In re A.F. ( 2017 )

Filed 11/29/17; Certified for Publication 12/20/17 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.F., a Person Coming Under the
Juvenile Court Law.
D072226
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ2481C)
Plaintiff and Respondent,
v.
T.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Gary M.
Bubis, Judge. Affirmed.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and
Appellant, T.C.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Kristen M. Ojeil, Senior Deputy County Counsel, for Plaintiff and
Respondent.
Neil R. Trop, under appointment by the Court of Appeal, for Minor.
T.C. appeals the juvenile court's dispositional order placing her minor daughter,
A.F., in the care of her paternal grandmother, Donna F. T.C. contends the court erred by
failing to comply with the placement preferences required under the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.) and asserts that the juvenile court should have
continued A.F.'s placement with T.C.'s maternal cousin. We agree with the Agency that
the juvenile court's dispositional order complied with the applicable placement
preferences and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the events leading to A.F.'s dependency, four-month-old A.F. was
living with her father, W.F., in a motor home on Donna's property. W.F.'s girlfriend,
Lillie B., and her 18-month-old daughter, Leah B., also were staying in the motor home.
At noon on Monday, December 5, 2016, Lillie called 911 when she could not wake Leah.
The paramedics arrived and immediately started CPR. The paramedics could not revive
Leah and shortly after their arrival pronounced her dead. First responders suspected foul
play, and the homicide investigators called to the scene reported Leah had multiple
injuries on her body, including a broken arm, bruising on her legs, cuts on her face and
head, and a burn on one of her feet. Lillie told San Diego Health and Human Services
2
Agency (Agency) social workers at the scene that Leah had been in W.F.'s care since
Saturday and that all of the injuries had occurred while Leah was with W.F.
Agency social workers also interviewed W.F. W.F. stated that he had been living
in the motor home outside his mother's house with A.F. for a few months. Lillie and
W.F. had been dating for several months, and Lillie and Leah occasionally stayed with
W.F. in the motor home. W.F. reported that he was A.F.'s primary caretaker and that
A.F. was a member of the Campo Band of Mission Indians (Tribe).1 W.F. told social
workers that T.C. used methamphetamine regularly. W.F. denied any involvement in
Leah's death, and told the social worker that the child frequently fell and injured herself
and was nicknamed "Bumps." He said he and A.F. had fallen asleep in Donna's house
the night before and he had checked on Lillie and Leah around 10:00 p.m. W.F. was
awoken at 6:00 a.m. by Lillie's angry text messages that he had not slept in the motor
home with her. He also said he had checked on Lillie and Leah several times throughout
the morning by peaking his head inside the motor home.
Over W.F.'s objections, the Agency's social workers took A.F. into protective
custody and placed her at Polinsky Children's Center. T.C. was interviewed by the
Agency's social workers later that day and stated that she had left A.F. in W.F.'s care
months earlier and had not seen A.F. since October 19, 2016. T.C. confirmed A.F. was
an enrolled member of the Tribe. T.C. had a history of involvement with the Agency and
had two older children removed from her care as a result of substance abuse. T.C. did
1 W.F. reported that he had Native American ancestry through the Seminole Tribe,
but that he was not a registered member.
3
have custody of A.F.'s two-year-old half brother. T.C. was resistant to allowing the
Agency to inspect her home and also refused to drug test.
On December 8, 2016, the Agency filed a petition under Welfare and Institute
Code section 300, subdivision (f)2 on behalf of A.F. W.F. was arrested the following day
and charged with the first degree murder of Leah. The juvenile court conducted a
detention hearing on December 12, 2016, and ordered A.F. detained in out-of-home care,
and ordered liberal, supervised visitation for T.C. Counsel for the Agency reported that
the Tribe was working on finding a placement for A.F. The following day, W.F.
appeared before the juvenile court and the court elevated him to a presumed father,
ordered visitation for W.F. and, at W.F.'s request, ordered that Donna be evaluated for
placement of A.F. At both the December 12 and 13 hearings, the court found ICWA
applied.
For her part, Donna contacted the Agency almost immediately after A.F. was
taken into protective custody. She told the Agency's social workers she had been
involved in A.F.'s care since her birth and requested A.F. be placed with her. Donna was
also concerned about T.C.'s ability to care for A.F. W.F. also told social workers that he
wanted A.F. placed with Donna, and did not want his child to live on the reservation with
T.C. In advance of the jurisdiction and disposition hearing, the Tribe's expert and social
worker recommended that A.F. not be placed with either parent and remain a dependent
of the juvenile court. By the time of the first jurisdiction and disposition hearing on
2 Undesignated statutory references are to the Welfare and Institutions Code.
4
January 4, 2017, A.F. was placed with a maternal cousin, Liesha D., on the Tribe's
reservation.
