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Name: In re E.R. et al.
Case #: A145384
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 12/20/2017

Uncle who lost Indian custodian status lacked standing to appeal permanent plan orders for minors. In a previous appeal (In re E.R. (2016) 244 Cal.App.4th 866), the appellate court held that the minors’ mother had revoked maternal uncle Rafael’s Indian custodian status for purposes of the ICWA, and that substantial evidence supported the court’s refusal to place the minors with Rafael as an extended family member. Rafael’s challenge to the permanent plan orders, specifically visitation, were rejected since Rafael was no longer a party to the dependency proceedings. While that appeal was pending, Rafael filed the current appeal, again challenging the minors’ permanent plan of long term foster care. Rafael contended that active efforts were not made to prevent the breakup of the Indian family, and that foster care was not necessary or appropriate since Rafael was able to take custody of the minors. After the opinion issued in In re E.R., the Agency filed a motion to dismiss, arguing that the opinion made this appeal moot. The appellate court requested supplemental briefing on the question of whether Rafael had standing to pursue this appeal. The appellate court here concluded that Rafael lacked standing to bring an ICWA challenge before this court. Rafael was no longer an “Indian custodian from whose custody an Indian child was removed.” Even if he was a de facto parent, he could not appeal the visitation orders as he did not have the right to reunification services, custody, or visitation. The acquisition of de facto parent status does not confer standing to appeal from any juvenile court order. Rather, it confers standing to challenge only orders pertaining to those things to which the de facto parent is entitled. Since Rafael had not been the minors’ Indian custodian for some time, he had no standing to contest the maintenance of the minors’ permanent plans.