|
(Cite
as: 177 Cal.App.4th 683, 99 Cal.Rptr.3d
356) |
Court
of Appeal, Fourth District, Division 1, California.
In
re G.L., a Person Coming Under the Juvenile Court Law.
San
Diego County Health and Human Services Agency, Plaintiff and
Respondent,
v.
Michael
L., Defendant and Appellant.
No.
D054257.
Sept.
9, 2009.
Review
Denied Dec. 2, 2009.
**359
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, Dana
C. Shoffner and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and
Respondent.
**360
Carl Fabian, under appointment by the Court of Appeal, for Minor.
IRION,
J.
*686
Michael L. appeals a judgment declaring his minor daughter, G.L., a dependent of
the juvenile court under Welfare and Institutions Code section 300, subdivisions
(a) and (b), and removing G.L. from parental custody. Michael, an enrolled
member of the Viejas Band of Mission Indians (Viejas tribe), contends the
jurisdictional findings and dispositional order must be reversed because the
court and the San Diego County Health and *687
Human Services Agency (Agency) did not comply with the notice provisions of the
Indian Child Welfare Act of 1978 (25 U.S.C., ? 1901 et seq.) (ICWA) affecting
the rights of the paternal grandmother, Mary W., who was G.L.'s Indian
custodian. Michael further contends the court erred by declining to place G.L.
with Mary under ICWA's placement preferences.
We
conclude ICWA's notice requirements for an Indian custodian were not violated,
and to the limited extent Mary's rights as G.L.'s Indian custodian were
implicated, any error was harmless. We further conclude substantial evidence
supports the court's finding that good cause existed to deviate from ICWA's
statutory placement preferences. Accordingly, we affirm the
judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
On
May 28, 2008, Agency filed a petition in the juvenile court alleging
two-year-old G.L. was at substantial risk of harm because her parents had a
history of substance abuse and domestic violence, and on May 6, 2008, Michael
injured G.L. during a physical altercation he had with G.L.'s mother, Elena P.
(Welf. & Inst.Code, ? 300, subds. (a), (b).) The court held a detention
hearing that day, but the whereabouts of G.L. and the parents were unknown.
Because Michael was an enrolled member of the Viejas tribe and G.L. was eligible
for enrollment, the court found ICWA applied and ordered Agency to send notice
to the tribe. The court issued a pick-up and detain order for G.L.
At
the time of the jurisdiction hearing on June 18, 2008, the parents' whereabouts
remained unknown. G.L., who was represented by counsel, was present in court.
Mary was also present. The court sustained the allegations of the petition under
Welfare and Institutions Code section 300, subdivisions (a) and (b), again found
ICWA applied, and ordered Agency to evaluate all relatives for placement. At the
conclusion of the jurisdiction hearing, G.L. was taken into protective custody.
Mary gave the social worker G.L.'s belongings, as well as a form entitled
?Designation of Indian Custodian,? signed by Elena on May 22, 2008, transferring
temporary care and custody of G.L. under ICWA to Mary and the paternal aunt,
Amber L.
In
a report prepared for the July 10 disposition hearing, Agency attached the
Designation of Indian Custodian form signed by Elena. Agency also attached a
letter from the Viejas tribe stating its preference for placing G.L. with Amber
on the Viejas Indian Reservation. At the July 10 hearing, the court and counsel
acknowledged and discussed Mary's Indian custodian status.
*688
Agency recommended G.L. be placed in an Indian-approved foster home, but not
with Amber or Mary because Amber did not want to care for G.L., and Mary did not
pass background checks. Agency was also concerned about Mary's ability to
protect G.L. because in 2006, Mary was G.L.'s Indian custodian for a period of
time and failed to protect G.L. from the ongoing violence between the parents.
At the request**361
of counsel for the Viejas tribe (tribal counsel), the court continued the
disposition hearing.
