In re Francisco H.
Filed 12/4/13 In
re Francisco 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NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 FRANCISCO H., JR., a Person Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and
Respondent,
v.
FRANCISCO H., SR.,
Defendant and Appellant.
F067469
(Super.
Ct. No. 11CEJ300099-3)
THE
COURT
title="">*
APPEAL from orders of the Superior
Court of Fresno
County. Mary D. Dolas, Commissioner.
Daniel G.
Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs,
County Counsel, William G. Smith, Deputy County Counsel, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Francisco H., father, appeals from
the juvenile court’s orders pursuant to Welfare and Institutions Code section
366.26 terminating his parental rights to Francisco H., Jr.
Department of Social Services (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.S. § 1901 et seq.). We reject
father’s contentions and affirm the juvenile court’s orders.
FACTS AND PROCEEDINGS
Detention and Jurisdiction Hearings
On May 16, 2011, a petition was
filed pursuant to section 300 alleging that when Francisco was born earlier
that month, his mother, M.G. (mother), tested positive for the presence of
methamphetamine and marijuana in her blood.
of methamphetamine and marijuana while pregnant with Francisco. Mother failed to obtain prenatal care while
pregnant with Francisco. Mother was on
family maintenance services in the past for Francisco’s older sibling. The petition alleged mother and father
continued to abuse drugs and had a problem with substance abuse. The petition stated mother may have Indian ancestry.
The petition stated father was
homeless and was the subject of an arrest
warrant. The social worker reported
that both parents appeared to be under the influence of narcotics at the time
of Francisco’s birth. After Francisco
was born, father was observed to be under the influence in the hospital while
visiting the newborn Francisco. Father’s
speech was fluctuating and he was staggering.
He was observed holding Francisco upside down. The nursing staff had to intervene and take
Francisco away from father for the child’s protection. A first amended petition was filed on May 18,
2011. The allegations were substantially
the same as those in the original petition.
At the detention hearing on May 19,
2011, mother stated that she may have Indian ancestry. Father filed a statement stating he had no
Indian ancestry. The detention hearing
was continued. On May 24, 2011, mother
filed a statement stating she believed she had Comanche ancestry.
that it had information from the maternal grandmother in 2007 that mother’s
family may have Apache ancestry but she was not sure whether any family member
was a member of the tribe.
On June 21, 2011, a jurisdiction
hearing was held for mother. Mother
executed a document formally waiving her right to a contested hearing and submitted
the matter on the allegations of the petition and the social worker’s
reports. The juvenile court found the
allegations in the petition to be true. Father’s
jurisdiction hearing was continued to June 28, 2011. Father also executed a waiver of his right to
a contested hearing and submitted the matter based on the pleadings and the
social worker’s reports. The juvenile
court found the allegations in the petition to be true as to father.
Initial ICWA Notices and Disposition Hearing
The
department sent notices to the following tribes and federal agencies in June
2011: Apache Tribe of Oklahoma, Bureau
of Indian Affairs (BIA), Fort Sill Apache Tribe of Oklahoma, Jicarilla Apache
Nation, Mescalero Apache Tribe, San Carlos Tribal Council, Tonto Apache Tribal
Council, White Mountain Apache Tribe, and Yavapai-Apache Nation.
Between June 14, 2011, and June 28,
2011, the BIA, BIA Mescalero Indian Agency, Jicarilla Apache Nation, San Carlos
Apache Tribe, Tonto Apache Tribe, and Yavapai-Apache Nation sent responses
indicating that Francisco was not a member of their tribes or eligible for
tribal membership. On July 28, 2011, the
Fort Sill Apache Tribe responded that Francisco was not a member nor was he
eligible for tribal membership.
By August 8, 2011, there had been
no response from Apache Tribe of Oklahoma and the White Mountain Apache Tribe.
and filed points and authorities to have the court determine that the ICWA was
not applicable in this case. More than
60 days after notices had gone out to the tribes and BIA, counsel for each
parent was served with the department’s points and authorities.
At the disposition hearing on
August 9, 2011, the parties submitted the matter on the department’s motion
without objection. The court found that
the ICWA was not applicable to this action.
The court ordered reunification services for both parents. The juvenile court notified the parents of
their right to appeal its orders within 60 days. Neither parent appealed the juvenile court’s orders
or findings.
