In re Chloe J.
Filed 7/8/13 In
re Chloe J. 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NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 CHLOE J., a Person Coming Under the Juvenile Court Law. | |
TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JESSICA J., Defendant and Appellant. | F066387 (Super. Ct. Nos. JJV064753A & JJV064753B) |
THE
COURT
title="">*
APPEAL from orders of the Superior
Court of Tulare
County. Jennifer Shirk, Judge.
Jesse F.
Rodriguez, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kathleen
Bales-Lange, County Counsel, John A. Rozum and Carol E. Helding, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
Jessica J., mother, appeals from
the juvenile court’s orders pursuant to Welfare and Institutions Code section
366.26 terminating her parental rights
to Chloe J. and Phillip J.
name="_ftnref2" title="">[1] Mother argues that the Tulare County Health
and Human Services Agency (agency) failed to make a proper inquiry of her
children’s Indian ancestry pursuant to the Indian
Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We reject mother’s contention and affirm the
juvenile court’s orders.
FACTS AND PROCEEDINGS
Initial Petition
On May 27,
2010, a petition was filed pursuant to section 300 on behalf of Chloe J., who
was born in November 2009, alleging that mother’s substance abuse rendered her
unable to care for Chloe, mother failed to adequately provide shelter and
medical care to Chloe, mother’s residence was unsafe, was filthy and smelled,
and mother was being evicted. The
petition alleged that Chloe’s father was incarcerated at the time of
detention.
Mother
reported to the agency that she was not a registered member of a tribe, but she
may have Indian ancestry. The father
reported that his mother and grandmother may have Blackfoot and Cherokee
ancestry, but no one in his family received services from an American Indian
tribe. The agency’s report prepared for
the detention hearing stated there was insufficient reason to believe Chloe was
a child covered by the ICWA.
At the detention hearing on May 28,
2010, the juvenile court noted that both parents had indicated they may have
some American Indian ancestry. The court
asked both mother and the father whether either one of them believed that Chloe
would be eligible for membership in an Indian tribe. Both parents replied “No†to the court’s
question. The parents’ counsel did not
argue the applicability of the ICWA. The
juvenile court ordered Chloe’s detention and found that the ICWA was not
applicable to her.
The
agency’s report for the jurisdiction/disposition hearing noted the juvenile
court ruled at the detention hearing that the ICWA did not apply. The agency’s recommended order was a proposed
finding that the ICWA did not apply.
Prior to the hearing, both parents executed forms waiving their rights
and submitting the matter on the basis of the agency’s reports.
On July 1, 2010, the juvenile court
sustained the petition, ordered reunification services for both parents, and
adopted the proposed findings and orders of the agency that the ICWA was not
applicable. Both parents executed a
document acknowledging that they had been informed of their right to appeal the
findings and orders of the juvenile court.
Neither parent filed an appeal.
Supplemental Petition
On July 28,
2010, the agency filed a supplemental
petition again seeking to detain Chloe after mother left an inpatient
substance abuse program. At the July 29,
2010, detention hearing on the supplemental petition, the juvenile court again
detained Chloe and adopted the agency’s proposed orders, which included a
finding that the ICWA did not apply in this proceeding.
A
jurisdiction hearing was held on August 19, 2010. The parents again submitted the matter on the
basis of the agency’s reports. The court
found the allegations of the supplemental petition to be true. The agency’s report for the disposition hearing
noted the court had already ruled that the ICWA did not apply.
At the disposition hearing on
September 1, 2010, the court adopted the agency’s recommendations and proposed
orders. Neither parent offered any
evidence in addition to the agency’s reports nor was there any argument
concerning the ICWA. Although an express
order concerning the ICWA was not included in the agency’s proposed orders
adopted by the juvenile court, the court did adopt the proposal that “[a]ll
prior orders not specifically set aside or modified remain in full force and
effect.â€
had been notified of their right to appeal.
Neither parent appealed the juvenile court’s orders.
New Dependency Petition
In February
2011, mother tested positive for methamphetamine while she was pregnant. In April and May of 2011, mother tested
positive for opiates during her pregnancy.
In June 2011, the agency filed a
new dependency petition after mother gave birth that month to Phillip J. The petition alleged that mother and Phillip
tested positive for controlled substances when he was born. The petition alleged that Phillip was at risk
due to mother’s drug dependency and the father’s inability to protect Phillip
from mother. The agency filed a report
indicating that the ICWA did not apply.