At
the continued hearing on July 21, tribal counsel argued that because Mary had
custody of G.L. at the time the petition was filed, Agency was required to seek
removal from her. On August 7, Agency filed a subsequent petition under Welfare
and Institutions Code section 342, alleging Mary, G.L.'s Indian custodian, was
aware of and failed to protect G.L. from severe domestic violence between the
parents. Tribal counsel suggested the court appoint counsel for Mary on the
subsequent petition because she became G.L.'s Indian custodian before the court
made its jurisdictional findings. Agency acknowledged Mary could be entitled to
counsel. The court continued the hearing to address the Indian custodian issue
and ordered Mary to return.
At
the time of the continued hearing on August 19, Elena filed with the court a
document entitled ?Revocation of Designation of Indian Custodian,? revoking her
transfer of G.L.'s care and custody to Mary and Amber. The court granted
Agency's request to dismiss the Welfare and Institutions Code section 342
subsequent petition on the ground Mary was no longer G.L.'s Indian
custodian.
On
September 8, Agency reported that G.L. had been placed in an Indian foster home
approved by a foster family agency but not by the Viejas tribe. Agency was still
trying to locate a Viejas-approved foster home. Michael had not contacted Agency
or visited G.L. in several months. In October 2008, Michael was arrested
following a shooting incident on the Viejas Indian Reservation.
At
a disposition hearing that began on November 20 and concluded on December 1, the
court admitted into evidence a declaration by Indian expert Phillip Powers,
stating active efforts had been made to provide remedial and rehabilitative
services to the parents to prevent the breakup of the Indian family, and those
efforts had been unsuccessful. Powers recommended the court declare G.L. a
dependent and remove her from parental custody based on evidence G.L. would be
at great risk of serious physical and emotional harm in her parents'
care.
The
social worker testified G.L. continued to live in the Indian foster home. The
caregivers engaged in tribal cultural activities and had other *689
Indian children in their care. A foster home approved by the Viejas tribe had
not been found. The social worker could not recommend placing G.L. with Mary
because she had a criminal and child welfare history, and because she previously
had custody of G.L. and returned her to the parents even though she knew about
the domestic violence. Agency could not waive Mary's 1995 conviction for
?cruelty to a child? for purposes of placing G.L. with her.
Michael
testified he wanted G.L. placed with Mary or other paternal relatives. He said
he signed a Designation of Indian Custodian form on May 22, 2008, transferring
custody of G.L. to Mary. He did not revoke the transfer and intended that Mary
remain G.L.'s Indian custodian. The court admitted Michael's Designation of
Indian Custodian form into evidence.
Mary
testified she was present when both parents signed the Designation of Indian
Custodian forms on May 22. G.L. was in Mary's custody from May 22 until June
2008. Mary explained that in 1995 she was arrested for driving under the
influence with a child in the car, resulting in her conviction for child
endangerment.
Mary
further testified she had not seen any bruises on Elena, and was unaware of the
domestic violence incident in May 2008. She believed the juvenile court
previously intervened in 2006 because Elena was immature and jealous. Mary
denied **362
knowing Michael was physically abusive to Elena. She had never seen Michael hit
Elena, but she would consider the possibility that domestic violence had
occurred. Mary had not visited G.L. since she was placed in foster
care.
Elena
testified she voluntarily designated Mary as G.L.'s Indian custodian on May 22,
and she signed the form in the presence of Mary and Michael. Elena rescinded the
designation in October 2008, but now wanted Mary to be G.L.'s Indian
custodian.
After
considering the evidence and hearing argument of counsel, the court declared
G.L. a dependent and removed her from parental custody under Welfare and
Institutions Code section 361, subdivision (c) and 25 United States Code section
1912(e). The court disagreed with the position of Michael and the Viejas tribe
that the jurisdictional findings must be vacated because Mary, as G.L.'s Indian
custodian, was entitled to ICWA notice and appointment of counsel. The court
noted Mary was no longer G.L.'s Indian custodian, and neither Mary nor the
Viejas tribe had asserted her status before it was revoked.
