In re E.R.

Filed 12/20/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re E.R. et al., Persons Coming Under the Juvenile Court Law.

MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, A145384 v. (Mendocino County Super. Ct. J.R. et al., Nos. SCUK-JVSQ-12-16629, Defendants; SCUK- JVSQ-12-16630, SCUK-JVSQ-12-16631 & RAFAEL H., SCUK-JVSQ-12-16632)

Movant and Appellant.

OPINION We are familiar with this dependency proceeding, having issued a prior opinion in the matter. (See In re E.R. (2016) 244 Cal.App.4th 866 (E.R.).) In that previous consolidated appeal, we concluded that the minors’ mother revoked maternal uncle Rafael H.’s Indian custodian status for purposes of the Indian Child Welfare Act of 1978 (ICWA), 25 United States Code section 1901 et seq., shortly after the children were detained. (E.R., supra, 244 Cal.App.4th at pp. 873–877.) We further determined that “compelling” evidence was presented in the juvenile court supporting that court’s refusal to place the minors with Rafael as an extended family member—a preferred placement under the ICWA—given the children’s special needs and Rafael’s own cognitive deficits.

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(Id. at pp. 880–881.) Finally, we rejected Rafael’s challenge to two permanent plan orders maintaining the minors in long-term foster care, opining that Rafael could not contest the selection and maintenance of the minors’ permanent plans as he was no longer a party to the dependency proceedings. (Id. at pp. 881–882.) While the appeals disposed of by E.R. were pending, Rafael filed the current matter, again attacking one of the juvenile court’s permanent plan orders continuing the minors in long-term foster care. In this current appeal, Rafael contends that active efforts have not been made to prevent the breakup of the Indian family, specifically with regards to visitation; and that the continued placement of the minors in long-term foster care is neither necessary nor appropriate, as he stands ready, willing, and able to take custody of the children. However, after the issuance of our opinion in E.R., the Mendocino County Health and Human Services Agency (Agency) filed a motion to dismiss, arguing that this court’s decision in E.R. rendered the instant action moot. In response, we requested supplemental briefing from the parties on the following question: “Does appellant Rafael H. have standing to pursue any portion of this existing appeal—such as, for instance, the challenge to the visitation order—on any grounds, including as an interested relative, an extended family member under the [ICWA], a potential de facto parent, or a person designated by the Agency as important to the child under Welfare and Institutions Code section 366.3, subdivision (e)?”1 After the parties submitted supplemental briefing on the standing issue, Rafael requested leave to file an additional supplemental brief discussing the application of newly enacted federal ICWA regulations, guidelines, and related materials to this case.2 We granted his request and authorized the Agency to file a supplemental respondent’s brief with respect to the issues raised, which it did.