In re Braxton P.
Filed 7/17/12
In re Braxton P. 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NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 BRAXTON P., a Person Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and
Respondent,
v.
JEREMIAH P.,
Defendant and Appellant.
F064353
(Super. Ct. No.
JD125507)
THE COURT
APPEAL from orders of the Superior
Court of Kern
County. Robert J. Anspach and Louie
L. Vega, Judges.
title="">†
Jesse F.
Rodriguez, under appointment by the Court of Appeal, for Defendant and
Appellant.
Theresa A.
Goldner, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo
INTRODUCTION
Jeremiah P., father, appeals from
the juvenile court’s judgment pursuant to Welfare and Institutions Code section
366.26 terminating his parental rights to Braxton P.
(department) failed to make a proper inquiry of his child’s Indian ancestry pursuant
to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We reject father’s contention and affirm the
juvenile court’s judgment.
FACTS AND PROCEEDINGS
Procedural Overview
Braxton and
his sister were placed in protective
custody based on allegations that father sexually molested the sister in
November 2010.
title="">[2] A disposition hearing was conducted on April
11, 2011. Father was refusing to take a
sexual abuse class. The juvenile court
found Braxton and his sister to be dependent children and ordered their removal
from both parents. The court found clear
and convincing evidence of substantial danger to both children should they
remain in their parents’ custody and that there was no reasonable means to
protect them without their removal from the parents’ custody.
Father
appealed these orders on April 13, 2011.
Father asserted that there was insufficient evidence to support the
juvenile court’s orders. Father did not
raise a challenge based on any notice deficiencies involving the ICWA. On November 30, 2011, we issued an opinion
affirming the orders of the juvenile court.
At the
six-month review hearing on October 11, 2011, the juvenile court found the
parents had failed to participate regularly and to make substantial progress in
their reunification plans. The court
found the parents had made only minimal progress toward alleviating the issues
leading to the children’s dependency and ordered the termination of
reunification services and set the matter for a section 366.26 hearing.
The department determined that
Braxton was generally adoptable and noted that it would not be detrimental to
him to terminate father’s parental rights.
At the conclusion of the termination hearing on February 8, 2012, the
juvenile court found it was likely Braxton would be adopted and terminated
father’s parental rights. Father filed a
timely notice of appeal.
ICWA Notices
The
initiation of ICWA notice began when mother noted in a document executed on
November 22, 2010, that her mother indicated they may have some Indian
heritage. At a hearing on the same date,
mother indicated through counsel that she learned from her mother that she may
have Cherokee heritage. Father signed a
form indicating that he had Indian ancestry but the tribal affiliation was
known only by his mother.
The
department sent notices to the United Keetoowah Band of Cherokee Indians, the
Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the
Secretary of the Interior, the Bureau of Indian Affairs (BIA), and to both
parents. Mother’s biological mother, one
grandmother and one grandfather were identified as possibly being
Cherokee. One grandmother, J.M., did not
have a complete birthdate listed with question marks in place of the year of
her birth and her state of birth being Arkansas or Oklahoma.
The United
Keetoowah Band of Cherokee Indians replied in December 2010 that there was no
evidence that Braxton was descended from their tribe. The Eastern Band of Cherokee Indians replied
in January 2011 that Braxton was not an Indian Child as defined by the
tribe. The Cherokee Nation wrote in
January 2011 that mother’s biological grandmother, J.M., did not have a middle
name, maiden name, or complete date of birth and invited the department to
provide further information.
On January
20, 2011, the department wrote a letter setting forth J.M.’s year of birth and
that her more complete name was M.J.M., nee M.
This information was sent to the Cherokee Nation, but not to the other
two Cherokee tribes. The information was
also sent to the Choctaw Nation of Oklahoma, the Jena Band of Choctaw Indians,
the Mississippi Band of Choctaw Indians, the Secretary of the Interior, the
BIA, and to both parents.
name="_ftnref5" title="">[3]
On March 3,
2011, the department sent a third notice to the Choctaw Nation of Oklahoma, the
Mississippi Band of Choctaw Indians, the Secretary of the Interior, the BIA,
and to both parents. On February 24,
2011, the Choctaw Nation of Oklahoma wrote that it was unable to establish Indian
heritage for Braxton. On April 8, 2011,
the Mississippi Band of Choctaw Indians wrote that neither Braxton nor the
listed family members are enrolled members of the tribe and they are not
eligible to apply for enrollment with the tribe. At the April 11, 2011 disposition hearing,
the juvenile court found the ICWA did not apply.
