Opinion
F054268
4-25-2008
In re ANASTASIA S., a Person Coming Under the Juvenile Court Law TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ROY S., Defendant and Appellant
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, Acting P.J., Harris, J., and Wiseman, J.
Roy S. appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his daughter. He contends respondent Tulare County Health and Human Services Agency (agency) failed to properly investigate a claim of possible Indian heritage that the childs mother made at the detention stage of these proceedings. In his view, the agency violated the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) and state law regarding an affirmative and continuing duty to investigate such claims (§ 224.3). On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Anastasia S. tested positive at her birth in January 2007 for amphetamines. Her mother had a history of substance abuse that, as the court would later determine, she kept secret from her family, including appellant. As a result, the agency detained the newborn while she was in a neonatal intensive care unit and initiated the underlying dependency proceedings.
Prior to the first court hearing, the mother signed a Judicial Council form, "PARENTAL NOTIFICIATION OF INDIAN STATUS" (JV-130), in which she marked a box stating "I may have Indian ancestry." Consequently, at a January 24, 2007, detention hearing, the court questioned the mother about the form.
"Ms. [O.], you filled out a form that says you may have Indian ancestry. Tell me what you know about that.
"THE MOTHER: Well, my father is Indian, but he didnt know what background or tribe he was because he was adopted. So Im trying to get information on that from him.
"THE COURT: So youre unsure of his
"THE MOTHER: Very unsure.
"THE COURT: And hes never registered as far as you know?
"THE MOTHER: Right."
The court also inquired of appellant who stated he did not believe he was a member of or eligible for membership with any Native American Indian tribe.
In the course of its detention findings and orders, the court ruled:
"Based on the testimony of the mother or the statement of the mother, the Courts finding [is] that there is insufficient reason to believe that the child is an Indian child. And additionally, the child may be placed with father after he completes the CPR/[Drug Exposed Infant (DEI)] classes, which would make ICWA not applicable.
"However, the agency should continue to investigate. If the mother gets more concrete information, send appropriate notices so that we have all the bases covered. And the parents are directed to provide the social worker with the names and addresses of any relative who may have information regarding Indian ancestry."
There is no evidence in the record that the mother thereafter either obtained more concrete information or at least provided the social worker with relatives names and addresses. Similarly, there is no evidence that appellant followed the courts direction and provided relatives names and addresses. The record is also silent regarding what, if any, further action the agency took.
In February 2007, the Tulare County Superior Court adjudged the newborn a dependent child of the court and removed her from parental custody. The court also authorized the agency to place the newborn with appellant if he provided a negative drug test. However, appellant did not appear for drug testing scheduled soon after the dispositional hearing.
Over the following six months, the mother made no progress and appellant made only minimal progress toward alleviating or mitigating the causes necessitating Anastasias out-of-home placement. In appellants case, although he completed DEI and CPR training, he failed to drug test or visit Anastasia on a regular basis. He was a "no show" on 11 out of 20 scheduled drug testing days. Consequently, at an August 2007 status review hearing, the court made the requisite findings to terminate reunification efforts and set a permanency planning (§ 366.26) hearing for Anastasia. The court also gave appellant notice of his writ remedy, which he did not exercise.
In November 2007, having found it likely Anastasia would be adopted, the court terminated parental rights.
DISCUSSION
For the first time, appellant challenges the lack of ICWA notice in this case. According to appellant, once Anastasias mother signed the Judicial Council form stating she might have Indian heritage and later at the detention hearing claimed her father was Indian, the law required the agency to inquire further of the mother and her extended family. Appellant assumes, on the silent record, that the agency did not make any further inquiry. Notably, he does not contend the court erred at the detention hearing when it found insufficient reason to believe Anastasia was an Indian child. As discussed below, appellants argument fails for more than one reason.
First, his argument is untimely. The ICWA issue emerged at the outset of the proceedings and was thus reviewable by appeal from the trial courts February 2007 dispositional order. (§ 395, subd. (a); Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.) However, appellant did not appeal nor, as we previously noted, did he seek writ review of the trial courts August 2007 setting order. The courts dispositional decision and six-month findings and orders have long been final. Consequently, the time for appellant to raise the ICWA compliance issue has passed. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).) In Pedro N., this court held a parent who fails to timely challenge a juvenile courts action regarding ICWA is foreclosed from raising ICWA notice issues once the courts 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 tries to both distinguish Pedro N. and persuade us to revisit our holding in light of other appellate court rulings, such as Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 (Dwayne P.). In Dwayne P., an appellate court found an attorneys remarks did not amount to a waiver of an alleged ICWA violation. Citing another decision out of this court, In re Desiree F. (2000) 83 Cal.App.4th 460, 471 (Desiree F.), the Dwayne P. court quoted "`[t]here is nothing either in the ICWA or the case law interpreting it which enables anyone to waive the tribes right to notice and right to intervene in child custody matters." (Dwayne P., supra, at pp. 257-258.)
Our decisions in Desiree F. and Pedro N. are not inconsistent nor is our Pedro N. decision inconsistent with the protection ICWA affords Indian tribes. In Desiree F., this court reversed the denial of a tribes motion to intervene after a final order terminating parental rights even though the birth parents had not sought review. In addition, while Pedro N. concluded the parent, by failing to make a timely challenge, waived her right to complain on appeal, we did not foreclose a tribes rights under ICWA due to the parents appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185.)
In any event, we also note that appellants argument is based on speculation and a silent record, rather than an affirmative showing of record error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
DISPOSITION
The order terminating parental rights is affirmed.