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In re N.M.

May 27, 2009

IN RE N.M., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
R.M., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Marlene E. Hertoghe, Juvenile Court Referee. Affirmed. (Super. Ct. No. JD222277).

The opinion of the court was delivered by: Raye , J.

CERTIFIED FOR PUBLICATION

R.M. (appellant), father of N.M. (minor), appeals from the orders and judgment of the juvenile court setting a permanent plan of legal guardianship and appointing Y.C., a non-relative, as the minor‟s legal guardian instead of P.M., the minor‟s paternal grandmother. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1

Appellant contends there was insufficient evidence of good cause to deviate from the preference of the Indian tribe, the expert on the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.), and the Sacramento County Department of Health and Human Services (Department) to place the minor with the paternal grandmother. (§ 366.26, subd. (c)(1)(B)(vi)(II).)*fn2 We disagree and will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 19, 2005, the Department filed a juvenile dependency petition alleging the minor, then four months old, came within section 300, subdivisions (b) and (j) because of continuing substance abuse by appellant and the minor‟s mother, their inability to provide adequate support and care for the minor, and the mother‟s inability to provide appropriate care and supervision of the minor‟s half sibling, J.S., Jr., and insure his attendance at school.*fn3 The petition was later amended to include additional allegations regarding mother‟s substance abuse and failure to participate in court-ordered drug testing and treatment.

Appellant was incarcerated at the time the petition was filed and was not present at the detention hearing two days later. The minor‟s mother, who was present at the hearing, informed the court that she had no Native American ancestry. Based on that representation, the court found the ICWA did not apply and ordered the minor and J.S., Jr., detained. Both children were placed with Y.C., a non-relative.

On May 13, 2005, appellant, no longer in custody, appeared at the jurisdictional hearing and informed the court he was an enrolled member of the Miwok of Round Valley Reservation Indian Tribe. The court ordered the Department to send notice of the dependency proceedings to the tribe and continued the hearing. Based on information provided by appellant, the Department sent notices in accordance with the ICWA.

The Round Valley Indian Tribes (Tribe) responded on June 7, 2005, indicating the minor was eligible for enrollment.

The Tribe subsequently requested a paternity test to confirm the minor‟s tribal eligibility.

The court ordered reunification services to appellant and the minor‟s mother on June 17, 2005.

According to the September 8, 2005, addendum report, neither parent was participating in reunification services as required. The ICWA expert concluded there was clear and convincing evidence that out-of-home placement was warranted. The expert noted the minor had been placed in a home that was neither Native American nor tribally approved, and recommended that the social worker continue efforts to locate a relative, extended family, or Native American home. The report also noted the minor‟s paternal grandmother was interested in placement of the minor.

Appellant was returned to custody on September 9, 2005, for violations of parole.

At the October 13, 2005, jurisdictional hearing, appellant and the minor‟s mother submitted to the allegations in the amended petition. The court sustained the allegations and declared the minor and his half sibling dependents of the court. Appellant and the minor‟s mother were denied reunification services, as was J.S., Sr., who was present through counsel at the hearing. The court found both children adoptable and ordered adoption as the ...


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