The
court declined to place G.L. with Mary, finding Mary was unlikely to adequately
protect G.L., given her lack of insight regarding Michael's role in *690
the domestic violence between the parents. The court found G.L.'s current
placement qualified as an Indian foster home, and even if it did not, there were
no other Indian homes currently available for G.L.
DISCUSSION
I
THE
COURT AND AGENCY DID NOT VIOLATE ICWA'S NOTICE PROVISIONS FOR AN INDIAN
CUSTODIAN
Michael
contends the jurisdictional findings and dispositional order must be reversed
because the court and Agency failed to comply with ICWA's notice requirements as
to Mary, who was G.L.'s Indian custodian. He asserts that under state and
federal law, Mary was entitled to notice of her rights to intervene in the
proceedings and have counsel appointed.
A
Rights
of the Indian Custodian Under ICWA
In
1978, Congress enacted ICWA in an effort to protect and preserve Indian tribes
and their resources. (25 U.S.C. ?? 1901, 1902.) ICWA was specifically designed
to help Indian children retain their familial, tribal and cultural ties.
(In
re Robert A.
(2007) 147 Cal.App.4th 982, 988, 55 Cal.Rptr.3d 74.) It sets forth minimum
federal standards for removing Indian children from their families and placing
these children in foster or adoptive homes that reflect the unique values of
Indian culture. (25 U.S.C. ? 1902; Mississippi
Choctaw Indian Band v. Holyfield
(1989) 490 U.S. 30, 37, 109 S.Ct. 1597, 104 L.Ed.2d 29.) Consistent with
Congress's goals, ?[p]roceedings in state courts involving the custody of Indian
children shall follow strict procedures and meet stringent requirements to
justify any result in an individual case contrary to those preferences.?
(Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg.
67584, 67586 (Nov. 26, 1979) (Guidelines).)
[1]
Among ICWA's procedural safeguards is the duty to inquire into a dependent
child's Indian heritage and to provide notice of the proceeding to any tribe or
potential tribes, the parent, any Indian custodian of the child and, under some
circumstances, to the Bureau of Indian Affairs (BIA). ICWA's notice
requirement**363
provides: ?In any involuntary proceeding in a State court, where the court knows
or has reason to know that an Indian child is involved, the *691
party seeking the foster care placement of, or termination of parental rights
to, an Indian child shall notify the parent or Indian
custodian
and the Indian child's tribe, by registered mail with return receipt requested,
of the pending proceedings and of their right of intervention.... No foster care
placement or termination of parental rights proceeding shall be held until at
least ten days after receipt of notice by the parent or Indian
custodian
and the tribe....? (25 U.S.C. ? 1912(a); italics added; see also Welf. &
Inst.Code, ? 224.2, subd. (a); Cal. Rules of Court, FN1
rule 5.481(b); Guidelines, 44 Fed.Reg. at p. 67588.) The notice requirements of
ICWA are mandatory and cannot be waived by the parties. (In
re Jennifer A.
(2002) 103 Cal.App.4th 692, 707, 127 Cal.Rptr.2d 54.)
FN1.
Rule references are to the California Rules of Court.
ICWA
defines ? ?Indian custodian? ? as ?any Indian person who has legal custody of an
Indian child under tribal law or custom or under State law or to
whom temporary physical care, custody, and control has been transferred by the
parent of such child.?
(25 U.S.C. ? 1903(6), italics added; Welf. & Inst.Code, ? 224.1, subd. (a)
[adopting ICWA's definition of ?Indian custodian?].) In introducing the term
?Indian custodian,? the House Report on ICWA explained the need to expand the
definition beyond custody of an Indian child ?with someone other than the
parents under formal custom or law of the tribe or under state law.... [B]ecause
of the extended family concept in the Indian community, parents often transfer
physical custody of the Indian child to such extended family member on an
informal basis, often for extended periods of time and at great distances from
the parents. While such [ ] custodian[s] may not have rights under state law,
they do have rights under Indian custom which this bill seeks to protect,
including the right to protect the parental interests of the parents.? (H.R.Rep.