In its report for the jurisdiction and disposition hearing, the Agency recommended
the court (1) take jurisdiction over A.F., (2) continue A.F.'s placement with Liesha, (3)
provide reunification services to T.C., and (4) deny services to W.F. under section 361.5,
subdivision (b)(4). At the January 4, 2017 hearing, both parents contested the Agency's
recommendations. The court set a settlement conference for January 23, 2017, and a
contested hearing for February 9, 2017. W.F.'s counsel also requested that Donna, who
attended the hearing, be provided with visitation. W.F.'s counsel asserted that the
Agency had unreasonably delayed in approving visitation with Donna and also noted
Donna had requested her home be evaluated by the Agency for placement. The court
ordered the Agency to provide reasonable supervised visitation for Donna.
On January 20, 2017, the Tribe notified the Agency it was exercising its right to
intervene in the proceeding and that it recommended A.F. continue in her placement with
Liesha. In its report for the settlement conference, the Agency maintained its earlier
recommendations and reported that T.C. was sporadically engaging in services, but still
refused to drug test. At the settlement conference, W.F.'s counsel asserted the Agency
had provided only one, one-hour supervised visit for Donna and was unreasonably
delaying additional visitation. The Agency responded that it had acted reasonably with
respect to visitation for Donna and that supervised visitation was appropriate given the
seriousness of the circumstances of the case. The court ordered the Agency to provide
Donna with a minimum of two supervised visits each month.
5
At the date set for the contested hearing, the matter was continued. Thereafter,
T.C. engaged in services regularly and tested negative for drugs in early February.
Donna visited with A.F. on February 24, 2017, and after a team decision meeting on
March 8, 2017, the Agency approved overnight weekend visits for Donna. The following
day, Donna filed a relative information form notifying the juvenile court that she had
retained counsel and would be requesting placement of A.F. In the form, Donna also
indicated she was concerned about Liesha's ability to care for A.F. because A.F. had "a
severe diaper rash" for "nearly two months." The form attached copies of her
communications with the Agency about the rash and photographs showing the severity of
the rash and the rash worsening from mid- to late-February.
An additional settlement conference occurred on March 9, 2017, the same day that
Donna filed the relative information form. Donna was present at the conference and was
represented by counsel. The court acknowledged receipt of Donna's relative information
form and questioned the Agency's counsel about A.F.'s diaper rash. The Agency's
counsel reported that Liesha had been diligent in having A.F. treated by a doctor and that
the rash was healing. Donna's counsel asserted Donna had standing to request placement
of A.F. under In re Isabella G. (2016) 246 Cal. App. 4th 708 (Isabella G.), and requested
that the court consider the issue of placement with Donna under section 361.3 either at
the upcoming disposition hearing or set a special hearing to consider placement. Donna's
counsel also requested copies of the court files in the case. Counsel for A.F., T.C. and
the Agency objected to the request and asserted Donna did not have standing in the case
to contest the Agency's recommended disposition. The court agreed Donna did not have
6
standing, but reiterated a prior order that the Agency had discretion to move A.F. to
Donna's home with notice to the minor's counsel. The court also directed the Agency to
notify all parties of its final recommendation for relative placement at disposition.
On March 16, 2017, the Agency notified the parties that it was maintaining its
recommendation that A.F. remain in Liesha's care. On March 27, 2017, Donna filed a de
facto parent request, a request for the court to review the Agency's placement decision,
and a request to change a court order under section 388. In a declaration attached to the
documents, Donna described her involvement in the case from its inception, her
commitment to A.F. since her birth, and her concern that Liesha could not adequately
care for the minor. In a separate memorandum of points and authorities, Donna's counsel
asserted Donna had standing to address the issue of placement, that placement with
Donna was required under section 361.3, and that placement with Donna would comply
with ICWA.
The Agency's final report in advance of the contested jurisdiction and disposition
hearing outlined the basis for its recommendation under section 361.3 that A.F. remain in
her current placement with Liesha. The Agency's social worker explained that the
primary basis for its recommendation was that by that time A.F. had been in Liesha's care
almost as long as she had been in W.F.'s care and there was no overriding reason to
change the placement. Further, there was tension between Donna and T.C., and the
Agency was concerned that Donna would not facilitate T.C.'s reunification with A.F.
