IN RE: EDWARD S.

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Court of Appeal, Second District, California.

IN RE: EDWARD S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. BONNIE S., Defendant and Appellant.

B219444

Decided: June 30, 2010

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

The Department of Children and Family Services (DCFS) removed Edward S. (born Nov. 1998) from his father S.S. (father) after substantiating allegations that father physically abused Edward and frequently was intoxicated while caring for him.   Edward's mother, appellant Bonnie S. (mother), had not had any contact with Edward for several years and was incarcerated at the time of Edward's detention.   The juvenile court declared Edward a dependent child and approved his placement with father's former girlfriend, Donna E. (Donna), with whom Edward had lived for four years and had a strong bond.   Both parents were granted monitored visits with Edward and were provided with a variety of services, including drug and alcohol rehabilitation and individual counseling.

Mother appeals the court's jurisdiction and disposition orders, contending that (1) there was insufficient evidence to support the allegations of the single count of the dependency petition against her, (2) the court erred in refusing to place Edward with her, and (3) the court erred in placing Edward with Donna, rather than in a tribally-approved foster home.   Finding no abuse of discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Detention

On June 16, 2009, DCFS received a referral alleging physical abuse of then 10-year-old Edward by father.   DCFS investigated.   Edward told a children's social worker (CSW) that father drank every day and had hit him on the head the day before.   He said that he had not earlier disclosed the abuse because he did not want to be taken away from Donna.   The social worker implemented a safety plan, which instructed father not to drink alcohol, not to use corporal punishment, and not to be intoxicated in Edward's presence.   She also made arrangements for Edward to have a forensic physical exam.

At the physical exam, Edward told the doctor that father spanked him and hit him in the head and legs, usually when he was intoxicated.   The doctor documented a bruise on Edward's leg, which Edward said was from father hitting him.   After the exam, Edward offered to show the CSW where father drank.   The CSW saw father at one of the locations Edward identified, sitting on the ground with his head slumped forward.   DCFS detained Edward that afternoon and placed him in foster care.

II. Dependency Petition and Detention Hearing

DCFS filed a juvenile dependency petition on June 26, 2009.   It alleged that father physically abused Edward, was a frequent user of alcohol and marijuana, and had a criminal history.   It alleged that mother had failed to provide Edward with basic necessities of life and currently was incarcerated.   It alleged that Edward therefore came within the court's jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (g) (no provision for support).1  It also alleged that the Indian Child Welfare Act (ICWA) might apply.

DCFS filed a detention report on June 26, 2009.   It said that father and Edward were members of the Yurok Tribe.   Father had custody of Edward, and mother was believed to be in jail in Humboldt County.   Edward lived with father and Donna.   Edward told the social worker that he was scared to be with his father, but he was not afraid when Donna was home.   Prior to Edward's detention, father had received voluntary maintenance services, most recently in November 2008.   Father had agreed to participate in a parenting class, Alcoholics Anonymous meetings, and random drug testing, and father and Donna had agreed to participate in conjoint therapy.   Father sporadically participated in some of the services offered, but refused to attend conjoint therapy.   Later, he refused to participate in any family preservation services, although he continued to request monetary support.

At the detention hearing on June 26, 2009, the court found a prima facie case for detaining Edward, that no reasonable means existed to protect Edward without removing him from his father's custody, and that reasonable efforts had been made to eliminate the need to remove Edward from father.   The court also found by clear and convincing evidence that active efforts had been made to prevent the temporary removal of Edward from an Indian parent.   The court ordered Edward detained and gave DCFS discretion to release Edward to Donna.   Father was ordered to participate in individual counseling and in an alcohol treatment program with weekly random testing.   He was granted twice weekly monitored visits with Edward, and Donna was granted monitored visits with Edward three times per week.   Mother was ordered not to have any contact with Edward pending further court order.