On June 24, 2011, the court found a
prima facie case and detained Phillip.
During the hearing, both parents indicated that they were not eligible
for membership in a Native American Indian tribe. The juvenile court found insufficient
evidence that the ICWA was applicable to Phillip.
The agency’s
jurisdiction/disposition report for Phillip recommended no reunification
services for mother and placement of Phillip with the father. Mother filed a form waiving most of her
rights and submitting the matter on the agency’s report. At the jurisdiction/disposition hearing on
July 28, 2011, the court found the allegations of the new petition true. The court adopted the agency’s recommendation
that mother not receive reunification services and placed Phillip with the
father, who was to receive family maintenance services.
Although the juvenile court did not
make an express finding concerning the applicability of the ICWA, the court
adopted the recommended order of the agency that prior orders not set aside or
modified remained in full force and effect.
Both parents executed a document explaining to them their right to
appeal. Neither parent appealed the
juvenile court’s rulings.
Subsequent Section 387 Petition
In early
May 2012, the father, mother, and the children were registered together in a
hotel. On May 7, 2012, the father was
arrested. The children were not with
him. Social workers learned that mother
had also been arrested for an incident unrelated to the father. The children resided with mother for at least
two days after the father’s arrest.
The agency
filed a supplemental 387 petition and the court ordered the children’s
detention on May 21, 2012. The agency’s
report for the jurisdiction/disposition hearing stated that the ICWA did not
apply. At the jurisdiction/disposition
hearing on June 21, 2012, the juvenile court found the allegations in the
supplemental petition to be true.
The court adopted the agency’s
proposed orders, including a finding that the ICWA was not applicable to the
children. Mother’s reunification
services had earlier been terminated.
The court denied the father reunification services. The court set the matter for a section 366.26
hearing and the parents were both served with forms advising them of the
necessity to file a writ to challenge the juvenile court’s orders. The parents did not appeal or file
extraordinary writ petitions challenging the juvenile court’s orders or
findings. On October 31, 2012, the
juvenile court terminated mother’s and the father’s parental rights.
Section 388 Petitions
Mother
filed three section 388 petitions during the course of the proceedings. Although mother challenged various orders by
the juvenile court, she never challenged its rulings that the ICWA did not
apply to her children.
ICWA CHALLENGE
Mother argues the ICWA notice
was insufficient because the agency did not perform an adequate inquiry into
mother’s and the father’s Indian heritage. Mother acknowledges that she
failed to appeal from prior orders of the juvenile court’s finding that the
ICWA was not applicable to the children.
Mother requests that we revisit and overrule our opinion in
to parents who wait until the termination of parental rights to first make an
ICWA challenge. Respondent argues that
this case is controlled by our decision in Pedro
N. We agree with respondent and reject mother’s belated ICWA challenge.
In
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 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.)
Although mother and the father
signed forms earlier in the proceedings that they may have Indian heritage,
both parents stated during hearings that they were not members of any tribe or
eligible for tribal membership. In the instant action, the juvenile
court’s findings that the ICWA was inapplicable to these children was made at
the disposition hearings conducted on July 1, 2010, September 1, 2010, July 28,
2011, and on June 21, 2012. Sometimes
the court’s ICWA findings were based on earlier findings at a detention hearing
that the ICWA was inapplicable. Mother
never challenged the agency’s proposed order that the ICWA was inapplicable to
her case and mother’s counsel never argued that the ICWA was applicable. The father took the same posture as mother
during hearings, never challenging the juvenile court’s findings that the ICWA
was inapplicable to their children.
Both parents were informed at the
end of the disposition hearings of their right to either appeal, or file an
extraordinary writ, to challenge the juvenile court’s findings and orders. Neither parent appealed or filed an
extraordinary writ despite multiple opportunities to do so. Mother filed three section 388 petitions for
modification of the juvenile court’s orders, but never challenged the juvenile
court’s ICWA findings.
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. (
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.
To the extent mother relies on cases such as In re Marinna J. (2001) 90 Cal.App.4th 731, 737-739,
103 Cal.App.4th 247, and In re B.R.
(2009) 176 Cal.App.4th 773, 779, cases that disagreed with Pedro N., relying on the theory 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
Cal.App.4th 779, 783-785; In re
Antoinette S. (2002) 104 Cal.App.4th 1401, 1413-1414). 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.
(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.
name="_ftn1" title="">* Before
Levy, Acting P.J., Gomes, J., and Poochigian, J.
name="_ftn2" title="">[1] All
further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