Subsequent Hearings
In its
report for the six-month review hearing, the department recommended that
reunification services be terminated as to father because his compliance with
the reunification plan was minimal, he had not enrolled in a drug treatment
plan, he had not requested visitation with Francisco, and his whereabouts were
unknown. At the six-month review hearing
on January 24, 2012, father was not present.
The juvenile court stated the
department had filed a declaration of due diligence in regards to its efforts
to locate father. The court found the
whereabouts of father were unknown and he had failed to maintain contact with
the department. The court ruled the
department had complied with the case plan.
The court terminated reunification services to father and continued them
for mother. Father did not file a writ
to challenge the juvenile court’s order terminating his reunification services.
The
department’s status review report for the 12-month review hearing noted father’s
whereabouts were unknown. Father had
told mother that he did not want anything to do with her or her children. Mother had relapsed and began to use
methamphetamine and marijuana again. The
department recommended the termination of mother’s reunification services.
After continuances, the contested
review hearing commenced on August 7, 2012.
Father was not present. At the
conclusion of the hearing, the court terminated further reunification services
for mother and ordered that a hearing pursuant to section 366.26 be set within
120 days. The court advised the parties
of their right to seek review of its orders with the appellate court.
Renewed ICWA Notices
In mid
October 2012, the department prepared and sent new ICWA notices. In addition to the eight above mentioned
Apache Tribes, the department also sent notices to the Kiowa Indian Tribe of
Oklahoma and the federally unrecognized Choinumni Tribe. The notices contained additional family
information as to two of Francisco’s great-great-great-grandparents and
enrollment numbers for the Kiowa and Apache tribes.
Responses
that Francisco was not a member nor was he eligible for tribal membership came
from the BIA, San Carlos Apache Tribe, Tonto Apache Tribe, Mescalero Apache
Tribe, Kiowa Tribe of Oklahoma, and BIA, Mescalero Indian Agency. Responses were also received by the
department from the White Mountain Apache Tribe and Apache Tribe of Oklahoma stating
that Francisco was not a member nor was he eligible for membership in the
tribe. The department filed a motion to
declare the ICWA inapplicable to this case.
On April
16, 2013, there was a hearing on the department’s renewed ICWA motion. The department explained to the court that responses
had not been received from the Fort Sill Apache Tribe, Jicarilla Apache Nation,
and Yavapai-Apache Nation; more than 60 days had passed since the notices were
sent; and the remaining tribes all responded that mother and Francisco were not
eligible for tribal membership. Without
objection, the parties submitted the matter and the court found that the ICWA
was inapplicable to this case.
Section 366.26 Hearing
The section
366.26 hearing was continued several times between November 2012 and June
2013. Mother began a bonding study in
December 2012, but failed to complete it.
Father never visited Francisco. The
department filed a report for the section 366.26 hearing recommending
termination of parental rights for mother and father with a plan of adoption
for Francisco.
The section
366.26 hearing was held on June 4, 2013.
Father lodged an objection to the recommendation of adoption as a
permanent plan. Mother elected not to
testify at the hearing. Mother argued
that she had a significant attachment to her children. The court found the children were all
adoptable and the department had complied with the case plan. The court terminated the parents’ parental
rights and ordered adoption as the permanent plan.
ICWA CHALLENGE
Father argues the ICWA notice
was insufficient because the department did not perform an adequate inquiry
into mother’s Indian heritage. Father contends the department failed to
notice one tribe he asserts is an Apache Tribe, the Fort McDowell Yavapai
Nation. Father relies on references to
this tribe as an Apache tribe in a California appellate decision. (In re
Glorianna K. (2005) 125 Cal.App.4th 1443, 1447 (Glorianna K.).)
Respondent replies that Glorianna K.
does not establish that the Fort McDowell Yavapai Nation is currently an Apache
Tribe, even if it was so recognized in the past. Respondent further argues that this issue was
forfeited because no appeal was taken from the juvenile court’s disposition rulings. We agree with respondent on both points, but
we do not find waiver or forfeiture as to the second set of notices sent by the
department pursuant to the ICWA.
Alleged Inadequate
Notice
Father argues, based on Glorianna K.
and information contained in nongovernment, nontribal websites, that the
current Fort McDowell Yavapai Nation was formally the Fort McDowell
Mohave-Apache Community after a change to its constitution in 1999. We find several procedural flaws in father’s
argument. We initially observe that
being sent pursuant to the ICWA to several tribes, including the Fort McDowell
Mohave-Apache Tribe. (
There is no discussion in Glorianna
K. concerning the change in tribal constitution, the name of the tribe, or
how tribal membership is constituted. Father’s
reference to Glorianna K. is not
dispositive of any issue father raises on appeal.
