In re X.D.

Filed 12/23/08 In re X.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman and H.A. Staley, Judges.

Nicole A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, J.M., appeals from the juvenile courts order pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights.^[1] Appellant contends that the department of human services (department) failed to notify all Indian tribes pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C.  1901, et seq.). We will affirm the judgment.

FACTS AND PROCEEDINGS

A dependency petition was filed on September 25, 2007, alleging that X.D. was born to K.D. on September 19, 2007, and both the mother and X.D. tested positive for amphetamine. K.D. gave birth to a half-sibling to X.D. nearly 16 months earlier and both the mother and the half-sibling tested positive for methamphetamine. K.D.s parental rights were terminated as to an older half-sibling. Appellant is the childs father.

At the detention hearing on September 26, 2007, K.D. testified that she was not living with appellant, but he was X.D.s father. K.D. declared that she had no Indian ancestry. Appellant declared Blackfeet ancestry from his fathers family. Appellant testified that his father was no longer alive, but that an aunt would have more knowledge of potential Indian ancestry. Appellant has the same name as his father. Appellant gave information concerning the aunts name but did not know her exact address in Bakersfield. The court found that ICWA did not apply as to K.D. but that social workers were to investigate Indian ancestry for appellant The court detained X.D.

The department sent notice pursuant to the ICWA to the Bureau of Indian Affairs, the Blackfeet tribe, and the parents. The notice included identifying information of both parents, appellants mother, and his father (the childs paternal grandmother and grandfather). The Blackfeet tribe responded with a letter dated November 1, 2007, that neither parent nor the paternal grandparents were on trial enrollment records.

The jurisdiction/disposition hearing was held on November 8, 2007. Neither parent was present. The attorneys for each parent submitted the issue of whether ICWA applied on the letter sent from the Blackfeet tribe. The court found the allegations of the petition true. The court found proper notice had been given to the Blackfeet tribe and that ICWA did not apply to X.D. The court continued the disposition hearing.

The social workers report for the disposition hearing noted that the court had found ICWA did not apply. The report further stated that appellant was Hispanic and had no American Indian heritage. The social worker recommended no reunification services be provided to the parents.

The parents were both present for the disposition hearing on January 14, 2008. The juvenile court found that neither parent had made any progress toward reunification. The court found by clear and convincing evidence that the mother was not entitled to reunification services because the child came within the provisions of section 361.5, subdivisions (b)(10) and (b)(11). The court scheduled the matter for a section 366.26 hearing. The court expressly notified the parents of their right to file a petition for extraordinary writ. The parents were also sent notices from the department of their right to file a writ petition.

On May 14, 2008, the juvenile court terminated the parents parental rights. Neither parent raised the question of notice pursuant to ICWA.

ICWA NOTICE

Appellant contends that the social worker failed to contact his aunt to obtain as much information as possible prior to sending notice to the Blackfeet tribe. Appellant argues the notice was insufficient as a matter of law.For the first time in this entire action, appellant challenges the courts finding on September 26, 2007, that the department complied with requirements of ICWA. Respondent contends the courts ruling concerning ICWA has long been final and appellant cannot complain at this late stage that ICWA has been violated. We agree with respondent and reject appellants contention as untimely.

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 courts action regarding ICWA is foreclosed from raising ICWA notice issues in a subsequent appeal once the courts ruling is final. In this case, the time to raise such issues was at the dispositional phase, after the January 14, 2008, disposition hearing, not now. The juvenile courts rulings at the disposition hearing were appealable. (Pedro N., supra, 35 Cal.App.4th at p. 189.) In Pedro N., as in the instant action, the juvenile courts ICWA finding was made at the disposition hearing but the parent waited, as did appellant, to challenge the adequacy of the ICWA notice until much later in an appeal from the ruling in the section 366.26 hearing.

Although appellant failed to appear at the jurisdiction hearing in which the court ruled on the applicability of ICWA, appellant was represented by counsel. Appellant did appear at the disposition hearing represented by counsel. The social workers report set forth the courts prior rulings that ICWA did not apply and that appellant was not of American Indian heritage. Appellant did not challenge the departments assertion or the courts ruling that the department had complied with ICWA. Appellant was given verbal and written notice of his right to file a writ petition after the disposition hearing. The juvenile courts dispositional findings and orders on January 14, 2008, are final and no longer subject to attack by appellant. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-191.)

To the extent appellant cites other decisions, such as In re Nicole K. (2007) 146 Cal.App.4th 779 and In re Antoinette S. (2002) 104 Cal.App.4th 247, which disagreed with our Pedro N. holding on a theory that it is inconsistent with the protections ICWA affords to the interests of Indian tribes, we are not persuaded. We do not foreclose a tribes rights under ICWA due to a parents appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [we reversed denial of tribes motion to intervene after final order terminating parental rights and invalidated actions dating back to outset of dependency and taken in violation of ICWA].) In so ruling, 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 appellant has forfeited his personal right to complain of any ICWA violation.

Appellant neither voiced any objection to the juvenile court nor appealed from that courts ruling at any stage of the proceedings. Rather, he waited until now to object. We are confident appellant, by his silence until now, has waived his right to complain.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

Judge Twisselman found the Indian Child Welfare Act inapplicable. Judge Staley presided over the hearing in which parental rights were terminated.

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