In re N.L. CA5 ( 2015 )

Filed 10/29/15 In re N.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 N.L., a Person Coming Under the Juvenile
Court Law.
KINGS COUNTY HUMAN SERVICES F071258
AGENCY,
(Super. Ct. No. 14JD0048)
Plaintiff and Respondent,
v. OPINION
A.R.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Jennifer
Giuliani, Judge.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Colleen Carlson, County Counsel, and Rise Donlon, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
A.R. (mother) appeals from a judgment terminating her parental rights to N.L.,
born in August 2014.1 Mother’s sole claim is that the juvenile court erred when it found
that the Indian Child Welfare Act (25 U.S.C. §§ 1901 et seq. (ICWA)) did not apply
because the finding was not supported by adequate inquiry or notice on the part of the
juvenile court and the Kings County Human Services Agency (department). We affirm.
FACTS AND PROCEDURAL HISTORY
Since mother does not challenge the juvenile court’s jurisdictional finding,
dispositional ruling, or findings supporting its decision to select adoption as the
permanent plan and terminate parental rights, a detailed summary of the evidence
supporting these rulings is unnecessary. The department detained N.L. at birth and
petitioned under Welfare and Institutions Code section 3002 to have her declared a
dependent of the juvenile court because mother was incarcerated at the time for
physically abusing N.L.’s half-sibling J.H.3
The petition filed by the department included a completed Indian Child Inquiry
Attachment form (ICWA-010(A)) which contained a mark in the box next to the
statement, “The child may have Indian ancestry.” The department’s detention hearing
report noted earlier dependency proceedings involving J.H. and stated:
“It was reported that the mother, [A.R.], has American Indian ancestry
through the Chumash tribe; however, the tribe is not federally recognized.
The [department] also obtained [mother’s] roll number, indicating that she
is an enrolled member of the Chumash Indian Council of Bakersfield (not
federally recognized). The [department] subsequently sent notice to the
Chumash Indian Council of Bakersfield and the Santa Ynez Band of
Mission Indians. The [department] received a response letter from the
1N.L.’s alleged father died in January 2014.
2All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
3Mother’s expected release date is August 2019.
2.
Santa Ynez Band of Mission Indians that indicated the child, [J.H.] is not
an Indian child.”
Mother was in custody and not present at the August 27, 2014, detention hearing,
but was represented by counsel, who also represented mother in the earlier dependency
case involving J.H. Counsel submitted on the petition and detention report. There was
no discussion about the ICWA, but the court, in finding the petition true, stated, “After
having inquired as to Indian heritage, the Court finds that the Indian Child Welfare Act
does not apply.”
The report filed in anticipation of jurisdiction/disposition stated the ICWA did not
apply, citing the juvenile court’s finding to that effect at the August 27, 2014, detention
hearing. Mother was present at the October 1, 2014, jurisdiction/disposition hearing and
submitted on the report. The juvenile court found the allegations of the petition true,
adjudged N.L. a dependent of the juvenile court, and denied mother reunification
services. A section 366.26 permanency planning hearing was set for January 21, 2015.
Mother was advised that, in order to reserve any right to appeal the order setting
the section 366.26 hearing, she was “required to seek an extraordinary writ by filing the
Judicial Council Form JV 820, notice of intent to file writ petition, and request for
records … within seven days of this hearing. And [thereafter] filing the Judicial Council
Form JV 825, petition for extraordinary writ .…” Mother’s counsel acknowledged
mother had received the necessary forms.4
At the end of the jurisdiction/disposition hearing, department’s counsel requested
that mother complete a Parental Notification of Indian Status form (ICWA-020) to update
her file. As stated by counsel, mother previously disclosed that she was a member of the
Chumash Tribe, a non-federally recognized tribe, but that a current form was still needed
4Mother filed a Notice of Intent to File Writ Petition on February 19, 2015, which
was dismissed as untimely March 11, 2015.
