In re Jacob R.
Filed 1/2/13 In re Jacob R. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re
JACOB R., a Person Coming Under the Juvenile Court Law.
TULARE
COUNTY HEALTH & HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
TAMMY
C.,
Defendant and Appellant.
F065287
(Super. Ct. No. JJV042226D)
O P I N I
O N
THE COURT
APPEAL
from a judgment of the Superior Court of
County. Juliet L. Boccone, Judge.
Maureen
L. Keaney, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kathleen
Bales-Lange, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County
Counsel, for Plaintiff and Respondent..
-ooOoo-
Tammy
C. appeals from the juvenile court’s order pursuant to Welfare and Institutions
Code section 366.26 terminating her parental rights to Jacob R.
Agency (the Agency) failed to adequately notice all
Indian tribes pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C.,
§ 1901, et seq.) and that the juvenile court failed to make a
determination on whether ICWA applied in her case. We reject her contentions and affirm the
juvenile court’s judgment.
FACTS AND PROCEEDINGS
Jacob
tested positive at birth for methamphetamine.
Tammy admitted using methamphetamine about a week before he was
born. Jacob’s father, Chris R., was
uncooperative and argumentative with Agency staff, accusing the hospital of
fabricating the positive drug test.
Jacob had to remain hospitalized in the Neonatal Intensive Care Unit due
to a fast heart rate and breathing difficulties.
May
9, 2011, Section 300 Petition
On
May 9, 2011, the Agency filed a section 300 petition alleging, pursuant to
subdivision (b) that Tammy’s drug use while pregnant endangered Jacob and that
her history of drug use placed Jacob at risk.
Chris R., also had a history of drug use and knew or should have known
of Tammy’s drug use. The petition
further alleged, pursuant to section 300 subdivision (j), that two of Jacob’s
siblings had been removed from Tammy in 2009 due to her methamphetamine abuse
and neglect. Tammy failed to reunify
with Jacob’s siblings and her parental rights were terminated in September of
2010.
Detention
Report
The
report prepared in anticipation of the detention
hearing indicated that Tammy had “Irish, German, and Black Dutch†ancestry,
and she also believed her family had Native American ancestry: Cherokee on her
father’s side and Choctaw on her mother’s side.
When asked if any family members were registered with a tribe, Tammy
said “we don’t have enough for anything.â€
When asked for names and contact information for family members to
further interview, Tammy responded that there were no family members to interview,
that her father was deceased and she did not know her mother’s
whereabouts. Tammy stated that, as far
as she knew, Chris did not have any Native American ancestry. The report also noted that in a previous case
regarding Jacob’s siblings, the juvenile court found ICWA did not apply.
May
10, 2011, Detention Hearing
Tammy
appeared at the May 10, 2011, detention hearing and was appointed counsel. According to Tammy, Chris did not appear
because he had an outstanding bench warrant.
The juvenile court questioned Tammy about her Indian ancestry. This time Tammy said that her father “had
Choctaw†and her mother “had Cherokee.â€
When asked to provide information to the Agency to help look into her
Native American heritage, Tammy stated, “I don’t believe there’s enough in my
blood line to really establish anything.â€
The juvenile court then found there was insufficient information to
believe Jacob was a Native American child, but ordered the Agency to “follow
up†on the claim of remote ancestry.
Tammy was ordered to provide all family records and the names of
relatives with more information regarding her Native American ancestry to the
Agency within five days. The Agency was
ordered to send a Notice of Child Custody Proceeding for an Indian Child (ICWA-030)
form to the Bureau of Indian Affairs (BIA) and indentified tribes. Jacob was ordered detained and placed with
his siblings in a caregiver’s home.
Jurisdiction/Disposition
Report
The
report prepared in anticipation of the jurisdiction/disposition hearing
indicated that, as of May 19, 2011, Tammy had not provided the Agency with any
further information regarding her Native American heritage.
The
Agency recommended that Tammy be denied reunification services pursuant to
section 361.5, subdivision (b)(10), (11) and (13)
that Chris be denied services, as he was the non-custodial parent at the time
of detention, had not attended the detention hearing, had not made himself
available to the Agency and had provided the Agency with a false address.
An
ICWA-030 form was sent to the Cherokee Nation, the Choctaw Nation of Oklahoma,
the United Band of Cherokee, the Secretary of the Interior, and the BIA on May
27, 2011. The notice provided the names
of Jacob, Tammy, and Chris, their birthdates, and their current addresses.
Chris
made his first court appearance on May 31, 2011. At the time he was questioned about his
Native American ancestry, and the court found “no reason to believe ICWA [was]
applicable.†The matter was continued
for a June 20, 2011 jurisdiction/disposition hearing.
A
response received from the United Keetowah Band of Cherokee, dated June 6,
2011, stated that, based on the information provided, Jacob could not be traced
as a descendent of anyone on that tribe’s roll.
The Agency sent another ICWA-030 to the Cherokee Nation, the Choctaw
Nation of Oklahoma, and the United Band of Cherokee, the Secretary of the
Interior, and the BIA on June 14, 2011, providing further relative information
on Tammy’s side, including the names and former addresses for Jacob’s
grandparents through whom Native American ancestry was claimed.
