael‘s designation as the minors’ Indian custodian. On the other hand, we note that the interpretation of the circumstances in this case that is most favorable to Rafael and the possible preservation of the Indian family is that the minors’ Indian family included both mother and Rafael. Ultimately, we need not decide this issue, but will presume that mother and Rafael could simultaneously possess some form of custodial rights to the minors, at least until mother clearly revoked those rights with respect to Rafael on January 16, 2013.
B. Notice Issues
With these conclusions in mind, we consider first Rafael‘s claim that this matter must be reversed and remanded for reconsideration of the juvenile court‘s September 4, 2013, placement decision because the Agency failed to give him the formal notice of these proceedings that was his due as the minors’ Indian custodian. As mentioned previously, the 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 party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child‘s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe . . . .” (
A notice violation under the ICWA, however, “is not jurisdictional in the fundamental sense, but instead is subject to a harmless error analysis.” (G.L., supra, 177 Cal.App.4th at pp. 695–696 [listing cases].) Thus, in order to obtain a reversal for lack of proper ICWA notice, an appellant “must show a reasonable probability that he or she would have obtained a more favorable result in the absence of the error.” (G.L., at p. 696.) Here, Rafael was entitled to the statutory ICWA notice from the minor‘s removal in October 2012 until his Indian custodianship was revoked by mother on January 16, 2013. (See G.L., supra, 177 Cal.App.4th at p. 695 [notice provisions of the ICWA no longer apply to the Indian custodian once the custodianship was revoked].) Under the unique facts of this case, we conclude that the Agency‘s failure to provide the mandated notice to Rafael during this time period was harmless.
Specifically, during the timeframe at issue—October 9, 2012, through January 16, 2013—the juvenile court held three hearings in this matter: the October 12, 2012, detention hearing, the November 14, 2012, jurisdictional hearing, and mother‘s January 8, 2013, dispositional hearing. Even if Rafael had received ICWA notice, intervened, and had counsel appointed prior to the detention hearing, we see no probability, let alone a reasonable one, that the minors would have remained placed with him. The minors were removed from the property where both mother and Rafael lived after suffering significant neglect. The Cloverdale Rancheria was, from the start, opposed to placement with Rafael. And it was apparent to the Agency that Rafael suffered from some kind of cognitive deficit that required assessment. Under such circumstances, the evidence supporting temporary detention of the minors was overwhelming.
Similarly, significant and uncontested evidence supported the juvenile court‘s jurisdictional finding that mother‘s substance abuse placed the minors at substantial risk of harm. Indeed, mother admitted that she had been using methamphetamine since she was 12 years old and indicated at the November 2012 jurisdictional hearing that she wanted to enter drug treatment and “get her life back on track.” Since dependency jurisdiction is taken over children
In truth, the real crux of Rafael‘s complaint in this matter has always been his desire to regain custody of the minors, with adequate tribal and Agency services in place to support that placement. Although Rafael did not participate as a party in the portion of the dispositional hearing which impacted mother‘s custodial status and reunification services, the question of his custodial rights and entitlement to services was, as we discuss further below, exhaustively considered at the September 2013 placement hearing in this matter, where Rafael was an active participant represented by counsel. Thus, again, we find any failure to provide early ICWA notice in these proceedings harmless.
In reaching this conclusion, we are influenced by two additional factors. First, this is not a case where the juvenile court ignored the minors’ Indian heritage or deprived the Cloverdale Rancheria of the right to participate in the proceedings. In fact, other than failing to recognize Rafael‘s Indian custodian status in the early stages of the case, the proceedings were conducted in accordance with the ICWA, the court properly applied the ICWA‘s substantive provisions, and placement of the minors with Rafael was denied in accordance with the request of the Cloverdale Rancheria. (Cf. G.L., supra, 177 Cal.App.4th at p. 696.) In addition, we cannot ignore the current procedural posture of this case, in which Rafael‘s Indian custodianship rights have long been extinguished. Under such circumstances, “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.‘” (Cf. G.L., at p. 696.)
C. Other Compliance Issues Under the ICWA
Rafael also argues that the juvenile court‘s September 2013 placement decision must be reversed because the Agency failed to make active efforts to prevent the breakup of the Indian family as required by the ICWA. (
Indubitably, had Rafael remained the minors’ designated Indian custodian, the September 2013 placement hearing would have essentially acted as a dispositional hearing with respect to Rafael, where both an active efforts and a detriment finding would have been required under California and federal law. (
Instead, as it turns out, what Rafael was really seeking at the September 2013 hearing was a preferred placement as an extended family member under the ICWA. “ICWA provides placement preferences and standards to be followed in foster care placements of Indian children.” (G.L., supra, 177 Cal.App.4th at p. 697.) As is relevant here, “absen[t] . . . good cause to the contrary,” preference for the placement of an Indian child pursuant to the ICWA must first be given to “a member of the Indian child‘s extended family” such as Rafael. (
In the present case, as our detailed review of the record in the unpublished portion of this opinion makes clear, the evidence was compelling that good
In sum, Rafael has identified no error requiring reversal of the juvenile court‘s September 2013 decision denying him placement of the minors.14
D. Permanent Plan Issues
In his two later appeals, Rafael disputes the propriety of the juvenile court‘s April 2014 and October 2014 permanent plan orders maintaining the minors in long-term foster care and regulating visitation between Rafael and the children. Specifically, he first contends that, if this court reverses the juvenile court‘s September 2013 placement decision due to the ICWA violations identified in his earlier appeal, we must also reverse the later
Given the conclusions reached in this opinion, Rafael‘s first argument necessarily fails. With respect to the appropriateness of the minors’ permanent plans, we note that Rafael did not raise this issue in the juvenile court, and we may therefore deem it forfeited. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [listing cases]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) More fundamentally, however, “[o]nce an Indian custodian‘s status has been revoked, that person has no role in ongoing child protection proceedings.” (Molly O., supra, 320 P.3d at p. 309; see G.L., supra, 177 Cal.App.4th at p. 695 [holding that the notice provisions of the ICWA no longer applied to the Indian custodian once the custodianship was revoked].) Of course, Rafael can continue to appear in the juvenile court and request visitation with the minors as an interested relative. And, indeed, the juvenile court seems very aware that Rafael is important to these minors and should remain in their lives in some capacity. Rafael, however, is no longer a party to these proceedings and therefore cannot contest the selection and maintenance of the minors’ permanent plans.
III. DISPOSITION
The juvenile court‘s September 4, 2013, order denying placement of the minors with Rafael is affirmed. So too are the court‘s April 2014 and October 2014 permanent plan orders.
Ruvolo, P. J., and Streeter, J., concurred.