Filed 3/29/18 In re Christian W. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


In re CHRISTIAN W., a Person Coming Under the Juvenile Court Law.

CONTRA COSTA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES BUREAU,
Plaintiff and Respondent,
v.
A.W.,
Defendant and Appellant.




A151885

(Contra Costa County
Super. Ct. No. J17-00059)


A.W. (Mother) appeals the juvenile court’s order denying placement of her three-year-old son, Christian W. (Christian), with her sister, Christian’s aunt (Aunt), after he was removed from Mother’s custody. She contends there was insufficient evidence to support any finding of good cause to deviate from the preference under the Indian Child Welfare Act (ICWA) for placing Christian, an Indian child, with relatives. We disagree, so we affirm.
BACKGROUND
Twice in a three-month period, Concord police officers responded to reports of three-year-old Christian wandering the streets outside his home unsupervised. In November 2016, Christian was found running in the street. Officers were able to locate where he lived and returned him to Mother, who said Christian must have “gotten out” while she was in the back room and that she would figure out a better way to keep the door locked. In January 2017, Concord police responded to another report that Christian was walking around the street, this time without clothes. When officers arrived, a witness told them that after 10 minutes of waiting with the boy, Mother came out to retrieve him. The officers found Christian with Mother in a car backing out of their garage. Mother was ordered to stop and get out of the vehicle. Police observed Mother was erratic and fidgety with severe eyelid tremors and an extremely elevated pulse. Christian was dirty and wearing only a diaper. He was removed from the car by an officer who observed a small laceration on his left foot. When police entered the house, the smell of urine and feces was overwhelming. The house was in disarray with garbage and dirty diapers strewn across the floors. The toilet in the one working bathroom was filled with unflushed waste, and a training toilet was filled with urine and a dirty diaper. In Christian’s room, there was a makeshift bed consisting of pillows and urine-stained blankets. Mother was arrested for suspicion of being under the influence of a controlled substance and child endangerment.
In January 2017, the Contra Costa County Children and Family Services Bureau (Bureau) filed a juvenile dependency petition. Among other things, the petition alleged Christian suffered or was at a substantial risk of suffering serious harm due to Mother’s failure or inability to supervise or protect him; to provide him with adequate food, clothing, shelter, or medical treatment; and to care for the boy because of her mental illness, developmental disability or substance abuse. The juvenile court detained Christian. The court also found that Christian was an Indian child, a member of the Muscogee (Creek) Nation.
In February 2017, at a contested jurisdiction hearing, the court received into evidence files from three of Mother’s prior criminal convictions for use of methamphetamines in 2009, 2010, and 2013. The juvenile court sustained the allegations in the Bureau’s petition related to Mother’s neglect and found Christian was described by Welfare and Institutions Code section 300, subdivision (b). Christian was declared a ward of the court.
In March 2017, the Muscogee (Creek) Nation confirmed Christian was an Indian child and informed the Bureau it would not intervene in this case. However, the tribe requested that ICWA’s placement preferences be followed. For Christian’s placement, the Bureau initially worked with Christian’s maternal grandmother (Grandmother) who wanted Christian placed with her. While Grandmother’s home was assessed and determined to be acceptable, other parts of the process did not proceed smoothly. The Bureau’s March 2017 disposition report described difficulties related to Grandmother’s lack of communication with respect to completing the application process, despite the Bureau’s numerous and persistent attempts to communicate with her. According to another Bureau report, a social worker asked Grandmother if she had knowledge of her daughter’s substance abuse issues. Grandmother responded that she had heard from the bail bondsman that Mother was arrested for drugs, but this was the first time she had known Mother to use drugs or alcohol. The Bureau also had a 2010 letter Grandmother wrote to a court acknowledging her daughter’s incarceration due to her 10-year methamphetamine addiction urging the court to order her daughter into a treatment program. Given Grandmother’s general non-responsiveness, which would make conducting check-ins and fostering reunification services difficult, the Bureau decided to consider other options for Christian’s placement.