In a letter to the court dated March 29, 2017, the Tribe's social worker also
expressed the Tribe's preference for continuing A.F.'s placement with Liesha. The letter
7
stated that the social worker "in compliance with the regulations of the Indian Child
Welfare Act of 1975, conducted an assessment" of Liesha's home and "[a]s a result of the
completed assessment, and per the Indian child's Tribal custom, the family and home
have been approved and are hereby preferred by the Campo Kumeyaay Nation for
placement of [A.F.] as an extended family member and caregiver."
At the hearing on March 30, 2017, the court bifurcated the jurisdictional and
dispositional issues. After receiving the Agency's reports, the Tribe's letter, and Donna's
declaration into evidence, the court made a jurisdictional finding that A.F. was a child
described by section 300, subdivision (f). The court then heard testimony of the
Agency's social worker and Donna. The social worker addressed the diaper rash that
caused Donna's concern, explaining that Liesha had taken A.F. to the Tribe's health clinic
six times and had been diligent in caring for A.F.3 The social worker reported that the
rash had finally cleared and stated that she had no concerns about Liesha's ability to care
for A.F.
The Agency's social worker testified that she had spoken with Donna many times
and that Donna was always polite and had consistently sought placement of A.F. since
the beginning of the proceedings. The social worker did not have any concerns about
Donna's ability to care for A.F. She did not believe A.F. would suffer any detriment if
she were placed in Donna's home and felt Donna would be protective of A.F. The social
worker, however, was concerned that Donna would not facilitate visitation with T.C.
3 The social worker conceded that two of the health clinic visits were made at the
Agency's urging.
8
because they had a contentious relationship, but stated she believed Donna would follow
the court's orders. The social worker testified that the Agency did not evaluate Donna's
home for placement at the inception of the case because the alleged crime that
precipitated A.F.'s removal had occurred on Donna's property.
Donna testified about her strong desire to have A.F. placed in her home and her
efforts to obtain placement. Donna stated she would support T.C.'s efforts to reunify with
A.F. and facilitate visitation with T.C. so long as she remained sober. Donna also stated
she would make sure A.F. maintained her relationship to the Tribe.
After closing arguments by counsel, the juvenile court expressed some confusion
as to the application of sections 361.3 and 361.31 and noted there was no "bright line
rule" to be applied in determining placement between Liesha and Donna. The court
concluded it did not need to make a good cause finding to place A.F. with Donna and
stated that under section 361.3, the two caregivers were "pretty much equal." After
stating it found Donna's commitment to A.F. and to T.C.'s reunification efforts credible,
and also noting its concern that A.F. suffered with a diaper rash for an excessive period of
time in Liesha's care, the court found it would not be detrimental to remove A.F. from
Liesha and, "because a good cause finding does not have to be made, that the paternal
grandmother should get a preferential placement consideration." The juvenile court went
on, "if I am wrong and I need to weigh both relatives equally, I would still find the
placement with the paternal grandmother at this point would be beneficial . . . ."
9
DISCUSSION
T.C. argues the juvenile court's placement order was made in error because the
court failed to apply section 361.31 and its federal counterpart, section 1915 of title 25 of
the United States Code, to its decision, and instead applied section 361.3. T.C. further
asserts that the court failed to make the good cause finding required under section 361.31
to deviate from the Tribe's preferred placement with Liesha. In response to T.C.'s
arguments, the Agency appears to concede the court was required to follow the placement
preference set forth in section 361.31 without regard to any additional preferences
specified in section 361.3. It argues, however, there is no reversible error because the
court's placement order complied with that provision.4 A.F.'s appellate counsel also
supports affirmance of the juvenile court's order, asserting the court complied with ICWA
and that it would not be in A.F.'s best interest to disrupt her placement with Donna at this
stage of the proceedings.