No. 95-1386, 2d Sess.(1978), reprinted in 1978 U.S.Code Cong. & Admin.News
7530, 7543; see also SER
Juvenile Dept. v. England
(1982) 292 Or. 545, 640 P.2d 608, 612.)
One
particular concern of Congress ?was the failure of non-Indian child welfare
workers to understand the role of the extended family in Indian society.?
(Mississippi
Choctaw Indian Band v. Holyfield, supra,
490 U.S. at p. 35, fn. 4, 109 S.Ct. 1597.) ? ?An Indian child may have scores
of, perhaps more than a hundred, relatives who are counted as close, responsible
members of the family. Many social workers, untutored in the ways of Indian
family life or assuming them to be socially irresponsible, consider leaving the
child with persons outside the nuclear family as neglect and thus as grounds for
terminating parental rights.? ? (Ibid.,
quoting H.R.Rep. No. 95-1386, supra,
reprinted in 1978 U.S.Code Cong. & Admin.News, at p. 7532.)
[2]
*692
ICWA's legislative history makes clear that ?[t]he purpose of the Indian
custodian status is to recognize and protect the practice of parents in many
Indian communities who entrust their children temporarily to the care of
extended family members and to mandate that such entrustment does not constitute
abuse or neglect.? (Ted
W. v. State of Alaska
(2009) 204 P.3d 333, 338.) In this regard, an Indian custodian stands in the
shoes of the parent and enjoys favored status under ICWA. (Native American
Rights Fund, A Practical Guide to the Indian Child Welfare Act (2007) p. 37.)
Like parents, Indian**364
custodians are entitled to ICWA's protections, including notice of the pending
proceedings and the right to intervene.FN2
(25 U.S.C. ? 1912(a); Welf. & Inst.Code, ? 224.2, subd. (a); see Risling,
Cal. Judges' Benchguide: The Indian Child Welfare Act (Cal. Indian Legal
Services 2000) p. 20.) Additionally, an indigent parent or Indian custodian has
a right to court-appointed counsel in a ?removal, placement, or termination
proceeding? (25 U.S.C. ? 1912(b); Welf. & Inst.Code, ? 224.2, subd.
(a)(5)(G)(v)) and the right to an additional 20 days to prepare for the
proceeding. (Welf. & Inst.Code, ? 224.2, subd. (a)(5)(G)(iii); rules
5.482(a)(3); Guidelines, 44 Fed.Reg. at p. 67589.)
FN2.
Under ICWA, ?the Indian custodian of the child and the Indian child's tribe
shall have a right to intervene at any point in the proceeding.? (25 U.S.C. ?
1911(c).) Under California law, the child's parents, Indian custodians and tribe
have an ?absolute right? to intervene in the proceeding. (Welf. & Inst.Code,
? 224.2, subd. (a)(5)(G)(i).) Notice requires a statement of ?[t]he potential
legal consequences of the proceedings on the future custodial and parental
rights of the child's parents or Indian custodian.? (Id.,
? 224.2, subd. (a)(5)(G)(iv).) Allowing an Indian custodian to intervene ?is
necessary because foster care placements and/
Although
ICWA provides for notice to the parent or
Indian custodian, the Guidelines recommend notice be sent to both the parent
and
Indian custodian because doing so ?is in keeping with the spirit of? ICWA.
(Guidelines, 44 Fed.Reg. at p. 67589.) This is consistent with California law
governing custody proceedings involving Indian children,FN3
which provides for notice and other rights to both the parent and
Indian custodian. (Welf. & Inst.Code, ?? 224.2, subd. (a), 224.4; rules
5.481(b)(1), (2), 5.482(e).)
FN3.