ICWA
Father argues the ICWA notice
was insufficient as a matter of law because two subsequent notices adding
information about one maternal great-grandmother was not given to the Eastern
Band of Cherokee Indians or to the United Keetoowah Band of Cherokee Indians.
the first time in this action, father challenges the court’s findings on April
11, 2011, that the ICWA did not apply in this case. Respondent
concedes the additional information concerning one maternal grandmother did not
reach two Cherokee tribes, but contends the court’s ruling concerning the ICWA
has long been final and father cannot complain at this late stage that the ICWA
has been violated. We agree with
respondent.
In
fails to timely challenge a juvenile court’s action regarding the ICWA is
foreclosed from raising the ICWA notice issues in a subsequent appeal once the
court’s ruling is final. 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 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 ICWA finding was
made at the disposition hearing on April 11, 2011. Father never challenged the department’s
proposed order that the ICWA was not applicable to this case. Father was notified in court of his right to
file a writ proceeding for review in this court of the juvenile court’s rulings. Father filed a writ with this court, but
failed to raise any defects with ICWA notices as an issue. Father failed to seek review by the juvenile
court of its ICWA ruling by a section 388 petition.
hearing that the ICWA was still applicable to this case. Father waited to challenge the adequacy of
the ICWA notice for Braxton until he filed his appeal from the ruling at the
section 366.26 hearing on February 8, 2012, terminating his parental rights.
Father was represented by counsel throughout these proceedings. Father and his counsel lodged no objection to
the juvenile court’s finding that the ICWA did not apply.
The juvenile court’s dispositional findings and orders on April 11,
2011, are final and no longer subject to attack by father. (Pedro
N., supra, 35 Cal.App.4th at pp.
185, 189-191.) Although father was
entitled to file a writ pursuant to sections 366.26, subdivision (
issued on April 11, 2011, he filed a writ that did not raise any issue
pertinent to the ICWA. Our holding in
by his prior silence has forfeited his right to complain in this appeal.
To the extent father relies on a case such as In re Marinna J. (2001) 90 Cal.App.4th 731, 737-739, which
disagreed with our Pedro N. holding
on the theory it is inconsistent with the protections and procedures afforded
by the ICWA to the interests of Indian Tribes, we are not persuaded (see also
Cal.App.4th 779, 783-785 and In re
Antoinette S. (2002) 104 Cal.App.4th 1401, 1413-1414). We decline father’s implied invitation to
revisit our holding in Pedro N.
We further note that we do not foreclose a tribe’s rights under ICWA
due to a parent’s appellate forfeiture or waiver. (Pedro
N., supra, 35 Cal.App.4th at p.
185, 189-190; see In re Desiree F.
(2000) 83 Cal.App.4th 460, 477-478 [wherein we reversed denial of tribe’s
motion to intervene after final order terminating parental rights and
invalidated actions dating back to outset of dependency and taken in violation
of ICWA].) In so ruling, 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 father has forfeited
his personal right to complain of any ICWA violation.
Finally, father contends we should consider ICWA notice issues on this
appeal as a matter of fairness, citing In
re Gerardo A. (2004) 119 Cal.App.4th 988.
But unlike the father in Gerardo
A., who raised his ICWA challenge at the first opportunity after learning
of the mother’s claim of Indian heritage and the court’s ruling, father here
had an opportunity to raise the ICWA issues at earlier stages of the
proceedings and failed to do so. Father
received all three ICWA notices, did not object to any deficiencies in notice,
and has not been deprived of due process.
DISPOSITION
The judgment of the juvenile court
is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Gomes, J., and Poochigian, J.
name="_ftn2" title="">† Judge
Anspach presided over the disposition hearing.
Judge Vega presided over the hearing on the termination of appellant’s
parental rights.
