In re Isaiah W. CA2/3

• Court: California Court of Appeal
• Decided: April 29, 2014
• Docket: B250231
• Status: Unpublished

Opinion

Filed 4/29/14 In re Isaiah W. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re ISAIAH W., A Person Coming Under B250231 the Juvenile Court Law. (Los Angeles County LOS ANGELES COUNTY Super. Ct. No. CK91018) DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ASHLEE R.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County, Jacqueline H. Lewis, Judge. Affirmed. Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent. ___________________________________________ Ashlee R. (mother) appeals from the order terminating her parental rights to the

now two-year-old Isaiah W. She contends that the juvenile court erred in finding that

the Indian Child Welfare Act (ICWA) did not apply here. We hold that mother failed to

timely appeal the juvenile court’s order and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2011, Isaiah was born with a positive toxicology for marijuana and

exhibited withdrawal symptoms. A petition was filed alleging that mother’s and

father’s illicit drug use placed Isaiah at risk of harm.1 At the detention hearing, the

juvenile court removed Isaiah from his parents’ care and ordered reunification services

for them.

Mother told the juvenile court that she may have American Indian ancestry, and

the court ordered the Department of Children and Family Services (Department) to

investigate mother’s claim. The Department interviewed maternal relatives and reported

to the court that maternal grandfather may have had Blackfoot ancestry and maternal

great-great-grandmother may have been part of a Cherokee tribe.

At the jurisdictional and dispositional hearing on January 20, 2012, the juvenile

court reviewed the Department’s report and concluded that there was no “reason to

know” that Isaiah was “an Indian child as defined under ICWA.” Accordingly, the

court did not order that notice be provided to any tribe or the Bureau of Indian Affairs.

Neither mother nor father objected or argued that the ICWA was applicable. The court

1 Father is not a party to this appeal.

2 adjudged Isaiah a dependent and ordered him placed in foster care. The parents were

ordered to participate in counseling and drug testing.

Mother did not attend her scheduled drug tests or drug treatment program.

Although she visited with Isaiah on a weekly basis, she never remained for the full two

hours scheduled for the visits. Father only visited Isaiah two or three times. On

September 12, 2012, the juvenile court terminated the parents’ reunification services

and set a hearing on the termination of parental rights.

On November 5, 2012, Isaiah was placed with a prospective adoptive family. On

April 10, 2013, the juvenile court terminated mother’s and father’s parental rights. At

the hearing, the court repeated its prior finding that there was no reason to know Isaiah

was an Indian child. On June 5, 2013, mother appealed from the termination of parental

rights.

CONTENTIONS

Mother contends the juvenile court erred in finding that it had no “reason to

know” Isaiah was an Indian child, and in failing to order the Department to comply with

the ICWA’s notice requirements.

DISCUSSION

The ICWA “protect[s] the best interests of Indian children and [] promote[s] the

stability and security of Indian tribes and families by the establishment of minimum

Federal standards for the removal of Indian children from their families and the

placement of such children in foster or adoptive homes which will reflect the unique

values of Indian culture . . . . ” (25 U.S.C. § 1902.) “In general, the ICWA applies to

3 any state court proceeding involving the foster care or adoptive placement of, or the

termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)-(c),

1912-1921.)” (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.) An “Indian child”

is defined as a child who is “either (a) a member of an Indian tribe or (b) is eligible for

membership in an Indian tribe and is the biological child of a member of an Indian

tribe.” (25 U.S.C. § 1903(4).)

The ICWA provides that “where the court knows or has reason to know that an

Indian child is involved, the party seeking the foster care placement of, or termination of

parental rights to, an Indian child shall notify the parent or Indian custodian and the

Indian child’s tribe, by registered mail with return receipt requested, of the pending

proceedings and of their right of intervention. If the identity or location of the parent or

Indian custodian and the tribe cannot be determined, such notice shall be given to the

Secretary [of the Interior] in like manner . . . . No foster care placement or termination

of parental rights proceeding shall be held until at least ten days after receipt of notice

by the parent or Indian custodian and the tribe or the Secretary . . . . ” (25 U.S.C.

§ 1912(a).)

Here, mother argues the court had “reason to know” that Isaiah was an “Indian

child,” and, thus, should have ordered the Department to comply with the ICWA’s

notice requirements. This argument relates to the court’s dispositional order of

January 2012. At that point, all of the information provided by mother and her relatives

about their American Indian heritage was before the juvenile court, and the

Department’s report on its investigation into mother’s heritage was considered by court.

4 Therefore, according to mother’s argument, because the Department should have

provided notice under the ICWA, it was error for the juvenile court to proceed with its

disposition of removal and foster care placement. Instead, the court should have

continued the dispositional hearing until at least ten days after the Department had

served notice on the identified tribes or Secretary of the Interior. (See 25 U.S.C.