III. Jurisdiction and Disposition Hearing

In the jurisdiction/disposition report filed July 20, 2009, DCFS reported that mother was incarcerated in the Humboldt County Jail with a release date of August 11, 2009.   She had a lengthy criminal history, including convictions for driving under the influence.   Father also had a lengthy criminal history, including convictions for driving under the influence, vandalism, and resisting arrest.   Both parents had an extensive child welfare history, which included 16 reports of abuse or neglect between 1999 and 2009.

Edward told his CSW that he wanted to be placed with Donna.   He said that he did not want to be placed with his mother because “she'll just start drinking again and I'll be taken away again.   That's what happened last time.”   He also did not want to be placed with his father because “He'll start drinking again too.   I'm afraid he'll start drinking again and hitting me.”   When asked what he needed to help him get through his detention, he said, “I only need Donna and to live with her.”   Donna told the CSW that she wanted to have Edward back with her.

On July 20, 2009, counsel was appointed for mother and the jurisdictional pretrial resolution conference hearing was continued to allow mother to appear in court.   On August 6, 2009, DCFS placed Edward with Donna.

DCFS filed an interim review report on August 10, 2009.   It stated that DCFS, with the concurrence of Edward's attorney, believed that Edward should be placed with Donna.   Donna was reported to be a member of the Pueblo of Acoma Tribe and to be active in American Indian culture and traditions.   She had agreed to protect Edward, including by not allowing father to return to her home without reunification having been granted.   She had agreed to attend Al-Anon meetings and to take Edward to individual therapy.   Edward had said from the beginning that he would like to live with Donna, and father had agreed that Edward should be placed with Donna.

The report also stated that mother had contacted DCFS. She told DCFS that she was out of jail and was committed to getting her son back.   She said that she was living in a three-bedroom home with family members, had room for Edward to live with her, and did not want Edward to be placed with Donna.   She reported that she had taken a parenting class and substance abuse class while incarcerated, and that she had attended the Bonnie Brown treatment center for four months.

The report concluded that Edward's placement with Donna is “in the best interest of Edward.   Edward has a deep bond with [Donna] and her family.   [Donna] is able to provide a safe, loving home that includes involvement with the American Indian community and events.  [Donna] has expressed her commitment to ensure Edward's safety as well as complying with Court orders.   She is aware of and willing to have Edward receive age-appropriate services.  [Donna] has been a mother figure to Edward for the last 4 years and therefore is knowledgeable to his education history, medical history and overall development.   Edward is comfortable in the home of [Donna] and is bonded with her family.”

The Yurok Tribe filed a recommendation on August 24, 2009, in which it stated that it did not support Edward's placement with Donna.   It stated that the tribe “maintains an unwavering position that Yurok children not be adopted out of the tribe when enrolled or eligible for enrollment” because “[i]t would be contrary to the best interests of the child as well as Yurok sovereignty if decisions concerning the welfare and placement of Tribal children were left to institutions outside the influence of the child's familial, cultural, and spiritual heritage.”   Further, the tribe was concerned about Edward's placement with Donna due to her past inability to protect Edward from father, and it was “encouraged by the progress to date made by biological mother, Bonnie [S.]” The tribe recommended that Edward be placed with a tribally-approved foster home in Humboldt County, which would protect Edward's safety and welfare, allow him to live in the same county as his mother and two biological siblings, and allow him access to “the unique history, culture, and ceremonies of the Yurok Tribe which are not found elsewhere.”

On August 24, 2009, mother told the court that she was out of custody and asked to have Edward placed with her.   Edward's counsel said that Edward was opposed to being moved from his current placement.   The court ordered monitored telephone visits for mother and set the case for a contested hearing on September 23.

On September 23, 2009, DCFS filed a first amended petition and a detention report.   The detention report said that when he was asked about placement with family members in northern California or with his mother, Edward stated, “I want to stay here with Donna.”   He said that he did not want to live with his mother because “she's just going to start drinking again and I'll get taken away again.   That's what always happens.”   He also said that he did not feel good about having a new baby sister (mother was then five months pregnant) because “[o]nce she's born, I'll be pushed to the side.”