4 Section 361.31 provides with respect to Indian children that a placement with an
extended family member is to be preferred over all other placements, but expresses no
preference for particular relatives over others. (§ 361.31, subd. (b)(1).) Section 361.3,
applicable to children generally, mandates that certain relatives ("grandparent, aunt, uncle
or sibling") receive "preferential consideration" for placement over other relatives by
being the "first placement to be considered and investigated" by the social services
agency. (§ 361.3, subd. (c).) This raises an interesting question whether section 361.3
requires the Agency and juvenile court to give preference to a particular type of relative
(like a grandparent) over someone (like a cousin) who is a relative under the ICWA
statutes but not a grandparent, aunt, uncle or sibling. Alternatively, do the ICWA
provisions preempt any application of the preference contained in section 361.3, thus
requiring that with respect to Indian children all categories of relatives be treated equally.
Although no published decision appears to have reached this issue, we decline to do so
here by expressly accepting the Agency's apparent concession because it is unnecessary
to our decision. Even if section 361.3 has no application in the ICWA context, the court
here specifically found that placement with Donna was the better alternative.
10
I
" 'The United States Congress enacted ICWA to respond to a crisis in which large
numbers of Indian children were being removed from their families for placement in non-
Indian homes. (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32.)
ICWA was designed to protect the best interests of Indian children and promote the
stability and security of Indian tribes and families by establishing minimum federal
standards for the removal of Indian children from their families by state courts and the
placement of such children in foster or adoptive homes. (25 U.S.C. § 1902; In re Kahlen
W. (1991) 233 Cal. App. 3d 1414, 1421.)' " (In re Anthony T. (2012) 208 Cal. App. 4th
1019, 1027 (Anthony T.).)
"To meet its goal to place children in foster or adoptive homes which reflect the
unique values of Indian culture, ICWA establishes placement preferences for Indian
children who have been removed from their families. (25 U.S.C. §§ 1902, 1915(b);
§ 361.31.) An Indian child in foster care must be placed in 'the least restrictive setting
which most approximates a family . . . within reasonable proximity to his or her home,
taking into account any special needs of the child.' (25 U.S.C. § 1915(b); § 361.31, subd.
(b).)" (Anthony T., supra, 208 Cal.App.4th at p. 1027.) Section 361.31, subdivision (b),
adheres closely to the federal provision and sets forth the specific order of placement
preference the juvenile court must follow for an Indian child. Under both section 361.31,
subdivision (b), and section 1915(b) of title 25 of the United States Code, "[i]n the
absence of good cause to the contrary, the preferred placement . . . is with a member of
the child's extended family; a foster home approved by the Indian child's tribe; an Indian
11
foster home; or an institution for children approved by an Indian tribe or operated by an
Indian organization. (§ 361.31, subds. (b).)"5 (Anthony T., supra, at p. 1027.)
Section 1903 of title 25 of the United States Code states that the term "extended
family member" is "defined by the law or custom of the Indian child's tribe or, in the
absence of such law or custom, shall be a person who has reached the age of eighteen and
who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or
5 Section 361.3 is the general statute governing a relative request for placement of
dependent minors. The statute, discussed further in section III, " 'gives "preferential
consideration" to a relative request for placement, which means "that the relative seeking
placement shall be the first placement to be considered and investigated." (§ 361.3, subd.
(c)(1).)' " (Isabella G., supra, 246 Cal.App.4th at p. 719.) Under section 361.3, the
"Agency is required to assess those relatives seeking placement according to the factors
described in section 361.3, subdivision (a) (placement factors) [footnote omitted] and
must document those efforts in the social study prepared under section 358.1. (§ 361.3,
subd. (a) [final para.].)" (Isabella G., supra, at p. 719.) The factors set forth in section
361.3, subdivision (a) are: "(1) The best interest of the child, including special physical,
psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the
parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6
(commencing with Section 7950) of Division 12 of the Family Code regarding relative
placement. [(4) Placement of siblings and half siblings in the same home, unless that
placement is found to be contrary to the safety and well-being of any of the siblings, as
provided in Section 16002.] [¶] (5) The good moral character of the relative and any
other adult living in the home, including whether any individual residing in the home has
a prior history of violent criminal acts or has been responsible for acts of child abuse or
neglect. [¶] (6) The nature and duration of the relationship between the child and the
relative, and the relative's desire to care for, and to provide legal permanency for, the
child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the
following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B)
Exercise proper and effective care and control of the child. [¶] (C) Provide a home and
the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶]
(E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate
visitation with the child's other relatives. [¶] (G) Facilitate implementation of all
elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification
fails. [¶] ... [¶] (I) Arrange for appropriate and safe child care, as necessary. [and] [¶]
(8) The safety of the relative's home." (Isabella G., supra, at p. 719, fn. 9, quoting
section 361.3, subd. (a).)