The disposition hearing and placement hearing took place across two days in May and June 2017. The court removed Christian from Mother’s custody and ordered reunification services, and the Bureau recommended Christian be placed with Aunt. In a memo to the court, the Bureau explained Aunt “completed her relative application and has been cleared as a relative placement.” The Bureau further added that its “social worker met with [Aunt] . . . to clarify the Bureau’s expectations around visits and contact with the mother. All contact will continue to be supervised by the Bureau. [Aunt] stated she understood that visits would continue to be supervised at the [Bureau] office and that the mother cannot call or show up at her home.”
At the placement hearing, the juvenile court recognized Aunt was approved by the Bureau, had an acceptable home, no criminal history, and passed the necessary background review. However, the court expressed concern about the ability of maternal relatives to “set appropriate boundaries in this case.” The court explained that Mother and Grandmother had done “anything they can to thwart intervention by the Court for the protection of this child.” The court observed that Grandmother had minimized or denied Mother’s issues in the proceedings and had given contrary statements in other proceedings about Mother’s substance abuse. The court requested more information.
Christian’s counsel objected to the placement with Aunt, expressing concern that Aunt’s lack of understanding of Mother’s mental health needs, presumably referring to her addiction, would compromise her ability to keep Christian safe. Christian’s counsel also voiced concerns that Mother would manipulate Aunt to get access to Christian.
Since the court was unwilling to place Christian with Aunt on the existing record, Mother called Aunt as a witness. Prior to her testimony, the court stipulated that Aunt had completed all the forms, her house had passed the home inspection, and she had participated in the necessary licensing and training to permit Christian’s placement with her.
Aunt, Mother’s junior by approximately five years, was a state-licensed, home-care worker for the elderly. Beginning in 2009, she was in the Santa Cruz area, where she lived with her mother and was joined there for a time by Mother and Christian. At some point, the sisters no longer lived in the same house, but Aunt visited Christian daily and regularly ate breakfast, played, or read to him before work. By the end of 2016, Mother and Christian left the area. In May 2017, Aunt moved to Sacramento, where she lived with someone else in a two-bedroom apartment. When she last saw Christian the prior Christmas, she said he was happy to see her.
Aunt had the following exchange with Mother’s counsel:
Q: . . . [T]he Bureau is going to give you rules to follow regarding contact between Mother and Christian while he’s in your stay. Do you understand that you’re supposed to follow those to the T; that you cannot deviate from those?
A: Yes, I do understand that.
Q: Can you assure the Court that you will make sure that no unauthorized contact between Mother and Christian will occur while Christian is with you?
A: Yes, of course.
[¶] . . . [¶]
Q: . . . [A]re you still committed to following the directives of [the Bureau] to a T?
A: Absolutely.
On cross-examination by the Bureau’s counsel, Aunt acknowledged that Christian’s social worker told her that all of Mother’s visits with Christian were supervised. She affirmed her willingness to follow the Bureau’s rule to prohibit Christian’s contact with Mother if he were to be placed with her. When asked what she would do if she had custody of Christian and Mother showed up on her doorstep, Aunt responded, “Well, I would follow whatever instructions were given to me by [the Bureau]. If that is to, you know, ask her to leave, I’d start at that point. That’s what I would do.”
Aunt did not ask her sister about why Christian was no longer living with her. When asked why Christian was removed from Mother’s care, Aunt said she was not sure, could not remember what she had been told, and added that her sister’s story kept changing. She did not know her sister had a history of substance abuse. Nor did she have any knowledge that her sister had any mental health issues. She believed Christian was safe in her sister’s care.
Following argument, the juvenile court went against the Bureau’s recommendation and denied placement with Aunt. The court explained: “I’m perplexed at the [Bureau’s] recommendation in this case, particularly after the quality of that testimony. . . . [¶] [Mother] has one, two, three, four convictions, all related to substance abuse issues in Walnut Creek during the time when this witness testified they were living together. She had no clue Mother had any of these issues. [¶] The pregnant pauses when answering questions about following rules and guidelines of [the Bureau] were deafening on the Court. I found her to be quite unconvincing, particularly on that point. [¶] And I believe to place this child with the maternal aunt would essentially be placing this child right back in the dysfunction and swirl of Mother’s world; and that this aunt would fail to protect the child from Mother.”
