In re K.H.
Filed 7/29/13
In re K.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NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 K.H. et al., Persons Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and
Respondent,
v.
D.M.,
Defendant and Appellant.
F066682
(Super.
Ct. Nos. JD127047 &
JD127048)
THE
COURT
title="">*
APPEAL from orders of the Superior
Court of Kern
County. Louie L. Vega, Judge.
Lori A.
Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A.
Goldner, County Counsel, Jennifer E. Feige, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
D.M.,
mother, appeals from the juvenile court’s orders pursuant to Welfare and
Institutions Code section 366.26 terminating her
(department) failed to make a proper inquiry of her children’s Indian ancestry
pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C.S. § 1901 et
seq.). The department conceded the error
by letter. We find the department’s
concession to be improvident, reject mother’s contention, and affirm the
juvenile court’s orders.
FACTUAL AND PROCEDURAL SUMMARY
Initial Detention and Jurisdiction Hearings
On July 27, 2011, K.H. (age
three) and S.B. (age two) were detained on allegations that mother abused
alcohol and drugs and was the victim of domestic violence by the children’s
presumed father, D.B. The parents were
not present at the detention hearing.
Mother filed a parental notice of
Indian status indicating she had no Indian ancestry as far as she knew. Father filed a parental notification of
Indian status indicating he may have Indian ancestry through the Navajo
Tribe. Mother executed a waiver of
rights, submitting the matter on the basis of the social worker’s report. At the combined jurisdictional/dispositional
hearing on September 14, 2011, the court found the petition to be true as amended. The court found the ICWA did not apply as to
mother. The court ordered the department
to give ICWA notice because of father’s indication that he may have Navajo
ancestry. The dispositional hearing was
continued to give ICWA notice to the tribes.
ICWA Notice
On September 23, 2011, the
department filed a document setting forth the information it had regarding
father’s Indian heritage. Father listed
his biological mother as J.S.B., who was born in Los Angeles, California, in
1932, and who died in Lancaster, California, in 1969. Father’s biological father was listed as
Francisco B. and his address as unknown.
Both of father’s biological parents were listed as “[p]ossibly
Navajo.†Father was born in 1966. No information was provided concerning father’s
grandparents. On September 23, 2011, the
department sent ICWA notices to the Secretary of the Interior, the Bureau of
Indian Affairs (BIA), the Navajo Nation, and to the Colorado River Indian
Tribes.
On September 30, 2011, the
department filed copies of the signed return receipt cards. On October 4, 2011, the department filed a
response from the BIA stating it was deferring to the tribes to determine if
the ICWA was applicable to the minors’ cases.
On October 17, 2011, the department filed the return receipt card from
the Secretary of the Interior. A
response from the Navajo Nation was filed by the department on November 2,
2011, stating the tribe was unable to verify the children’s eligibility for
enrollment based on the information provided. On November 4, 2011, the department filed a
response from the Colorado River Indian Tribes stating that neither the parents
nor the children were enrolled members of the tribe or eligible for enrollment.
Disposition Hearing
The
disposition hearing was conducted on October 18, 2011, before the court and the
parties received notice of ICWA eligibility from the tribes. Mother was present at the hearing, but father
was not. The department’s report for the
hearing did not include information on the progress of the ICWA notices. The department’s report stated father was
Hispanic with no known American Indian heritage. The report also said father’s parents were
I.B. and Frank B., who resided in southern California. Because responses had not been received from
the tribes, the juvenile court stated it was not going to make an ICWA finding
at that time. The court declared the
children wards of the court, removed the children from their parents’ custody,
and ordered family reunification services.
Six-Month Review Hearing
The
juvenile court conducted the six-month review hearing on April 18, 2012. Father appeared at the hearing, but was in
custody. The social worker’s report
noted the juvenile court had found during the jurisdictional/dispositional
hearing that ICWA did not apply as to mother and the dispositional hearing was
continued regarding the ICWA as to father.
The court found mother had only
made minimally acceptable efforts toward alleviating or mitigating the causes
for the children being placed outside the home and father had not made
acceptable efforts in that regard. The
juvenile court continued reunification services for both parents. The parties did not seek a further ruling on
ICWA and the court made no reference to the ICWA during the hearing.
12-Month Review Hearing
According
to the social worker’s report, mother completed a parenting course but
continued to periodically test positive for amphetamines and
methamphetamine. Mother had recently
missed or cancelled visits with the children.
Father was incarcerated in prison.
The report noted the juvenile court had previously found the ICWA did
not apply to mother and the dispositional hearing was continued regarding the
applicability of the ICWA as to father.
