as: 115 Cal.App.4th 585, 10 Cal.Rptr.3d 553)
of Appeal, Fourth District, Division 1, California.
re LILIANA S. et al., Persons Coming Under the Juvenile
Diego County Health And Human Services Agency, Plaintiff And Respondent,
S. Et Al., Defendants And Respondents,
Caliente Band Of Cahuilla Indians, Intervenor And Appellant.
Art Bunce, Escondido, and Kathryn Clenney for Intervenor and Appellant.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County
Counsel, and Katharine R. Bird, Deputy County Counsel, for Plaintiff
Suzanne F. Evans, San Diego, under appointment by Court of
Appeal, for Defendant
and Respondent Frank S.
Patti L. Dikes, under appointment by the Court of Appeal,
for Defendant and Respondent Angelina T.
Christopher Blake, under appointment by the Court of Appeal, for
Agua Caliente Band of Cahuilla Indians (the Tribe) appeals orders
at a Welfare and Institutions Code section 366.21 six-month review
hearing continuing Liliana S. and Juliana S. as dependent children
of the juvenile court and continuing their placement **554
in the home of their paternal grandmother, Sonia S. (the
paternal grandmother). The Tribe contends the mandatory order of preference
for placement of dependent children under the Indian Child Welfare
Act (ICWA) [FN1]
and California Rules of Court, rule 1439(k)(1)) [FN2]
is not subject to the good cause exception of rule
1439(k)(4) and the juvenile court lacked good cause to deviate
from the statutory order of preference. We affirm the orders.
Title 25 United States Code section 1901 et seq.
All rule references are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2002, the San Diego County Health and Human
Services Agency (the Agency) petitioned under Welfare and Institutions Code
section 300, subdivision (g) on behalf of six-year-old Liliana and
one-year-old Juliana, alleging they had been left without provision for
support. The mother is an enrolled member of the Tribe
and the children are eligible for enrollment. The father is
not Indian. The Tribe's reservation is located in Riverside County.
The paternal grandmother is employed by the Tribe and she
lives in the Riverside area close to the reservation. The
parents and children have lived with her off and on
during the past five years and Liliana and the parents
wanted the children placed with her. The maternal great-grandmother, Beverly
D. (the maternal great-grandmother), is a member of the Tribe,
but does not live on the Tribe's reservation. She lives
instead on the Pala Indian Reservation in northern San Diego
The Tribe's Council resolved that the maternal great-grandmother's home was
the Tribe's preferred placement for the children. The Agency found
both homes acceptable and recommended placement in the paternal grandmother's
home because it is close to the Tribe's reservation and
to reunification services and because the parents and Liliana wanted
the placement there.
The Tribe passed resolution No. 60-02, resolving the first order
of preference for placement of the children is the maternal
At the jurisdictional hearing on December 3, 2002, the court
found the allegations of the petition true. In January 2003,
the Tribe filed a notice of intervention. On February 14,
2003, it filed an amended resolution (No. 60- 02A), resolving
that "extended family" meant only a child's Indian relatives and
not his or her non-Indian relatives. It reaffirmed that its
first preference for placement was with the maternal great-grandmother.
At the dispositional hearing in February 2003, after testimony by
an Indian expert, a representative of the Tribe, a counselor,
the social worker and family members, including the paternal grandmother,
the maternal great-grandmother and the mother, the court declared the
children dependent children, removed them from the parents' care and
ordered them placed with the paternal grandmother. It found both
the paternal grandmother and the maternal great-grandmother are part of
the children's extended family so it was not required to
find good cause to deviate from the Tribe's placement preference.
Nevertheless, it did find there was good cause not to
follow the Tribe's preference, most importantly Liliana's desire to live
with the paternal grandmother. It also considered the parents' wishes
and the proximity of the paternal grandmother's home to the
parents, allowing more frequent visitation.
On April 21, 2003, the Tribe petitioned for a writ
of mandate seeking
a change of placement. The petition was summarily denied in
case No. D042005.
For the six-month review hearing, the Agency reported the children
were doing well with the paternal grandmother and the parents
were visiting on a consistent basis. It recommended continuing services
and continuing the placement. At the six-month review hearing on
May 1, 2003, the Tribe requested the court reconsider its
placement decision and place the children with the maternal great-grandmother.
The court denied the request, noting there were no new
facts or circumstances to warrant a change of placement. The
court continued placement with the paternal grandmother and continued services.
The Tribe appealed. The father, joined by the mother and
the children, moved to dismiss on the ground the Tribe's
appeal is actually an untimely appeal from the disposition order.
