In re Ryan B.
Filed 12/4/13
In re Ryan B. 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NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 RYAN B., a Person
Coming Under the Juvenile Court Law.
MERCED COUNTY HUMAN SERVICES
AGENCY,
Plaintiff and
Respondent,
v.
L.S.,
Defendant and Appellant.
F067410
(Super.
Ct. No. JP000455)
THE
COURT
title="">*
APPEAL from orders of the Superior
Court of Merced
County. John D. Kirihara, Judge.
Elaine
Forrester, under appointment by the Court of Appeal, for Defendant and
Appellant.
James N.
Fincher, County Counsel, and Shari L. Damon, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
L.S., the guardian of Ryan B.,
appeals from the juvenile court’s order pursuant to Welfare and Institutions
Code section 366.26 terminating her guardianship to Ryan.
failed to make a proper inquiry of Ryan’s Indian ancestry pursuant to the
Indian Child Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.). We reject the guardian’s contention and
affirm the juvenile court’s orders.
FACTS AND PROCEEDINGS
Petition and Detention Hearing
On September 9, 2011, a petition
was filed pursuant to section 300 stating that L.S. was Ryan’s guardian since
November 2010 and he was four years old.
The petition alleged a social worker responded to a report of general
neglect. After a delay of nearly two
weeks, the social worker had to obtain an order for inspection to enter the
guardian’s home. The social worker found
the home very cramped with only a narrow pathway winding through stacks of
clutter. The countertops, stove, desk,
and rooms were covered in clutter. The
kitchen floor was slippery with old spills and grime. The bathroom door was latched closed and the
guardian was unable to open the door. An
officer had to open the latch. Although
there were cleaning supplies in the bathroom, the shower and bathtub were
filthy. Ryan slept in a hallway.
The petition further alleged that the
guardian had never taken Ryan to a dentist and missed an ophthalmology
appointment after it was recommended that Ryan have surgery to correct a
drooping eye. The guardian also failed
to schedule necessary appointments with the Central Valley Regional Center. The mother’s and father’s whereabouts were
unknown and they had not maintained contact with Ryan.
The detention report noted that
Ryan’s previous guardian, the guardian’s mother Ms. W., told a social worker
that she had Native American ancestry from the Cherokee and the Choctaw but did
not know if they were registered with a tribe.
Ryan is the guardian’s grandnephew.
At the detention hearing on September 12, 2011, the juvenile court
detained Ryan and ordered his placement outside the guardian’s home. During the hearing, the guardian explained
that she was told her grandfather had a number from an Indian tribe. The guardian believed she, her mother, and
Ryan had Indian heritage. The guardian
conceded she did not have a tribal number but wanted to have one. The guardian thought she was Cherokee and
Choctaw, but mostly Cherokee. The
juvenile court found the ICWA inapplicable.
Jurisdiction/Disposition Hearing
The agency’s
reports for the joint jurisdiction/disposition hearing stated the court found
on September 12, 2011, that the ICWA did not apply. On October 19, 2011, the court adopted the
recommended findings of the agency, found the allegations in the petition to be
true, and ordered reunification services for the guardian. Included in the court’s orders after hearing was
a finding that the ICWA did not apply. The
guardian did not appeal the juvenile court’s findings and orders from the
jurisdiction/disposition hearing.
Subsequent Proceedings
At the
conclusion of the six-month review hearing on May 24, 2012, the juvenile court
continued reunification services for the guardian. In its report for the 12-month review hearing,
the agency recommended that reunification services to the guardian be
terminated and the matter set for a section 366.26 hearing because the guardian
had failed to address the issues that led to the detention. The guardian had failed to address the safety
issues around her home, including keeping poisonous chemicals out of
reach.
At the contested hearing on January
29, 2013, a private investigator testified that he had inspected the guardian’s
home and found no safety hazards. The
rooms were both clean and habitable.
Twenty photographs taken by the investigator were admitted into
evidence. The guardian testified that due
to her physical conditions and lack of money, she was initially unable to clean
up her residence. The guardian was
further delayed in doing the needed work due to the death of her mother. A social worker testified that Ryan had been
diagnosed with autism, but had still not been scheduled for an appointment to
receive services. The juvenile court
terminated the guardian’s reunification services at the conclusion of the
hearing.
The guardian filed a writ petition
challenging the juvenile court’s order terminating her reunification services
on the ground that she substantially complied with her reunification plan. On April 29, 2013, this court filed an unpublished
opinion in case No. F066624 denying the guardian’s petition. The guardian did not raise the ICWA in her
writ petition.
A section 366.26 hearing was
conducted on June 4, 2013. At the
conclusion of the hearing, the juvenile court terminated L.S.’s guardianship
and ordered adoption as Ryan’s plan.
ICWA CHALLENGE
The guardian argues the ICWA
notice was insufficient because the agency did not perform an adequate inquiry
into her Indian heritage. The guardian asserts that the agency failed
to comply with the procedural requirements of the ICWA. Respondent argues this issue was forfeited
because no appeal was taken from the juvenile court’s disposition rulings. We agree with respondent.
The guardian completely fails to acknowledge our opinion in
forfeiture to parents who wait until the termination of parental rights to
first make a challenge to the ICWA. We reject the guardian’s ICWA challenge because
it is subject to waiver and forfeiture.
In
N., supra, 35 Cal.App.4th at pages 185 and 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 (including alleged procedural infirmities) 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="_ftnref4" title="">[3] (
instant proceeding.
We further note that
under the ICWA due to a parent’s forfeiture or waiver of the issue for failing
to file a timely appeal 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 the guardian 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 Cornell, Acting P.J., Poochigian, J., and Peña, J.
name="_ftn2" title="">[1] All further statutory references are to the Welfare and
Institutions Code, unless otherwise indicated.