The social worker concluded father had made no progress toward
reunification and mother had made minimal progress in that regard. Because there was not a substantial
probability the children would be returned to the parents within six months,
the social worker recommended the juvenile court set the matter for a section
366.26 hearing.
The 12-month review hearing was
conducted on September 14, 2012. Father
testified at the hearing, reviewing the reunification services he had received
while incarcerated. Father’s potential
American Indian heritage was not raised at the hearing. The juvenile court adopted the department’s
recommendations and set the matter for a section 366.26 hearing.
The parents were expressly informed
by the juvenile court of their right to file a writ petition with this court
should they desire to challenge any of the court’s rulings and orders. The parents were also served in court with a
copy of a notice to file an extraordinary writ and request for the record. Neither parent filed an extraordinary writ
from the juvenile court’s rulings at the 12-month review hearing.
Section 388 Petitions and Section 366.26 Hearing
Mother and
father filed petitions pursuant to section 388, seeking a modification of the
juvenile court’s orders so that they could receive additional reunification
services. Neither parent raised the ICWA
as an issue. The department’s report
again set forth that the ICWA did not apply to mother and the dispositional
hearing had been continued to determine if the ICWA applied to father. The report also noted that the Colorado River
Tribal Council and the Navajo Nation had been sent ICWA notices as to father,
but erroneously noted that responses had not been received. The department concluded that neither child
had American Indian or Eskimo heritage.
On January 11, 2013, after a full
hearing on the section 388 petitions, the juvenile court denied the parents’
petitions. The juvenile court found the
children were adoptable and terminated the parental rights of the parents.
DISCUSSION
ICWA Challenge
Mother argues the ICWA notice
was insufficient because the department did not perform an adequate inquiry
into the father’s Indian heritage. Mother challenges the juvenile court’s
failure to make an express order concerning the ICWA as to father. Mother argues there are references in the
record to different mothers for father.
Mother acknowledges she failed to appeal from prior orders of the
juvenile court’s finding that the ICWA was not applicable to the children. Mother argues that her case is
distinguishable from our opinion in In
re Pedro N. (1995) 35
Cal.App.4th 183, 185, 189 (Pedro N.),
which applies waiver and forfeiture to parents who wait until the termination
of parental rights to first make an ICWA challenge. The department improvidently concedes the
error. We reject mother’s ICWA challenge as forfeited.
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 Pedro N. that the parent there was represented by counsel and
failed to appeal the juvenile court’s orders from the dispositional
hearing. (Pedro N., supra, 35
Cal.App.4th at pp. 189-190.)
Father signed forms earlier in the
proceedings indicating he may have Indian heritage. We agree with mother that there was no ICWA
order as to father by the juvenile court at the conclusion of the dispositional
hearing in 2011. Notices from the two
Indian tribes were received a few weeks after the dispositional hearing. We further agree that the juvenile court did
not expressly rule on the ICWA in later hearings.
The juvenile court conducted six
and 12-month review hearings and neither parent sought clarification on the
applicability of the ICWA. At the
conclusion of the 12-month review hearing setting the matter for a section
366.26 hearing, both parents were informed of their right to file an
so. Despite other opportunities after
the dispositional hearing to clarify the ICWA issue, neither parent raised the
issue to the juvenile court. Neither
parent raised the ICWA issue in the section 388 petitions they filed. Neither parent sought review of the ICWA
issue by appeal or extraordinary writ to this court after the six and 12-month
review hearings. The parents did nothing and have, therefore, forfeited the right to
challenge any procedural deficiencies in
the juvenile court proceedings. (
The merits of the ICWA issue appear to be very weak. Neither the Colorado River Tribal Council nor
the Navajo Nation found father or the children enrolled or eligible for
enrollment based on the information father provided.
parents had notice prior to the 12-month review hearing that the department did
not consider either child to have Indian heritage. Both parents remained silent.
Mother also argues there was confusion over the identity of father’s
mother because one document lists J.S.B. as father’s biological mother, but
another document referred to his mother as I.B.
We find no conflict in the record.
Father listed his biological mother as J.S.B., who died in
1969. A later document referred to I.B.,
who it appears married Francisco B. at a later time and would be father’s
stepmother. In any event, these were
factual matters to bring before the juvenile court and the parents did nothing
to challenge the ICWA.
The juvenile court’s findings and orders became final at the conclusion
of the six and 12-month review hearings and, on this appeal from the order
terminating mother’s parental rights, are no longer subject to attack. (Pedro
N., supra, 35 Cal.App.4th at pp.
185, 189-191.) Our holding in
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.
title="">[3]
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 Detjen, J.
name="_ftn2" title="">[1] All
further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