DCFS filed an addendum prior to the hearing that included a declaration by Indian expert witness Phillip Powers.   It noted that both parents had a long history of child abuse referrals and lengthy criminal histories.   It concluded that active efforts had been made to provide remedial and rehabilitative services to the parents to prevent the breakup of this Indian family and that those efforts had been unsuccessful.   Further:  “It is my opinion that return of the child to mother or father would cause danger of serious physical and emotional harm to this Indian child.”

Father did not contest the allegations of the first amended petition, but mother did so.   The case therefore was set for a contested hearing as to mother.

At the jurisdiction/disposition hearing on September 23, 2009, the court found by a preponderance of the evidence that Edward was a dependent child pursuant to section 300, subdivision (b).  It dismissed several allegations of the amended petition and sustained allegations (b)(1), (2), and (4).2  The court further found by clear and convincing evidence that returning Edward to his parents would create a substantial risk of danger to his physical or emotional well-being and that no reasonable means existed to protect Edward without removal.   It noted that letters provided by two Indian experts both indicated that returning Edward to his parents was likely to cause him “serious physical or emotional injury.”   It also found that active efforts had been made to prevent the breakup of the Indian family, and that those efforts had been unsuccessful for the reasons stated in the amended petition.

The court ordered monitored visitation and reunification services for both parents.   It heard evidence that mother had completed a four-month alcohol treatment program, and it ordered mother to participate in on-demand drug and alcohol testing.   It ordered father to participate in an alcohol treatment program with random testing, a parenting class, and individual counseling.

Finally, the court ordered Edward placed in DCFS custody and approved Edward's placement with Donna.   The court explained:  “To remove the child from ․ Southern California, where his father is with whom he has the primary relationship, from [Donna's] home with whom he has the secondary relationship, to place him in a stranger's home thousands of miles away from his home to be near a parent that the child is requesting not to be near does not appear to be in the best interest of the child, and the court makes a good-cause finding to go outside of the ICWA preference.”   The court noted, however, that Edward's placement with Donna likely would be temporary:  “At some point [Edward]'s going back to, it appears, as long as mom keeps doing what she's doing and dad keeps doing what he's doing, one or the other.   He's not going to stay with [Donna].   He's either going back to his mom or he's going back to his dad or he's going back to both.   That's the posture this case is in.”

On October 5, 2009, mother appealed from the “jurisdictional and disposition findings made on 9/23/09.”

STANDARD OF REVIEW

“We review questions of law de novo and factual findings for substantial evidence.  (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801;  Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)  ‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence 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.   All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.   Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.’  (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)”  (In re David H. (2008) 165 Cal.App.4th 1626, 1633.)

DISCUSSION

I. Substantial Evidence Supports the Court's Jurisdictional Findings

Mother concedes that Father's actions provided a sufficient basis for the juvenile court's exercise of jurisdiction over Edward pursuant to section 300, subdivision (b).3  She urges, however, that the court erred in sustaining an allegation against her because there was insufficient evidence to support it.   Thus, she asks that we reverse the court's finding on count (b)(4) of the amended petition.

Even if we were to agree with Mother that the finding against her was not supported by substantial evidence, that conclusion “profits [her] nothing because, ‘[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence.   In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.’   (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)”  (In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6.) Thus, because Father's conduct concededly supported the exercise of jurisdiction, we need not reach mother's jurisdictional claim.  (See also In re Jonathan B. (1992) 5 Cal.App.4th 873.)

