Santa Clara Cnty. Dep't of Family & Children's Servs. v. M. J. (In re L.D.)

243 Cal. Rptr. 3d 894, 32 Cal. App. 5th 579
CourtCalifornia Court of Appeal, 5th District
DecidedJanuary 24, 2019
DocketH045544
StatusPublished
Cited by1 cases

This text of 243 Cal. Rptr. 3d 894 (Santa Clara Cnty. Dep't of Family & Children's Servs. v. M. J. (In re L.D.)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Santa Clara Cnty. Dep't of Family & Children's Servs. v. M. J. (In re L.D.), 243 Cal. Rptr. 3d 894, 32 Cal. App. 5th 579 (Cal. Ct. App. 2019).

Opinion

Grover, J.

*580The Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq. ) gives Indian tribes the right to intervene in dependency proceedings "where the court knows or has reason to know that an Indian child is involved," and foster care placement or termination of parental rights *581for the Indian child is being sought. (Id ., at § 1912(a).) To that end, the party initiating dependency proceedings must provide the Indian child's tribe with notice of the proceedings and the right to intervene. (Ibid .) In this dependency action, the mother of L.D. belatedly challenges the juvenile court's finding made at the jurisdictional and dispositional hearing regarding compliance with ICWA. We will dismiss the appeal for lack of jurisdiction. *895I. BACKGROUND

The Santa Clara County Department of Family and Children's Services filed a juvenile dependency petition on behalf of nine-year-old L.D. At the initial detention hearing mother informed the court of Native Alaskan ancestry. She identified a possible affiliation with "Doyon-Alaska," and related that her mother (L.D.'s maternal grandmother) knew more about the ancestry.

At the jurisdictional and dispositional hearing, the Department reported that it had investigated the ICWA matter and sent notice of the dependency proceedings to a tribe in Alaska. According to the social worker's report, L.D.'s maternal grandmother reported having Eskimo heritage, mentioning "the Doyon tribe as well as Tanachief." The notice, identifying L.D. as possibly Athabascan Indian, was sent in November 2017 to the Native Village of Tanana in Alaska, the Bureau of Indian Affairs in Sacramento, and the Secretary of the Interior in Washington, D.C. Receiving no objections from the parties, the court found the notice satisfied ICWA.

The court found true the allegations in the petition that mother had sexually abused L.D.; had failed to protect L.D. from sexual abuse by mother's boyfriend; had physically attacked her father (L.D.'s maternal grandfather) in the presence of L.D., and during that altercation mother's boyfriend had brandished and threatened the maternal grandfather with a handgun.

L.D. was declared a dependent of the court. She was removed from mother's custody and ordered into the custody of the Department, with the expectation she would be placed with the maternal grandfather who had been caring for her informally for several years. Mother waived her right to reunification services, and the court set a selection and implementation hearing under Welfare and Institutions Code section 366.26. The juvenile court advised mother, who was in custody facing criminal charges related to the circumstances alleged in the dependency petition, that the right to appellate review was by extraordinary writ to be filed within seven days, and personally served mother with a copy of the writ advisement.

*582Following the hearing, the court issued a three-year juvenile restraining order protecting L.D. from mother. The court found that mother had intentionally or recklessly caused or attempted to cause bodily injury and sexual assault on L.D., and had caused L.D. reasonable apprehension of imminent serious bodily injury. The restraining order prohibited mother from having a gun and required mother to sell or surrender any gun within her immediate possession or control. Having found that mother had possessed or had access to a handgun before her arrest, the court set a gun surrender hearing. At that hearing held on January 12, 2018, the court found that mother owned or had access to a gun and failed to show the gun had been surrendered or confiscated, in violation of the juvenile restraining order. Given mother's custody status, the court noted its willingness to revisit the matter after mother's release if she were to provide evidence of the gun's surrender.

Mother filed a timely notice of appeal from the order following the gun surrender hearing, identifying the court's finding that she had access to a firearm in violation of the restraining order as the basis for her appeal. But her briefing in this court does not address the restraining order or its conditions. Instead mother challenges the juvenile court's December 5, 2017 finding regarding ICWA compliance, and the Department concedes (without giving reasons) that its November 2017 notice was insufficient. Mother argues in supplemental briefing that her ICWA challenge *896is timely. L.D. views mother's ICWA challenge as timely, but argues that the Department's November 2017 notice was proper. L.D. also has requested judicial notice of three ICWA notices (sent in August, September, and October 2018) for the selection and implementation hearing, and contends mother's appeal is moot in light of those notices.

II. DISCUSSION

A. TIMELINESS

Relying on In re Isaiah W . (2016) 1 Cal.5th 1, 203 Cal.Rptr.3d 633, 373 P.3d 444 ( Isaiah ), mother argues that an appellate challenge to the juvenile court's ICWA finding may be raised at any time during a dependency proceeding because error under ICWA is of a continuing nature given the juvenile court's duty to comply with ICWA's notice requirement. L.D. takes a narrower position, also based on Isaiah , that the ICWA challenge is proper because it is from an appealable post-disposition order.

In Isaiah our Supreme Court addressed whether a parent who does not timely appeal a juvenile court order that includes a finding of ICWA inapplicability may still challenge that finding on appeal from a later order terminating parental rights. ( Isaiah , supra , 1 Cal.5th at p. 6, 203 Cal.Rptr.3d 633, 373 P.3d 444.) As here, the *583ICWA finding in Isaiah was made at the jurisdictional and dispositional hearing, and appellate review was not sought at that time. ( Ibid . ) But unlike mother's appeal from a proceeding on compliance with a juvenile restraining order, the Isaiah appeal was taken from an order terminating parental rights. ( Id . at p.

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Cite This Page — Counsel Stack

Bluebook (online)
243 Cal. Rptr. 3d 894, 32 Cal. App. 5th 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santa-clara-cnty-dept-of-family-childrens-servs-v-m-j-in-re-ld-calctapp5d-2019.