In re Arianna L.

Filed 8/10/06 In re Arianna L. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy B. Williamsen, Commissioner.

Mario de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael H. Krausnick, County Counsel, and Carrie Stephens, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Jose L. appeals from orders terminating his parental rights (Welf. & Inst. Code, § 366.26) to his three children.^[1] He contends the court erred a year earlier when it determined that the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply to the children. Specifically, appellant complains his children's first names were misspelled and his place of birth was omitted on paperwork sent to the Bureau of Indian Affairs (BIA) and the tribes with which the children might be eligible for membership. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In early January 2004, appellant's third child was born in Contra Costa County. The newborn and his mother tested positive for methamphetamine. This led child welfare authorities in Contra Costa County to detain the newborn and initiate dependency proceedings on behalf of the infant as well as his two siblings.

Soon thereafter, the children's maternal grandmother stated that their maternal great-uncle and maternal great-great-grandfather were registered with the Cherokee, Chickasaw and Choctaw tribes of Oklahoma. This led Contra Costa County authorities in March 2004 to send ICWA notice to numerous Indian tribes and the BIA as well as to appellant and the children's mother.

In April 2004, the Contra Costa County Superior Court adjudged all three children dependents and, having removed the children from parental custody, granted reunification services. For reasons which the record does not reveal, the court deferred ruling on the ICWA issue until its first review hearing scheduled for September 2004. In the meanwhile, however, the Contra Costa County Superior Court transferred out the children's dependencies to Stanislaus County Superior Court which accepted the transfer in August 2004.

During the transfer-in proceedings and again in November 2004, respondent Stanislaus County Community Services Agency (the agency) sent new notices to the Cherokee, Chickasaw and Choctaw tribes as well as to the BIA. Due to numerous continuances, the court did not complete a review hearing in the matter until January 2005 at which point it terminated services for appellant and briefly continued services for the children's mother. The court, however, did not address the ICWA issue.

Then, in April 2005, the court found ICWA did not apply to the children's dependency, terminated all reunification services, and set a section 366.26 hearing to select and implement a permanent plan for the three children. In advance of the April 2005 hearing, the agency prepared a status review report asking the court to find that ICWA did not apply because it (the agency) had received negative responses from every Indian tribe served with notice. The agency served copies of its status review report on both parents.

In the same report and relevant to this appeal, the agency advised that the name used throughout the proceedings to refer to the couple's second oldest child was not his legal name according to his birth certificate. Up to that point, the agency had referred to him as â€