Mother contends that such a result prejudices her because she “will forever have the neglect allegation as part of her record” and she “may be precluded from a child care job and may even have problems with her own recovery and future job applications.”   This contention misapprehends the purpose of juvenile court dependency jurisdiction.  “ ‘The purpose of the California dependency system is to protect children from harm and preserve families when safe for the child. (§ 300.2.)’ (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)   Notably, the umbrella of dependency protections ‘ensuring the confidentiality of proceedings and records' serves not only to ‘protect the privacy rights of the child,’ but also shield the parents. (§ 300.2.) Fundamentally, however, the focus of the system is on the child, not the parents.”  (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1129.)   We therefore decline to reach mother's jurisdictional claim.

II. Substantial Evidence Supports the Juvenile Court's Disposition Orders

A.  The Court Did Not Abuse Its Discretion by Placing Edward Outside Mother's Custody

1.  Section 361

Mother urges that the juvenile court erred in removing Edward from her custody because substantial evidence did not support the findings required by section 361, subdivisions (c)(1) and (6)-i.e., that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home,” “there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody,” and “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”

We need not address this contention on the merits because section 361, subdivision (c) is irrelevant to the court's decision not to place Edward with mother.   By its plain language, section 361, subdivision (c) governs removal of a child from “the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated.” (§ 361, subd. (c), italics added.)   It is undisputed that Edward did not live with mother when the dependency petition was initiated, and apparently had not done so for several years.   Accordingly, section 361, subdivision (c) is irrelevant to mother's claims.  (See In re V.F. (2007) 157 Cal.App.4th 962, 969 [“The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent).  [Fn. omitted.] (§§ 361, subd. (c), 361.2, subd. (a).)  Section 361, subdivision (c) governs the child's removal from the physical custody of a parent.  [Fn. omitted.]  ‘ “It does not, by its terms, encompass the situation of the noncustodial parent.” ’ ”];  In re Luke M. (2003) 107 Cal.App.4th 1412, 1422-1423 [“Under section 361, the court removes children from the physical custodial parent.  [Citation.]  Because [father] was a noncustodial parent, the court did not and was not required to remove the children from him under any statute.”].)

2. Section 361.2

Mother next contends that substantial evidence did not support the court's findings under section 361.2.   That section provides in relevant part:  “(a) When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child.   If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”

“[U]nder this statute a court has broad discretion to evaluate not only the child's physical safety but also his or her emotional well-being.   In an appropriate case, all that might be required is a finding such a placement would impair the emotional security of the child.  (Cf. In re Jacob P. (2007) 157 Cal.App.4th 819, 829 [‘ “The two standards [best interest and detriment] are basically two sides of the same coin.   What is in the best interests of the child is essentially the same as that which is not detrimental to the child.” ’].)” (In re C.C. (2009) 172 Cal.App.4th 1481, 1490.)   Further, detriment need not be based on parental misconduct:  “Clearly, parental conduct is required to support an exercise of jurisdiction under section 300, subdivision (b), in that jurisdiction is premised on the parent's failure to protect the child.   Further, in order to justify removal from the custodial parent's home, section 361, subdivision (c)(1) requires a showing that there are no reasonable means to protect the child without removal from the home.   In contrast, section 361.2, which governs placement after the child has been made a dependent of the court and removal from the custodial parent has already occurred, conspicuously does not require that the court find the noncustodial parent might fail to protect the child or that there are no reasonable means to protect the child in the noncustodial parent's home in order to deny the noncustodial parent's request for placement.   Instead, section 361.2 simply instructs the court to consider whether placement with the noncustodial parent would be ‘detrimental to the safety, protection, or physical or emotional well-being of the child.’   A detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm.”  (In re Luke M., supra, 107 Cal.App.4th at pp. 1424-1425.)