The court recognized “it is always most desirable to place a child with a relative” and urged the Bureau to continue to look for a relative, including from the biological father’s side. The Bureau’s counsel indicated that the Bureau would continue to search for an “ICWA compliant home” to which the court replied, “Absolutely. . . . I understand the need to comply. So hopefully there will be an ICWA compliant home that can be located very soon.” In the meantime, the court directed no change in Christian’s current placement in a licensed, non-Indian foster home in the county.
Mother now appeals the court’s order denying Christian’s placement with Aunt. After Mother filed her opening brief, the Bureau submitted a letter to the court stating it had no position on Mother’s claim the trial court erred in denying placement with Aunt given the Bureau supported placement with Aunt and could not change its position on appeal. In light of Christian’s counsel’s objection to placement with Aunt, this Court appointed separate appellate counsel to represent the minor as respondent.
DISCUSSION
Mother contends the evidence does not support the finding of good cause to deviate from ICWA’s preference that a child be placed with a member of the child’s extended family (Aunt in this case).
“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); [Welf. & Inst. Code,] § 361.31.) An Indian child in foster care must be placed in ‘the least restrictive setting that 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); see Welf. & Inst. Code, § 361.31, subd. (b).).” (In re Anthony T. (2012) 208 Cal.App.4th 1019, 1027 (Anthony T.).)
Absent good cause to the contrary, preference for the child’s placement goes, in descending order, to “(1) A member of the child’s extended family . . . (2) A foster home licensed, approved, or specified by the child’s tribe. (3) An Indian foster home approved by an authorized non–Indian licensing authority. (4) An institution for children approved by an Indian tribe or operated by an Indian organization . . . .” (Welf. & Inst. Code, § 361, subd. (b); 25 U.S.C. § 1915; In re Anthony T., supra, 208 Cal.App.4th at p. 1029, fn. 5.) In this way, ICWA “ ‘seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.’ [Citation.]” (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 37.)
When enacting ICWA, Congress did not define the phrase “good cause” justifying deviation from ICWA’s placement preferences. (Fresno County Dept. of Children and Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 641 (Fresno County).) But “according to ICWA’s legislative history, Congress, by its use of the term ‘good cause,’ explicitly intended to provide state courts with flexibility in determining the placement of an Indian child. [Citations.]” (Ibid.)
In California, guidance on the meaning of “good cause” is provided by statute and rule of court. Welfare and Institutions Code section 361.31, subdivision (h), authorizes the juvenile court to depart from ICWA’s placement preferences for good cause. Rule of Court 5.484(b)(2) states: “The court may deviate from the preference order only for good cause, which may include the following considerations: [¶] (A) The requests of the parent or Indian custodian; [¶] (B) The requests of the Indian child, when of sufficient age; [¶] (C) The extraordinary physical or emotional needs of the Indian child as established by a qualified expert witness; or [¶] (D) The unavailability of suitable families based on a documented diligent effort to identify families meeting the preference criteria.”
The good cause finding is reviewed for substantial evidence, so our review “begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. [Citation.] All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. [Citation.] In this regard, issues of fact and credibility are matters for the trial court alone.” (Fresno County, supra, 122 Cal.App.4th at p. 646.)
