In re E.W.

Filed 2/13/07  In re E.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Kenneth Fernandez, Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Affirmed.

            Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.

            No appearance for Plaintiff and Respondent.

            No appearance for Minor.

            E.G. (father), the biological father^[1] of E.W. (child) who was born in September 2005, appeals from an order of the dependency court terminating his parental rights.  The mother of the child is not a party to this appeal.

            Counsel for father has filed a no-issue brief under authority of In re Sade C. (1996) 13 Cal.4th 952 and People v. Wende (1979) 25 Cal.3d 436 setting forth a statement of the case and a statement of the facts.  Counsel asks us to undertake an independent review of the entire record.

            Father was afforded an opportunity to file a personal supplemental brief which we have received and considered.

            Finding no arguable issues, we will affirm the judgment.

COMBINED STATEMENT OF FACTS AND PROCEDURAL HISTORY

            The child was born with respiratory problems and was placed in intensive care.  Mother admitted a history of substance abuse, including during her pregnancy, and a lack of prenatal care.  She stated that father was in fact the father and that they used methamphetamine together.  Mother and father had physically fought in the past.  Mother wanted the child to be adopted.  Father was against adoption, and initially he claimed that he was surprised that he was a father because they had planned an abortion.  Mother and father had not lived together for a number of months before the birth of the child.

            Mother had identified a prospective adoptive family.  Mother signed a release allowing them to take the child when the child was ready for release from intensive care.  The paternal grandmother asked to have the child and stated that she and the father are of Native American descent.  They are both enrolled in the Sault Ste. Marie Tribe of Chippewa Indians.^[2]  The child was placed with the prospective adoptive parents pending the detention hearing.

            The Riverside County Department of Public Social Services (DPSS) filed a petition on the child's behalf pursuant to Welfare and Institutions Code section 300,^[3] on October 5, 2005.

            The detention hearing was held on October 6, 2005.  Father was then in custody having been arrested on an outstanding felony warrant for driving a motorcycle without permission.  The court ordered the child detained.  The paternal grandmother requested placement, but DPSS objected, in part due to a possible criminal history of grandmother's live-in companion and concern over her ability to have the child placed with her due to finances and her busy life.  The child remained with the prospective adoptive family.  The child was identified as possibly an Indian child under the Indian Child Welfare Act (ICWA).

            Father's tribe filed a petition to intervene on February 6, 2006, along with a statement of the tribe's placement preferences.  The first tier of preferences is with family members with grandparents given the first preference.  The second tier of preferences lists an Indian family as the first preference.  The petition to intervene was granted.  The child was granted membership in the tribe.  The court declared the child to be an Indian child.

            The jurisdictional/dispositional hearing was held on March 28, 2006.^[4]  An amended petition was filed.  Mother and father^[5] were present and submitted on the reports prepared for the hearing after signing waivers of their constitutional rights.  No testimony was taken.  An attorney for the tribe appeared by telephone and also submitted on the reports.  The tribe's attorney waived any procedural irregularities that might exist.  Mother at that time wanted to reunify with the child.  The court sustained the petition and found the child came within section 300, subdivision (b).  The court took custody from the parents and ordered the child into foster care.  The court ordered that the child be placed in foster care in accordance with preferences of ICWA. 

            Father requested that the child be placed with his mother.  DPSS objected to placement based on facts contained in the addendum report dated March 20, 2006.  The litany of reasons listed therein included:  the fact that grandmother had stated that she was having financial difficulties and could not care for the child; grandmother's unwillingness to protect the child from father; grandmother was not supportive of reunification with mother and wanted no contact with her; that in the event the child could not reunify with either parent, grandmother only wanted to be a legal guardian; and grandmother's live-in companion â€