1

Filed 5/ 9/14 In re E.V. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re E.V. et al., Person s Coming Under the Juvenile Court Law.

SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent,

v. K.C., Defendant and Appellant ; P.A. et al.,
Movants and Appellant s

. A138505
(Sonoma County Super. Ct. No. 3897

- DEP; 3898

- DEP)

K.C., the mother of E.V., age four
, and R.A., age two , appeals from the court’s order terminating her parental rights and the order placing them for adoption

. P.A. and G.A., R.A.’s de facto parents, also appeal and join in mother’s opening and reply briefs.
Mother contends that the court abused its discreti on in ordering an Indian Child Welfare
Act (25 U.S.C. § 1901, et seq.) (ICWA) placement for her children. We affirm.
I. FACTUAL BACKGROUND
The children came to the attention of the Sonoma County Human Services Department ( the Department) in April 2012 when the de facto parents requested legal guardianship of R.A. During the guardianship investigation process, the Department2

discovered that G .A. had a significant child abuse his tory and that P .A. had been involved
in several incidents inc luding assault, domestic violence , battery and public intoxication. The Department also learned that mother had a significant substance abuse problem, was affiliated with a gang, and had failed to reunify with the children’s half

- sibling. Finally,
E.V. h ad been in the care of the maternal grandmother, who also had a history with the Department. The Department filed a Welfare and Institutions Code 1 section 300 petition on April 17, 2012 alleging that mother had failed to provide adeq uate care and supervi sion
for R.A. and E .V

. As to R.A., the Department alleged that mother had failed to protect
him because he was living with people who had a child ab use and criminal history

. M other had also failed to reunify with the children’s half

- sibling

. As to E.V., the Department alleged that s he was living with the maternal grandmother w ho had a
substantial child welfare history with her own children. On April 18, 2012, the court
ordered that t he children be detained. 2 The children were placed together in an

emer gency foster home. The Department’s report for the jurisdictional hearing recommended that no reunification services be offered to mother pursuant to section 361.5, subdivision (b)( 10 ) and (11) due to her failure to reunify with the children’s half

- sibli ng. 3 The court continued the jurisdictional hearing because the children’s counsel had a conflict of
interest. On June 13, 2012, t he Department informed the court that R.A.’s father was in custody and was also a tribal member with Dry Creek Rancheria. On June 20, 2012, the
court denied the de facto parents’ motion for presumed parent status without prejudice.

1 Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

2 Mother and the maternal grandmother tested positive for methamphetamine on the same day.

3 The children’s alleged fat hers had not been located at the time of the jurisdictional hearing.3

On July 5, 2012, the children were placed with a maternal cousin. On August 9, the court granted the motion of P.A. and G.A. for de facto par ent status. The jurisdiction and dispositi on hearing was held on August 14 and 21, 2012. On August 21, 2012, the parties announced that they had reached an agreement in the matter.
Mother waived r eunification services and agreed to execute a voluntary relinquish ment of her rights to the children to permit adoption by her maternal cousin. She admitted the allegations of the section 300 petition as to E.V.
, and as to R.A., she admitted that she had failed to protect R.A. as a result of a substance abuse problem, and that she had failed to reunify with R.A.’s half

- sibling. Counsel for E.V.’s alleged father , J.O., informed the
court that J.O. is a tribal member and had requested DNA testing. The court ordered DNA testing but declined to find that ICWA ap plied pending the results of the testing. The de facto parents of R.A. withdrew their request for placement, acquiescing in the placement of R.A. with the maternal counsel. The court set the matter for a section 366.26 hearing for December 13, 2012.
Th e Department’s report for the section 366.26 hearing recommended that parental rights be terminated and that adoption be ordered as the permanent plan. The Department noted that paternity tests had confirmed that J.O. was the father of E.V. and
that he wa s a member of the Dry Creek Rancheria of Pomo Indians (the Tribe). The Tribe had been notified of the dependency proceedings and had indicated its intention to
inter vene on behalf of E.V. The whereabouts of the alleged father of R.A. were
unknown.
The Department further reported that the maternal cousin, who had placement of
the children
, could no longer commit to adopting the m

. She opined that the children would be better off away from t he extended family due to “too much family drama.”
On December 5, 2012 , the Tribe filed a resolution with the court confirming
E.V.’s eligibility for enrollment with the Tribe and requested intervention in the dependency proceeding. On December 13, 2013, the Tribe appeared at the scheduled section 366.26 hearing a nd informed the court that it had identified an approved ICWA placement for4

E.V., which would also include R.A. , in order to maintain the sibling relationship

. Mother’s counsel urged the court to consider the de facto parents for placement, indicating tha t the Department had acknowledged that it made an error in assessing the allegations against G.A. 4 The court continued the matter to allow the parties time to consider the placement issue. On January 17, 2013, that matter was again before the court for the section 366.26 hearing. Mother’s counsel objected to the placement of her children with the Tribe and argued that they should be placed with the de facto parents. 5 Counsel for the Tribe informed the court that it had identified a paternal relative p lacement and that visits
between the children and relative s were ongoing. The Tribe acknowledged that even though i t only had jurisdiction over E.V ., it believed that it was det r im ental to separate the children and it had provided substantial assistance t o the paternal relative s to assure the children’s needs were met. The court continued the matter for a settlement
conference. On January 30, 2013, the court denied the de facto parents ’ section 388 petition, finding that it was not in the children’s bes t interests to be separated and there was not good cause to deviate from the ICWA placement preference. The contested section 366.26 hearing was held on February 28, 2013. The Department reported that the Tribe had identified a placement for the childr en and that they had been transitioned to that home. Mother acknowledged that she was not in a positi on to care for her children, but objected to an ICWA placement pending testimony from a qualified ICWA expert witness. Percy Tejada, testified that he had been the ICWA director for the Tribe for almost

seven years. He reviewed the case and opined that it would be detrimental to separate the

4 On October 1, 2012, the Department acknowledged that G.A.’s name was incorrectly submitted to the Department of Justice (DOJ) and that it had notified DOJ to remove his name from the Child Abuse Central Index.

