Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. JD108228. Kenneth C. Twisselman II, Judge.
Jesse F. Rodriguez, 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.
OPINION
Before Wiseman, Acting P.J., Dawson, J., and Kane, J.
Melissa C. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her son. She contends the court erred in 2005 when it determined the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) did not apply to the child’s dependency. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL SUMMARY
In late summer of 2005, three-year-old Aaron R. came to the attention of respondent Kern County Department of Human Services (department). There was a substantial risk the toddler would suffer serious physical harm because his mother (appellant), who had a history of abusing illegal drugs, left him in the care of a known drug user who was under the influence of methamphetamine and there was methamphetamine and drug paraphernalia in the house.
Thereafter, the Kern County Superior Court exercised its jurisdiction over Aaron R., adjudged him a juvenile dependent and removed him from parental custody. Despite 12 months of reasonable reunification services, appellant failed to make any progress in alleviating or mitigating the causes for Aaron’s removal. Indeed, she did not avail herself of services. Consequently, the court terminated reunification efforts and set a section 366.26 hearing to select and implement a permanent plan for Aaron. At a May 2007 hearing, the court found Aaron was likely to be adopted and terminated parental rights.
DISCUSSION
At the detention phase of these proceedings in September 2005, Aaron’s father declared he might have Cherokee Indian heritage through his mother. The court questioned the paternal grandmother who was present in court and provided identifying information. She believed she could be affiliated with a Cherokee tribe in Tulsa, Oklahoma. On September 27, 2005, the department served notice pursuant to ICWA on each parent, the Bureau of Indian Affairs (the BIA), and the three federally recognized Cherokee tribes. The department later filed return receipts, showing that each of the notices to the three tribes and the BIA were received as of early October 2005.
In November 28, 2005, the court conducted its dispositional hearing. By that time two of the three Cherokee tribes, the Eastern Band of Cherokee Indians and the Cherokee Nation of Oklahoma, had responded they would not consider Aaron R. to be an Indian child in their respective tribes. County counsel advised the court that the department had not received a response from the third Cherokee tribe, the United Keetoowah Band of Cherokee Indians (United Keetoowah Band). Experience had shown the department that the United Keetoowah Band had basically quit responding to ICWA notices. County counsel asked the court to find “under the 60-day rule” that no further notice was required and that there was no basis to believe Aaron R. was an Indian child. Counsel for both parents and the child submitted. As part of its dispositional order, the court found appropriate notice had been given and determined, based on the available evidence, that Aaron R. was not an Indian child as defined by ICWA.
At the time of these proceedings, there was a rule of court which authorized a court to determine ICWA did not apply to a proceeding if proper and adequate notice had been provided and neither a tribe nor the BIA provided a determinative response within 60 days after receiving the notice. (Fmr. Cal. Rules of Court, rule 1439(f)(6).) The Legislature codified that provision (§ 224.3, subd. (e)(3)) effective January 2007.
For the first time, appellant now complains the department misaddressed the notice to the United Keetoowah Band, by sending it to a post office box in Park Hill, Oklahoma. In March 2005, the BIA updated its list of designated tribal agents and addresses for service of process and showed a new address for the United Keetoowah Band. (70 Fed.Reg. 13518, 13535.) The problem for appellant is that the court’s 2005 dispositional finding and order have long been final and are no longer subject to this court’s review.
The new listing was United Keetoowah Band of Cherokee Indians, Dallas Proctor, Chief, P.O. Box 746, Tahlequah, OK 74465.
In In re Pedro N. (1995) 35 Cal.App.4th 183, 185, this court held a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe.
Appellant acknowledges our holding in Pedro N. Nonetheless, she argues trial counsel cannot reasonably be expected to file a notice of appeal following a disposition hearing or other appealable order or file a writ petition from a setting order where there are no other arguable issues to appeal. We will not comment on appellant’s claim of “no other arguable issues to appeal.” In any event, we disagree with her argument over what we can reasonably expect from trial counsel especially given the heightened standards which ICWA imposes for removal, services and placement of an Indian child.
Appellant further contends if she cannot raise the issue on this appeal, it is virtually certain a tribe would be unable to assert rights under ICWA due to the termination of rights. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435, citing In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) We disagree first with this line of cases which holds Pedro N. is inconsistent with the protections ICWA affords to the interests of Indian tribes. This court does not foreclose a tribe’s rights under ICWA on account of a parent’s appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185.) In addition, we would point out another decision from this court, In re Desiree F. (2000) 83 Cal.App.4th 460. In Desiree F., we granted a tribe relief under ICWA and invalidated actions dating back to the outset of the proceedings. Notably, the tribe in Desiree F. came forward after a final order terminating parental rights.
DISPOSITION
The order terminating parental rights is affirmed.