Second, for us to rely on the unofficial websites cited in father’s reply
brief, we would have to take judicial notice of the information in those
websites. Father, however, has not
requested that we take judicial notice of anything outside the record pursuant
to Evidence Code section 452. To the
extent father is making an implied request that we take judicial notice of the
materials outside the record he cites in his reply brief, we decline to do
so. We are particularly unpersuaded to take
judicial notice of unofficial websites that are unaffiliated with federal,
tribal, or state governments. We further
note this court usually does not take judicial notice of matters that were not
before the trial court.
Third, although we have the discretion to do so, we normally do not make
factual findings on appeal and will not do so on this occasion. The appropriate venue to argue this point was
before the juvenile court. It is the
appellant’s burden to make an affirmative showing of error by an adequate
record. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) There is nothing in the current record to
support father’s contention on appeal.
We agree with respondent’s reply to this argument that there is no
demonstrable evidence in the record that the Fort McDowell Yavapai Nation is an
officially recognized Apache Tribe even though it is undeniably a federally
recognized Indian Tribe. We conclude
that father’s argument is based on speculation and conjecture. Father has failed to provide an adequate
factual basis for this court to find error in the notices provided pursuant to
the ICWA and to reverse the juvenile court’s ICWA findings.
Waiver and
Forfeiture
Father acknowledges in a supplemental brief that he failed to appeal from
prior orders of the juvenile court in the disposition hearing finding that the
ICWA was not applicable to Francisco. Father
argues that his case is distinguishable from our opinion in
forfeiture to parents who wait until the termination of parental rights to
first make a challenge to the ICWA. Respondent
also argues that father’s ICWA challenge is forfeited on this appeal.
We agree with respondent on this point and reject father’s ICWA challenge
as subject to waiver and forfeiture. As
we explain below, however, waiver and forfeiture do not apply to the second set
of ICWA notices and the juvenile court’s April 16, 2013, ruling that the ICWA
does not apply to this case.
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 dispositional
hearing. The juvenile court’s rulings
and findings at the dispositional hearing are appealable upon a timely notice
of appeal. We noted in
represented by counsel and failed to appeal the juvenile court’s orders from
the dispositional hearing.
name="_ftnref7" title="">[6] (
Mother signed forms earlier in the
proceedings indicating she may have Indian heritage. Notices from the eight Apache Tribes were
received before, or just after, the disposition hearing on August 9, 2011. The disposition hearing was held more than 60
days after notices were sent to all of the tribes. No tribe indicated that mother’s family had
any tribal affiliation or that her family was eligible for tribal
membership.
Neither parent challenged the
juvenile court’s finding that the ICWA was inapplicable in this case based on a
claim of possible Apache heritage. Both
parents were represented by counsel and received copies of the ICWA notices
sent to the tribes by the department.
Neither parent made an objection challenging the absence of notice to
the Fort McDowell Yavapai Nation, nor did either parent file a timely appeal of
the juvenile court’s disposition orders.
The parents did nothing and
have, therefore, forfeited the right to challenge any procedural deficiencies
in the juvenile court proceedings that occurred prior to and through the
disposition hearing.
name="_ftnref8" title="">[7]
We note that the second hearing on
the applicability of ICWA was conducted on April 16, 2013, and father’s appeal
from the hearing terminating his parental rights was filed on June 13, 2013,
within 60 days of the second ICWA hearing.
Father’s appeal is therefore timely for this court to review the
juvenile court’s ruling that the ICWA did not apply as to the Kiowa Indian
Tribe of Oklahoma, the federally unrecognized Choinumni Tribe, and the eight
Apache Tribes. The second set of notices
to the Apache Tribes included additional family information and roll numbers
not provided in the first set of notices.
As to the juvenile court’s second
ICWA ruling, we find no error. No tribe
indicated that Francisco was a member of its tribe or eligible for tribal
membership. As noted above, father has
failed to demonstrate any error due to the lack of notice to the Fort McDowell
Yavapai Nation.
DISPOSITION
The orders and findings of the
juvenile court are affirmed.
name="_ftn1" title="">* Before Levy, Acting P.J., Franson, J., and Oakley, J.â€
†Judge
of the Superior Court of Madera County, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
name="_ftn2" title="">[1] All further statutory references are to the Welfare and
Institutions Code, unless otherwise indicated.
