Mendocino Cnty. Health & Human Servs. Agency v. J.R. (In re E.R.)

• Decision Date: 08 February 2016
• Docket Number: A139939, A142253 & A143702
• Court: California Court of Appeals Court of Appeals
• Parties: 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.

244 Cal.App.4th 866

199 Cal.Rptr.3d 244

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.

A139939, A142253 & A143702

Court of Appeal, First District, Division 4, California.

Filed February 8, 2016

Certified for Partial Publication.^*

Counsel for Appellant: Gorman Law Office, Seth Gorman, First District Appellate Project.

Counsel for Respondent: Office of the County Counsel, County of Mendocino, Douglas L. Losak, Rachel M. Davis.

REARDON

, J.

These consolidated dependency appeals involve the proper application of those portions of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq.,

which delineate the rights of a designated Indian custodian. Rafael H.—a maternal uncle who became the minors' Indian custodian shortly before the commencement of these proceedings—argues that the juvenile court made numerous errors based on its initial failure to recognize his Indian custodian status under federal law.¹ Specifically, Rafael claims that he was not given the mandatory ICWA notices and related advisements required for an Indian custodian; that active efforts were not provided to him in order to prevent the breakup of the Indian family as required by the ICWA; that the juvenile court's detriment finding in response to his request for custody of the children was defective under the ICWA; and that, to the extent any of these issues are deemed forfeited, he was provided ineffective assistance of counsel. In two subsequent appeals, Rafael additionally disputes the propriety of the juvenile court's April 2014 and October 2014 permanent plan orders maintaining the minors in long-term foster care.²

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 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^**

II. DISCUSSION

A. Stat us 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, 99 Cal.Rptr.3d 356

(G.L. ); see 25 U.S.C. § 1901.) Specifically, the ICWA codifies "the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture...." (25 U.S.C. § 1902.) Thus, " ‘[t]he ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.’ " (Guardianship of D.W. (2013) 221 Cal.App.4th 242, 249, 164 Cal.Rptr.3d 414 (D.W. ).) In order to best effectuate these policies, the ICWA is construed in accordance with "the canon of construction that statutes enacted for the benefit of Indians are to be liberally construed to their benefit." (Bureau of Indian Affairs, Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10146, 10150 (Feb. 25, 2015)

(Guidelines); see also In re Jack C. (2011) 192 Cal.App.4th 967, 977, 122 Cal.Rptr.3d 6 [the ICWA "shall be liberally construed to effectuate its purposes and preferences"].)

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." (25 U.S.C. § 1903(6)

; see also Welf. & Inst.Code, § 224.1, subd. (a)⁸ [adopting the ICWA's definition of Indian custodian in California].) The Indian custodian concept was added to the ICWA "to recognize and protect the practice of parents in many Indian communities who entrust their children temporarily to the care of extended family members and to mandate that such entrustment does not constitute abuse or neglect." (Ted W. v. State of Alaska (Alaska 2009) 204 P.3d 333, 338

, fn. omitted (Ted W. ).) As explained in the House report on the ICWA: "[B]ecause of the extended family concept in the Indian community, parents often transfer physical custody of the Indian child to such extended family member on an informal basis, often for extended periods of time and at great distances from the parents. While such ... custodian[s] may not have rights under State law, they do have rights under Indian custom which this bill seeks to protect, including the right to protect the parental interests of the parents." (H.R.Rep. No. 95–1386, 2d Sess.(1978), reprinted in 1978 U.S. Code Cong. & Admin. News 7530, 7543; see G.L., supra, 177 Cal.App.4th at p. 691, 99 Cal.Rptr.3d 356.)

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, 99 Cal.Rptr.3d 356

.) 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. (25 U.S.C. § 1912(a); § 224.2, subd. (a); rule 5.481(b).) Further, the Indian custodian has the right to intervene at any point in such a proceeding, and the notice provided must apprise the Indian custodian of that fact.⁹ (25 U.S.C. §§ 1911(c) & 1912(a); § 224.2, subd. (a)(5)(G)(i); rule 5.482(e).) Additional rights afforded the Indian custodian include the right to court-appointed counsel if indigent and the right to an additional 20 days to prepare for the proceeding. (25 U.S.C. § 1912(a) & (b); § 224.2, subd. (a)(5)(G)(iii) & (v); rule 5.482(a)(3).)

Moreover, before a minor subject to the ICWA can be placed in foster care, the court must make "a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(e)

; see §§ 224.6, 361, subd. (c)(6), 361.7, subd. (c); rule 5.484(a).) And, finally, "[a]ny party seeking to effect a foster care placement of ... an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful."¹⁰ (25 U.S.C. § 1912(d) ; §§ 361, subd. (d), 361.7, subd. (a); rule 5.484(c).) With these statutory mandates in mind, we turn to the facts of this particular case and will review independently the issues of statutory interpretation raised. (In re R.C. (2011) 196 Cal.App.4th 741, 748, 126 Cal.Rptr.3d 418

; cf. Ted W.,supra, 204 P.3d at p. 336.)

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, 99 Cal.Rptr.3d 356

.) We thus conclude that—as an Indian person "to whom temporary physical care, custody, and control [had] been transferred by the parent"—Rafael became the Indian custodian of the minors for purposes of the ICWA on October 4, 2012. (25 U.S.C. § 1903(6)

.)

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...