In re Isaiah W. CA2/3 ( 2014 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115(a).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
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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.
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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.
§ 1912(a).)
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.)
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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
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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
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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].)
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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.
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