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Name: In re G.L.
Case #: D054257
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/09/2009

Failure to send ICWA notice to the Indian custodian was not error where the court did not know of the custodian’s status, which was terminated prior to the jurisdiction hearing. Following a true finding on a petition which alleged that domestic violence between her parents put her at risk, the minor, an Indian child, was placed with her paternal grandmother. Later, the department recommended a change in placement because the grandmother had failed to protect the minor from domestic violence. A supplemental petition was sustained, and the minor was placed in an Indian-approved foster home. On appeal, the father alleged that the jurisdictional and dispositional findings had to be reversed because the court and the department failed to comply with ICWA notice requirements as to the paternal grandmother. He contended that under ICWA, the grandmother was entitled as the Indian custodian to notice of her rights to intervene in the proceedings and have counsel appointed. The appellate court rejected the argument and affirmed. The grandmother’s status as the Indian custodian was created by the temporary transfer of the minor to her. The grandmother’s status as the Indian custodian was revoked when the minor was taken from her custody. Therefore, the failure to send her notice did not violate ICWA. Further, the grandmother was clearly aware of the proceedings because she attending the jurisdiction hearing. She did not inform the court that she had a Designation of Indian Custodian document, and the court sustained the petition without ever knowing that grandmother was the Indian custodian. Further, even if grandmother was entitled to ICWA notice before her status was revoked, any error was harmless. The lack of ICWA notice to the grandmother did not undermine the court’s jurisdictional findings. The court also held that substantial evidence supported the placement in an Indian foster home instead of with the grandmother despite ICWA placement preferences. The grandmother was unable to provide the minor with a stable home and to facilitate reunification between the minor and her mother. Good cause existed to bypass the placement preference.