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Name: In re A.F.
Case #: D072226
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/20/2017
Summary

Tribe’s letter expressing a placement preference did not modify the statutory placement preference and therefore did not require a good cause finding to move minor to a different family member. At the time of the dependency proceeding, the minor had been living with her father in a motor home on the property of paternal grandmother, Donna. When the minor was removed, Donna immediately asked for custody. The court found that ICWA applied, and placed the minor with a maternal cousin, Liesha, on the Tribe’s reservation. At the disposition hearing, the Tribe and the Agency recommended placement with Liesha, and visitation for Donna. Donna retained counsel and requested custody, contending that the minor had a severe diaper rash for months while living with Liesha. Donna filed a de facto parent request and a 388 petition, asking for a change in custody. The Tribe expressed a preference that the minor remain with Liesha. Following a contested hearing, the court found that it would not be detrimental to remove the minor from Liesha, and that the paternal grandmother should get a preferential placement consideration. It also found that placement with the paternal grandmother would be beneficial to the minor. On appeal, mother argued that the juvenile court’s placement order was made in error because the court failed to apply section 361.31 and its federal counterpart, and instead applied 361.3. Also, the court failed to make the good cause finding required under section 361.31 to deviate from the Tribe’s preferred placement with Liesha. The appellate court rejected the argument and affirmed. The juvenile court was required to follow the placement preferences set forth in section 361.31. However, the Tribe’s letter expressing a preference for placement with Liesha did not establish a different order of placement. Because Donna was a member of the minor’s extended family and coequal to Liesha under the statutory placement preference order, the court’s order placing the minor with Donna complied with section 361.31. A good cause finding was not required, and the Tribe’s preference was a factor for the court to consider in its placement decision.