The court applied these principles in In re Luke M., supra, 107 Cal.App.4th 1412.   There, four children were removed from their mother's care after mother was arrested for drug possession.   The children's father was then living in Ohio, and he asked to have the children placed with him.  (Id. at p. 1417.)   The children wanted to remain near their mother in California and repeatedly asked to be placed together.   The social worker noted the “extremely strong bond” among the children and stated that they became depressed at the thought of being separated.  (Id. at pp. 1417, 1418.)   The court denied father's request to have the children placed with him, instead placing them with a paternal relative in California.   The court noted that placing some of the children with the father in Ohio would be detrimental to their emotional well-being because of their significant bond with their siblings.  (Id. at p. 1419.)

Father challenged the disposition, urging that substantial evidence did not support the finding of detriment under section 361.2 because there was no nexus between his conduct and the detriment.  (In re Luke M., supra, 107 Cal.App.4th at p. 1424.)   The court agreed that father was a nonoffending parent, but it disagreed that the statute required a connection between father's conduct and the detriment.   It explained:  “A detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm.  [Citation.]  Sibling relationships are clearly a relevant consideration in evaluating a child's emotional well-being.   Thus, under the statutory scheme governing postremoval placement decisions, a detriment finding can properly be supported by the emotional harm arising from the loss of sibling relationships even in the absence of the noncustodial parent's contribution to the detriment.  [¶] This statutory scheme is consistent with the focus in dependency law on the child, not the parent.   [Citation.]  That is, once dependency jurisdiction is acquired because of the custodial parent's conduct, the court's inquiry shifts to a focus on the child's best interests, albeit with a preference towards parental reunification.   In sum, although a jurisdictional finding is predicated on parental conduct, a detriment finding for purposes of deciding placement with a noncustodial, nonoffending parent need not be.”  (Id. at p. 1425.)   In the present case, the court concluded that the record amply supported the finding that there was a high probability that moving to Ohio would have a devastating emotional impact on the children:  “They depended on their siblings for love, support, and security.   Since their removal, their only request of the social worker was not to be separated.   They cried and became depressed when she spoke with them about the possibility of separating․  [¶] ․ [¶] In addition, the social worker opined that the children would suffer detriment if separated from their siblings [and] was concerned they would ‘end up with some behaviors' if forced to go.”  (Id. at p. 1426.)   Thus, substantial evidence supported the court's finding that the children would suffer detriment if placed with father in Ohio. (Id. at p. 1427.)

As in Luke M., there was substantial evidence in the present case that Edward would suffer emotional detriment if he were placed with mother.   There was evidence that he was deeply bonded to Donna, whom the CSW described as “a mother figure to Edward for the last 4 years,” and to her family.   Edward repeatedly told his social workers that he felt safe with Donna and wished to remain placed with her.   Indeed, it was clear from the social workers' reports that Donna was the only adult in his life on whom Edward felt he could rely.   He was deeply worried about being placed with either of his parents, who he believed would “start drinking again and I'll be taken away again.   That's what happened last time.”

Similar to Luke M., Edward's life previously had been disrupted by parental substance abuse and dependency proceedings, and he had come to rely on Donna as the only adult in his life who could provide him with a measure of safety and stability.   Although a detriment finding “may not be supportable based on [his] preferences alone, at [age 10], [Edward's] preferences may be considered.”   (In re Luke M., supra, at p. 1426.)   Moreover, DCFS believed that placing Edward with Donna was in his best interests, noting that Donna “is able to provide a safe, loving home.”   Accordingly, the court's finding of detriment in the present case is supported by substantial evidence.

3. Substantial Evidence Supported the Court's “Active Efforts” Finding

Both the ICWA and the Welfare and Institutions Code provide that any party seeking an involuntary foster care placement of an Indian child must establish that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”  (25 U.S.C. § 1912(d);  § 361.7, subd. (a);  see also Cal. Rules of Court, rule 5.484(c);  In re K.B. (2009) 173 Cal.App.4th 1275, 1281.)   The juvenile court made an “active efforts” finding, stating, “Active efforts have been provided to prevent or eliminate the breakup of this Indian family, and those efforts have been unsuccessful for the reasons stated in the sustained petition.”