Mother had the right to appeal the juvenile court’s order at the dispositional

hearing. She did not do so, and only challenged the court’s failure to provide notice

under the ICWA approximately one and a half years later. However, the juvenile

court’s dispositional findings and orders had become final 60 days after the court’s

announcement of the order. (Cal. Rules of Court, rule 8.406(a)(1).) “Appellate

jurisdiction to review an appealable order is dependent upon a timely notice of appeal.

[Citation.]” (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) Here, by waiting

until the termination of parental rights to object to the juvenile court’s earlier finding

that the ICWA did not apply, mother has forfeited her right to challenge this ruling.

(In re Pedro N. (1995) 35 Cal.App.4th 183.)

Although cases such as In re Marinna J. (2001) 90 Cal.App.4th 731 and

Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 have disagreed with

Pedro N., we are not persuaded by their reasoning. Those cases held that “parental

inaction” cannot “excuse the failure of the juvenile court to ensure that notice under the

Act was provided to the Indian tribe named in the proceeding.” (In re Marinna J.,

supra, 90 Cal.App.4th at p. 739; Dwayne P., supra, 103 Cal.App.4th at p. 261.)

5 However, we adopt Pedro N.’s conclusion that the ICWA does not authorize a parent to

delay in challenging a trial court’s determination on the applicability of ICWA until

after the disputed decision is final. (In re Pedro N., supra, 35 Cal.App.4th at p. 190.)

In Pedro N., the mother informed the juvenile court at the detention hearing for

her two children that she was “a full-blooded member of the Mono Indian Tribe.” (In re

Pedro N., supra, 35 Cal.App.4th at p. 186.) The Department sent ICWA notice to the

Bureau of Indian Affairs, and the Bureau responded that it needed the identity of the

reservation or rancheria with which the mother was associated in order to confirm the

family’s tribal membership. (Ibid.) When county counsel raised this issue at the

disposition hearing, the mother volunteered the name “ ‘North Fork.’ ” (Id. at p. 187.)

However, there was no further discussion regarding ICWA notice and the juvenile court

removed the children from the mother’s care at the conclusion of the hearing. (Ibid.)

After reunification efforts with the mother failed, the court terminated her parental

rights. (Id. at p. 185.) The mother appealed from the order terminating her parental

rights and argued that the Department had given inadequate notice under the ICWA.

(Ibid.)

The Pedro N. court held that the mother was foreclosed from raising ICWA

compliance issues because she did not raise this challenge until approximately two years

after the juvenile court’s decision not to proceed under the ICWA. (Id. at pp. 188-189.)

The court also found that Congress did not indicate an intent to permit a parent “to

allege an ICWA violation at any point in the proceedings.” (In re Pedro N., supra,

35 Cal.App.4th at p. 190.) The court noted that the ICWA both authorizes a tribe to

6 intervene in a dependency action “at any point in the proceeding,” and a parent of an

Indian child to “petition any court of competent jurisdiction to invalidate” “any action

for foster care placement or termination of parental rights.” (25 U.S.C. §§ 1911(c) &

1914(a).) Accordingly, the Pedro N. court concluded that, “[h]ad the Congress intended

to permit a parent to allege an ICWA violation at any point in the proceedings, it could

well have so stated. . . . We assume from the absence of such language in [the provision

authorizing a parent to raise ICWA violations], that the Congress did not intend to

preempt, in the case of appellate review, state law requiring timely notices of appeal

from a parent who appeared in the underlying proceedings and who had knowledge of

the applicability of the ICWA.” (In re Pedro N., supra, 35 Cal.App.4th at p. 190

[emphasis added.])

“Congress’s intent to not cause unnecessary delay in dependency proceedings is

evidenced by the [ICWA] provision allowing a hearing on [foster care placement or] the

termination of parental rights within a relatively short time, 10 days, after the [Secretary

of the Interior] or tribe receives ICWA notice. (25 U.S.C. § 1912(a).)” (In re X.V.

(2005) 132 Cal.App.4th 794, 804.) Such an intent is supported by the maxim that

“[b]ecause juvenile dependency proceedings ‘involve the well-being of children,

considerations such as permanency and stability are of paramount importance.

(§ 366.26.)’ [Citation.]” (Ibid.) Here, we do not believe Congress intended to

authorize a parent to wait for over a year before challenging a trial court’s decision on

the applicability of the ICWA. Accordingly, we conclude that mother has forfeited her

right to raise a challenge to the juvenile court’s finding that the ICWA did not apply

7 here. However, we note that, as in Pedro N., we are only addressing the rights of

mother, not the rights of a tribe under the ICWA or, for that matter, the rights of the

child. (In re Pedro N., supra, 35 Cal.App.4th at p. 191; see also 25 U.S.C. § 1902 [the

ICWA protects the interests of Indian children, their families and Indian tribes].)

8 DISPOSITION

The orders of the juvenile court are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

WE CONCUR:

KLEIN, P. J.

ALDRICH, J.