3.
for the juvenile court’s records. Mother completed the ICWA-020 that day stating she
“may” have Chumash ancestry.
The report filed in anticipation of the permanency hearing recommended a finding
that the child was adoptable and mother’s parental rights be terminated. The report again
reiterated that the ICWA had been found inapplicable to the child at the detention hearing
August 27, 2014. Included in the report was the following:
“It should be noted that at the Detention Hearing on 05/21/2014,
with regard to the child, [J.H.], who is the maternal half-sibling of …
[N.L.], the Court found that the Indian Child Welfare Act may apply. It
was reported that the mother … has American Indian ancestry through the
Chumash tribe; however, the tribe is not federally recognized.… The
[department] subsequently sent notice to the Chumash Indian Council of
Bakersfield and the Santa Ynez Band of Mission Indians. The [department]
received a response letter from the Santa Ynez Band of Mission Indians
that indicated the child, [J.H.] is not an Indian child.”5
The scheduled January 21, 2015, permanency hearing was continued to March 4,
2014, for a contested hearing.
On February 2, 2015, the department mailed a “Notice of Child Custody
Proceeding For Indian Child” (ICWA-030) to the Santa Ynez Band of Chumash Indians,
the Chumash Indian Council of Bakersfield, the Bureau of Indian Affairs (BIA), and the
Department of the Interior by certified mail, return receipt requested, notifying them of
the upcoming contested section 366.26 selection and implementation hearing. The
ICWA-030 stated mother was an enrolled member of the non-federally recognized
Chumash Indian Council of Bakersfield. As for father, it stated his name, date and place
of death, and that, “alleged father of the child N.L., is deceased. No further information
available.” Maternal grandmother was listed as a member of the Santa Ynez Band of
Mission Indians. Her birthdate and current address were listed. Maternal grandfather’s
5This general information is also included in a case summary report in the clerk’s
transcript. Also included in that report is information that J.H. was eventually placed
with his father.
4.
name was listed, as was his birthdate, but any tribal membership was listed as
“Unknown.” No tribal affiliation was claimed for maternal great-grandparents. There is
no further information provided regarding father’s relatives.
The notice sent to the Chumash Indian Council was returned to the department
February 27, 2015, with the notation, “Return to Sender, Unclaimed, Unable to Forward.”
Notices sent to the BIA, the Department of the Interior, and the Santa Ynez Band of
Chumash were received, as evidenced by return receipt, February 6, 2015.
At the March 4, 2015, hearing, the juvenile court found minor likely to be adopted
and terminated mother’s parental rights.
DISCUSSION
Mother argues the juvenile court’s finding that the ICWA did not apply was error
because the department did not adequately inquire into either her or father’s Indian
heritage and did not perfect notice to the tribes. Department asserts there was no error in
the ICWA notice and compliance as to mother’s possible Indian heritage, but concedes
the issue as to inquiry and notice of father’s possible Indian heritage. As stated by the
department, because of the need for further inquiry and notice of father’s possible Indian
heritage, the department “will conduct further proceedings regarding [mother] as well.”
For reasons stated below, we do not accept the department’s concession and affirm.
I. ICWA
The ICWA was enacted to “protect the best interests of Indian children and to
promote 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.) To achieve this purpose, the ICWA
requires notice be given to the child’s tribe “where the court knows or has reason to know
that an Indian child is involved .…” (25 U.S.C. § 1912(a).) The tribe’s response will
determine if the child is an Indian child. (Ibid.; see also In re Desiree F. (2000) 83
5.
Cal.App.4th 460, 470 [“one of the primary purposes of giving notice to the tribe is to
enable the tribe to determine whether the child involved in the proceedings is an Indian
child.”].) An Indian tribe means a federally recognized Indian tribe. (25 U.S.C.
§ 1903(8).)
