In re Michael R.
Filed 1/18/13 In
re Michael R. CA2/5
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re MICHAEL
R., a Person Coming Under the Juvenile Court Law.
B241826
(Los Angeles County Super. Ct.
No. CK55072)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CAROLYN L.,
Defendant and Appellant.
APPEAL
from the orders of the Superior Court of
County, Sherri Sobel, Juvenile Court Referee. Affirmed.
Patti
L. Dikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and
Respondent.
___________________________
Carolyn L. (mother) appeals from a June 6, 2012
parental rights to her son, Michael, under Welfare and Institutions Code
because the dependency court omitted to make required findings under the
court, she forfeited her contention, and we decline to review it. Accordingly, we affirm the order.
Michael was
born in June 2011 with drugs in his system to mother, who had a 20-year history
of substance abuse and criminal convictions. He was mother’s ninth child. She received no prenatal care and used
methamphetamine throughout the pregnancy.
All eight siblings were in permanent placement or adopted.
Michael was
declared a dependent of the court on October
5, 2011, and was removed from parental custody. The Comanche tribe stated Michael was
eligible for enrollment in the tribe (mother was an enrolled member). The tribe intervened in the proceedings to
monitor the case.
The
dependency court found Michael was an Indian child and proceeded in accordance
with the requirements of the ICWA. The court found, under the ICWA, that active
efforts were provided to prevent or eliminate the breakup of the Indian
family. Mother failed to reunify
with Michael, who was placed in the prospective adoptive home that had adopted
four of his siblings. On June 6, 2012, after considering the
tribal expert’s ICWA declaration,
rights.
Mother
contends the order terminating parental rights should be reversed because the
dependency court failed to make a finding by clear and convincing evidence that
active efforts were made to prevent the breakup of the Indian family
on evidence from a qualified expert that continued custody was likely to result
in serious harm to the child.
contentions by failing to object on those grounds in the court below. Respondent is correct.
At the
termination hearing, mother did not object to the dependency court’s findings
or assert required findings were not made.
Normally, objections not made in the trial court are forfeited. (E.g., In re S.B. (2004) 32 Cal.4th
1287, 1293, fn. omitted [“a reviewing court ordinarily will not consider a challenge
to a ruling if an objection could have been but was not made in the trial
court. [Citation.] The purpose of this rule is to encourage
parties to bring errors to the attention of the trial court, so that they may
be corrected.â€].) Even constitutional
rights may be forfeited “‘“by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.â€â€™ [Citations.]â€
(In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) The forfeiture rule applies to rights under
the ICWA. (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 [objections to
standard of proof and lack of compliance with the expert witness requirement in
the ICWA were forfeited].)
Mother’s
contention, citing California Rules of Court, rule 5.484(a) (hereinafter “court
rule 5.484(a)â€), that the ICWA’s requirements cannot be waived without a
written stipulation, is mistaken. Court
rule 5.484(a) provides in pertinent part:
“(2) . . . [A] failure to
object[] may waive the requirement of producing evidence of the likelihood of
serious damage only if the court is satisfied that the person or tribe [who
failed to object] has been fully advised of the requirements of the Indian
Child Welfare Act and has knowingly, intelligently, and voluntarily waived
them. Any such stipulation must be
agreed to in writing.†There is no
contention in this appeal that there was a failure to comply with a requirement
of producing evidence. The contention is
that the dependency court failed to make findings. That contention is not within the ambit of
court rule 5.484(a)’s provision barring forfeiture absent a knowing,
signed waiver.
In
dependency cases, discretion to consider forfeited claims “must be exercised
with special care.†(In re S.B.,
supra, 32 Cal.4th at p. 1293.) “[T]he
appellate court’s discretion to excuse forfeiture should be exercised rarely
and only in cases presenting an important legal issue.†(Ibid. [the forfeited issue involved
interpretation of a statute and had divided the courts of appeal]; In re
M.R. (2005) 132 Cal.App.4th 269, 272 [the forfeiture was excused in order
to clarify a recent statutory amendment].)
This is not the rare case involving the type of legal issue that compels
overlooking the forfeiture.
DISPOSITION
The orders are affirmed.
KRIEGLER,
J.
We concur:
TURNER, P. J.
ARMSTRONG, J.
further statutory references are to the Welfare and Institutions Code, unless
otherwise stated.
chemical dependency, failed treatment, inability to maintain sobriety,
inability to maintain safe and stable housing, involvement in domestic
violence, and failure to protect the child from abuse has resulted in
child-raising practices which are unacceptable in the Indian community. [¶]
That continued custody of Michael R. by the parents is likely to cause
serious emotional and or physical damage to them. [¶]
That the placement of the child in a culturally appropriate foster,
pending placement with relatives, is consistent with the order of preference
under the Indian Child Welfare Act.
[¶] That appropriate services
were provided to the family to prevent placement out of the home.â€
