San Diego County Health & Human Services Agency v. Frank S.
In re LILIANA S., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, and v. FRANK S., and Respondents AGUA CALIENTE BAND OF CAHUILLA INDIANS, Intervener and
- Area
- dependency
- Panel
- Rourke (author)
Analysis
The trial court continued the placement of two dependent children with their paternal grandmother, rejecting the Tribe's preference for the maternal great-grandmother based on the children's and parents' wishes. The Court of Appeal affirmed, holding that the Tribe waived its challenge to the placement by failing to appeal the initial disposition order, and alternatively finding no error in the trial court's application of ICWA and state law.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of the Tribe's request to change placement at the six-month review hearing“The court denied the request, noting there were no new facts or circumstances to warrant a change of placement.” | unclear | error | agree with court agree with court |
Waiver of the placement issue due to failure to appeal the disposition order“We agree that the Tribe has waived the issue of the children’s placement.” | de novo | error | agree with court agree with court |
Trial court's finding of good cause to deviate from the Tribe's specific placement preference“There was, however, abundant good cause to place the children with the paternal grandmother, rather than with the maternal great-grandmother.” | abuse of discretion | not reached | agree with court agree with court |
Authorities
- relied: In re Megan B. (1991) 235 Cal.App.3d 942 — An appeal from the most recent order in a dependency matter may not challenge prior orders for which the time to appeal has passed.
- relied: In re Elizabeth M. (1991) 232 Cal.App.3d 553 — Supports the principle that unappealed orders are final and cannot be challenged on appeal from a later order.
- relied: In re Meranda P. (1997) 56 Cal.App.4th 1143 — An unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.
- relied: Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 — A parent cannot waive an Indian tribe's right to notice under ICWA, but this does not immunize a tribe from general waiver principles regarding appeals.
The appellate opinion: sound — The opinion is sound because it correctly applies the well-established finality rule in dependency cases to bar the Tribe's belated challenge to the placement order. It also provides a robust alternative analysis showing that the trial court's placement decision was consistent with ICWA and state law, even if the waiver argument were rejected.
How this analysis was made · dispute it
unusual dispositionAt a six-month review hearing the juvenile court denied the Agua Caliente Band's request to move two Indian children from their non-Indian paternal grandmother to their Indian maternal great-grandmother, finding no new facts or circumstances, and continued the dispositional placement. The Court of Appeal affirmed, holding the Tribe's appeal was an untimely attack on the final dispositional placement order and, alternatively, that the paternal grandmother was 'extended family' under ICWA so no good-cause finding was needed, and good cause existed anyway.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of the Tribe's request at the six-month review hearing to reconsider placement and continuation of placement with the paternal grandmother; appellate court treats the challenge as a waived, untimely attack on the February 2003 dispositional order“At the six-month hearing, the Tribe put forth no new evidence, but merely requested the court reconsider the placement decision it had made at the dispositional hearing. The orders made at the dispositional hearing are now final.” | unclear | correct | agree with court The rule that an unappealed dispositional order is final and cannot be attacked on appeal from a later order is well settled (Meranda P., Megan B., Elizabeth M.), and the Tribe offered no new evidence or changed circumstances at the review hearing, so there was nothing new to review. The court also reasonably distinguished Dwayne P., which concerns a parent's inability to waive a tribe's notice rights, not a tribe's own forfeiture by inaction. One could argue a placement continued at a review hearing is itself a fresh appealable order, but absent new evidence the Tribe's challenge was in substance to the disposition. |
Dispositional placement with the non-Indian paternal grandmother as a member of the children's 'extended family' under 25 U.S.C. § 1915(b) and rule 1439(k), so that no good-cause finding was required to depart from the Tribe's resolution favoring the maternal great-grandmother“In our view, resolution No. 60-02A conflicts with the requirements of title 25 United States Code section 1915(b), Welfare and Institutions Code section 361, subdivisions (a) and (d), and rule 1439(k).” | unclear | correct (statutory interpretation) | disagree with court The court treated 'extended family' as self-evidently including the paternal grandmother without addressing 25 U.S.C. § 1903(2), which defines 'extended family member' first by reference to the law or custom of the Indian child's tribe, or 25 U.S.C. § 1915(c), which directs courts to follow a different order of preference established by tribal resolution so long as the placement is the least restrictive appropriate setting. Declaring that the Tribe's resolution 'conflicts' with § 1915(b) without confronting § 1915(c), which expressly authorizes tribal reordering, is a misreading of the statutory scheme. The opinion also cites Welfare and Institutions Code section 361 where section 361.3 is plainly meant. Because the alternative good-cause holding and the waiver holding independently support affirmance, this error did not affect the result. |
