In re K.H. CA5 ( 2013 )

Filed 7/29/13 In re K.H. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re K.H. et al., Persons Coming Under the
Juvenile Court Law.
KERN COUNTY DEPARTMENT OF F066682
HUMAN SERVICES,
(Super. Ct. Nos. JD127047 &
Plaintiff and Respondent, JD127048)
v.
D.M., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Kern County. Louie L. Vega,
Judge.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and
Appellant.
Theresa A. Goldner, County Counsel, Jennifer E. Feige, Deputy County Counsel,
for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Gomes, J., and Detjen, J.
D.M., mother, appeals from the juvenile court’s orders pursuant to Welfare and
Institutions Code section 366.26 terminating her parental rights to K.H. and S.B.1
Mother argues that the Kern County Department of Human Services (department) failed
to make a proper inquiry of her children’s Indian ancestry pursuant to the Indian Child
Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.). The department conceded the error by
letter. We find the department’s concession to be improvident, reject mother’s
contention, and affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL SUMMARY
Initial Detention and Jurisdiction Hearings
On July 27, 2011, K.H. (age three) and S.B. (age two) were detained on
allegations that mother abused alcohol and drugs and was the victim of domestic violence
by the children’s presumed father, D.B. The parents were not present at the detention
hearing.
Mother filed a parental notice of Indian status indicating she had no Indian
ancestry as far as she knew. Father filed a parental notification of Indian status indicating
he may have Indian ancestry through the Navajo Tribe. Mother executed a waiver of
rights, submitting the matter on the basis of the social worker’s report. At the combined
jurisdictional/dispositional hearing on September 14, 2011, the court found the petition to
be true as amended. The court found the ICWA did not apply as to mother. The court
ordered the department to give ICWA notice because of father’s indication that he may
have Navajo ancestry. The dispositional hearing was continued to give ICWA notice to
the tribes.
1 All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2
ICWA Notice
On September 23, 2011, the department filed a document setting forth the
information it had regarding father’s Indian heritage. Father listed his biological mother
as J.S.B., who was born in Los Angeles, California, in 1932, and who died in Lancaster,
California, in 1969. Father’s biological father was listed as Francisco B. and his address
as unknown. Both of father’s biological parents were listed as “[p]ossibly Navajo.”
Father was born in 1966. No information was provided concerning father’s grandparents.
On September 23, 2011, the department sent ICWA notices to the Secretary of the
Interior, the Bureau of Indian Affairs (BIA), the Navajo Nation, and to the Colorado
River Indian Tribes.
On September 30, 2011, the department filed copies of the signed return receipt
cards. On October 4, 2011, the department filed a response from the BIA stating it was
deferring to the tribes to determine if the ICWA was applicable to the minors’ cases. On
October 17, 2011, the department filed the return receipt card from the Secretary of the
Interior. A response from the Navajo Nation was filed by the department on November
2, 2011, stating the tribe was unable to verify the children’s eligibility for enrollment
based on the information provided. On November 4, 2011, the department filed a
response from the Colorado River Indian Tribes stating that neither the parents nor the
children were enrolled members of the tribe or eligible for enrollment.
Disposition Hearing
The disposition hearing was conducted on October 18, 2011, before the court and
the parties received notice of ICWA eligibility from the tribes. Mother was present at the
hearing, but father was not. The department’s report for the hearing did not include
information on the progress of the ICWA notices. The department’s report stated father
was Hispanic with no known American Indian heritage. The report also said father’s
parents were I.B. and Frank B., who resided in southern California. Because responses
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had not been received from the tribes, the juvenile court stated it was not going to make
an ICWA finding at that time. The court declared the children wards of the court,
removed the children from their parents’ custody, and ordered family reunification
services.
Six-Month Review Hearing
The juvenile court conducted the six-month review hearing on April 18, 2012.
Father appeared at the hearing, but was in custody. The social worker’s report noted the
juvenile court had found during the jurisdictional/dispositional hearing that ICWA did
not apply as to mother and the dispositional hearing was continued regarding the ICWA
as to father.