Mother does not suggest that DCFS did not make active efforts to keep Edward with father, but she challenges the “active efforts” finding as to her, asserting that “no efforts were made at all” to keep Edward in her care.   She urges:  “No one offered Mother family maintenance services, supervision, or anything at all.   Nothing was given to Mother in an effort to keep this Indian child in his home.”   Thus, she contends that the court's “active efforts” finding was not supported by substantial evidence.

We do not agree with mother that the juvenile court's “active efforts” finding was unsupported by substantial evidence.  “[A]ctive efforts require that the state actually help the parent develop the skills required to keep custody of the children.”  (Dashiell R. v. State of Alaska, Dept. of Health and Social Services, Office of Children's Services (Alaska 2009) 222 P.3d 841, 849.)   “Active efforts” are required even if the parent is incarcerated, but “ ‘[t]he circumstances surrounding a parent's incarceration may have a direct bearing on what active remedial efforts are possible.’ ”  (Ibid.) That is, “when assessing what options are available to prepare the parent for the return of a child, incarceration narrows the available options.”  (People ex rel D.G. (S.D.2004) 679 N.W.2d 497, 502.)   Further, an analysis of the state's active efforts is not limited to efforts by DCFS;  programs offered by the Department of Corrections “are also considered part of the state's efforts.”  (Dashiell R., supra, 222 P.3d at p. 849;  see also People ex rel. D.G., supra, 679 N.W.2d at p. 502, citations omitted [“A parent's incarceration does not automatically excuse DSS from exercising efforts to return the child.   Yet, it is a matter of fact that a ‘parent's incarceration limits DSS in its attempts to rehabilitate the family.’  ․ [W]hen assessing what options are available to prepare the parent for the return of a child, incarceration narrows the available options.”].)

It is undisputed that before DCFS detained Edward, it made active efforts to keep Edward with father, including by providing father with parenting classes, conjoint therapy, and random drug and alcohol testing.   It also is undisputed that mother was provided services while incarcerated, including a parenting class and substance abuse class.   And, it is undisputed that mother was provided with court-ordered monitored visitation and reunification services once she was released from custody.   Under the circumstances, we conclude that substantial evidence supported the juvenile court's “active efforts” finding.   In view of mother's incarceration, the services DCFS could offer her necessarily were limited, and mother has not identified any services that DCFS should have, but did not, make available to her.   More importantly for present purposes, because mother was incarcerated, she was not able to assume custody of Edward when he was removed from father.   Thus, it does not appear that there are any services that DCFS could have offered mother that would have avoided the breakup of the family and Edward's placement in foster care in June 2009.

B. The Court Did Not Abuse Its Discretion by Placing Edward With Donna

Mother challenges the sufficiency of the evidence to support the court's deviation from ICWA's placement preferences.  (25 U.S.C. § 1915(b);  § 361.31.) She asserts the court erred by placing Edward with Donna, rather than in a tribally-approved foster home.

ICWA sets out placement preferences and standards to be followed in foster care placements of Indian children.  (25 U.S.C. § 1915.)   Preference must be given, “in the absence of good cause to the contrary, to a placement with- [¶] (i) a member of the ․ child's extended family;  [¶] (ii) a foster home licensed, approved, or specified by the ․ child's tribe;  [¶] (iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority;  or [¶] (iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the ․ child's needs.”  (25 U.S.C. § 1915(b)(i)-(iv);  see also § 361.31.) The placement preference standards “reflect the legislative goal of keeping Indian children with their extended families and preserving the connection between the child and his or her tribe when removal is necessary.  (25 U.S.C. § 1901;  Welf. & Inst.Code, § 224.)”  (In re G.L. (2009) 177 Cal.App.4th 683, 697-698.)