Alternative finding of good cause under 25 U.S.C. § 1915(b) and rule 1439(k)(4) to deviate from the Tribe's placement preference, based on Liliana's and the parents' wishes and the paternal grandmother's proximity to the parents“There was, however, abundant good cause to place the children with the paternal grandmother, rather than with the maternal great-grandmother.” | unclear | correct | agree with court Section 1915(c) itself provides that the preference of the Indian child or parent shall be considered where appropriate, and the request of the parents or child and proximity facilitating reunification are recognized bases for good cause; the record recited shows both parents, Liliana, and the Agency favored the paternal grandmother, who lives near the reservation, works for the Tribe, and facilitates visitation and cultural teaching. The court did not identify the standard of review or the burden of proof, and did not cite existing California ICWA good-cause authority, but the finding is supported on the facts recited. |
Authorities
- relied: In re Meranda P. (1997) 56 Cal.App.4th 1143 — An unappealed disposition or postdisposition order is final and binding and may not be attacked on appeal from a later appealable order.
- relied: In re Megan B. (1991) 235 Cal.App.3d 942 — An appeal from the most recent order in a dependency matter may not challenge prior orders for which the time to appeal has passed.
- relied: In re Elizabeth M. (1991) 232 Cal.App.3d 553 — Source of the rule that prior unappealed dependency orders cannot be challenged on appeal from a later order.
- relied: Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 — A parent cannot waive an Indian tribe's right to ICWA notice; distinguished as not exempting a tribe from ordinary waiver principles.
- missed: In re Alicia S. (1998) 65 Cal.App.4th 79 — Addresses ICWA placement preferences and the good-cause exception, including reliance on the BIA Guidelines' factors such as the request of the parents or child; relevant to the court's unexplained good-cause analysis.
- missed: In re Desiree F. (2000) 83 Cal.App.4th 460 — Discusses a tribe's rights under ICWA, including § 1915 placement preferences and the showing needed for good cause to deviate from them.
The appellate opinion: sound with gaps — The waiver holding is correctly grounded in settled dependency finality rules and the Tribe presented nothing new at the review hearing, and the good-cause alternative is supported by the recited facts, so the result is defensible. The opinion, however, never engages 25 U.S.C. § 1903(2)'s tribal-law definition of 'extended family' or § 1915(c)'s authorization of tribal reordering of preferences, misstates that the Tribe's resolution 'conflicts' with § 1915(b), cites section 361 instead of 361.3, and omits existing California ICWA good-cause authority.
Opinion — Rourke
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.
*588The 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.
At the dispositional hearing in February 2003, after testimony by an Indian expert, a representative of the Tribe, a counselor, the social worker and family members, including the paternal grandmother, the maternal great-grandmother and the mother, the court declared the children dependent children, removed them from the parents’ care and ordered them placed with the paternal grandmother. It found both the paternal grandmother and the maternal great-grandmother are part of the children’s extended family so it was not required to find good cause to deviate from the Tribe’s placement preference. Nevertheless, it did find there was good cause not to follow the Tribe’s preference, most importantly Liliana’s desire to live with the paternal grandmother. It also considered the parents’ wishes and the proximity of the paternal grandmother’s home to the parents, allowing more frequent visitation.
On April 21, 2003, the Tribe petitioned for a writ of mandate seeking a change of placement. The petition was summarily denied in case No. D042005.
For the six-month review hearing, the Agency reported the children were doing well with the paternal grandmother and the parents were visiting on a consistent basis. It recommended continuing services and continuing the placement. At the six-month review hearing on May 1, 2003, the Tribe requested the court reconsider its placement decision and place the children with the maternal great-grandmother. The court denied the request, noting there were no new facts or circumstances to warrant a change of placement. The court continued placement with the paternal grandmother and continued services.
*589The Tribe appealed. The father, joined by the mother and the children, moved to dismiss on the ground the Tribe’s appeal is actually an untimely appeal from the disposition order. On October 6, 2003, this court denied the motion, ruling the issue of whether the Tribe waived its arguments regarding the children’s placement by its failure to appeal the disposition order would be considered on appeal.
