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In re G. L.

September 9, 2009

IN RE G. L., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
MICHAEL L., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. (Super. Ct. No. EJ2718A)

The opinion of the court was delivered by: Irion, J.

CERTIFIED FOR PUBLICATION

Michael L. appeals a judgment declaring his minor daughter, G.L., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b), and removing G.L. from parental custody. Michael, an enrolled member of the Viejas Band of Mission Indians (Viejas tribe), contends the jurisdictional findings and dispositional order must be reversed because the court and the San Diego County Health and Human Services Agency (Agency) did not comply with the notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C., § 1901 et seq.) (ICWA) affecting the rights of the paternal grandmother, Mary W., who was G.L.'s Indian custodian. Michael further contends the court erred by declining to place G.L. with Mary under ICWA's placement preferences.

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. (Welf. & Inst. Code, § 300, subds. (a), (b).) The court held a detention hearing that day, but the whereabouts of G.L. and the parents were unknown. Because Michael was an enrolled member of the Viejas tribe and G.L. was eligible for enrollment, the court found ICWA applied and ordered Agency to send notice to the tribe. The court issued a pick-up and detain order for G.L.

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 Welfare and Institutions Code section 300, subdivisions (a) and (b), again found ICWA applied, and ordered Agency to evaluate all relatives for placement. At the conclusion of the jurisdiction hearing, G.L. was taken into protective custody. Mary gave the social worker G.L.'s belongings, as well as a form entitled "Designation of Indian Custodian," signed by Elena on May 22, 2008, transferring temporary care and custody of G.L. under ICWA to Mary and the paternal aunt, Amber L.

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.

Agency recommended G.L. be placed in an Indian-approved foster home, but not with Amber or Mary because Amber did not want to care for G.L., and Mary did not pass background checks. Agency was also concerned about Mary's ability to protect G.L. because in 2006, Mary was G.L.'s Indian custodian for a period of time and failed to protect G.L. from the ongoing violence between the parents. At the request of counsel for the Viejas tribe (tribal counsel), the court continued the disposition hearing.

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 Welfare and Institutions Code section 342, alleging Mary, G.L.'s Indian custodian, was aware of and failed to protect G.L. from severe domestic violence between the parents. Tribal counsel suggested the court appoint counsel for Mary on the subsequent petition because she became G.L.'s Indian custodian before the court made its jurisdictional findings. Agency acknowledged Mary could be entitled to counsel. The court continued the hearing to address the Indian custodian issue and ordered Mary to return.

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 Welfare and Institutions Code section 342 subsequent petition on the ground Mary was no longer G.L.'s Indian custodian.

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 Indian children in their care. A foster home approved by the Viejas tribe had not been found. The social worker could not recommend placing G.L. with Mary because she had a criminal and child welfare history, and because she previously had custody of G.L. and returned her to the parents even though she knew about the domestic violence. Agency could not waive Mary's 1995 conviction for "cruelty to a child" for purposes of placing G.L. with her.

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 ...


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