In California, ICWA ?applies to all proceedings involving Indian children that
may result in an involuntary foster care placement.? (Rule 5.480.) This includes
?detention hearings, jurisdiction hearings, disposition hearings, review
hearings, hearings under [Welfare and Institutions Code]section 366.26, and
subsequent hearings affecting the status of the Indian child.? (Rule
5.480(1).)
*693
B
Mary
Was G.L.'s Indian Custodian From May 22, 2008, to August 19, 2008
[3]
Mary's status as G.L.'s Indian custodian was created by the parents' temporary
transfer of G.L.'s physical care, custody and control under ICWA to Mary on May
22, 2008. The parties do not dispute that G.L. was in Mary's exclusive custody
from May 22 until G.L. was taken into protective custody on June 18. The
parents, who signed and submitted Designation of Indian Custodian forms,
testified it was their intent to confer Indian custodian status on Mary.
FN4
FN4.
We need not address Agency's argument that the parents' Indian custodian
designation was a mechanism used solely to avert the court's intervention.
Regardless of the parents' motivation, their temporary transfer of G.L.'s care
and custody to Mary effectively created Indian custodian status.
[4][5]
We disagree with Agency's assertion that the documents signed by the parents
were insufficient to show Mary was G.L.'s Indian custodian. The statutory
authority for designation of an Indian custodian by a parent does not require a
writing. (25 U.S.C. ? 1903(6).) As noted in the House Report, a parent's
temporary transfer of physical custody of an Indian **365
child to extended family is often done on ?an informal basis.? (H.R.Rep. No.
95-1386, supra,
reprinted in 1978 U.S.Code Cong. & Admin.News, at p. 7543.) We also disagree
with Agency's assertion that a determination of Indian custodian status requires
the court to consider the ?nature, frequency, and duration? of contacts between
the Indian child and his or her custodian. This position has no support in
ICWA's language, legislative history or Guidelines, or in any published
authority discussing Indian custodian status. Rather, the concept of the Indian
custodian grew out of Congress's concern for the failure of administrative and
judicial bodies ?to recognize the essential tribal relations of Indian people
and the cultural and social standards prevailing in Indian communities and
families.? (25 U.S.C. ? 1901(5).) To impose standards regarding the nature,
frequency, and duration of the Indian child's contacts with his or her Indian
custodian would essentially ignore the critical role of extended family in
Indian society, and thereby perpetuate one of the problems that Congress
expressly sought to remedy by enacting ICWA.
As
the juvenile court here noted, Elena had temporarily ?signed over her rights
under [ICWA] to the paternal grandmother[,] making her the Indian custodian.?
The record supports a finding that Mary was G.L.'s Indian custodian from May 22
to August 19, 2008, the date Elena revoked that status.
*694
C
The
Failure to Send Statutory Notice to Mary Did Not Violate ICWA
[6]
The record shows Mary was aware of the dependency proceedings because she
attended the jurisdiction hearing on June 18. She did not inform the court or
social worker that she had a Designation of Indian Custodian document signed by
Elena. The court sustained the allegations of the petition and the proceedings
concluded without the court or Agency ever knowing Mary was G.L.'s Indian
custodian. Although Mary was not required or expected to understand the legal
implications of ICWA, disclosure of her status as G.L.'s Indian custodian was a
matter entirely within her control. Because the court and Agency did not know or
have reason to know Mary was G.L.'s Indian custodian at the time of the
jurisdiction hearing, they cannot be faulted for failing to provide her with
notice under ICWA.
[7]
When Agency took G.L. into protective custody immediately following the
jurisdiction hearing on June 18, Mary gave the social worker a Designation of
Indian Custodian form, thus putting Agency on notice that she was G.L.'s Indian
custodian. At that point, it was incumbent on Agency to provide ICWA notice to
Mary as an Indian custodian, so that she could exercise her right to intervene
and request appointment of counsel. (25 U.S.C. ? 1912(a); Welf. & Inst.Code,
? 224.2, subd. (a).) Agency offers no reason for its failure to notify Mary of
her rights under ICWA as G.L.'s Indian custodian once it had this
information.