12
sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903
(2).) The federal placement provision also provides that if the Indian child's tribe
"establish[es] a different order of preference by resolution, the agency or court effecting
the placement shall follow such order so long as the placement is the least restrictive
setting appropriate to the particular needs of the child . . . ." (25 U.S.C. § 1915 (c).)
Similarly, section 361.31 states that "[n]otwithstanding the placement preferences listed
in [the statute], if a different order of placement preference is established by the child's
tribe, the court or agency effecting the placement shall follow the order of preference
established by the tribe, so long as the placement is the least restrictive setting
appropriate to the particular needs of the child . . . ." (§ 361.31, subd. (d).)
"The parties' contentions concern issues of statutory interpretation, which we
review de novo." (Anthony T., supra, 208 Cal.App.4th at p. 1028.) "Statutes passed for
the benefit of Indian tribes are to be liberally construed in favor of the tribes. [Citations.]
Any ambiguity in statutes affecting an Indian tribe must be resolved in its favor.
[Citation.] ICWA must be liberally construed in favor of the policy to defer to tribal
judgment in Indian child custody matters. (Bur. of Indian Affairs Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67585, § A (Nov. 26,
1979) (BIA Guidelines).)" (Anthony T., supra, at p. 1029.)
II
We agree with the parties that because A.F. is an Indian child, the juvenile court
was required to follow the placement preferences set forth in section 361.31, subdivision
(b), and Title 25, United States Code section 1915(b). (See § 361.31, subd. (a) ["In any
13
case in which an Indian child is removed from the physical custody of his or her parents
or Indian custodian pursuant to Section 361, the child's placement shall comply with this
section."].)6 T.C. contends that because Donna, A.F.'s paternal grandmother, and Liesha,
A.F.'s maternal cousin, are both extended family members, both homes are equally
preferred for placement under these provisions, unless the Tribe established a different
order of placement. On appeal, T.C. asserts that the Tribe's March 29, 2017 letter
indicating its preference for placement with Liesha established a different order of
placement, requiring the court to find good cause under section 361.31 before deviating
from that order of placement.
The Agency argues the letter did not establish a different order of placement.
Specifically, the Agency asserts that section 1915(c) of title 25 of the United States Code
and section 361.31, subdivision (d), require the tribe to "set forth an objective order of
placement preferences in a legally binding statement by the competent Tribal authority to
necessitate a good cause finding to deviate" from those provisions' placement
preferences.7 The Agency argues that the statutory language and Bureau of Indian
Affairs (BIA) regulations and the BIA's 2016 Guidelines for Implementing the Indian
6 California Rules of Court, rule 5.484, titled "Placement of an Indian child,"
likewise requires the juvenile court to follow the placement preferences set forth in
section 361.31, subdivision (b), for all placements of Indian children, unless the court
finds good cause to deviate from those preferences.
7 In her reply brief, T.C. contends that the Agency waived this argument because it
did not assert it below. We reject this contention. In the juvenile court proceeding, the
Agency opposed W.F.'s request to move A.F. to Donna's home and, therefore, had no
occasion to assert the argument it makes on appeal.
14
Child Welfare Act make clear the Tribe's designation of a particular individual as a
preferred placement is not sufficient to change the default placement preference set forth
in ICWA and section 361.31, subdivision (b).
Section 1915(c) of title 25 of the United States Code indicates clearly that the
Agency or court effecting placement of an Indian child must follow a different order of
placement when the Tribe establishes that different order by resolution. (25 U.S.C.
§ 1915(c).)8 (See Professional Engineers in California Government v. Brown (2014) 229
Cal. App. 4th 861, 873 ["When the words are clear and unambiguous, there is no need for
statutory construction or resort to other indicia of legislative intent, such as legislative
history."].) Additionally, the BIA's 2016 regulations and official Guidelines provide
clear direction as to what constitutes a tribal resolution for purposes of the statute.9 (See
Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal. 3d 35, 45 ["We have
generally accorded respect to administrative interpretations of a law and, unless clearly
8 The corresponding California provision, section 361.31, subdivision (c), does not
conflict with this federal requirement. Although the state provision omits the language
"by resolution" contained in the federal statute, T.C. does not argue that this difference
requires a different interpretation of the state provision. We agree with the Agency that
the almost identical state provision should be interpreted to be consistent with the
federal provision. While we are cognizant of the state's ability to enact laws that are
more protective of tribal interests then the federal provisions (see R.R. v. Superior Court
(2009) 180 Cal. App. 4th 185, 207), T.C. has provided no legal authority to support a
broader reading of the state statute.