On October 6, 2003, this court denied the motion, ruling
the issue of whether the Tribe waived its arguments regarding
the children's placement by its failure to appeal the disposition
order would be considered on appeal.
The Tribe contends the
mandatory order of preference for placement of dependent children under
the ICWA is not subject to the good cause exception of rule 1439(k)(4)
and the juvenile court lacked good cause to deviate from the statutory
order of preference.
The Agency, the parents and the children assert the Tribe's
appeal is merely a belated challenge to the placement orders
made at the dispositional hearing in February 2003. They argue
no new evidence or argument was presented at the six-month
hearing and the Tribe has waived the issue.
We agree that the Tribe has waived the issue of the children's placement.
" 'An appeal from the most recent order entered in a dependency
matter may not challenge prior orders, for which the statutory time for
filing an appeal has passed.' " (In
re Megan B. (1991)
235 Cal.App.3d 942, 950, 1 Cal.Rptr.2d 177, quoting In
re Elizabeth M. (1991)
232 Cal.App.3d 553, 563, 283 Cal.Rptr. 483.) "[A]n unappealed
disposition or postdisposition order is final and binding and may not
be attacked on an appeal from a later appealable order." (In
re Meranda P. (1997)
56 Cal.App.4th 1143, 1150, 65 Cal.Rptr.2d 913.) Here, the Tribe
challenged the orders at the dispositional hearing by filing a writ petition.
The petition was summarily denied. At the six-month hearing,
the Tribe put forth no new evidence, but merely requested the court reconsider
the placement decision it had made at the dispositional hearing. The orders
made at the dispositional hearing are now final. The Tribe may not
challenge them as an appeal from the orders made at the six-month hearing.
We reject the Tribe's suggestion that this court's opinion in
P. v. Superior Court
(2002) 103 Cal.App.4th 247, 126 Cal.Rptr.2d 639, stands for the
proposition that the general rule that an unappealed order may
not be challenged in an appeal from a later appealable
order does not apply to a central ICWA issue as
in this case. In In
re Dwayne P., supra,
103 Cal.App.4th at page 251, 126 Cal.Rptr.2d 639, this court
ruled that a parent cannot waive an Indian tribe's right
to notice under the ICWA. It does not provide that
a tribe is immune from general waiver principles that apply
to other parties.
Even had the Tribe not waived its challenge to the
placement orders, however, we would find no merit in its
arguments. Welfare and Institutions Code section **556
361.3, subdivisions (a) and (d) provide that relatives are preferred
as placement for dependent children. Title 25 United States Code
section 1915(b) states that for an Indian child, foster or
preadoptive placement preference must be given to the Indian child's
extended family, then to a foster home licensed or approved
by the tribe. Rule 1439(k)(3) states in the case of
foster care or preadoptive placement for an Indian child the
preferred placement is with the child's extended family, then to
other members of the child's Indian tribe. Here, both the
maternal great-grandmother and the paternal grandmother are members of Liliana
and Juliana's extended family. The maternal great-grandmother is a member
of a tribal family although she does not live
on the Tribe's reservation, but on the Pala Indian Reservation.
The paternal grandmother, while not an Indian, lives near the
Tribe's reservation, works there, and, through another relative, has provided
teaching to Liliana about her tribal heritage. The Tribe's resolution
that only Indian relatives should be considered for placement, and
in particular the maternal great-grandmother, eliminates all members of these
children's paternal family as potential placement alternatives. In our view,
resolution No. 60-02A conflicts with the requirements of title 25
United States Code section 1915(b), Welfare and Institutions Code section
361.3, subdivisions (a) and (d), and rule 1439(k).
Rule 1439(k)(3) provides an Indian child may be placed in
a non-Indian home only if the court finds a diligent
search has failed to locate one. Rule 1439(k)(4) states the
court may modify the preference order only for good cause.
Because the court placed the children with a member of
their extended family as required by title 25 United States
Code section 1915(b), Welfare and Institutions Code section 361.3, subdivisions
(a) and (d) and rule 1439(k)(1)(A), it was not required
to find good cause to modify the preference order. There
was, however, abundant good cause to place the children with
the paternal grandmother, rather than with the maternal great-grandmother. The
most important factors were Liliana's and both parents' wishes for
the children to live with the paternal grandmother and her
the parents, allowing for visitation and a better chance for
In summary, the Tribe waived the issue of the children's
placement made at the February 21, 2003 disposition hearing and
even had it not waived the issue, it has not
shown error in the court's orders.
The orders are affirmed.
WE CONCUR: McCONNELL, P.J., and NARES, J.