[8]
The court first became aware of Mary's Indian custodian status at a hearing on
July 10. Although the court acknowledged Mary was G.L.'s Indian custodian, it
did not inquire whether Agency had sent Mary ICWA notice or order Agency to do
so. Instead, it continued the date for disposition so Agency could file a
Welfare and Institutions Code section 342 subsequent petition to seek G.L.'s
removal from Mary's custody. Agency followed through and filed the subsequent
petition, but again failed to send Mary the statutory notice to which she was
entitled as an Indian custodian. Once the court and **366
Agency knew of Mary's Indian custodian status, the responsibility for compliance
with ICWA notice fell ?squarely and affirmatively? on them. (Justin
L. v. Superior Court
(2008) 165 Cal.App.4th 1406, 1410, 81 Cal.Rptr.3d 884.)
However,
the failure to send Mary statutory notice did not violate ICWA. Although the
court should have earlier ensured compliance with ICWA notice requirements,
Mary's status as G.L.'s Indian custodian was revoked on August 19. From the time
the court and Agency learned of Mary's Indian *695
custodian status to the time that status was revoked, no hearing occurred that
had an adverse impact on Mary's rights as an Indian custodian.
D
Revocation
Effectively Terminated Mary's Indian Custodian Status
[9]
Michael contends the revocation of Mary's Indian custodian status was
ineffective and thus, the ICWA notice violation continued throughout the
proceedings, including the disposition hearing. He asserts: (1) Elena did not
have the ability or authority to revoke Mary's Indian custodian status once G.L.
was no longer in Elena's custody; and (2) he did not revoke his designation of
Mary as G.L.'s Indian custodian.
[10]
The transfer of an Indian minor's care and custody to an Indian custodian is, by
definition, ?temporary,? and thus revocable. (25 U.S.C. ? 1903(6); Welf. &
Inst.Code, ? 224.1, subd. (a).) At the time Elena revoked Mary's Indian
custodian status, Elena's parental rights remained intact and Elena retained
legal custody of G.L., even though she did not have physical custody of her.
Thus, Elena could properly revoke the transfer of G.L.'s care and custody to
Mary.FN5
Moreover, Elena's revocation was effective to terminate Mary's Indian custodian
status, even without Michael's revocation. To conclude otherwise would have the
unintended effect of allowing one parent to usurp the rights of the other parent
with respect to an Indian child's temporary custody.FN6
Once Mary's Indian custodian status was revoked, the notice provisions of ICWA
no longer applied to her, regardless of Michael's intent to the
contrary.
FN5.
We need not address whether Elena was entitled to reinstate Mary as G.L.'s
Indian custodian based on her testimony at the disposition hearing that she was
willing to do so.
FN6.
Stated another way, an Indian custodian functions in lieu of a parent, not in
addition to one.
E
Michael
Was Not Prejudiced by the Lack of ICWA Notice to Mary
[11][12][13]
To the extent Mary was entitled to ICWA notice before her Indian custodian
status was revoked, any error was harmless. We agree with the line of cases
holding a notice violation under ICWA is not jurisdictional in the fundamental
sense, but instead is subject to a harmless error analysis. (See In
re Brooke C.
(2005) 127 Cal.App.4th 377, 384-385, 25 Cal.Rptr.3d 590; *696
In re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1410, 129 Cal.Rptr.2d 15.) ?[T]o hold otherwise
would deprive the juvenile court of all authority over the dependent child,
requiring the immediate return of the child to the parents whose fitness was in
doubt.? (In
re Brooke C.,
at p. 385, 25 Cal.Rptr.3d 590.) An appellant seeking reversal for lack of proper
ICWA notice must show a reasonable probability that he or she would have
obtained a more favorable result**367
in the absence of the error. (In
re S.B.