In re G.L. (2009) 177 Cal.App.4th 683 (G.L.), which involved a challenge to the juvenile court’s placement order of an Indian child, is instructive. There, the two-year-old minor was detained because her parents had a history of substance abuse and domestic violence, and the child was injured during a fight between the parents. (Id. at p. 686.) The dependent child’s father challenged several of the juvenile court’s ensuing orders, including its decision refusing to place the child with her paternal grandmother. (Id. at pp. 686–687.) The court concluded that substantial evidence supported the court’s finding that good cause existed to deviate from ICWA’s statutory placement preferences which prioritized placement with a child’s extended family. (Id. at pp. 687, 698.) Even though the grandmother had a relationship with the minor and could maintain ties between the minor and her tribe, the evidence showed the grandmother was unable to protect her grandchild from the parents’ ongoing substance abuse and domestic violence. (Id. at p. 698.) The grandmother lacked insight into the effects of domestic violence on the minor and failed to recognize that her son was violent towards the child’s mother. (Ibid.) This was indicative of the grandmother’s inability to provide her granddaughter with a safe, secure, and stable home and was substantial evidence of good cause to bypass ICWA’s placement preferences for extended family members. (Id. at p. 698.)
Here, we have a similar situation. While the evidence showed Aunt had a relationship with Christian, Aunt had no insight into her sister’s substance abuse or the reasons for Christian’s detention. This lack of insight coupled with her belief that Christian was safe with Mother, notwithstanding all the available evidence to the contrary, indicated to the court Aunt lacked comprehension of Mother’s threat to Christian’s safety. Without such an understanding, the court could reasonably conclude Aunt would be incapable of keeping Christian safe, secure, and stable. On this record, there was substantial evidence of good cause to allow the court to depart from ICWA’s placement preferences.
Mother asserts there was neither clear nor convincing evidence to reject Aunt as the preferred relative placement nor substantial evidence to support the juvenile court’s finding that Aunt would fail to protect Christian. Mother correctly points out that the Bureau interviewed Aunt multiple times to the point it was sufficiently satisfied to recommend placement with her and that Aunt testified repeatedly that she would not permit unauthorized contact with Christian. However, our role is to determine whether there was any substantial evidence to support the juvenile court’s conclusion, not to reweigh or resolve conflicts in the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52–53.) Nor is it our role to pass on the credibility of witnesses, which is a matter for the trial court alone. (Ibid.) As it was entitled to do, the court found Aunt not credible especially on her answers related to her commitment to the Bureau’s rules to keep Mother away from Christian. Disregarding the discredited testimony, the remaining evidence of Mother’s lack of insight was sufficient to support the juvenile court’s conclusion.
Mother’s effort to distinguish G.L. is also unavailing. She contends that G.L. involved “actual evidence the paternal grandmother was an inappropriate placement” because the grandmother had a criminal and child welfare history excluding her from placement consideration. First, the court in G.L. did not base its placement decision on the grandmother’s record. (G.L., supra, 177 Cal.App.4th at p. 698, fn. 7.) Similarly, Aunt’s lack of criminal record or child welfare history was not a factor here. Aunt’s testimony that she had no idea about Mother’s substance abuse and that she believed Mother was a safe placement revealed she had no idea about Mother’s threat to Christian’s safety and was evidence that Aunt was an inappropriate placement.
Mother’s attempt to distinguish In re N.M. (2009) 174 Cal.App.4th 328, also does not compel a different result here. There, the appellate court upheld the juvenile court’s determination of good cause to depart from placing the minor with his grandmother even though the tribe, ICWA expert, and social services agency recommended placement with her. (Id. at pp. 330, 338.) The juvenile court had little information on her as an appropriate placement, with one recommendation based solely on the ICWA preference. (Id. at pp. 335–336.) Mother contrasts the inadequate assessment of the grandmother in N.M. with the Bureau’s assessment here, which was a “full analysis of [Aunt], her home, and her willingness to follow court orders.” Even if Aunt was subject to more rigorous scrutiny than the grandmother in N.M., the juvenile court here was not confined to the Bureau’s recommendation. It appropriately considered additional evidence from Aunt’s cross-examination at the placement hearing, which had not been part of the Bureau’s analysis, in its good cause determination.