A child shall be placed “within reasonable proximity to the child's home, taking into account any special needs of the child.” (§ 361.31, subd. (b).)  Where appropriate, “the placement preference of the Indian child, when of sufficient age, or parent shall be considered,” and the child's placement preference may constitute good cause to deviate from the placement preferences. (§ 361.31, subds.(e), (h).)  “In reviewing the court's good cause determination to bypass ICWA's placement preferences, we apply the substantial evidence test.  (Fresno County Dept. of Children & Family Services v. Superior Court [ (2004) ] 122 Cal.App.4th [626,] 644-646.)”  (In re G.L., supra, 177 Cal.App.4th at p. 697.)

Here, substantial evidence supports the court's finding that good cause existed to deviate from ICWA's statutory placement preferences.   Donna's home was within “reasonable proximity” to father, who had been Edward's primary caregiver for at least four years;  the foster home advocated by the tribe was not.   Edward consistently asked to be placed with Donna, and father concurred with that placement.   Finally, placement with Donna minimized the disruptions in Edward's life, which had been numerous.

As we have noted, Donna is a member of the Pueblo of Acoma Tribe and was reported to be active in American Indian culture and traditions.   Placement with an Indian family is the third level of preference, as stated in title 25 of the United States Code section 1915(a) and section 361.31, subdivision (c).  Under the circumstances, placing Edward with her satisfied the requirements of the ICWA.

DISPOSITION

The court's jurisdictional and dispositional orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Welfare and Institutions Code..  FN1. All further undesignated statutory references are to the Welfare and Institutions Code.

FN2. The allegations sustained by the court are as follows. (b)(1):  “In June 2009 and on other occasions [father] used inappropriate physical discipline on mi[nor] [Edward S.] as a result of which minor sustained bruising on his body.   Such inappropriate physical discipline places the minor at risk of physical and emotional harm.” (b)(2):  “[Father] has a history of substance abuse and is a frequent abuser of alcohol, which renders the father incapable of providing the child with regular care and supervision.   On 6/23/09 and prior occasions, the father was under the influence of alcohol while the child was in the father's care and supervision.   The father has a criminal history of a conviction of disorderly conduct:  under [the] influence of drugs.   The father's substance abuse endangers the child's physical and emotional health and safety, creates a detrimental home environment and places the child at risk of physical harm, damage and danger.” (b)(4):  “[Mother] has an extensive criminal and substance abuse history.   Said extensive criminal and substance abuse history of convictions includes but is not limited to hit and run, DUI. Said extensive criminal and substance abuse history regularly renders the mother unable to provide the child Edward [S.] with appropriate care and supervision and further places the child ․ at risk of physical and emotional harm and damage.”.  FN2. The allegations sustained by the court are as follows. (b)(1):  “In June 2009 and on other occasions [father] used inappropriate physical discipline on mi[nor] [Edward S.] as a result of which minor sustained bruising on his body.   Such inappropriate physical discipline places the minor at risk of physical and emotional harm.” (b)(2):  “[Father] has a history of substance abuse and is a frequent abuser of alcohol, which renders the father incapable of providing the child with regular care and supervision.   On 6/23/09 and prior occasions, the father was under the influence of alcohol while the child was in the father's care and supervision.   The father has a criminal history of a conviction of disorderly conduct:  under [the] influence of drugs.   The father's substance abuse endangers the child's physical and emotional health and safety, creates a detrimental home environment and places the child at risk of physical harm, damage and danger.” (b)(4):  “[Mother] has an extensive criminal and substance abuse history.   Said extensive criminal and substance abuse history of convictions includes but is not limited to hit and run, DUI. Said extensive criminal and substance abuse history regularly renders the mother unable to provide the child Edward [S.] with appropriate care and supervision and further places the child ․ at risk of physical and emotional harm and damage.”

FN3. Section 300, subdivision (b) provides that a child is subject to juvenile court jurisdiction if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.”.  FN3. Section 300, subdivision (b) provides that a child is subject to juvenile court jurisdiction if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.”

WILLHITE, Acting P.J. MANELLA, J.