San Diego County Health & Human Services Agency v. Frank S.

Opinion

O’ROURKE, J. 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 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)1 and California Rules of Court, rule 1439(k)(l))2 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.

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 County.

[588]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 great-grandmother’s home.

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.