DISCUSSION
The Tribe contends the mandatory order of preference for placement of dependent children under the ICWA is not subject to the good cause exception of mle 1439(k)(4) and the juvenile court lacked good cause to deviate from the statutory order of preference.
The Agency, the parents and the children assert the Tribe’s appeal is merely a belated challenge to the placement orders made at the dispositional hearing in February 2003. They argue no new evidence or argument was presented at the six-month hearing and the Tribe has waived the issue.
We agree that the Tribe has waived the issue of the children’s placement. “ ‘An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.’ ” (In re Megan B. (1991) 235 Cal.App.3d 942, 950 [1 Cal.Rptr.2d 177], quoting In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563 [283 Cal.Rptr. 483].) “[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [65. Cal.Rptr.2d 913].) Here, the Tribe challenged the orders at the dispositional hearing by filing a writ petition. The petition was summarily denied. At the six-month hearing, the Tribe put forth no new evidence, but merely requested the court reconsider the placement decision it had made at the dispositional hearing. The orders made at the dispositional hearing are now final. The Tribe may not challenge them as an appeal from the orders made at the six-month hearing.3
*590Even had the Tribe not waived its challenge to the placement orders, however, we would find no merit in its arguments. Welfare and Institutions Code section 361.3, subdivisions (a) and (d) provide that relatives are preferred as placement for dependent children. Title 25 United States Code section 1915(b) states that for an Indian child, foster or preadoptive placement preference must be given to the Indian child’s extended family, then to a foster home licensed or approved by the tribe. Rule 1439(k)(3) states in the case of foster care or preadoptive placement for an Indian child the preferred placement is with the child’s extended family, then to other members of the child’s Indian tribe. Here, both the maternal great-grandmother and the paternal grandmother are members of Liliana and Juliana’s extended family. The maternal great-grandmother is a member of a tribal family although she does not live on the Tribe’s reservation, but on the Pala Indian Reservation. The paternal grandmother, while not an Indian, lives near the Tribe’s reservation, works there, and, through another relative, has provided teaching to Liliana about her tribal heritage. The Tribe’s resolution that only Indian relatives should be considered for placement, and in particular the maternal great-grandmother, eliminates all members of these children’s paternal family as potential placement alternatives. In our view, resolution No. 60-02A conflicts with the requirements of title 25 United States Code section 1915(b), Welfare and Institutions Code section 361, subdivisions (a) and (d), and rule 1439(k).
Rule 1439(k)(3) provides an Indian child may be placed in a non-Indian home only if the court finds a diligent search has failed to locate one. Rule 1439(k)(4) states the court may modify the preference order only for good cause. Because the court placed the children with a member of their extended family as required by title 25 United States Code section 1915(b), Welfare and Institutions Code section 361.3, subdivisions (a) and (d) and rule 1439(k)(l)(A), it was not required to find good cause to modify the preference order. There was, however, abundant good cause to place the children with the paternal grandmother, rather than with the maternal great-grandmother. The most important factors were Liliana’s and both parents’ wishes for the children to live with the paternal grandmother and her proximity to the parents, allowing for visitation and a better chance for reunification.
In summary, the Tribe waived the issue of the children’s placement made at the February 21, 2003 disposition hearing and even had it not waived the issue, it has not shown error in the court’s orders.
*591DISPOSITION
The orders are affirmed.
McConnell, P. J., and Nares, J., concurred.
Title 25 United States Code section 1901 et seq.
All rule references are to the California Rules of Court.
We reject the Tribe’s suggestion that this court’s opinion in Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 [126 Cal.Rptr.2d 639], stands for the proposition that the general rule that an unappealed order may not be challenged in an appeal from a later appealable order does not apply to a central ICWA issue as in this case. In Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at page 251, this court ruled that a parent cannot waive an Indian tribe’s right to notice under the ICWA. It does not provide that a tribe is immune from general waiver principles that apply to other parties.
Cites, in this corpus
- Dwayne P. v. Superior Court D039556 · 2002-10-30
- Stanislaus County Department of Social Services v. Noeline P. Docket Nos. F026419, F027095 · 1997-07-29
- In Re Megan B. G009538 · 1991-10-30
- San Bernardino County Department of Public Social Services v. Servando M. E007226 · 1991-07-18
Cited by
- In Re Liliana S. D042428 · 2004-01-09