Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Charlotte Wittig, Commissioner, Super. Ct. Nos. JJV059696-C, D.
Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lang, County Counsel, and Channone M. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Harris, J., and Cornell, J.
Deanna G. appeals from a 2007 order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her two young daughters, A. and M. She contends the court erred in 2005 when it determined that the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Appellant’s drug abuse and neglect of her four children in 2005 led to the underlying dependency. At a July 2005 detention hearing, appellant stated “Yes” to the question of whether there was any Indian heritage in her family. However, she was unsure of the tribe. When asked about any relatives who might have more information about her ancestry, appellant replied her mother “maybe.” Appellant added “it’s through my dad [who] passed away.” Appellant did not know anyone in his family. She then supplied her mother’s telephone number in New Mexico as well as her father’s name. The court in turn determined ICWA might be applicable. County counsel volunteered his client would pursue the matter with the grandmother and serve notice. Counsel added his belief that there were Apache and Navajo tribes in New Mexico.
Thereafter, a social worker contacted the maternal grandmother. The maternal grandmother stated her deceased husband had Cherokee heritage. However, she was unable to verify this with his relatives because she had not been in touch with them since 1992. Days later, appellant stated she believed her father was a Navajo from Arizona. Consequently, the social worker sent notices pursuant to ICWA to the Bureau of Indian Affairs (BIA), three Navajo tribes, and three Cherokee tribes as well as filed copies of those notices and the signed return receipts for each of the registered mailings as attachments to an August 3rd “ICWA Information” report. Relevant to appellant’s claim on appeal, the notices did not contain identifying information about the maternal grandmother other than her name.
In August 2005, the Tulare County Superior Court adjudged appellant’s children juvenile dependents, removed them from parental custody, and ordered reunification services. Appellant previously submitted to the court’s jurisdiction under section 300, subdivision (b) (neglect).
Because the agency received negative responses from some but not all of the tribes it served notice upon, the court also set the case for a September 23, 2005 hearing regarding ICWA. To the parents who were present, the court added:
By that point, the 60-day waiting period (see former Cal. Rules of Court, rule 1439 (f)(6)) would expire.
“The parents certainly have a right to be present at that proceeding. But if you wish to appear through your counsel, that is okay with the Court. I’ll leave that up to you.”
By the time of the September hearing, the agency prepared an “ADDITIONAL ICWA INFORMATION” report with the court. Attached to this report were copies of the negative responses it had received. Notable to this appeal, the United Keetowah Band of Cherokee Indians did not respond to the agency’s notice.
Appellant did not attend the September 23rd hearing. The court announced it read the additional information and asked “Anyone have anything further?” Each attorney including appellant’s counsel replied “No.” The court then inquired of all of the attorneys whether there was any objection to the court finding that ICWA did not appear to be applicable. Appellant’s counsel replied “No.” The court concluded, there did not “appear to be any reason to find that ICWA is applicable at this time.”
No further mention of ICWA, aside from references to the court’s finding, appears in the record.
Appellant did not comply with her reunification plan. Consequently, the court terminated her services in February 2006. Services continued for appellant’s husband. However, genetic testing later revealed that he was not the biological father of the younger two of the four children. As a result, his status as the younger children’s father was set aside.
In February 2007, the court returned appellant’s older two children to their father’s custody and set a section 366.26 hearing to select and implement a permanent plan for the two younger children. In June 2007, the court, having found the younger children adoptable, terminated parental rights.
DISCUSSION
Appellant challenges for the first time the court’s September 2005 post-dispositional finding that ICWA did not apply to the children’s dependency. She contends there were three errors pertaining to ICWA notice. One, she faults the agency because the appellate record does not contain a completed Judicial Council form (JV-130) entitled “Parental Notification of Indian Status.” Two, the notice mailed to the tribes did not include available information regarding the maternal grandmother who, in appellant’s view, “held the key to understanding the family’s Indian heritage.” Three, she alleges the department mailed its notice to an inaccurate address for the United Keetoowah Band of Cherokee Indians, one of the tribes which did not submit a response. The problem for appellant is that the court’s 2005 post-dispositional finding has long been final and thus is no longer subject to this court’s review.