State law imposes on both the juvenile court and the county welfare agency “an
affirmative duty to inquire whether a dependent child is or may be an Indian child.” (In
re Nikki R. (2003) 106 Cal.App.4th 844, 848; § 224.3, subd. (a); Cal. Rules of Court,
rule 5.481(a).) If the agency or the court “knows or has reason to know that an Indian
child is involved, the social worker … is required to make further inquiry regarding the
possible Indian status of the child” to facilitate the provision of notice. (§ 224.3,
subd. (c); see also In re Alice M. (2008) 161 Cal.App.4th 1189, 1200.)
The ICWA defines an Indian child as “a child who is either a member of an Indian
tribe or is eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe.” (In re H.B. (2008) 161 Cal.App.4th 115, 120, citing 25
U.S.C. § 1903(4).) The necessity of a biological tie to the tribe is underlined by the
ICWA definition of a “parent” as “any biological parent or parents of an Indian child .…”
(25 U.S.C. § 1903(9).) “An alleged father may or may not have any biological
connection to the child. Until biological paternity is established, an alleged father’s
claims of Indian heritage do not trigger any ICWA notice requirement because, absent a
biological connection, the child cannot claim Indian heritage through the alleged father.”
(In re E.G. (2009) 170 Cal.App.4th 1530, 1533.)
II. ICWA challenge as to father
Mother claims the juvenile court erred in finding the ICWA did not apply because
it failed to inquire about the deceased father’s possible Indian heritage. Without
addressing the issue of standing or forfeiture, we find mother’s claim lacks merit.
6.
The ICWA notice requirements are not triggered until the biological paternity of
an alleged father is established. (In re E.G., supra, 170 Cal.App.4th at p. 1533.) At all
times during these proceedings, the juvenile court found father to be an alleged father.
Mother acknowledges that father’s biological paternity of N.L. was not established
but seeks to distinguish her situation because father was deceased and he was the only
father she named. But mother’s claim that the juvenile court had sufficient reason to
believe father was N.L.’s biological father is unavailing because, until biological
paternity is established for an alleged father, neither the court nor the social worker
knows or has reason to know that an Indian child is involved and notice requirements are
not activated. (In re E.G., supra, 170 Cal.App.4th at p. 1533.)
For this reason, we do not address further mother’s ICWA claims as they relate to
father.
III. ICWA challenge as to mother
Mother also contends the juvenile court’s finding that the ICWA did not apply was
not supported by proof of proper notice or inquiry of her Indian heritage. Mother
acknowledges that she failed to appeal from prior orders of the juvenile court’s finding
that the ICWA was inapplicable to N.L. Mother requests that we revisit and overrule 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.
In Pedro N., supra, 35 Cal.App.4th at pages 185 and 189, we held that a parent
who fails to challenge a juvenile court’s action timely 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 disposition
hearing. The juvenile court’s rulings and findings at the disposition hearing are
appealable upon a timely notice of appeal. We noted in Pedro N. that the parent there
7.
was represented by counsel and failed to appeal the juvenile court’s orders from the
disposition hearing. (Pedro N., supra, 35 Cal.App.4th at pp. 189-190.)
In the instant action, the juvenile court’s finding that the ICWA was inapplicable
to N.L. was made at the disposition hearing conducted August 27, 2014. At that hearing,
the court had before it the ICWA-010(A) stating that N.L. “may have Indian ancestry”
and the detention report which stated that, in an earlier dependency case involving J.H.,
mother had said she was an enrolled member of the non-federally recognized Chumash
Indian Council of Bakersfield and that the department notified that tribe and the Santa
Ynez Band of Mission Indians. According to the report, the latter tribe replied that J.H.
was not an Indian child. At jurisdiction/disposition on October 1, 2014, mother
completed and signed the ICWA-020 at department’s counsel’s request. The form stated
mother “may” have “Chumash” Indian ancestry. The juvenile court reiterated that it had
found the ICWA inapplicable at the earlier detention hearing.
