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