The court found mother had only made minimally acceptable efforts toward
alleviating or mitigating the causes for the children being placed outside the home and
father had not made acceptable efforts in that regard. The juvenile court continued
reunification services for both parents. The parties did not seek a further ruling on ICWA
and the court made no reference to the ICWA during the hearing.
12-Month Review Hearing
According to the social worker’s report, mother completed a parenting course but
continued to periodically test positive for amphetamines and methamphetamine. Mother
had recently missed or cancelled visits with the children. Father was incarcerated in
prison. The report noted the juvenile court had previously found the ICWA did not apply
to mother and the dispositional hearing was continued regarding the applicability of the
ICWA as to father. The social worker concluded father had made no progress toward
reunification and mother had made minimal progress in that regard. Because there was
not a substantial probability the children would be returned to the parents within six
months, the social worker recommended the juvenile court set the matter for a section
366.26 hearing.
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The 12-month review hearing was conducted on September 14, 2012. Father
testified at the hearing, reviewing the reunification services he had received while
incarcerated. Father’s potential American Indian heritage was not raised at the hearing.
The juvenile court adopted the department’s recommendations and set the matter for a
section 366.26 hearing.
The parents were expressly informed by the juvenile court of their right to file a
writ petition with this court should they desire to challenge any of the court’s rulings and
orders. The parents were also served in court with a copy of a notice to file an
extraordinary writ and request for the record. Neither parent filed an extraordinary writ
from the juvenile court’s rulings at the 12-month review hearing.
Section 388 Petitions and Section 366.26 Hearing
Mother and father filed petitions pursuant to section 388, seeking a modification
of the juvenile court’s orders so that they could receive additional reunification services.
Neither parent raised the ICWA as an issue. The department’s report again set forth that
the ICWA did not apply to mother and the dispositional hearing had been continued to
determine if the ICWA applied to father. The report also noted that the Colorado River
Tribal Council and the Navajo Nation had been sent ICWA notices as to father, but
erroneously noted that responses had not been received. The department concluded that
neither child had American Indian or Eskimo heritage.
On January 11, 2013, after a full hearing on the section 388 petitions, the juvenile
court denied the parents’ petitions. The juvenile court found the children were adoptable
and terminated the parental rights of the parents.
DISCUSSION
ICWA Challenge
Mother argues the ICWA notice was insufficient because the department did not
perform an adequate inquiry into the father’s Indian heritage. Mother challenges the
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juvenile court’s failure to make an express order concerning the ICWA as to father.
Mother argues there are references in the record to different mothers for father. Mother
acknowledges she failed to appeal from prior orders of the juvenile court’s finding that
the ICWA was not applicable to the children. Mother argues that her case is
distinguishable from our opinion in In re Pedro N. (1995) 35 Cal.App.4th 183, 185, 189
(Pedro N.), which applies waiver and forfeiture to parents who wait until the termination
of parental rights to first make an ICWA challenge. The department improvidently
concedes the error. We reject mother’s ICWA challenge as forfeited.
In Pedro N., supra, 35 Cal.App.4th at pages 185, 189, we held that a parent who
fails to timely challenge a juvenile court’s action regarding the ICWA is foreclosed from
raising ICWA issues, once the juvenile court’s ruling is final, in a subsequent appeal from
later proceedings. The proper time to raise such issues is after the dispositional hearing.
The juvenile court’s rulings and findings at the dispositional hearing are appealable upon
a timely notice of appeal. We noted in Pedro N. that the parent there was represented by
counsel and failed to appeal the juvenile court’s orders from the dispositional hearing.
(Pedro N., supra, 35 Cal.App.4th at pp. 189-190.)
Father signed forms earlier in the proceedings indicating he may have Indian
heritage. We agree with mother that there was no ICWA order as to father by the
juvenile court at the conclusion of the dispositional hearing in 2011. Notices from the
two Indian tribes were received a few weeks after the dispositional hearing. We further
agree that the juvenile court did not expressly rule on the ICWA in later hearings.