Next, Mother contends that the trial court failed to apply the ICWA “good cause” factors set forth in the Code of Federal Regulations and the Bureau of Indian Affairs (BIA) Guidelines. Relatedly, Mother argues that Christian’s attorney, who objected to placement with Aunt, “focused on factors which are inappropriate to consider when determining whether to deviate from the ICWA placement preference.” In June 2016, the Department of Interior promulgated regulations to implement ICWA. (See 25 C.F.R., § 23 et seq.) These regulations provided that a court’s good cause determination “should be based on one or more of the following considerations: (1) The request of one or both of the Indian child’s the parents . . . ; (2) The request of the child, if the child is of sufficient age and capacity to understand the decision that is being made. (3) The presence of a sibling attachment . . . ; (4) The extraordinary mental, physical or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live; (5) The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but none has been located.” (25 C.F.R. § 23.132, subd. (c)(1)-(5).) In December 2016, BIA issued guidelines to implement ICWA which replaced earlier guidelines from 1979 and 2015. (Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016) (Guidelines) at p. 4 <https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf> [as of Mar. 28, 2018].)
We are not persuaded that either the ICWA regulations or BIA Guidelines constrain the court as Mother suggests. First, the ICWA regulations do not state that the trial court’s good cause determination “must be based” solely on the five factors listed above, only that they “should be based” on those considerations. (25 C.F.R., § 23.132, subd. (c).) This language is directive not mandatory. Even Rule of Court 5.484(b) uses permissive language indicating the court is not limited to the enumerated considerations in the rule when it evaluates whether good cause exists to place a child with a non-Indian caregiver. (Fresno County, supra, 122 Cal.App.4th at pp. 643–644.) Also, based on her citations, Mother appears to rely on the superseded 2015 Guidelines, which have been replaced. (Guidelines, supra, at p. 4.) The 2016 Guidelines do not expressly preclude a court’s good cause determination from considering the best interests of the Indian child, which Mother says was prohibited. In fact, the 2016 Guidelines, which Mother does not address, states “[t]he rules list of [factors] is not exhaustive. The State court has the ultimate authority to consider evidence provided by the parties and make its own judgment as to whether the moving party has met the statutory ‘good cause’ standard. In this way, the rule recognizes that there may be extraordinary circumstances where there is good cause to deviate from the placement preferences based on some reason outside of the five specifically-listed factors. The rule thereby retains discretion for courts and agencies to consider any unique needs of a particular Indian child in making a good cause determination.” (Id. at p. 61.) In making a good cause determination, the juvenile court was permitted to consider factors beyond those listed in Rule 5.484 and the ICWA regulations. Within the framework of the ICWA regulations, the juvenile court also had an evidentiary basis, as explained above, to determine that departing from ICWA’s placement preferences was necessary for Christian’s extraordinary mental, physical or emotional needs in order to keep him safe, secure, and stable.
In addition, Mother argues the juvenile court’s opinions and biases “unjustly taint[ed]” its perception of Aunt. Mother notes that “it was stipulated by all counsel and the court, that in all other respects, the maternal aunt was an ideal placement for Christian.” She contends the trial court “lumped all the maternal relatives together, despite the fact that all the evidence regarding the maternal aunt was outstanding and positive.” Not so. There was no stipulation that Aunt was an ideal placement for Christian. The stipulation between the parties and court was limited to Aunt’s completion of the necessary prerequisites to permit placement. Christian’s counsel’s objection and the court’s order plainly show not everyone agreed Aunt was an ideal placement for Christian. Nor was all the evidence regarding Aunt outstanding and positive. Aunt was unaware of her sister’s substance abuse and lacked insight into the reasons Christian was removed from her custody. On the basis of this evidence—not any improper bias or prejudice against Mother’s family—the court concluded placement with Aunt would not provide Christian with a safe, secure, and stable home.
Finally, we summarily reject Mother’s suggestion that the juvenile court was unaware of the obligation to follow the placement preferences under ICWA or that the juvenile court did not appreciate that this was an ICWA case. The record is replete with evidence that the court was fully aware Christian was an Indian child and that his proceedings were subject to ICWA.
DISPOSITION
The juvenile court’s placement order is affirmed.





_________________________
Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.