9 After the enactment of ICWA, the BIA issued nonbinding guidelines in 1979 to
assist state and tribal courts with the interpretation of the act. (See BIA Guidelines for
State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 et seq. (Nov. 26,
1979).) In 2016, the BIA issued its first binding regulations under ICWA to improve its
implementation, and a new set of corresponding guidelines. (See 81 Fed.Reg. 38778-01;
BIA Guidelines for State Courts; Indian Child Custody Proceedings (81 Fed.Reg. 96476
et seq. (Dec. 30, 2016) (2016 Guidelines).)
15
erroneous, have deemed them significant factors in ascertaining statutory meaning and
purpose."].) Like the statute, rule 23.131 of the 2016 BIA regulations states "[i]f the
Indian child's Tribe has established by resolution a different order of preference than that
specified in ICWA, the Tribe's placement preferences apply, so long as the placement is
the least-restrictive setting appropriate to the particular needs of the Indian child . . . ."
(25 C.F.R. § 23.131(c) (2017), italics added.)
In the BIA's regulatory explanation describing commentary it received from tribal
interests before the regulations became final, the BIA noted comments suggesting
"adding a provision to allow the court to consider the Tribe's recommended placement for
an Indian child, to take into consideration Tribal custom, law, and practice when
determining the welfare of Indian children, as authorized by section 1915(c), which states
that the Tribe may establish a different order of preference." (ICWA Proceedings, 81 FR
38778, 38842.) In response, the BIA rejected the proposal and instead concluded that
such an addition was contrary to the method of deviating from the default preferences
enacted by Congress, which "established a method for the Tribe to express its preferences
in section 1915(c). FR §§ 23.129(a), 23.130(b), and 23.131(c) are included in the final
rule in recognition of that statutory requirement." (Ibid.) The same comment response
16
notes that state courts are not prohibited from also considering "a Tribe's recommended
placement for a particular child."10 (Ibid.)
Finally, the 2016 Guidelines provide that "State agencies should determine if the
child's Tribe has established, by resolution, an order of preference different from that
specified in ICWA. If so, then apply the Tribe's placement preferences. Otherwise,
apply ICWA's placement preferences as set out in § 23.131." (2016 Guidelines, p. 56,
italics added.) The same part of the guidelines explains that "[t]he statute requires that a
Tribal order of preference be established by 'resolution' " and that "[w]hile different
Tribes act through different types of actions and legal instruments, the Department
understands that a Tribal 'resolution,' for this purpose, would be a legally binding
statement by the competent Tribal authority that lays out an objective order of placement
preferences." (2016 Guidelines, p. 56 (italics added).) These explanatory statements by
the BIA bolster our interpretation of the statutory language contained in section 1915(c)
of title 25 of the United States Code.
In sum, we agree with the Agency that the plain language of ICWA permits a
Tribe to modify the default order of placement preferences set forth in section 1915(b) of
title 25 of the United States Code and section 361.31, subdivision (b), only if the Tribe
10 In response to comments suggesting that the rule allow for different placement
preferences to be "established by Tribal law or Tribal-State agreements," the BIA also
stated it "recognizes that an order of preference established as part of a Tribal-State
agreement would constitute an order of preference established by 'resolution,' 25 U.S.C.
1915(c), particularly as the statute specifically authorizes Tribal-State agreements
respecting care and custody of Indian children. 25 U.S.C. 1919." (ICWA Proceedings, 81
FR 38778, 38840 (June 14, 2016).)
17
has done so by a resolution (or its equivalent) containing a different, objective order of
placement. Under our interpretation of the law, the Tribe's March 29, 2017 letter did not
modify the statutory placement preference because it provided the Tribe's preferred
placement only in this specific case. (See In re Liliana S. (2004) 115 Cal. App. 4th 585,
590 [holding tribal resolution designating a specific extended family member, the
maternal great-grandmother, over another extended family member, the paternal
grandmother, conflicted with the requirements of 25 U.S.C. § 1915]; In re Julian B.
(2000) 82 Cal. App. 4th 1337, 1345, fn. 3 [rejecting tribal resolution selecting one
extended family member over the other; noting that a resolution designating specific
extended family member did "not constitute a change in the order of placement
preferences but constitutes instead an attempt to designate a specific placement"].)