5 The de facto parents had filed a section 388 motion requesting that the court order placement that same day.5

sibling group. He also noted that the Tribe’s customs and traditions were to keep sibling groups together. He f

urther testified that he was familiar with the maternal grandmother in this case and that E.V. would be at risk of physical and emotional harm if returned to
her care. Tejada explained that the first order of preference in an IWCA case is with a
direct re lative, the second is a distant relative or family friend, and the third preference is any Native American that comes forward. There is no preference given to non

- Indian families, but the Tribe has jurisdiction to identify a different order of placement b y resolution. Tejada conceded that the Tribe had not considered placement of the children with the de facto parents. He opined that the children were at risk of harm if returned to mother because of her long history of substance abuse , which was not bein g treat ed , and
her acknowledge ment that she was not a good parent and that a permanent placement with a relative would be best for her children. While the tribe considers the parents’ wishes for placement, it has jurisdiction under ICWA to determine which placement is in
the best interests of the children. The court deemed Tejada an expert for purposes of
ICWA.
The court found by clear and convincing evidence that the children will be adopted and that termination of parental rights would not be detrimental to the m . The court terminated mother’s parental rights and those of E.V.’s father and the alleged
fathers of R.A. The court further found that there is clear and convincing evidence beyon d a reasonable doubt that mother’s continued custody would likely cause serious physical or emotional damage to the children and that this finding was supported by the testimony of a qualified expert witness. Mother and the de facto parents timely appeal ed.
II. DISCUSSION Mother contends that the court erred in finding that the children’s placement with the Tribe’s recommended preadoptive home was appropriate. In particular, she asserts that the court failed to consider whether the placement was “the least restrictive setting
which most approximates a family and in which his [or her] special needs, if any, may be

met. The child shall also be placed within reasonable proximity to his or her home,6

taking into account any special needs of the child .

. . .” (25 U.S.C. § 1915(b); see § 361.31, subd. (b).) She argues that the court had insufficient information on which to make its finding that the placement satisfied ICWA requirements and was in the
children’s best interests.
Mother’s reliance on the IC WA’s preferences in foster care or preadoptive placements is misplaced. 6 Here, Tejada, the Tribe’s ICWA director testified at the hearing on January 17, 2013 that the Tribe had located an adoptive home for the children.
The paternal relatives were willin g to adopt both E.V. and her non

- Indian brother and they had begun visitation

. On January 30, 2013, the De p a rtment informed the court that it believed the paternal relatives had passed all the necessary background clearances for placement to occur. The c ourt found that it was in the bests interest of the children that they not be separated. By the time of the February 28, 2013 section 366.26 hearing , the Department reported that the childr en had been transitioned to the adoptive home of the paternal

re latives . Counsel for the children testified that the children were doing well in the placement and were attached to their paternal relatives

. Mother acknowledged that the

6 “In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with

-- [¶] (i) a member of the Indian child’s ex tended family; [¶] (ii) a foster home licensed, approved, or specified by the Indian child’s tribe; [¶] (iii) an Indian foster home licensed or approved by an authorized non

- Indian licensing authority; or [¶] (iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.” (25 U.S.C. § 1915(b).) Similarly, section 361.31, subdivision (b) provides identical guidelines for foster care, guardianship placements o r emergency removal of Indian children. These guidelines do not apply to adoption placements which are covered by section 361.31, subdivision (c) and 25 U.S.C. § 1915(a). Moreover, 25 U.S.C. § 1915(b)’s requirements that a preadoptive placement be in rea sonable proximity to home were nonetheless inapplicable in this case where mother waived reunification services in favor of adoption. ( In re Anthony T. (2012) 208 Cal.App.4th 1019, 1030 [when primary goal is family reunification, Indian child’s placement must by within reasonable proximity to the child’s home].) In any event, we note that the Dry Creek Tribal Offices are located in Santa Rosa.7

placement with the Tribe family was “the most positive result” because there was a possibility of her involvement with the children in the future. The ICWA sets forth certain preferences for placement of an Indian child in a n adoptive placement: “In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with [¶] (1) a member of the child’s extended family; [¶] (2) other members of t he Indian child’s tribe; or [¶] (3) other Indian families.” (25 U.S.C. § 1915(a).) The placement with the paternal relatives met ICWA’s adoptive placement preferences because it was with “a member of the child’s extended family.” (25 U.S.C. § 1915(a).) Mother failed to show that there was good cause not to follow ICWA placement guidelines. ( In re Anthony T

. , supra, 208 Cal.App.4th 1019, 1033 [“When the state court retains jurisdiction over an Indian child, this responsibility includes determining wheth er there is good cause not to follow ICWA placement preferences”].) On this record, the court did not err in ordering the children’s placement with the paternal relatives. Mother also contends that the court erred in finding that R.A.’s placement was appropriate and necessary because the de facto parents were willing to adopt him. The court did not err in the placement. The record establishes not only that it was in the best interests of the children to be placed together, but it showed that the de f acto parents would be unable to adopt them . Counsel for the Department testified at the hearing on the de facto parents’ section 388 petition that they “would not clear for adoption.” No

error appears. III. DISPOSITION
The orders are affirmed.8 _________________________ Rivera, J.

We concur:

_________________________ Ruvolo, P.J.

_________________________ Humes, J.