(2005) 130 Cal.App.4th 1148, 1162, 30 Cal.Rptr.3d 726; In
re H.B.
(2008) 161 Cal.App.4th 115, 122, 74 Cal.Rptr.3d 27.)
Even
had Mary received ICWA notice, intervened and had counsel appointed before her
Indian custodian status was revoked, substantial evidence supports a finding
that the parents exposed G.L. to their substance abuse and ongoing domestic
violence, and that G.L. was injured during a physical altercation on May 6,
before
Mary was her Indian custodian. Although G.L. was no longer in the parents'
physical custody when the petition was filed, she remained at substantial risk
of harm without the court's intervention. Contrary to Michael's position, the
lack of ICWA notice to Mary did not undermine the validity of the court's
jurisdictional findings or require the court to dismiss the petition. With the
exception of the period when Mary was G.L.'s Indian custodian, the proceedings
were conducted in accordance with ICWA and the court properly applied ICWA's
substantive provisions. This is not a case where the court ignored a minor's
Indian ancestry or deprived a tribe of its right to intervene. (In
re Nikki R.
(2003) 106 Cal.App.4th 844, 855, 131 Cal.Rptr.2d 256.) There is no reasonable
probability the result would have been more favorable to Michael had Mary
received ICWA notice. (See In
re Alexis H.
(2005) 132 Cal.App.4th 11, 16, 33 Cal.Rptr.3d 242 [defective ICWA notice was
harmless error].) Further, given the unusual procedural posture in which we
address the issue of notice to an Indian custodian, even a conditional reversal
and remand for further ICWA notice would be futile, ?an empty formality and a
waste of ever-more-scarce judicial resources.? (In
re E.W.
(2009) 170 Cal.App.4th 396, 402, 88 Cal.Rptr.3d 338.)
II
THE
COURT DID NOT VIOLATE ICWA'S PLACEMENT PREFERENCES
Michael
challenges the sufficiency of the evidence to support the court's deviation from
ICWA's placement preferences. (25 U.S.C. ? 1915(b); Welf. & Inst.Code, ?
361.31.) He asserts the court erred by not placing G.L. with Mary as an extended
family member despite evidence that showed: (1) the parents wanted G.L. placed
with her; (2) Mary was willing and able to *697
facilitate reunification between G.L. and Elena; (3) Mary was able to provide
G.L. with a safe and secure home; and (4) Agency was unable to find a foster
placement for G.L., other than Mary's home, approved by the tribe.
A
ICWA's
Placement Preferences and Standard of Review
ICWA
provides placement preferences and standards to be followed in foster care
placements of Indian children. (25 U.S.C. ? 1915.) Preference must be given, ?in
the absence of good cause to the contrary, to a placement with (i) a member of
the ... child's extended family; (ii) a foster home licensed, approved, or
specified by the ... child's tribe; (iii) an Indian foster home licensed or
approved by an authorized non-Indian licensing authority; or (iv) an institution
approved by an Indian tribe or operated by an Indian organization which has a
program suitable to meet the ... child's needs.? (25 U.S.C. ? 1915(b)(i)-(iv).)
?[T]he standards to be applied in meeting the placement preferences shall be the
prevailing social and cultural standards of the Indian community where the
parent or extended family resides or with which they maintain social and
cultural ties.? (In
re A.A.
(2008) 167 **368
Cal.App.4th 1292, 1326-1327, 84 Cal.Rptr.3d 841, citing 25 U.S.C. ? 1915(d);
Welf. & Inst.Code, ? 361.31, subd. (f).) The placement preference standards
reflect the legislative goal of keeping Indian children with their extended
families and preserving the connection between the child and his or her tribe
when removal is necessary. (25 U.S.C. ? 1901; Welf. & Inst.Code, ?
224.)