Mother never challenged the juvenile court’s finding that the ICWA was
inapplicable to her case. She was at all times in these proceedings not only represented
by counsel, but by the same counsel who also represented her in her previous dependency
case involving J.H. Mother was present at the jurisdiction/disposition hearing and
advised of her right to file an extraordinary writ, but she failed to do so in a timely
fashion.
The juvenile court’s dispositional findings and orders became final 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, 189-190.) Our holding in Pedro N.
is fully applicable here. Mother waited until the 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.
8.
To the extent mother relies on cases such as In re Marinna J. (2001) 90
Cal.App.4th 731, 737-739 and In re B.R. (2009) 176 Cal.App.4th 773, 779, cases that
disagreed with Pedro N., relying on the theory that Pedro N. is inconsistent with the
protection and procedures afforded by the ICWA to the interest of Indian tribes, we are
not persuaded. We decline mother’s invitation to revisit our holding in Pedro N.
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., supra, 83 Cal.App.4th at
pp. 477-478 [wherein we reversed juvenile court’s denial of tribe’s motion to intervene
after 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, at p. 191), or, for that matter, the
rights of the child. As a result, we conclude mother has forfeited her right to complain of
any alleged defect in compliance with the ICWA.
While mother has forfeited the issue on whether the juvenile court erred in finding
that the ICWA did not apply at the time of disposition in October 2014, mother also
contends various errors in notice were made at the time of the termination hearing on
March 4, 2014. Specifically, mother contends the ICWA-030 sent February 2, 2015, in
anticipation of the upcoming termination hearing, was sent to the Chumash Tribal
Council of Bakersfield at an incorrect address.6 She also contends the juvenile court
failed to wait the requisite 60 days after notice was sent prior to the termination of
parental rights.7
6Mother claims the zip code used was 93304 instead of the correct zip code 93307.
7Section
224.3, subdivision (e)(3), provides that the juvenile court may determine
the ICWA does not apply if proper notice has been provided and neither a tribe nor the
9.
Assuming, arguendo, that mother may raise these particular defects for the first
time on appeal, we nevertheless find the asserted errors harmless. (In re E.W. (2009) 170
Cal.App.4th 396, 402; In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
Mother acknowledges that the Chumash Tribal Council of Bakersfield is a non-
federally recognized tribe. Although a court may allow a non-federally recognized tribe
to appear in the proceeding and present information to the court (§ 306.6), there is no
requirement that any notice be sent to a tribe that is not recognized. The requirements of
the ICWA apply only to federally recognized tribes. (25 U.S.C. 1903(8); In re A.C.
(2007) 155 Cal.App.4th 282, 286.) Thus, while notice was sent to an incorrect address,
any error was harmless.
We also find harmless mother’s claim that the juvenile court failed to wait the
requisite 60 days for a response from the Santa Ynez Band of Mission Indians before
terminating her parental rights. The juvenile court had before it information that the one
federally recognized tribe noticed in mother’s earlier case involving J.H., the Santa Ynez
Band of Mission Indians, found that child not to be an Indian child. It was J.H.’s
maternal grandmother, therefore also N.L.’s maternal grandmother, who was listed as a
member of the Santa Ynez Band of Mission Indians. Therefore, a determination as to
J.H. would be applicable to N.L. as well.
We reject mother’s contentions, finding no prejudicial error.
BIA has provided a determinative response within 60 days after receiving the notice.
Here, notice was sent February 2, 2015, for the March 4, 2015 hearing. Section 224.3,
subdivision (e)(3), also provides that the court shall reverse its determination of the
inapplicability of the ICWA and apply the act prospectively if a tribe or the BIA
subsequently confirms the child is an Indian child.
10.
DISPOSTION
The orders and findings of the juvenile court are affirmed.
_____________________
Smith, J.
WE CONCUR:
_____________________
Hill, P.J.
_____________________
Franson, J.
11.