Because Donna is a member of A.F.'s extended family and coequal to Liesha
under the statutory placement preference order, the court's order placing A.F. with Donna
complied with both section 1915(b) of title 25 of the United States Code and section
361.31, subdivision (b). Under these provisions, the juvenile court was not required to
find good cause to place A.F. with Donna and its failure to do so was not reversible error.
Instead, the Tribe's preference for placement with Liesha was a factor for the court's
consideration in its placement decision.
III
As discussed, T.C.'s appeal hinges on her assertion that the Tribe altered the
placement preferences set forth in ICWA and section 361.31, subdivision (b), requiring
the court to find good cause to deviate from that preference. Because we reject this
18
assertion, we need not address T.C.'s argument that the error was not harmless because
the evidence was insufficient to show good cause to support the court's placement order.
To the extent that T.C.'s appeal can be construed as a challenge to the court's discretion to
place A.F. with Donna, we agree with the Agency and A.F.'s counsel that the order was
not an abuse of the court's wide discretion. Further, the court's use of the placement
factors set forth in section 361.3 to make the placement determination was not
inconsistent with ICWA's required placement preferences in this case.
Like section 361.31, section 361.3—the general statute governing the court's
relative placement decision—"gives 'preferential consideration' to a relative request for
placement, which means 'that the relative seeking placement shall be the first placement
to be considered and investigated.' (§ 361.3, subd. (c)(1).)" (Cesar V. v. Superior Court
(2001) 91 Cal. App. 4th 1023, 1033.) "The Agency is required to assess those relatives
seeking placement according to the factors described in section 361.3, subdivision (a)
(placement factors) and must document those efforts in the social study prepared under
section 358.1. (§ 361.3, subd. (a) [final par.].) When considering whether to place the
child with a relative, the juvenile court must apply the placement factors, and any other
relevant factors, and exercise its independent judgment concerning the relative's request
for placement." (Isabella G., supra, 246 Cal.App.4th at p. 719, footnote omitted.) "The
linchpin of a section 361.3 analysis is whether placement with a relative is in the best
interests of the minor." (Alicia B. v Superior Court (2004) 116 Cal. App. 4th 856, 862—
863.)
19
We review the court's placement orders under the abuse of discretion standard of
review; the court is given wide discretion and its determination will not be disturbed
absent a manifest showing of abuse. (In re Sarah S. (1996) 43 Cal. App. 4th 274, 286; see
In re Stephanie M. (1994) 7 Cal. 4th 295, 318 ["when a court has made a custody
determination in a dependency proceeding, ' "a reviewing court will not disturb that
decision unless the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination [citations]." ' "].) " 'The
appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial court.' " (In
re Stephanie M., supra, at pp. 318—319.)
Here, the juvenile court looked to the placement factors set forth in section 361.3
subdivision (a), in deciding between two relatives who were both entitled to the same
placement preference under ICWA, and who were both approved by the Agency for
placement. Although the Agency's final report recommended that A.F. continue in her
placement with Liesha, the evidence before the juvenile court supported its finding that
placement with Donna was in A.F.'s best interest. Donna testified she was committed to
caring for A.F. and to supporting T.C.'s reunification efforts, including facilitating
visitation for T.C. Donna also testified she would support A.F.'s relationship with the
Tribe and help educate A.F. about the Tribe's customs. In addition, the evidence before
the juvenile court supported its finding that Liesha had inadequately addressed the severe
diaper rash that afflicted A.F. This court is not permitted to reweigh the evidence or
20
second-guess the credibility determinations made by the juvenile court in its placement
decision. Under this limited standard of review, we conclude the juvenile court did not
abuse its discretion by placing A.F. with Donna.
DISPOSITION
The order is affirmed.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
21
Filed 12/20/17
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.F., a Person Coming Under the
Juvenile Court Law.
D072226
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ2481C)
Plaintiff and Respondent,
v. ORDER CERTIFYING OPINION FOR
PARTIAL PUBLICATION
T.C.,
Defendant and Appellant.
THE COURT:
The opinion filed November 29, 2017, was not certified for publication. The request
pursuant to California Rules of Court, rule 8.1120(a), for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion, with the exception of part III, meets
the standards for publication as specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be partially published in the
Official Reports.
BENKE, Acting P. J.
Copies to: All parties