San Diego County Health & Human Services Agency v. Terri R.
Opinion
lead Opinion
Huffman, J.
Terri R. appeals the judgments terminating her parental rights to her children, Barbara R. (Jade) and Kelsy N. under Welfare and Institutions Code section 366.26. 1 Terri contends her rights to maintain her parental status to Jade under the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq., were violated by the lack of a current judicial finding that Jade’s return to parental custody would be detrimental to her. She argues that, due to the children’s divergent interests, Jade’s attorney was subject to conflict and provided Jade with ineffective assistance of counsel.
We requested supplemental briefing from the parties whether Jade should have been appointed a guardian ad litem to protect any rights or interests to which she may be entitled as a member of the Sycuan Band of the Kumeyaay *945 Nation. Terri argues the court had a sua sponte duty under California Rules of Court, 2 rule 1438(g)(3) 3 to appoint a guardian ad litem. She contends an investigation into tribal benefits would provide “a clear understanding of the situation and needs of the child” as required of a guardian ad litem by rule 1448(d)(1).
We conclude Terri did not show the…
dissent Opinion
Benke, J.
I dissent.
In arguing against clarification of Indian benefits and rights, Barbara Jade R.’s (Jade’s) attorney and guardian ad litem (counsel) abandoned his role as the minor’s advocate. In addition, I believe the findings required by Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1912 (f)) were too stale to be used as the basis of termination of parental rights.
1. Counsel should have explored and clarified Jade’s Indian rights and benefits before parental rights were terminated.
The Sycuan Band of the Kumeyaay Nation (Tribe) opposes Jade’s adoption. It favors guardianship because it believes Jade would lose her tribal identity and because as an enrolled member she has significant tribal benefits. Those benefits include a monthly stipend of $1,500 to be placed in a trust until age 18, an increased monthly stipend after age 18, a free higher education, housing on reservation land, and lifetime medical and dental coverage. At the time of the hearing there were unanswered questions with respect to what benefits Jade may already have, whether she stands to lose benefits if adopted, and whether Jade can in fact get any lost benefits back after the age of 18.