In In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.), 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 criticizes our holding, citing other appellate court rulings, including In re Marinna J. (2001) 90 Cal.App.4th 731 (Marinna J.). The Marinna J. court disagreed with Pedro N. on the theory it was inconsistent with the protections ICWA affords to the interests of Indian tribes. On this point, we differ. This court did 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; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [where this court reversed the denial of a tribe’s motion to intervene after a final order terminating parental rights and invalidated actions dating back to the outset of the dependency and taken in violation of ICWA].) Although appellant also challenges our reasoning as somehow disingenuous, the fact that she is foreclosed from complaining in this court in no way prevents her or anyone else, for that matter, from directly contacting an Indian tribe regarding possible tribal membership.
Even so, we note the facts in the pending case are so different from those in Marinna J. as to make it distinguishable and its analysis inapplicable to this case. The appellate court in Marinna J. made a point of explaining there was no record that the department sent notice of the proceedings either to any of the identified tribes in which the children could be members or to the BIA. (Marinna J., supra, 90 Cal.App.4th at p. 739.) Further, it observed the Marinna J. trial court made no effort to assure compliance with the ICWA notice requirements. It was thus under those circumstances that the appellate court would not invoke the waiver doctrine. (Ibid.)
The present case is altogether different. Inquiries were made and notices were sent. Although appellant complains about the address the agency used for the United Keetoowah Band, the court properly could determine from the registered mailings with return receipts that all of the appropriate tribes and the BIA received notice of the dependency proceedings in compliance with ICWA (25 U.S.C. § 1912). The notion that someone not associated with the United Keetoowah Band must have signed the return receipt is speculative. In addition, the juvenile court in this case made an express finding based on the notice that ICWA was inapplicable and did so only after giving appellant, through her attorney, the opportunity to argue otherwise. Instead, her attorney replied “No” when specifically asked by the court if he had any objection. Under these circumstances, we are confident appellant, by her silence until now, has waived her right to complain.
Alternatively, appellant complains that since she was not present at the September 2005 hearing, we should not find waiver. We seriously doubt a party’s absence from a hearing could excuse her failure to timely challenge a decision reached at such a hearing. Also, as previously noted, her attorney was present at the September 2005 hearing and could have, but did not, object or appeal.
To the extent appellant might complain her attorney was necessarily ineffective, we would disagree on the record before us. Regarding appellant’s complaint about the absence of the Judicial Council form (JV-130), we observe that the form essentially asks a parent whether he or she claims Indian heritage and, if so, with which tribe. Here, the court conducted its own inquiry on the record and in the presence of appellant’s counsel. Thus, counsel reasonably could conclude that substantively, if not procedurally according to a rule of court, the trial court conducted a proper ICWA inquiry of appellant. Regarding appellant’s remaining complaint about the lack of information provided about the maternal grandmother, counsel reasonably could have concluded that because it was only appellant’s father who, during his life, apparently claimed Cherokee heritage that additional information about the maternal grandmother would be of no use. It was not her background that was potentially Indian. (In re Louis S. (2004) 117 Cal.App.4th 622, 630 [it is the agency’s burden to provide the tribe with all possible information about the child’s potential Indian background].) Moreover, it appears appellant overstates her case and resorts to speculation when she characterizes her mother as holding “the key to understanding the family’s Indian heritage.”
In her reply brief, appellant criticizes respondent for not addressing an ineffective assistance claim. This should come as no surprise as our review of her opening brief reveals no such argument. It appears on page 14 of her brief counsel deleted a heading alluding to such a claim. The body of the brief does not raise such a contention.
DISPOSITION
The order terminating parental rights is affirmed.