[14]
In deciding whether good cause exists to deviate from the statutory placement
preferences, the court should consider various factors set forth in ICWA's
Guidelines, including: (1) the request of the biological parents; (2) the
request of the child; (3) the extraordinary physical or emotional needs of the
child as established by testimony of a qualified expert witness; and (4) the
unavailability of suitable families for placement after a diligent search has
been completed for families meeting the preference criteria. (Guidelines, 44
Fed.Reg. at p. 67594; Welf. & Inst.Code, ? 361.31, subd. (h).) The burden is
on the proponent of the good cause finding-here, Agency-to show there is an
exception to the placement preferences. (Fresno
County Dept. of Children & Family Services v. Superior Court
(2004) 122 Cal.App.4th 626, 644, 19 Cal.Rptr.3d 155.)
[15][16]
In reviewing the court's good cause determination to bypass ICWA's placement
preferences, we apply the substantial evidence test. (Fresno
County Dept. of Children & Family Services v. Superior Court,
supra,
122 Cal.App.4th at pp. 644-646, 19 Cal.Rptr.3d 155.) Under this standard, we do
not pass on the *698
credibility of witnesses, attempt to resolve conflicts in the evidence, or
reweigh the evidence. Instead, we draw all reasonable inferences in support of
the findings, view the record favorably to the juvenile court's order and affirm
the order even if there is other evidence supporting a contrary finding.
(In
re Casey D.
(1999) 70 Cal.App.4th 38, 52-53, 82 Cal.Rptr.2d 426; In
re Baby Boy L.
(1994) 24 Cal.App.4th 596, 610, 29 Cal.Rptr.2d 654.) The appellant has the
burden of showing there is no evidence of a sufficiently substantial nature to
support the court's findings. (In
re L.Y.L.
(2002) 101 Cal.App.4th 942, 947, 124 Cal.Rptr.2d 688.)
B
Good
Cause Existed to Place G.L. in an Indian Foster Home Instead of With
Mary
[17]
Here, substantial evidence supports the court's finding that good cause existed
to deviate from ICWA's statutory placement preferences. The evidence showed that
even though Mary had a relationship with G.L., had cared for her in the past and
could maintain ties between G.L. and the Viejas tribe, she had been unable to
protect G.L. from the parents' ongoing substance abuse and domestic violence.
Mary had little or no insight into the effects of domestic violence on G.L., and
denied Michael was violent toward Elena. Instead, Mary placed the blame on
Elena. The court was entitled to disbelieve Mary's testimony that her
relationship with Elena was amicable, and that Mary would consider Michael's
culpability for the domestic violence and cooperate with Agency if the court
placed G.L. with her. (See In
re Casey D., supra,
70 Cal.App.4th at pp. 52-53, 82 Cal.Rptr.2d 426.) Given the evidence of Mary's
inability to provide G.L. with a safe, secure and stable home or to facilitate
reunification between G.L. and Elena, good cause existed for the court to bypass
the placement preference for Mary as G.L.'s extended family member. FN7
FN7.
Contrary to Michael's argument, the court did not base its placement decision on
Mary's 1995 conviction. Thus, any failure by Agency to inform Mary she could
obtain a waiver of her conviction for purposes of placement is not relevant to
the outcome of this case.
Further,
the court recognized it could not place G.L. in an Indian foster home
**369
approved by the Viejas tribe because none existed. In accordance with ICWA's
third level of placement preferences, the court placed G.L. in an Indian foster
home approved by a non-Indian licensing authority, where she had been living
since she was taken into protective custody. (See In
re K.B.
(2009) 173 Cal.App.4th 1275, 1290, 93 Cal.Rptr.3d 751 [placement of minor with
Indian caregiver who was not member of minor's tribe satisfied requirements of
ICWA].) The court also ordered Agency to continue searching for a foster home
approved by the Viejas tribe, and to evaluate all relatives for placement.
Substantial evidence supports the court's dispositional order.
*699
DISPOSITION
The
judgment is affirmed.
WE
CONCUR: BENKE, Acting P.J., and HUFFMAN, J.