Two
Agency addendum reports were filed. The
first recommended that Chris be given six months reunification services. The second stated that Jacob was placed with
seven of his eight half-siblings and that the caregivers and siblings were
thrilled to have him in the home.
June
20, 2011, Jurisdiction/Disposition Hearing
At
the June 20, 2011, jurisdiction hearing, the juvenile court sustained the
petition. It then granted Chris six
months of family reunification services, but denied services to Tammy. Tammy was to receive once a month supervised
visits as long as Chris was complying with his services.
The
findings and orders adopted by the juvenile court stated there was insufficient
reason to believe that Jacob is or may be an Indian child covered by ICWA. But it also ordered that Tammy and Chris were
to provide any further information on Indian ancestry and that “[b]ased on the
claim of Indian ancestry,†the Agency was to send notice under ICWA.
Tammy
was informed of her appeal rights, but no appeal was taken from the disposition
findings and orders.
Six-Month
Review Report
The
November 29, 2011, report prepared in anticipation of the six-month review
hearing stated that that juvenile court had found on May 31, 2011, that ICWA
did not apply. The report also stated
that Chris had contacted the social worker only once in six months and had not
completed any services and failed to drug test.
Tammy
last visited Jacob on July 19, 2011. She
dropped out of a residential treatment program on August 8, 2011, and failed to
contact the Agency after that date. The
Agency requested that further visits for Tammy be denied because she had not
visited Jacob since he was two and a half months old and the Agency would be
pursuing a permanent plan of adoption.
Jacob’s initial withdrawal symptoms of tremors and muscle tightness had
subsided and he was a well-adjusted infant.
The Agency recommended that services for Chris be terminated and a
section 366.26 termination hearing be set.
December
12, 2011, Six-Month Review Hearing
Neither
Tammy nor Chris appeared at the six month review hearing. Tammy’s counsel asked that the juvenile court
continue to order visits for her, but the court declined, finding them
detrimental, and a section 366.26 termination hearing was set for April 2,
2012.
Tammy
was told of her necessity to seek writ review, but no writ was filed.
February
24, 2012, Section 388 Petition
On
February 24, 2012, Tammy filed a section 388 modification petition, seeking
visitation with Jacob and reunification services. The petition was summarily denied. Section
366.26 Report
The
report in anticipation of the section 366.26 termination hearing recommended
termination of parental rights and placement of Jacob for adoption with his
current caregivers. The family where
Jacob lived had adopted two of his brothers and was in the process of adopting
five of his additional siblings. Jacob’s
oldest sister was eighteen and regularly visited Jacob at the caregivers
home.
May
23, 2012, Section 388 Petition and Hearing
On
May 9, 2012, Tammy filed a second section 388 modification petition seeking
reunification services and visits with Jacob.
After a May 23, 2012, contested hearing, the juvenile court found that
Tammy had failed to meet her burden of a change of circumstances and denied the
petition.
May
23, 2012, Section 366.26 Hearing
At
the section 366.26 termination hearing, also held on May 23, 2012, the Agency
submitted on the section 366.26 reports and documents in the file. Following argument, the juvenile court
followed the Agency’s recommendation, terminated parental rights, found Jacob
was likely to be adopted and ordered a permanent plan of adoption with his
current caregivers.
DISCUSSION
Tammy
argues the ICWA notice was insufficient as a
the three federally recognizes Cherokee tribes were noticed; (2) only one of
the three federally recognized Choctaw tribes was noticed; (3) there were no
return receipts in the record indicating that the tribes had been properly
noticed; and (4) the notices were not properly addressed to the tribal
chairperson or designated agent. Tammy
contends further that the juvenile court failed to make a determination on the
applicability of ICWA as to her.
Respondent contends that the court’s ruling concerning the ICWA has long
been final and Tammy cannot complain at this late stage that the ICWA has been
violated. We agree with respondent.
In
In re Pedro N. (1995) 35 Cal.App.4th
183, 185, 189 (Pedro N.), we held
that a parent who 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. (Id.
at pp. 189-190.)
In
the instant action, the juvenile court’s ICWA finding on Tammy was incorporated
by reference at the disposition hearing on June 20, 2011. Tammy was informed of her appeal rights, but
no appeal was taken from the disposition findings and orders. Tammy filed two separate section 388
modification motions, but failed in either to raise any defects with the ICWA
notices or ruling as an issue. Nor did
Tammy assert at the termination hearing that the ICWA was still applicable to
this case. Tammy was represented by
counsel throughout these proceedings, but neither lodged any objections to the
juvenile court’s finding that the ICWA did not apply or that notice was
defective. Instead, Tammy waited to
challenge the adequacy of the ICWA notice until she filed her appeal from the
ruling at the section 366.26 hearing on May 23, 2012, terminating her parental
rights.
The
juvenile court’s dispositional findings and orders on June 20, 2011, are final
and no longer subject to attack by Tammy.
(Pedro N., supra, 35
Cal.App.4th at pp. 185, 189-191.) Our
holding in Pedro N. is fully
applicable here. Tammy waited until now
to object and by her prior silence has forfeited her right to complain on
appeal.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before Kane, Acting P.J.,
Poochigian, J., and Franson, J.
name="_ftn2" title="">[1] All further statutory references are to the Welfare and
Institutions Code, unless otherwise indicated.
