In re J.R.

Filed 1/27/09 In re J.R. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed.

Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.

Andrea R. St. Julian, under appointment by the Court of Appeal, for Minor.

M.R. (hereafter mother) appeals from the trial courts order under Welfare and Institutions Code section 366.26 terminating her parental rights to her son, J.R.^[1] Mother asserts only one claim in this appealthat J.R.s first name was misspelled on some of the notices sent pursuant to the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; hereafter ICWA), and as a result the trial courts finding that ICWA does not apply in this case is not supported by substantial evidence. There are numerous defects in mothers claim, not the least of which is that she did not timely challenge the ICWA finding, and therefore has not preserved the issue for review on appeal. As a result, we will affirm the order terminating mothers parental rights.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

In January 2006, the San Bernardino County Department of Childrens Services (DCS) filed a section 300 petition regarding J.R. At the detention hearing on that petition, J.R.s maternal grandmother, E.E.,^[3]claimed to have Indian ancestry through the Creek tribe. DCS mailed a Notice of Involuntary Child Custody Proceedings For An Indian Child^[4]to the pertinent Indian tribes (what we refer to hereafter as the first round of JV-135s). In those notices, DCS spelled J.R.s first name with an ie at the end. Correctly spelled, J.R.s name ends in only an e.

By the time of the contested jurisdiction and disposition hearing in March 2006, DCS had filed three declarations of due diligence under ICWA. Those declarations reflected that DCS had properly mailed JV-135s to the pertinent tribes and that the tribes all had sent responses that stated J.R. was not eligible for membership. Mothers attorney then informed the court that J.R. might also have Indian ancestry through two other tribes, the Blackfoot tribe and the Potawhatanee. Based on that information, DCS sent JV-135s to the pertinent tribes and entities in March 2006 (what the parties refer to as the second round of ICWA notices). J.R.s first name was correctly spelled on these notices.

In May 2006, after all the tribes had responded to the notices and had stated that J.R. was not a member or eligible for membership, the trial court conducted an ICWA notice review hearing and found that ICWA does not apply. Mothers attorney was present at that hearing but did not object to the trial courts finding. Neither mother nor her attorney objected to that finding at any other hearing in the trial court, even though the social workers report for each subsequent hearing, through the April 16, 2008, selection and implementation hearing at issue in this appeal, included the statement that ICWA does not apply.

Mother now challenges the ICWA finding in this appeal from the order entered April 18, 2008, terminating her parental rights to J.R.

DISCUSSION

Mother contends, as previously noted, because J.R.s first name was misspelled on the first round of JV-135s sent out by DCS, that DCS failed to comply with the notice requirements of ICWA, and therefore the trial courts finding that ICWA does not apply is not supported by substantial evidence. We do not share mothers view, for reasons we now explain.

At the outset, we are of the view that mother has forfeited her right to challenge the ICWA finding because she did not raise her objection in the trial court, or timely appeal the finding. (See In re Miracle M. (2008) 160 Cal.App.4th 834, 847 (Miracle M.) [parents failure to object in trial court that parents had not received copy of JV-135 results in issue not being preserved for review on appeal].) Moreover, because the trial court made the ICWA finding at a hearing that took place prior to the hearing at which the trial court set the selection and implementation hearing, mother could have, and in our view should have, challenged the trial courts ICWA finding in a writ petition challenging the order setting the selection and implementation hearing. (See In re Tabitha W. (2006) 143 Cal.App.4th 811, 815-816 [all orders made contemporaneously with order setting section 366.26 hearing can only be challenged by writ in accordance with section 366.26, subd. (l)].) But even if the ICWA finding were appealable, mother did not include that finding in her notice of appeal from the order terminating her parental rights, and as a result mother cannot raise the ICWA issue now. (See Miracle M., at p. 846 [Mother cannot appeal from an order or finding that is not even mentioned in her notice of appeal]; Cal. Rules of Court, rule 8.100(a)(2).)

Finally, even if properly appealable the purported error is harmless because the misspelling of J.R.s first name in the first round of JV-135s DCS sent did not prevent the pertinent tribes from determining whether J.R. was an Indian Child, as that phrase is used in ICWA. Although mother claims otherwise, she has not demonstrated how a different result would occur if J.R.s name had been spelled correctly in the first round of JV-135s. (See, e.g., Miracle M., supra, 160 Cal.App.4th at p. 847 [Mother has not demonstrated how giving the parents further [ICWA] notice would generate additional information].)

The notice provisions of ICWA require, when a child subject to a dependency proceeding is or may be of Native American ancestry (referred to in the ICWA as an Indian child), that each tribe of which the child may be a member or eligible for membership must be notified of the dependency proceeding and of the tribes right to intervene in the proceeding. (25 U.S.C. 1912(a).) An Indian child for purposes of ICWA is any unmarried person who is under age eighteen and 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).) Determination of tribal membership or eligibility for membership is made exclusively by the tribe. (Cal. Rules of Court, former rule 5.664(g).)^[5]

The spelling of J.R.s first name would be relevant, if at all, in determining whether he is a member of an Indian tribe, and therefore an Indian child within the meaning of ICWA, as set out above in Title 25 United States Code section 1903(4), subsection (a). Mother does not claim that J.R. is a member of an Indian tribe. Instead, mother claims that J.R. might be eligible for membership in an Indian tribe. As quoted above, that eligibility depends on whether any of J.R.s ancestors were tribal members. Accurate information about the claimed Indian ancestors and J.R.s relationship to those ancestors is what determines whether J.R. is an Indian child under Title 25 United States Code section 1903(4), subsection (b). A trivial misspelling in J.R.s first name could not have had any effect on this determination. In short, we conclude that the misspelling of J.R.s first name on some of the JV-135s was harmless in that it is not reasonably probable a different result would have occurred but for that misspelling. (Miracle M., supra, 160 Cal.App.4th at p. 847.)

DISPOSITION

The order terminating mothers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Richli

J.

/s/ King

J.

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^[1]All further references are to the Welfare and Institutions Code unless indicated otherwise.

^[2]We recount only those facts, all of which are undisputed, pertinent to the limited issue mother raises on appeal.

^[3]E.E. was J.R.s legal guardian under a Probate Code guardianship petition. The trial court eventually terminated that guardianship, an action that is the subject of a separate appeal by E.E.

^[4]Also sometimes referred to, and referred to hereafter, by its Judicial Council Forms number, JV-135.

^[5]We cite the court rules in effect in 2006, which is when the notices in this case were mailed to the pertinent tribes and the trial court made the finding that ICWA does not apply.