The juvenile court conducted six and 12-month review hearings and neither parent
sought clarification on the applicability of the ICWA. At the conclusion of the 12-month
review hearing setting the matter for a section 366.26 hearing, both parents were
informed of their right to file an extraordinary writ and failed to do so. Despite other
opportunities after the dispositional hearing to clarify the ICWA issue, neither parent
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raised the issue to the juvenile court. Neither parent raised the ICWA issue in the section
388 petitions they filed. Neither parent sought review of the ICWA issue by appeal or
extraordinary writ to this court after the six and 12-month review hearings. The parents
did nothing and have, therefore, forfeited the right to challenge any procedural
deficiencies in the juvenile court proceedings. (Pedro N., supra, 35 Cal.App.4th at pp.
185, 189-191.)
The merits of the ICWA issue appear to be very weak. Neither the Colorado River
Tribal Council nor the Navajo Nation found father or the children enrolled or eligible for
enrollment based on the information father provided.2 Both parents had notice prior to
the 12-month review hearing that the department did not consider either child to have
Indian heritage. Both parents remained silent.
Mother also argues there was confusion over the identity of father’s mother
because one document lists J.S.B. as father’s biological mother, but another document
referred to his mother as I.B. We find no conflict in the record. Father listed his
biological mother as J.S.B., who died in 1969. A later document referred to I.B., who it
appears married Francisco B. at a later time and would be father’s stepmother. In any
event, these were factual matters to bring before the juvenile court and the parents did
nothing to challenge the ICWA.
The juvenile court’s findings and orders became final at the conclusion of the six
and 12-month review hearings and, on this appeal from the order terminating mother’s
parental rights, are no longer subject to attack. (Pedro N., supra, 35 Cal.App.4th at pp.
185, 189-191.) Our holding in Pedro N. is fully applicable here. Mother waited until the
2 Although the final report from the department incorrectly noted there had been no
response from the tribes, neither parent objected to this point at the joint section 388 and
section 366.26 hearing. The record demonstrates, however, that based on the information
provided, father was not eligible for tribal enrollment.
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end of the proceedings to object to the juvenile court’s earlier rulings finding the ICWA
inapplicable to this case, and by her prior silence, has forfeited her right to complain
about any procedural deficiencies in compliance with the ICWA in the instant appeal.3
We further note that Pedro N. does not foreclose a tribe’s rights under the ICWA
due to a parent’s forfeiture or waiver of the issue for failing to file a timely appeal when
procedurally entitled to do so at the conclusion of an earlier proceeding. (Pedro N.,
supra, 35 Cal.App.4th at pp. 185, 189-190; see In re Desiree F. (2000) 83 Cal.App.4th
460, 477-478 [wherein we reversed the juvenile court’s denial of a tribe’s motion to
intervene after a final order terminating parental rights and invalidated actions dating
back to outset of dependency that were taken in violation of ICWA].) In Pedro N., we
held we were addressing only the rights of the parent to a heightened evidentiary standard
for removal and termination, not those of the tribe (Pedro N., supra, 35 Cal.App.4th at p.
191), or, for that matter, the rights of the child. As a result, we conclude mother has
forfeited her personal right to complain of any alleged defect in compliance with the
ICWA.
DISPOSITION
The orders and findings of the juvenile court are affirmed.
3 To the extent mother relies on cases such as In re Marinna J. (2001) 90
Cal.App.4th 731, 737-739; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247;
and In re B.R. (2009) 176 Cal.App.4th 773, 779, cases that disagreed with Pedro N. on
the theory that Pedro N. is inconsistent with the protections and procedures afforded by
the ICWA to the interests of Indian tribes, we are not persuaded (see also Nicole K. v.
Superior Court (2007) 146 Cal.App.4th 779, 783-785; In re Antoinette S. (2002) 104
Cal.App.4th 1401, 1413-1414).
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